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Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF CONNECTICUT
In re : Chapter 11
:
BIO-PLEXUS, INC., : Case No. 01-21079 RLK
:
Debtor. :
:
DEBTOR'S PLAN OF REORGANIZATION
Bio-Plexus, Inc., proposes the following plan of reorganization
pursuant to Bankruptcy Code section 1121.
ARTICLE I
DEFINITIONS
A. As used in this Plan, the following terms (which appear in this Plan
as capitalized terms) shall have the meanings specified below:
1. "ADMINISTRATIVE CLAIM" means any Claim for an administrative expense
of the kind described in Bankruptcy Code section 503(b), including, without
limitation, any actual and necessary costs and expenses of preserving the
Debtor's estate incurred after the commencement of the Case and prior to
confirmation of this Plan, any actual and necessary costs of operating the
Debtor's business after the commencement of the Case and prior to confirmation
of this Plan, any indebtedness or obligations incurred by the Debtor in
connection with the operation of its business or for the acquisition or lease of
property or the rendition of services after the commencement of the Case and
prior to confirmation of this Plan, any fees and expenses allowed under
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sections 330 and 331, and any fees due to the Office of the United States
Trustee under 28 U.S.C. Section 1930(a)(6).
2. "ALLOWED CLAIM" means (a) any Claim to the extent it has not been
withdrawn, paid in full or otherwise deemed satisfied in full and proof of which
has been filed on or before the date designated by the Bankruptcy Court for
filing proofs of claim (or, if not filed by such date, filed by such other date
as the Bankruptcy Court orders), or, if no proof of claim is filed, any Claim
that has been or hereafter is listed by the Debtor on its Schedules as
liquidated in amount, not disputed and not contingent and, in all cases, a Claim
as to which no objection has been filed, or as to which an objection has been
filed and such Claim has been allowed in whole or in part by a Final Order, but
only to the extent allowed by such Final Order, and (b) any Claim allowed
pursuant to this Plan.
3. "ALLOWED INTEREST" means any Interest in the Debtor (exclusive of
any shares of stock representing such Interest held in treasury) either (i) not
timely objected to or (ii) allowed (but only to the extent allowed) by a Final
Order.
4. "ALLOWED PRIORITY CLAIM" means any Claim entitled to priority under
Bankruptcy Code sections 507(a)(3), (4), (5), (6), (7) or (9) to the extent it
is an Allowed Claim.
5. "ALLOWED SECURED CLAIM" means that portion of a Claim that is
secured by a valid perfected lien on property of the Debtor, to the extent of
the value of the interest of the holder of such Claim in such property of the
Debtor, as determined by agreement between the Debtor and the holder of such
Claim (with the prior written consent of Appaloosa) or by the Bankruptcy Court
by a Final Order under Bankruptcy Code section 506, to the extent that it is an
Allowed Claim.
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6. "ALLOWED TAX CLAIM" means a Claim for any Tax entitled to priority
under Bankruptcy Code section 507(a)(8) to the extent it is an Allowed Claim.
7. "ALLOWED UNSECURED CLAIM" means an Allowed Claim that is not an
Allowed Secured Claim, Administrative Claim, Tax Claim, or Priority Claim.
8. "APPALOOSA" means, collectively, Appaloosa Management, L.P., a
___________ limited partnership, Appaloosa Investment Limited Partnership I,
Palomino Fund Ltd. and Tersk LLC.
9. "APPALOOSA WARRANTS" means warrants to purchase 1,314,060 shares of
New Common Stock having an exercise price equal to the Conversion Price, to be
issued to Appaloosa on the Effective Date as more particularly described in
Article V, P. B of this Plan, and issued pursuant to the New Warrant Agreement.
10. "APPLICABLE RATE" means (a) the Legal Rate of interest or (b) where
a contract between the Debtor and a Creditor specifies an interest rate, such
contract rate.
11. "BANKRUPTCY CODE" means title 11 of the United States Code, as in
effect on the Petition Date.
12. "BANKRUPTCY COURT" means the United States Bankruptcy Court for the
District of Connecticut, Hartford Division or any other court having
jurisdiction over this case.
13. "BANKRUPTCY RULES" means the Federal Rules of Bankruptcy Procedure,
the Local Rules of Civil Procedure of the United States District Court for the
District of Connecticut, the Local Rules of Bankruptcy Procedure for the United
States Bankruptcy Court for the District of
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Connecticut, and any standing orders of the Bankruptcy Court, each of the
foregoing as in effect on the Petition Date.
14. "BUSINESS DAY" means any day other than a Saturday, a Sunday or a
legal holiday (as that term is defined in Bankruptcy Rule 9006(a)).
15. "CASE" means the chapter 11 case commenced by the Debtor on the
Petition Date and pending before the Bankruptcy Court.
16. "CASH" means currency of the United States of America and cash
equivalents.
17. "CLAIM" means (a) any right to payment or return of property from
the Debtor, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (b) any right to an equitable remedy
for breach of performance if such breach gives rise to a right of payment from
the Debtor, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
18. "CLASS" means each class of Allowed Claims or Interests established
pursuant to Article III of this Plan.
19. "CONFIRMATION DATE" means the date upon which the Confirmation
Order is entered by the Bankruptcy Court.
20. "CONFIRMATION ORDER" means the order of the Bankruptcy Court
confirming this Plan pursuant to Bankruptcy Code section 1129.
21. "CONVERSION PRICE" means $2.283.
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22. "CREDITOR" means an entity that has a Claim against (a) the Debtor
that arose at the time of or before the Petition Date or (b) the Debtor's estate
of a kind specified in Bankruptcy Code section 502(g), (h) or (i).
23. "DEBTOR" means Bio-Plexus, Inc., a Connecticut corporation, as
debtor and debtor-in-possession under the Bankruptcy Code.
24. "DIP CLAIMS" means the Claims of Appaloosa under and/or in respect
of the DIP Facility.
25. "DIP FACILITY" means the debtor in possession financing facility
for up to $300,000.00 to be provided by Appaloosa to the Debtor.
26. "DISCLOSURE STATEMENT" means the Disclosure Statement For Plan of
Reorganization approved by the Bankruptcy Court in connection with this Plan
pursuant to Bankruptcy Code section 1125, and any exhibits or duly authorized
amendments thereto.
