IMPORTANT: A BANKRUPTCY CASE HAS NOT
BEEN FILED AS OF THE DATE OF THE DISCLOSURE STATEMENT
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: )
) Chapter 11
PATHMARK STORES, INC., et al. )
)
) Case No. 00-
Debtors. )
) Jointly Administered
DEBTORS' JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Douglas P. Bartner
James L. Garrity, Jr
Andrew Tenzer
SHEARMAN & STERLING
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
and
Laura Davis Jones (No. 2436)
PACHULSKI STANG ZIEHL YOUNG & JONES
919 North Market Street, Suite 1600
Wilmington, Delaware 19801
(302) 652-4100
ATTORNEYS FOR DEBTORS AND
DEBTORS IN POSSESSION
Dated June 7, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS, RULES OF INTERPRETATION AND COMPUTATION OF TIME
Section 1.1. Defined Terms......................................................................................1
Section 1.2. Rules of Interpretation and Computation of Time....................................................9
ARTICLE II
ADMINISTRATIVE AND PRIORITY TAX CLAIMS
Section 2.1. Administrative Claims..............................................................................9
Section 2.2. Priority Tax Claims................................................................................9
Section 2.3. Professional Fees.................................................................................10
Section 2.4. Claims under DIP Credit Agreement.................................................................10
ARTICLE III
CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS
Section 3.1. Classification....................................................................................10
Section 3.2. Acceptances and Rejections........................................................................12
Section 3.3. Treatment of Claims Against and Equity Interests in Pathmark......................................12
Section 3.4. Treatment of Claims Against and Equity Interests in PTK...........................................16
Section 3.5. Treatment of Claims Against and Equity Interests in Holdings......................................17
Section 3.6. Treatment of Claims Against and Equity Interests in SMG-II........................................18
Section 3.7. Treatment of Claims Against and Equity Interests in Plainbridge...................................19
Section 3.8. Treatment of Claims Against and Equity Interests in Riskco........................................21
ARTICLE IV
CRAM DOWN
ARTICLE V
MEANS FOR IMPLEMENTATION OF THE PLAN
Section 5.1. Continued Corporate Existence and Vesting of Assets in Reorganized Pathmark.......................23
Section 5.2. Mergers...........................................................................................24
Section 5.3. Cancellation of Notes, Instruments, Debentures, Common Stock and Stock Options....................24
Section 5.4. Issuance of New Securities; Execution of Related Documents........................................24
Section 5.5. Corporate Governance, Directors and Officers, and Corporate Action................................24
Section 5.6. Sources of Cash for Plan Distribution.............................................................25
Section 5.7. Ahold Litigation; Preferred Stock Litigation......................................................25
Section 5.8. Elimination of Classes............................................................................25
Section 5.9. Issuance of New Pathmark Common Stock.............................................................26
Section 5.10. Long Term Stock Incentive Plan; Employment Agreements; Retention and Sale Bonus Agreements.......26
Section 5.11. Registration Rights Agreement; Listing Requirements..............................................26
Section 5.12. Exit Facility....................................................................................26
ARTICLE VI
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
Section 6.1. Assumption of Executory Contracts and Unexpired Leases............................................26
Section 6.2. Claims Based on Rejection of Executory Contracts or Unexpired Leases..............................27
Section 6.3. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases.............................27
Section 6.4. Indemnification of Directors, Officers and Employees..............................................27
Page
Section 6.5. Compensation and Benefit Programs.................................................................27
ARTICLE VII
PROVISIONS GOVERNING DISTRIBUTIONS
Section 7.1. Distribution for Claims and Equity Interests Allowed as of the Effective Date.....................27
Section 7.2. Distribution by the Reorganized Debtors; Distributions with Respect to Debt Securities............28
Section 7.3. Delivery and Distributions and Undeliverable or Unclaimed Distributions...........................28
Section 7.4. Distribution Record Date..........................................................................29
Section 7.5. Timing and Calculation of Amounts to be Distributed...............................................29
Section 7.6. Setoffs and Recoupments...........................................................................29
Section 7.7. Surrender of Canceled Instruments or Securities...................................................29
Section 7.8. Lost, Stolen, Mutilated or Destroyed Debt Securities..............................................30
Section 7.9. Fractional Shares.................................................................................30
Section 7.10. Manner of Payment Under Plan of Reorganization...................................................30