27. "DISPUTED CLAIM" means a Claim that is not an Allowed Claim. To the
extent an objection relates to the allowance of only a part of a Claim, such
Claim shall be a Disputed Claim only to the extent of the objection unless there
is another basis to designate such Claim as a Disputed Claim.
28. "EFFECTIVE DATE" means (a) the first Business Day after ten days
have elapsed following the Confirmation Date (or such later date agreed to in
writing between the Debtor and Appaloosa) provided no stay of the Confirmation
Order is in effect or (b) if the Confirmation Order has been stayed by a court
of competent jurisdiction, the first Business Day following the date on which
such
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stay is no longer in effect; provided, however, that if on or prior to such date
all conditions to the Effective Date set forth in Article IX of this Plan have
not been satisfied or waived in accordance with the terms of section IX of this
Plan, then the Effective Date shall be the first Business Day following the day
on which all such conditions to the Effective Date have been satisfied or
waived.
29. "ENTITY" means a person (as defined in Bankruptcy Code section
101(41)), estate, trust, governmental unit (as defined in Bankruptcy Code
section 101(27)), and the United States trustee.
30. "FINAL ORDER" means an order, ruling, judgment or decree of the
Bankruptcy Court which has not been reversed, stayed, modified or amended and as
to which the time to appeal or to seek certiorari has expired and as to which no
appeal or petition for certiorari or rehearing is pending or as to which any
right to appeal or to seek certiorari or rehearing has been waived in writing in
a manner satisfactory to the Debtor and Appaloosa.
31. "INTEREST" means the equity interests in the Debtor, including, but
not limited to, shares of common stock and shares of preferred stock of the
Debtor and any rights, options, warrants, calls, subscriptions or other similar
rights or agreements, commitments or outstanding securities obligating the
Debtor to issue, transfer or sell any shares of capital stock of the Debtor.
32. "LEGAL RATE" means the rate specified in 28 U.S.C.Section1961,
effective as of the Confirmation Date.
33. "NEW COMMON STOCK" means the shares of common stock of the
Reorganized Debtor to be issued by the Reorganized Debtor pursuant to this Plan.
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34. "NEW EQUITY INCENTIVE PLAN" shall have the meaning set forth in
Article V, P. H of this Plan.
35. "NEW WARRANT AGREEMENT" means that certain warrant agreement
governing the Appaloosa Warrants having terms and conditions acceptable to
Appaloosa in its sole discretion, the form of which will be filed with the
Bankruptcy Court no later than two (2) Business Days before the Confirmation
Hearing.
36. "OLD COMMON STOCK" means the Debtor's existing common stock.
37. "OLD WARRANTS" means the Debtor's existing warrants, stock options
and similar equity securities.
38. "OTHER INTERESTS" shall mean all Interests other than Old Common
Stock Interests, including Interests of holders of Old Warrants.
39. "PERFORMANCE TARGETS" shall have the meaning set forth in Article
V,P. C of this Plan.
40. "PETITION DATE" means April 4, 2001.
41. "PLAN" means this Plan of Reorganization and any exhibits or duly
authorized amendments hereto.
42. "PRIVATE PLACEMENT" shall have the meaning set forth in Article
V,P. B of this Plan.
43. "PRIVATE PLACEMENT CONDITIONS" shall be (a) the Effective Date
having occurred on or before June 30, 2001, and (2) there not having occurred
any "material adverse change" in the development and launch of the Winged Set
product. A "material adverse change" with respect to the Winged Set shall mean a
material adverse development which would have the effect of
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materially delaying the commercial launch of the Winged Set beyond June 15,
2001, or a material development that could adversely affect the Debtor's ability
to maintain the commercial viability of the Winged Set following launch. In all
cases, determination of the materiality of such event will be in Appaloosa's
sole reasonable discretion.
44. "RECORD DATE" means the Confirmation Date.
45. "RELEASEE" means, solely in their capacity as representatives of
the Debtor, each of the Debtor's current and former officers, directors and
employees.
46. "REORGANIZED DEBTOR" means the Debtor on and after the Effective
Date.
47. "SCHEDULES" means the schedules of assets and liabilities and the
statement of financial affairs, as may be amended, filed by the Debtor with the
Bankruptcy Court pursuant to Bankruptcy Code section 521 and Bankruptcy Rule
1007.
48. "TAX" means any tax, charge, fee, levy, impost or other assessment
by any federal, state, local or foreign taxing authority, including, without
limitation, income, excise, property, sales, transfer, employment, payroll,
franchise, profits, license, use, ad valorem, estimated, severance, stamp,
occupation and withholding tax. "Tax" shall include any interest or additions
attributable to, imposed on or with respect to such assessments.
49. "UNCLAIMED PROPERTY" means any Cash (together with any interest
earned thereon) that is unclaimed within six months after such Cash is
distributed, and shall include: (a) checks (and the funds represented thereby)
that have been returned as undeliverable; (b) funds for checks that have
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not been paid or negotiated; and (c) checks (and the funds represented thereby)
that were not mailed or delivered because of the absence of a proper address to
which to mail or deliver the same.
B. Terms not defined herein which are defined in the Disclosure
Statement shall have the meaning assigned to such term in the Disclosure
Statement. A term used in this Plan that is not defined in this Plan or the
Disclosure Statement but that is defined in the Bankruptcy Code or Bankruptcy
Rules shall have the meaning assigned to that term in the Bankruptcy Code or the
Bankruptcy Rules. Any references to "Winged Set" herein shall have the same
meaning as defined in the Disclosure Statement.
ARTICLE II
ADMINISTRATIVE CLAIMS AND ALLOWED TAX CLAIMS
A. ADMINISTRATIVE CLAIMS. Administrative Claims are not classified
under this Plan and have no right to accept or reject this Plan. Each Entity
holding an Allowed Administrative Claim (other than the DIP Claims) shall be
paid (1) in full in Cash on the later of (a) the Effective Date and (b) the date
of the entry of a Final Order allowing and determining such Administrative
Claim, or (2) on such other less favorable terms as may be agreed to by and
among the Debtor, Appaloosa and such Entity; provided, however, that
Administrative Claims representing liabilities incurred by the Debtor in the
ordinary course of its business during the Case shall be paid by the Debtor in
accordance with the terms and provisions of the particular transactions and
agreements relating thereto.