ARTICLE VIII
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
Section 8.1. Prosecution of Objections to Claims and Equity Interests..........................................31
Section 8.2. Estimation of Claims..............................................................................31
Section 8.3. Payments and Distributions on Disputed Claims and Disputed Equity Interests.......................31
ARTICLE IX
CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN
Section 9.1. Conditions Precedent to Confirmation..............................................................31
Section 9.2. Conditions Precedent to Consummation..............................................................31
Section 9.3. Waiver of Conditions..............................................................................32
Section 9.4. Effect of Non-Occurrence of Conditions to Consummation............................................33
ARTICLE X
RELEASE, INJUNCTIVE AND RELATED PROVISIONS
Section 10.1. Subordination....................................................................................33
Section 10.2. Releases.........................................................................................33
Section 10.3. Preservation of Rights of Action.................................................................34
Section 10.4. Exculpation......................................................................................34
Section 10.5. Injunction.......................................................................................34
ARTICLE XI
RETENTION OF JURISDICTION
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Dissolution of Committees........................................................................36
Section 12.2. Payment of Statutory Fees........................................................................36
Section 12.3. Discharge of Debtors.............................................................................36
Section 12.4. Modification of Plan.............................................................................37
Section 12.5. Revocation of Plan...............................................................................37
Section 12.6. Successors and Assigns...........................................................................37
Section 12.7. Reservation of Rights............................................................................37
Section 12.8. Section 1145 Exemption...........................................................................37
Section 12.9. Avoidance and Recovery Actions...................................................................37
Section 12.10. Headings........................................................................................38
ii
Page
Section 12.11. Governing Law...................................................................................38
Section 12.12. Severability....................................................................................38
Section 12.13. Implementation..................................................................................38
Section 12.14. Inconsistency...................................................................................38
Section 12.15. Further Assurances..............................................................................38
Section 12.16. Service of Documents............................................................................38
Section 12.17. Jurisdiction over the Reorganized Debtors.......................................................39
Section 12.18. Exemption from Certain Transfer Taxes...........................................................39
Section 12.19. Compromise of Controversies.....................................................................39
Section 12.20. No Admissions...................................................................................40
Section 12.21. Filing of Additional Documents..................................................................40
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DEBTORS' JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Pathmark Stores, Inc., SMG-II Holdings Corporation, Supermarkets
General Holdings Corporation, PTK Holdings, Inc., Pathmark Risk Management
Corporation and Plainbridge, Inc., debtors and debtors in possession in the
above-captioned cases, hereby respectfully propose the following Joint Plan of
Reorganization under chapter 11 of the Bankruptcy Code:
ARTICLE I
DEFINED TERMS, RULES OF INTERPRETATION AND COMPUTATION OF TIME
Section 1.1. Defined Terms
Unless the context otherwise requires, the following terms shall have
the following meanings when used in capitalized form in the Plan:
"Administrative Claim" means a Claim for costs and expenses of
administration under section 503(b)(1) or 507(b) of the Bankruptcy Code,
including for: (a) the actual and necessary costs and expenses incurred after
the Petition Date of preserving the Estates and operating the businesses of the
Debtors; (b) compensation for services and reimbursement of expenses under
section 330(a) or 331 of the Bankruptcy Code; (c) any indebtedness or
obligations other than under the DIP Credit Agreement incurred by or assumed by
the Debtors during the Chapter 11 Cases; and (d) all fees and charges assessed
against the Estates under 28 U.S.C. ss.ss. 1911-1930.
"Ahold Litigation" means the action captioned Koninklijke Ahold, N.V.
and Ahold Acquisitions, Inc. v. SMG-II Holdings Corp., Civ. No. 99/605644,
pending in the New York Supreme Court for the County of New York.