B. DIP CLAIMS OF APPALOOSA. In connection with the consummation of the
Private Placement, all DIP Claims of Appaloosa, if any, shall be satisfied by
means of a reduction of the
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purchase price to be paid by Appaloosa under the Private Placement equal to the
aggregate amount of the DIP Claims. In the event that the Effective Date does
not occur on or before June 30, 2001, at any time thereafter, Appaloosa may
elect, in its sole and absolute discretion, to have all DIP Claims, if any,
immediately paid by the Debtor or the Reorganized Debtor, as applicable, in
full, in Cash. In the event that the Private Placement fails to be consummated
as a result of (i) a failure to satisfy any of the Private Placement Conditions
or (ii) the occurrence of any other event not directly caused by any act or
omission of Appaloosa, then all obligations of the Debtor under the DIP Facility
shall become immediately due and payable in full, in Cash by the Debtor or
Reorganized Debtor, as applicable, to Appaloosa.
C. ALLOWED TAX CLAIMS. Allowed Tax Claims are not classified under this
Plan and have no right to accept or reject this Plan. Each Entity holding an
Allowed Tax Claim shall receive, at the option of the Debtor (with the consent
of Appaloosa), the following: (1) payment in full, including interest at the
Applicable Rate, in Cash on the later of (a) the Effective Date of this Plan and
(b) the date of entry of a Final Order allowing and determining such Tax Claim,
(2) deferred Cash payments in quarterly installments over a period not exceeding
six years after the date of assessment of such Tax Claim of a value, as of the
Effective Date, equal to the amount of such Allowed Tax Claim, or (3) payment on
such other less favorable terms as may be agreed to by and among the Debtor,
Appaloosa and such Entity.
ARTICLE III
DESIGNATION OF CLASSES OF CLAIMS AND
CLASSES OF INTERESTS AND SPECIFICATION
OF CLASSES OF CLAIMS OR CLASSES
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OF INTERESTS IMPAIRED UNDER THIS PLAN
All Allowed Claims against the Debtor, of whatever nature, are hereby
classified as follows:
A. CLASS 1 - ALLOWED SECURED CLAIM OF VICTOR AND MARGARET DEMATTIA.
Class 1 consists of the Allowed Secured Claim of Victor and Margaret DeMattia.
This class is not impaired under and is not entitled to vote on this Plan.
B. CLASS 2 - ALLOWED SECURED CLAIM OF SPAFFORD LEASING. Class 2
consists of the Allowed Secured Claim of Spafford Leasing. This class is not
impaired under and is not entitled to vote on this Plan.
C. CLASS 3 - ALLOWED PRIORITY CLAIMS UNDER BANKRUPTCY CODE SECTION
507(a)(3). Class 3 consists of any and all unpaid Allowed Priority Claims under
Bankruptcy Code section 507(a)(3). This class is not impaired under and is not
entitled to vote on this Plan.
D. CLASS 4 - ALLOWED PRIORITY CLAIMS UNDER BANKRUPTCY CODE SECTION
507(a)(4). Class 4 consists of any and all unpaid Allowed Priority Claims under
Bankruptcy Code section 507(a)(4). This class is not impaired under and is not
entitled to vote on this Plan.
E. CLASS 5 - ALLOWED SECURED CLAIM OF APPALOOSA. Class 5 consists of
the Allowed Secured Claim of Appaloosa. This class is impaired under and is
entitled to vote on this Plan.
F. CLASS 6 - ALLOWED UNSECURED CLAIMS. Class 6 consists of all Allowed
Unsecured Claims. This class is not impaired under and is not entitled to vote
on this Plan. Under Bankruptcy Code section 1126(f), the holders of such Allowed
Unsecured Claims are conclusively presumed to accept this Plan, and the
acceptances of such holders will not be solicited.
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G. CLASS 7 - ALLOWED INTERESTS OF HOLDERS OF OLD COMMON STOCK. Class 7
consists of all Allowed Interests of holders of Old Common Stock. This class is
impaired under and is entitled to vote on this Plan.
H. CLASS 8 - ALLOWED INTERESTS OF HOLDERS OF OTHER INTERESTS. Class 8
consists of Allowed Interests of holders of Other Interests. This class is
impaired under this Plan and is deemed not to have accepted this Plan under
Bankruptcy Code section 1126(g). With respect to Class 8 and any impaired Class
that does not accept this Plan, the Debtor intends to seek confirmation of this
Plan in accordance with section 1129(b) of the Bankruptcy Code notwithstanding
such failure to accept.
ARTICLE IV
TREATMENT OF CLASSES OF CLAIMS AND
CLASSES OF INTERESTS UNDER THIS PLAN
In full satisfaction and discharge of all of the Claims against or
Interests in the Debtor:
A. CLASS 1 - ALLOWED SECURED CLAIM OF VICTOR AND MARGARET DEMATTIA. On
the Effective Date, the Debtor shall cure any default with respect to the
Allowed Secured Claim of Victor and Margaret DeMattia that occurred before or
after the commencement of the Case, other than a default of a kind specified in
Bankruptcy Code section 365(b)(2); the maturity of the Allowed Secured Claim of
Victor and Margaret DeMattia shall be reinstated under Bankruptcy Code section
1124(2) as such maturity existed before any default; and the legal, equitable,
or contractual rights to which the Allowed Secured Claim of Victor and Margaret
DeMattia entitles Victor and Margaret DeMattia shall not otherwise be altered.
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B. CLASS 2 - ALLOWED SECURED CLAIM OF SPAFFORD LEASING. On the
Effective Date, the Debtor shall cure any default under the Allowed Secured
Claim of Spafford Leasing that occurred before or after the commencement of the
Case, other than a default of a kind specified in Bankruptcy Code section
365(b)(2); the maturity of the Allowed Secured Claim of Spafford Leasing shall
be reinstated under Bankruptcy Code section 1124(2) as such maturity existed
before any default; and the legal, equitable, or contractual rights to which the
Allowed Secured Claim of Spafford Leasing entitles Spafford Leasing shall not
otherwise be altered.