"Allowed" means, any Claim or Equity Interest or portion thereof
against any Debtor, (a) proof of which was filed within the applicable period of
limitation fixed by the Bankruptcy Court in accordance with Bankruptcy Rule
3003(c)(3) as to which (i) no objection to the allowance thereof, or action to
equitably subordinate or otherwise limit recovery with respect thereto, has been
interposed within the applicable period of limitation fixed by the Plan, the
Bankruptcy Code, the Bankruptcy Rules or a Final Order or (ii) if an objection
has been interposed, to the extent such Claim or Equity Interest has been
allowed (whether in whole or in part) by a Final Order, (b) which, if no proof
of claim was so filed, has been listed by a Debtor in its Schedules as
liquidated in an amount and not disputed or contingent as to which (i) no
objection to the allowance thereof, or action to equitably subordinate or
otherwise limit recovery with respect thereto, has been interposed within the
applicable period of limitation fixed by the Plan, the Bankruptcy Code, the
Bankruptcy Rules or a Final Order, (ii) any objection has been settled, waived,
withdrawn or denied by a Final Order, or (iii) if an objection has been
interposed, to the extent such Claim or Equity Interest has been allowed by a
Final Order, (c) which Claim arises from the recovery of property under sections
550 or 553 of the Bankruptcy Code and is allowed in accordance with section
502(h) of the Bankruptcy Code, (d) which Claim or Equity Interest is allowed
under the Plan or (e) which Claim or Equity Interest is allowed by a Final
Order; provided, however, that with reference to any Claim (other than Senior
Subordinated Note Claims) or Equity Interest, the term "Allowed" for purposes of
distribution under the Plan shall not include, unless otherwise specified in the
Plan, interest on such Claim from the Petition Date.
"Amended By-Laws" means, collectively, the Amended Pathmark By-Laws,
the Amended Plainbridge By-Laws and the Amended Riskco By-Laws.
"Amended Certificates of Incorporation" means, collectively, the
Amended Pathmark Certificate of Incorporation, the Amended Plainbridge
Certificate of Incorporation and the Amended Riskco Certificate of
Incorporation.
"Amended Pathmark By-Laws" means the By-Laws of Reorganized Pathmark,
which shall become effective on the Effective Date and which shall in form and
substance be approved by the Bondholder Committee.
"Amended Pathmark Certificate of Incorporation" means the Certificate
of Incorporation of Reorganized Pathmark, as described in Article V of the Plan,
which shall be filed on or before the Effective Date and which shall in form and
substance be approved by the Bondholder Committee.
"Amended Plainbridge By-Laws" means the By-Laws of Reorganized
Plainbridge, which shall become effective on the Effective Date and which shall
in form and substance be approved by the Bondholder Committee.
"Amended Plainbridge Certificate of Incorporation" means the
Certificate of Incorporation of Reorganized Plainbridge, as described in Article
V of the Plan, which shall be filed on or before the Effective Date and which
shall in form and substance be approved by the Bondholder Committee.
"Amended Riskco By-Laws" means the By-Laws of Reorganized Riskco, which
shall become effective on the Effective Date and which shall in form and
substance be approved by the Bondholder Committee.
"Amended Riskco Certificate of Incorporation" means the Certificate of
Incorporation of Reorganized Riskco, as described in Article V of the Plan,
which shall be filed on or before the Effective Date and which shall in form and
substance be approved by the Bondholder Committee.
"Ballot Date" means the date stated in the Voting Instructions by which
all Ballots must be received.
"Ballot" means a ballot for voting to accept or reject the Plan
distributed to Holders of Claims entitled to vote on the Plan.
"Bankruptcy Code" means title 11 of the United States Code as in effect
on the Petition Date, as it has been or may after the Petition Date be amended.
"Bankruptcy Court" means the United States District Court having
jurisdiction over the Chapter 11 Cases and, to the extent of any reference made
pursuant to section 157 of title 28 of the United States Code or the General
Order of such District Court pursuant to section 151 of title 28 of the United
States Code, the bankruptcy unit of such District Court.
"Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure, as
amended from time to time, and the General Orders or local rules of the
Bankruptcy Court, each as in effect on the Petition Date and as each has been or
may after the Petition Date be amended.
"Bar Date" means the date by which proofs of claim must be filed in the
Chapter 11 Cases.
"Bondholder Committee" means the Bondholder Committee of Holders of
Senior Subordinated Notes, Subordinated Notes, Subordinated Debentures and
Junior Subordinated Notes organized prior to the commencement of the Chapter 11
Cases consisting of Fidelity Management and Research Company and Fidelity
Management Trust Company, as investment advisor to various funds and accounts,
Oppenheimer Funds, Inc., IDS Life Insurance Company, IDS Life Insurance Company
of New York, American Enterprise Life Insurance Company and others.
"Business Day" means any day, other than a Saturday, Sunday or a "legal
holiday", as defined in Bankruptcy Rule 9006(a).
"Cash" means cash and cash equivalents.
"Causes of Action" means all actions, causes of action, suits, debts,
dues, sums of money, account, reckonings, rights to legal remedies, rights to
equitable remedies, rights to payment and claims, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances or
trespasses whether known or unknown, reduced to judgment, not reduced to
judgment, liquidated, unliquidated, fixed contingent, matured,
2
unmatured, disputed, undisputed, secured or unsecured and whether asserted or
assertable directly or indirectly or derivatively, in law, equity or otherwise.
"Certificates of Elimination" means the certificates to be filed by
Reorganized Pathmark with the Secretary of State of the State of Delaware to
cancel the certificates of designation relating to SMG-II Preferred Stock and
Holdings Preferred Stock.
"Chapter 11 Cases" means the cases under chapter 11 of the Bankruptcy
Code commenced by the Debtors in the Bankruptcy Court.
"Chase" means The Chase Manhattan Bank, as Administrative Agent under
the Credit Agreement, the DIP Credit Agreement and the Exit Facility.
"Claim" means a claim as defined in section 101(5) of the Bankruptcy
Code against any of the Debtors whether or not asserted.
"Class" means a class of Claims or Equity Interests as set forth in
Article III of the Plan.
"Committee" means (a) any statutory official committee appointed in the
Chapter 11 Cases and (b) the Bondholder Committee.
"Common Stock" means authorized common stock of each of the Debtors.
"Confirmation Date" means the date upon which the Confirmation Order is
entered by the Bankruptcy Court in its docket, within the meaning of Bankruptcy
Rules 5003 and 9021.
"Confirmation Order" means the order of the Bankruptcy Court confirming
the Plan pursuant to section 1129 of the Bankruptcy Code in form and substance
reasonably satisfactory to the Debtors, each Committee and Chase only in its
capacity as DIP Agent and as Exit Facility Agent.
"Credit Agreement" means that certain Credit Agreement dated June 30,
1997 among Pathmark, the Lenders designated therein, Chase, as Administrative
Agent, and CIBC Inc., and Corestates Bank, N.A., as Co-Agents, and guaranteed by
Plainbridge, Riskco and other subsidiaries of Pathmark, together with all
related notes, certificates, security agreements, mortgages, pledges,
indemnities, collateral assignments, undertakings, guaranties, and other
instruments and documents, as each may have been amended or modified from time
to time.
"Credit Agreement Agent" means The Chase Manhattan Bank, as
Administrative Agent under the Credit Agreement.
"D&O Releasees" means all officers, directors, employees, attorneys,
financial advisors, accountants, investment bankers, agents and representatives
of the Debtors and their affiliates who served in such capacity on or prior to
the Effective Date, in each case in their capacity as such.
"Debtors" means Pathmark, SMG-II, Holdings, PTK, Riskco and
Plainbridge, as debtors and debtors in possession in the Chapter 11 Cases.
"Delaware General Corporation Law" means title 8 of the Delaware Code,
as now in effect or hereafter amended.
"DIP Agent" means The Chase Manhattan Bank, as Administrative Agent
under the DIP Credit Agreement.
"DIP Credit Agreement" means the debtor in possession credit facility
to be entered into among Pathmark, as borrower, SMG-II, Holdings, PTK and
certain subsidiaries of Pathmark, as guarantors, and the Lenders party thereto,
in form and substance approved by the Bondholder Committee.
3
"Disbursing Agent" means any Entity in its capacity as Disbursing Agent
under Section 7.2 hereof.
"Disclosure Statement" means that certain disclosure document, dated
June 7, 2000, as amended, supplemented, or modified from time to time, relating
to the Plan, including, without limitation, any exhibits and schedules thereto,
that is prepared and distributed to the Holders of the Senior Subordinated
Notes, the Subordinated Debentures, the Subordinated Notes, the Junior
Subordinated Notes and the Holdings Bonds, in reliance upon the exemption from
registration specified in Section 3(a)(9) of the Securities Act.
"Disputed" means, with respect to any Claim or Equity Interest, any
Claim or Equity Interest: (a) listed on the Schedules as unliquidated, disputed
or contingent; (b) as to which the Debtors or any other party in interest has
interposed a timely objection or request for estimation in accordance with the
Bankruptcy Code and the Bankruptcy Rules or is otherwise disputed by the Debtors
in accordance with applicable law, which objection, request for estimation or
dispute has not been settled, waived, withdrawn or determined by a Final Order;
or (c) during the period prior to the deadline fixed by the Plan or the
Bankruptcy Court for objecting to such Claim or Equity Interest, such Claim or
Equity Interest exceeds the amount listed on the Schedules other than as
unliquidated, disputed or contingent.
"Distribution Record Date" means the close of business on the Business
Day immediately preceding the Effective Date.