C. CLASS 3 - ALLOWED PRIORITY CLAIMS UNDER BANKRUPTCY CODE SECTION
507(a)(3). In full and complete satisfaction of its Claim, each Entity holding
an Allowed Priority Claim under Bankruptcy Code section 507(a)(3) shall be paid
(1) in full, including interest thereon at the Applicable Rate, in Cash on the
later of Effective Date and the date such Claim becomes an Allowed Claim or (2)
on such other less favorable terms as may be agreed to by and among the Debtor,
Appaloosa and such Entity.
D. CLASS 4 - ALLOWED PRIORITY CLAIMS UNDER BANKRUPTCY CODE SECTION
507(a)(4). In full and complete satisfaction of its Claim, each Entity holding
an Allowed Priority Claim under Bankruptcy Code section 507(a)(4) shall be paid
(1) in full, including interest thereon at the Applicable Rate, in Cash on the
later of Effective Date and the date such Claim becomes an Allowed Claim or (2)
on such other less favorable terms as may be agreed to by and among the Debtor,
Appaloosa and such Entity.
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E. CLASS 5 - ALLOWED SECURED CLAIM OF APPALOOSA. In full and complete
satisfaction of its Claim (in addition to the treatment provided in the next
succeeding paragraph), on the Effective Date, in exchange for its Allowed
Secured Claim, Appaloosa shall receive (a) 8,501,224 shares of New Common Stock,
which in all events shall represent 85% of the Reorganized Debtor's outstanding
capital stock, subject to dilution for shares of New Common Stock issued under
any new employee retention programs (including, without limitation, the New
Equity Incentive Plan) and in respect of the Private Placement and the Appaloosa
Warrants, (b) the Appaloosa Warrants, and (c) the right to participate in the
Private Placement in accordance with Article V, P. B of this Plan. The
Confirmation Order shall provide for the expungement of all the liens of
Appaloosa upon, and subject to the occurrence of, the Effective Date and the
delivery to Appaloosa of the shares of New Common Stock, Appaloosa Warrants and
Cash in an amount necessary to reimburse Appaloosa for its expenses in such
amounts and to the extent provided under this Plan.
In addition, on the Effective Date, the Reorganized Debtor will pay, in
Cash, the reasonable expenses of Appaloosa incurred in connection with the
restructuring of the Debtor and negotiating the terms of this Plan and any and
all related documents, including the reasonable fees, expenses and disbursements
owed by Appaloosa to its legal advisor, Fried, Frank, Harris, Shriver &
Jacobson, and on and after the Effective Date, the Reorganized Debtor will pay
on a monthly basis upon written request by Appaloosa all such unpaid expenses of
Appaloosa incurred in connection with any of the transactions contemplated under
this Plan, including, without limitation, the Private Placement.
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The aggregate Secured Claims of Appaloosa in Class 5 relate to certain
of the Debtor's obligations under that certain Convertible Note Purchase
Agreement, dated as of April 28, 2000 (the "Convertible Note Purchase
Agreement"), shall be deemed Allowed pursuant to this Plan in the aggregate
amount of $19,169,153.60, plus interest in accordance with the terms of the
Convertible Note Purchase Agreement between the Debtor and Appaloosa after April
3, 2001 until and including the Petition Date.
F. CLASS 6 - ALLOWED UNSECURED CLAIMS. In full and complete
satisfaction of its Claim, each Entity holding an Allowed Unsecured Claim shall
be paid (1) in full, including interest thereon at the Applicable Rate, in Cash
on the later of Effective Date and the date such Claim becomes an Allowed Claim
or (2) on such other less favorable terms as may be agreed to by and among the
Debtor, Appaloosa and such Entity.
G. CLASS 7 - ALLOWED INTERESTS OF HOLDERS OF OLD COMMON STOCK. In full
and complete satisfaction of its Old Common Stock Interest, on the Effective
Date, each holder of Old Common Stock shall receive their pro rata share of
1,500,216 shares of the New Common Stock, which shall equal 15% of the
Reorganized Debtor's capital stock subject to dilution for shares of New Common
Stock issued under any new employee retention programs (including, without
limitation, the New Equity Incentive Plan) and in respect of the Private
Placement and the Appaloosa Warrants. Each holder of Old Common Stock shall
receive one share of New Common Stock in exchange for every ten (10) shares of
Old Common Stock held by such holder.
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H. CLASS 8 - ALLOWED INTERESTS OF HOLDERS OF OTHER INTERESTS. On the
Effective Date, all Other Interests, including any outstanding Old Common
Warrants, will be canceled and deemed extinguished. Holders of Other Interests
shall receive no distributions under this Plan.
ARTICLE V
MEANS FOR EXECUTION OF THIS PLAN
A. DISTRIBUTIONS. The Reorganized Debtor shall make all distributions
required by this Plan. All costs and expenses in connection with such
distributions shall be borne by the Reorganized Debtor. At the option of the
Reorganized Debtor, distributions may be made in Cash, by wire transfer or by a
check drawn on a domestic bank. Whenever payment of a fraction of a cent would
otherwise be called for, the actual payment shall reflect a rounding of such
fraction down to the nearest whole cent.
Pursuant to Bankruptcy Code section 347, except as otherwise provided
herein, in the event and at such time as any distribution under this Plan
becomes Unclaimed Property, the Entity to which such distribution was to have
been made shall forfeit all rights thereto, and to any and all future payments,
and thereafter the Claim in respect of which such distribution was to have been
made shall be treated as disallowed. Such Unclaimed Property shall become the
property of the Reorganized Debtor.
B. APPALOOSA PRIVATE PLACEMENT. Immediately following the Effective
Date, the Reorganized Debtor shall issue to Appaloosa 1,314,060 shares of New
Common Stock pursuant to a private placement (the "Private Placement") for a
purchase price of $3 million (i.e., 1,314,060 shares multiplied by the
Conversion Price). The Private Placement shall be subject to definitive
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documentation containing terms and conditions customary for similar private
placement transactions as well as any and all other terms and conditions
acceptable to Appaloosa in its sole discretion. In the event that the Private
Placement is consummated, the purchase price to be paid by Appaloosa will be
satisfied, in part, by and to the extent of the cancellation of all amounts, if
any, outstanding under the DIP Facility. Appaloosa's obligation to purchase
shares of New Common Stock in the Private Placement is conditioned upon the
Private Placement Conditions. Funds received in the Private Placement by the
Reorganized Debtor will be used by the Reorganized Debtor for general corporate
purposes. In the event that the Private Placement fails to be consummated as a
result of (i) a failure to satisfy any of the Private Placement Conditions or
(2) the occurrence of any other event not directly caused by any act or omission
of Appaloosa, then all obligations of the Debtor under the DIP Facility shall
become immediately due and payable in full, in Cash by the Debtor or Reorganized
Debtor, as applicable, to Appaloosa.
C. THE APPALOOSA WARRANTS. On the Effective Date, the Reorganized
Debtor will issue the Appaloosa Warrants to Appaloosa pursuant to the New
Warrant Agreement and Article IV, P. F of this Plan. The Appaloosa Warrants will
become callable by the Reorganized Debtor at $0.01, to the extent set forth
below, once the following performance targets (the "Performance Targets") have
been achieved:
1. $1.5 million worth of the Appaloosa Warrants will be callable when
"net sales" (as reported in accordance with GAAP) of the Winged Set product
reach $1,800,000.00.
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2. The final $1.5 million of the Appaloosa Warrants will be callable
when the Winged Set product "net sales" (as reported in accordance with GAAP)
reach $4.0 million. Once a Performance Target is attained, the Appaloosa
Warrants will be (i) callable by the Reorganized Debtor (solely to the extent
provided above) at any time following the date that is 45 days after Appaloosa
receives written notice from the Reorganized Debtor and (ii) exercisable by
Appaloosa for a 30 day period following the date that Appaloosa receives written
notice that a Performance Target has been attained. Total proceeds to the
Reorganized Debtor if Appaloosa exercises all of the Appaloosa Warrants will be
$3 million.
D. REINCORPORATION. On the Effective Date, the Reorganized Debtor shall
be reincorporated as a Delaware corporation by means of a merger with a newly
created wholly owned subsidiary of the Debtor.
E. OBJECTIONS TO CLAIMS. From and after the Effective Date, the
Reorganized Debtor shall be responsible for pursuing any objections to Claims.
Objections to Claims, if any, with the exception of any Claim to which an
objection may be filed under Bankruptcy Code section 502(d) (as to which Claims
an objection need not be filed within the time period set forth hereinafter),
shall be filed with the Bankruptcy Court and served upon each holder of a
Disputed Claim on or before the 120th day after the Effective Date. The
Reorganized Debtor shall have the right to petition the Bankruptcy Court for an
extension of such date if a complete review of all Claims cannot be completed by
such date.
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Except as otherwise set forth herein, objections to Claims which are
not filed on or before the 120th day after the Effective Date are barred,
precluded and may not be raised. With respect to any Claim for which no
objection is filed within such time, such Claim shall be deemed an Allowed Claim
for the amount specified in a timely filed proof of Claim with respect to such
Claim, or, if no timely filed proof of Claim exists, in the amount specified in
the Schedules, unless the Claim was specified in the Schedules as being
disputed, contingent or unliquidated.
If no timely filed proof of Claim exists, and the Claim either (i) was
not listed in the Schedules or (ii) was specified in the Schedules as being
disputed, contingent or unliquidated, the Claim shall be barred and no
distribution shall be made thereon. With respect to any Claim for which a timely
objection (which shall expressly be deemed to include any application, motion or
complaint seeking subordination of a Claim) is filed (i.e., a Disputed Claim),
no distribution shall be made to the holder of any such Disputed Claim, in whole
or in part, until the entry of a Final Order or judgment determining the allowed
amount of such Disputed Claim. Upon final determination of the allowed amount of
the Disputed Claim, payment will be made to the holder of the Disputed Claim to
the extent necessary to pay the allowed amount of such Claim as allowed.
F. DEBTOR'S ACTIONS. On the Effective Date, the Reorganized Debtor
shall be authorized and directed to execute and to deliver all documents and
agreements and issue and deliver all securities contemplated by this Plan,
including the New Common Stock and the Appaloosa Warrants.
G. BOARD OF DIRECTORS. On and as of the Effective Date, the Board of
Directors of the Reorganized Debtor shall consist of five (5) members. On the
Effective Date, Appaloosa, as the
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majority shareholder of the Reorganized Debtor, shall have the right to appoint
three (3) of the directors of the Reorganized Debtor. On the Effective Date, the
two other directors shall be the Reorganized Debtor's chief executive officer
and a management employee to be agreed upon by Appaloosa and the Reorganized
Debtor.
H. EMPLOYEE RETENTION. On the Effective Date, the Reorganized Debtor
shall establish an equity incentive plan (the "New Equity Incentive Plan") and
shall reserve for issuance thereunder 10% of the New Common Stock on a fully
diluted basis (subject to dilution for shares issued in connection with the
Private Placement and the Appaloosa Warrants) (approximately 1,11,271 shares).
On the Effective Date, the Reorganized Debtor shall issue options and restricted
stock pursuant to the New Equity Incentive Plan to certain of its then current
employees to be determined by the Reorganized Debtor and Appaloosa. The exercise
price of any stock options granted under the New Equity Incentive Plan on the
Effective Date shall be equal to the Conversion Price. All such options will
vest ratably over three years, and will be subject to acceleration in the event
of an acquisition of the Reorganized Debtor by a third party. The New Equity
Incentive Plan will have such other terms and conditions as agreed upon between
the Debtor and Appaloosa. The solicitation of votes on this Plan shall be deemed
a solicitation of the holders of New Common Stock for approval of the New Equity
Incentive Plan. Entry of the order confirming this Plan shall constitute such
approval and the Confirmation Order shall so provide. Grants under the New
Equity incentive Plan shall not be effective until after the Effective Date.
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I. SURVIVAL OF INDEMNIFICATION AND CONTRIBUTION OBLIGATIONS.
Notwithstanding anything to the contrary contained in this Plan, the obligations
of the Debtor to indemnify and/or provide contribution to its present or former
directors, officers, agents, employees and representatives, pursuant to the
Certificate of Incorporation, By-Laws, applicable statutes or contractual
obligations, in respect of all past, present and future actions, suits and
proceedings against any of such directors, officers, agents, employees and
representatives, based upon any act or omission related to service with, for or
on behalf of the Debtor, shall not be discharged or impaired by confirmation or
consummation of this Plan but shall survive unaffected by the reorganization
contemplated by this Plan and shall be treated as, and deemed to be, Allowed
Unsecured Claims that are unimpaired pursuant to this Plan.