"Effective Date" means the first Business Day on which all conditions
specified in Article IX of the Plan have been satisfied.
"Employment Agreements" means the employment agreements between the
Company and certain of its key executives, as described in the Disclosure
Statement.
"Entity" means an entity as defined in section 101(15) of the
Bankruptcy Code.
"Equity Interest" means a Pathmark Equity Interest, SMG-II Equity
Interest, Holdings Equity Interest, PTK Equity Interest, Riskco Equity Interest
or Plainbridge Equity Interest.
"Estates" means the estates of the Debtors created by section 541 of
the Bankruptcy Code upon the commencement of the Chapter 11 Cases.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder.
"Exit Facility" means that certain $600 million five-year credit
facility to be provided to Reorganized Pathmark pursuant to the terms and
conditions of the Exit Facility Commitment.
"Exit Facility Agent" means The Chase Manhattan Bank, as administrative
agent under the Exit Facility.
"Exit Facility Commitment" means a commitment for a $600 million credit
facility containing substantially the terms and conditions set forth in that
certain commitment letter by and between Pathmark, The Chase Manhattan Bank and
Chase Securities, Inc., as described in the Disclosure Statement.
"Exit Facility Documents" means the agreements, documents and
instruments and all exhibits, schedules and annexes thereto entered into in
connection with the Exit Facility.
"Extended Effective Date" means any Effective Date that occurs more
than 30 days after August 15, 2000.
"Extended Petition Date" means any Petition Date occurring after June
30, 2000.
"Final Order" means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction with respect to the subject matter, which
has not been reversed, stayed, modified or amended, and as to
4
which the time to appeal or seek certiorari has expired and no appeal or
petition for certiorari has been timely taken, or as to which any appeal that
has been taken or any petition for certiorari that has been or may be filed has
been resolved by the highest court to which the order or judgment was appealed
or from which certiorari was sought.
"General Unsecured Claim" means any Claim against any of the Debtors
that is not a Secured Claim, Secured Credit Agreement Claim, Administrative
Claim, Priority Tax Claim, Other Priority Claim, Guaranty Claim, Senior
Subordinated Note Claim, Subordinated Indebtedness Claim, Junior Subordinated
Note Claim or Holdings Bond Claim, but including without limitation, Claims
arising from the rejection of an unexpired leased or executory contract pursuant
to Article VI of the Plan or otherwise.
"Guaranty" means the Guaranty dated as of June 6, 2000, made by
Pathmark in favor of the Holders of the Holdings Bonds.
"Guaranty Claims" means all Claims arising from or related to the
Guaranty.
"Holder" means the beneficial holder of any Claim or Equity Interest.
"Holdings" means Supermarkets General Holdings Corporation, a Delaware
corporation.
"Holdings Bond Claims" means all Claims arising from or related to the
Holdings Bonds.
"Holdings Bond Indenture" means the Indenture dated as of May 1, 1992
between Holdings and Wilmington Trust Company, as Trustee, relating to the
Holdings Bonds, as amended from time to time.
"Holdings Bonds" means the 11 5/8% Subordinated Bonds due 2002 issued
by Holdings under the Holdings Bond Indenture.
"Holdings Common Stock" means the authorized common stock of Holdings.
"Holdings Equity Interest" means any equity interest of Holdings
including, but not limited to, all issued, unissued, authorized or outstanding
shares or stock (including the Holdings Common Stock and the Holdings Preferred
Stock), together with any warrants, options or contract rights to purchase or
acquire such interests at any time.
"Holdings Preferred Stock" means the $3.52 Cumulative Exchangeable
Redeemable Preferred Stock of Holdings and any other authorized preferred stock
of Holdings.
"Indenture Trustees" means the trustees under each of the Indentures.
"Indentures" means the Pathmark Indentures and the Holdings Bond
Indenture.
"Investor Releasees" means any present or former Holder of an Equity
Interest in any of the Debtors and their respective current and former parents,
subsidiaries and affiliates and their respective officers, directors, employees,
attorneys, financial advisors, accountants, investment bankers, agents and
representatives, in each case in their capacity as such.
"Junior Subordinated Note Claims" means all Claims arising from or
related to the Junior Subordinated Notes.
"Junior Subordinated Note Indenture" means the Indenture dated as of
October 26, 1993 between Pathmark and Nationsbank of Georgia, National
Association, as Trustee, relating to the Junior Subordinated Notes, as amended
from time to time.