ARTICLE VI
TREATMENT OF EXECUTORY
CONTRACTS AND UNEXPIRED LEASES
The Debtor will seek Bankruptcy Court approval to assume or reject any
executory contracts or leases of nonresidential real property that have not been
assumed or rejected as of the Confirmation Date. The Debtor will seek to assume
any contracts or leases that have value or add value to other property of the
Debtor. The Debtor will seek to reject any contracts or leases that are of no
value to the Debtor and its estate.
ARTICLE VII
EFFECTS OF PLAN CONFIRMATION
A. DISCHARGE. Except as otherwise expressly provided in this Plan or
the Confirmation Order, upon the occurrence of the Effective Date, the Debtor
shall be discharged, effective
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immediately, from any Claim and any "debt" (as that term is defined in
Bankruptcy Code section 101(12)), and the Debtor's liability in respect thereof
shall be extinguished completely, whether reduced to judgment or not, liquidated
or unliquidated, contingent or noncontingent, asserted or unasserted, fixed or
not, matured or unmatured, disputed or undisputed, legal or equitable, known or
unknown, that arose from any agreement of the Debtor entered into or obligation
of the Debtor incurred before the Confirmation Date, or from any conduct of the
Debtor prior to the Confirmation Date, or that otherwise arose before the
Confirmation Date, including, without limitation, all interest accrued and
expenses incurred, if any, on any such debts, whether or not a proof of claim
was filed or is deemed filed under Bankruptcy Code section 501, such claim is
allowed under Bankruptcy Code section 502 or the Entity holding such Claim has
accepted this Plan. Without limiting the foregoing, the Debtor shall be
discharged from all debts in accordance with section 1141 of the Bankruptcy
Code.
B. REVESTING. Except as otherwise expressly provided in this Plan or
the Confirmation Order, on the Effective Date, without any further action, the
Reorganized Debtor will be vested with all property of the estate free and clear
of all Claims, liens and Interests and may operate its business and may use,
acquire or dispose of its assets free and clear of any restrictions imposed by
the Bankruptcy Code or the Bankruptcy Court. Except as otherwise expressly
provided in this Plan or Confirmation Order, all claims against third parties on
account of, and all causes of action owed to or in favor of, the Debtor
(including, without limitation, any claims, rights or causes of action arising
under Bankruptcy Code sections 544, 547, 548, 549 and 550) are hereby preserved
and retained for
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enforcement solely and exclusively by and at the discretion of the Reorganized
Debtor and are vested in the Reorganized Debtor on the Effective Date.
C. RELEASES. From and after the Effective Date, each of the Releasees
shall be released from any and all claims, obligations, suits, judgments,
damages, rights, causes of action and liabilities whatsoever, whether known or
unknown, foreseen or unforeseen, existing or hereafter arising, in law, equity
or otherwise, based in whole or in part upon any act or omission, transaction,
agreement, event or other occurrence taking place on or prior to the Effective
Date in any way relating to, but solely to the extent relating to, the Debtor,
the Case or this Plan, except for claims or liabilities (i) based upon fraud or
wilful misconduct, (ii) in respect of any loan, advance or similar payment by
the Debtor to any such Releasee or (iii) in respect of any contractual
obligation owed by such Releasee to the Debtor.
From and after the Effective Date, Appaloosa shall be released from any
and all claims, obligations, suits, judgments, damages, rights, causes of action
and liabilities whatsoever, whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, based in whole or in
part upon any act or omission, transaction, agreement, event or other occurrence
taking place on or prior to the Effective Date in any way relating to, but
solely to the extent relating in any way to, the Debtor, the DIP Facility, the
New Purchase Agreement, the Case or this Plan.
D. INJUNCTIONS AND STAYS. Unless otherwise provided in this Plan or the
Confirmation Order, all injunctions and stays provided for in the Case pursuant
to Bankruptcy Code sections 105 and 362 or otherwise in effect on the
Confirmation Date, shall remain in full force and effect until
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the Effective Date. From and after the Effective Date, Creditors and holders of
Allowed Interests are permanently enjoined from, and restrained against,
commencing or continuing in any court or suit, action or other proceeding, or
otherwise asserting any claim or interest, seeking to hold (a) the Debtor or the
Reorganized Debtor, (b) the property of the Debtor or the Reorganized Debtor,
(c) any of the Releasees or (d) Appaloosa liable for any claim, obligation,
right, interest, debt or liability that has been discharged or released pursuant
to this Plan.
ARTICLE VIII
PROVISIONS COVERING DISTRIBUTIONS
A. TIMING OF DISTRIBUTIONS UNDER THIS PLAN. Except as other otherwise
provided in this Plan and without in any way limiting this Plan, payments and
distributions in respect of Allowed Claims and Allowed Interests which are
required by this Plan to be made on the Effective Date shall be made by the
Debtor, Reorganized Debtor or its designee.
B. ALLOCATION OF CONSIDERATION. The aggregate consideration to be
distributed to the holders of Allowed Claims in each Class under this Plan shall
be treated as first satisfying an amount equal to the stated principal amount of
the Allowed Claim for such holders and any remaining consideration as satisfying
accrued, but unpaid, interest, if any.
C. PAYMENT OF STATUTORY FEES. All fees payable pursuant to 28
U.S.C.Section 1930 as determined by the Bankruptcy Court at the Confirmation
Hearing shall be paid by the Debtor on or before the Effective Date.
D. FRACTIONAL SECURITIES. Notwithstanding any other provision of this
Plan, only whole numbers of shares of New Common Stock will be issued or
transferred, as the case may be, pursuant
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to this Plan. Reorganized Debtor will not distribute any factional shares of New
Common Stock. For purposes of distribution, fractional shares of New Common
Stock shall be rounded up to the nearest share of New Common Stock.
E. WITHHOLDING OF TAXES. Reorganized Debtor shall withhold from any
property distributed under this Plan any property which must be withheld for
taxes payable by the Entity entitled to such property to the extent required by
applicable law. As a condition to making any distribution under this Plan,
Reorganized Debtor or its designee, as the case may be, may request that the
holder of any Allowed Claim provide such holder's taxpayer identification number
and such other certification as may be deemed necessary to comply with
applicable tax reporting and withholding laws.
F. RECORD DATE. As of the close of business on the Record Date, the
transfer registers for the Old Common Stock maintained by the Debtor, or its
respective agents, will be closed. Reorganized Debtor and its designees will
have no obligation to recognize the transfer of any Old Common Stock occurring
after the Record Date and will be entitled for all purposes relating to this
Plan to recognize and deal only with those holders of record as of the close of
business on the Record Date.
G. PERSONS DEEMED HOLDERS OF REGISTERED SECURITIES. Except as otherwise
provided herein, the Debtor, Reorganized Debtor or its designee, shall be
entitled to treat the record holder of a registered security as the holder of
the Claim or Interest in respect thereof for purposes of all notices, payments
or other distributions under this Plan unless the Debtor, Reorganized Debtor, or
its designee, as the case may be, shall have received written notice specifying
the name and address
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of any new holder thereof (and the nature and amount of the interest of such new
holder) at least ten (10) Business Days prior to the date of such notice,
payment or other distribution. In the event of any dispute regarding the
identify of any party entitled to any payment or distribution in respect of any
Claim or Interest under this Plan, no payments or distributions will be made in
respect of such Claim or Interest until the Bankruptcy Court resolves that
dispute pursuant to a Final Order.
H. CANCELLATION OF EXISTING SECURITIES AND AGREEMENTS. On the Effective
Date, the Old Common Stock, and any rights, options, warrants, calls,
subscriptions, or other similar rights or other agreements or commitments,
contractual or otherwise, obligating the Debtor to issue, transfer, or sell any
shares of Old Common Stock or any other capital stock of the Debtor shall be
canceled.
ARTICLE IX
CONDITIONS TO CONFIRMATION AND EFFECTIVENESS OF PLAN
A. CONDITIONS PRECEDENT TO ENTRY OF THE CONFIRMATION ORDER. The
following conditions must occur and be satisfied or waived in accordance with P.
C of this Article IX of this Plan on or before the Confirmation Date for this
Plan to be confirmed on the Confirmation Date.
1. The Confirmation Order is in form and substance reasonably
acceptable to the Debtor and Appaloosa.
B. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. The following conditions
must occur and be satisfied or waived in accordance with paragraph C below on or
before the Effective Date for this Plan to become effective on the Effective
Date.
1. FINAL ORDER. The Confirmation Order shall have become a Final Order;
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2. REINCORPORATION. The Reorganized Debtor shall have become
incorporated in the State of Delaware and all filings required to affect such
reincorporation shall have been accepted for filing by the Delaware Secretary of
State;
3. DIRECTORS AND OFFICERS' INSURANCE. The Reorganized Debtor shall have
obtained directors' and officers' liability insurance in amounts deemed
sufficient by Appaloosa in its sole discretion;
4 CAP ON UNSECURED CLAIMS. Allowed unsecured claims shall not exceed
$750,000; provided, that, the conditions set forth in this paragraph B4 may be
waived by Appaloosa alone in its sole discretion;
5 AUTHORIZATIONS, CONSENTS AND APPROVALS. All authorizations, consents
and regulatory approvals required, if any, in connection with this Plan's
effectiveness shall have been obtained.
C. WAIVER OF CONDITIONS. With the prior written consent of Appaloosa,
but not otherwise, the Debtor may waive one or more of the conditions precedent
to the confirmation or effectiveness of this Plan set forth in paragraphs A and
B of this Article VII of this Plan, except as otherwise set forth above.
ARTICLE X
DEBTOR'S REQUEST PURSUANT TO
BANKRUPTCY CODE SECTION 1129(b)
If all of the applicable requirements of Bankruptcy Code section
1129(a), other than section 1129(a)(8) thereof, are met with respect to this
Plan, the Debtor requests that the Bankruptcy Court, pursuant to section
1129(b), confirm this Plan notwithstanding the requirements of section
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1129(a)(8) if this Plan does not discriminate unfairly and is fair and equitable
with respect to each class.
ARTICLE XI
RETENTION OF JURISDICTION BY THE BANKRUPTCY COURT
Notwithstanding the entry of the Confirmation Order or the occurrence
of the Effective Date, the Bankruptcy Court shall retain jurisdiction over the
Case and any of the proceedings arising from, or relating to, the Case pursuant
to Bankruptcy Code section 1142 and 28 U.S.C. Section 1334 to the fullest extent
permitted by the Bankruptcy Code and other applicable law, including, without
limitation, such jurisdiction as is necessary to ensure that the purposes and
intent of this Plan are carried out. Without limiting the generality of the
foregoing, the Bankruptcy Court shall retain jurisdiction for the following
purposes: (a) to hear and determine any and all objections to the allowance, or
requests for estimation, of Claims; (b) to consider and act on the compromise
and settlement of any Claim against, or cause of action on behalf of, the Debtor
and the Debtor's estate; (c) to determine any and all applications pending on
the Confirmation Date for the rejection and disaffirmance, assumption or
assignment of executory contracts or leases and the allowance of any Claim
resulting therefrom; (d) to enter such orders as may be necessary or appropriate
in connection with the recovery of the Debtor's assets or property wherever
located; (e) to hear and determine any and all applications for allowance of
compensation and reimbursement of expenses; (f) to hear and determine any and
all controversies, suits and disputes arising under or in connection with the
interpretation, implementation or enforcement of this Plan and any of the
documents intended to
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implement the provisions of this Plan; (g) to hear and determine any and all
applications, adversary proceedings, contested matters and other litigated
matters pending on the Effective Date or that may be commenced thereafter as
provided in this Plan; (h) to hear and determine any applications to modify any
provision of this Plan to the full extent permitted by the Bankruptcy Code; (i)
to correct any defect, cure any omissions or reconcile any inconsistency in this
Plan, or any order of the Bankruptcy Court, including the Confirmation Order, as
may be necessary to carry out the purposes and intent of this Plan; (j) to
effectuate distributions under and performance of the provisions of this Plan;
(k) to hear and determine any motions or contested matters involving taxes, tax
refunds, tax attributes and tax benefits and similar and related matters with
respect to the Debtor relating to the administration of the Case, including,
without limitation, matters involving federal, state and local taxes in
accordance with Bankruptcy Code sections 346, 505 and 1146; (l) to determine
such other matters and for such other purposes as may be provided in the
Confirmation Order or as may from time to time be authorized under the
provisions of the Bankruptcy Code or any other applicable law; (m) to enforce
all orders, judgments, injunctions, releases and rulings issued or entered in
connection with the Case or this Plan; (n) to enter such orders as may be
necessary or appropriate in aid of confirmation and to facilitate implementation
of this Plan, including, without limitation, any stay orders as may be
appropriate in the event that the Confirmation Order is for any reason stayed,
revoked, modified or vacated; (o) to determine any other matter not inconsistent
with the Bankruptcy Code; and (p) to enter an order closing the Case.
ARTICLE XII
MODIFICATION OR WITHDRAWAL OF THIS PLAN
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A. MODIFICATION OF THIS PLAN. This Plan may be altered, amended or
modified by the Debtor, with the consent of Appaloosa, before or after the
Confirmation Date, as provided in section 11127 of the Bankruptcy Code.
B. WITHDRAWAL OF THIS PLAN. The Debtor reserves the right to revoke and
withdraw this Plan at any time before the Confirmation Date. If the Debtor
revokes or withdraws this Plan, then this Plan shall be deemed null and void. In
such event, nothing contained herein shall be deemed to constitute a waiver or
release of any claims by or against the Debtor or any other Entity or to
prejudice in any manner the rights of the Debtor or any Entity in any further
proceedings involving the Debtor.
ARTICLE XIII
MISCELLANEOUS
A. RETIREE BENEFITS. On and after the Effective Date, to the extent
required by section 1129(a)(13) of the Bankruptcy Code, Reorganized Debtor shall
continue to pay all retiree benefits, if any, as the term "retiree benefits" is
defined in section 1114(a) of the Bankruptcy Code, maintained or established by
the Debtor prior to the Confirmation Date.
B. GOVERNING LAW. Except to the extent the Bankruptcy Code or
Bankruptcy Rules are applicable, the rights, duties and obligations arising
under this Plan shall be governed by, and construed and enforced in accordance
with, the laws of the State of Connecticut.
C. HEADINGS. The headings of the articles, paragraphs, and sections of
this Plan are inserted for convenience only and shall not affect the
interpretation hereof.
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D. SEVERABILITY. Should any provision in this Plan be determined to be
invalid, void or unenforceable, such determination shall in no way limit,
affect, impair or invalidate the enforceability and operative effect of any or
all other provisions of this Plan.
E. COMPUTATIONS. Any calculation of days shall exclude the first date
and include the last date of the relevant period.
F. MISCELLANEOUS RULES OF CONSTRUCTION. (1) The words "herein,"
"hereof," and other words of similar import refer to this Plan as a whole, not
to any particular section, subsection or clause, unless the context requires
otherwise; (2) whenever it appears appropriate from the context, each term
stated in the singular or the plural includes the singular and the plural, and
each pronoun stated in the masculine, feminine, or neuter includes the
masculine, feminine, or neuter; (3) accounting terms not otherwise defined in
this Plan shall have the meanings assigned to them under generally accepted
accounting principles currently in effect; and (4) the rules of construction set
forth in section 102 of the Bankruptcy Code shall apply, unless superseded
herein or in the Confirmation Order.
G. CONFIRMATION ORDER AND PLAN CONTROL. To the extent the Confirmation
Order and/or this Plan is inconsistent with the Disclosure Statement, this Plan
controls the Disclosure Statement, and the Confirmation Order (and any other
orders of the Bankruptcy Court) controls this Plan. In the event the terms or
provisions of this Plan are inconsistent with the terms and provisions of the
exhibits to this Plan or documents executed in connection with this Plan, the
terms of this Plan shall control.
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H. SUCCESSORS AND ASSIGNS. The rights, benefits, and obligations of any
person or Entity named or referred to in this Plan shall be binding upon, and
shall inure to the benefit of, the heir, executor, administrator, successor, or
assign of such person or Entity.
I. EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS. The Debtor is
authorized to execute, deliver, file, or record such documents, contracts,
instruments, releases, and other agreements and take such other action as may be
necessary to effectuate and further evidence the terms and conditions of this
Plan.
J. NO WAIVER. The failure of the Debtor to object to a Claim for
purposes of voting on this Plan shall not be deemed a waiver of the Debtor's
right to object to or examine such Claim, in whole or in part.
K. NOTICES. All notices and requests in connection with this Plan shall
be in writing and shall be hand delivered or sent by mail to:
BIO-PLEXUS, INC.
c/o Reid and Riege, P.C.
One State Street
Hartford, CT 06103
Attention: Eric Henzy, Esq.
Attorneys for the Debtor
-and-
Paul, Hastings, Janofsky & Walker, LLP
75 East 55th Street
New York, New York 10022
Attention: Madlyn Gleich Primoff, Esq.
-and-
1055 Washington Boulevard, 9th Floor
Stamford, CT 06901
Attention: H. William Smith, Esq.
Special Counsel for the Debtor
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Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004-1980
Attention: George B. South, Esq.
Counsel to Appaloosa Management, L.P.
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Dated at Vernon and Hartford, Connecticut, and New York, New York, this
4th day of April, 2001.
BIO-PLEXUS, INC.
By /s/ John Metz
____________________________
John Metz
Its President
REID AND RIEGE, P.C.
By /s/ Eric Henzy
__________________________
Eric Henzy
Federal Bar No. ct12849
One State Street
Hartford, CT 06103
(860) 278-1150
Attorneys for Bio-Plexus, Inc.
PAUL, HASTINGS, JANOFSKY & WALKER LLP
By /s/
____________________________
Madlyn Gleich Primoff
75 East 55th Street
New York, New York 10022
H. William Smith
1055 Washington Boulevard, 9th Floor
Stamford, CT 06901
(203) 961-7428
Special Counsel for the Debtor
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF CONNECTICUT
In re : Chapter 11
:
BIO-PLEXUS, INC., : Case No. 01-21079 RLK
:
Debtor. :
PLAN OF REORGANIZATION
Reid and Riege, P.C.
One State Street
Hartford, CT 06103
Attorneys for the Debtor
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
-and-
1055 Washington Boulevard, 10th Floor
Stamford, CT 06901
Special Counsel for the Debtor
April 4, 2001