"Junior Subordinated Notes" means the 10 3/4% Junior Subordinated
Deferred Coupon Notes due 2003 issued by Pathmark under the Junior Subordinated
Note Indenture.
5
"Lien" means a lien as defined in section 101(37) of the Bankruptcy
Code against property of any of the Debtors.
"Long Term Stock Incentive Plan" means the long-term stock incentive
plan, the material terms of which are described in the Disclosure Statement.
"Master Ballots" means the master ballots accompanying the Disclosure
Statement upon which Nominees shall indicate the acceptance or rejection of the
Plan in accordance with the Voting Instructions.
"New Common Stock" means the Common Stock of Reorganized Pathmark, par
value $0.01 per share, authorized pursuant to the Amended Pathmark Certificate
of Incorporation, 30,000,000 shares of which shall be issued on the Effective
Date.
"New Warrants" means the 10-year warrants to purchase an aggregate of
5,294,118 shares of New Common Stock, representing the right to purchase in the
aggregate 15% of the New Common Stock at an exercise price of $22.31 per share
to be issued pursuant to, and exercisable in accordance with Section 5.9 hereof
and the New Warrant Agreement.
"New Warrant Agreement" means the warrant agreement governing the issue
of the New Warrants, the material terms of which are described in the Disclosure
Statement.
"Nominee" means any broker, dealer, commercial bank, trust company,
savings and loan or other nominee for a beneficial Holder of Pathmark Notes or
Holdings Bonds.
"Other Priority Claims" means any Claim accorded priority in right of
payment under section 507(a) of the Bankruptcy Code, other than a Priority Tax
Claim or an Administrative Claim.
"Other Secured Claims" means, collectively, all Secured Claims against
the Debtors held by any Person or Entity, other than Claims classified as
Secured Credit Agreement Claims.
"Pathmark" means Pathmark Stores, Inc., a Delaware corporation.
"Pathmark Common Stock" means the authorized common stock of Pathmark.
"Pathmark Equity Interest" means any equity interest of Pathmark
including, but not limited to, all issued, unissued, authorized or outstanding
shares or stock (including the Pathmark Common Stock), together with any
warrants, options or contract rights to purchase or acquire such interests at
any time.
"Pathmark Indentures" means the Senior Subordinated Note Indenture, the
Subordinated Debenture Indenture, the Subordinated Note Indenture and the Junior
Subordinated Note Indenture.
"Pathmark Notes" means the Senior Subordinated Notes, the Subordinated
Debentures, the Subordinated Notes and the Junior Subordinated Notes.
"Person" means a person as defined in section 101(41) of the Bankruptcy
Code.
"Petition Date" means the date on which the Debtors filed their
petitions for relief commencing the Chapter 11 Cases.
"Plainbridge" means Plainbridge, Inc., a Delaware corporation.
"Plainbridge Common Stock" means the authorized common stock of
Plainbridge.
6
"Plainbridge Equity Interest" means any equity interest of Plainbridge
including, but not limited to, all issued, unissued, authorized or outstanding
shares or stock (including the Plainbridge Common Stock), together with any
warrants, options or contract rights to purchase or acquire such interests at
any time.
"Plan" means this Joint Plan of Reorganization under chapter 11 of the
Bankruptcy Code, either in its present form or as it may be altered, amended,
modified or supplemented from time to time in accordance with the Plan, the
Bankruptcy Code, the Bankruptcy Rules or a Final Order.
"Plan Documents" means the agreements, documents and instruments
entered into on or as of the Effective Date as contemplated by, and in
furtherance of, the Plan.
"Preferred Stock Interest" means the equity interest in Holdings
evidenced by the Holdings Preferred Stock.
"Preferred Stockholder Litigation" means the action captioned Wolfson
v. Supermarkets General Holdings Corporation, et al., C.A. No. 17047, pending in
the court of Chancery of the State of Delaware.
"Priority Tax Claim" means a Claim of a governmental unit of the kind
specified in section 507(a)(8) of the Bankruptcy Code.
"Professional Fees" means all allowances of compensation and
reimbursement of expenses allowed to Professionals pursuant to sections 330, 331
or 503(b) of the Bankruptcy Code.
"Professionals" means a Person or Entity employed pursuant to a Final
Order in accordance with sections 327 or 1103 of the Bankruptcy Code and to be
compensated for services rendered prior to the Effective Date, pursuant to
sections 327, 328, 329, 330 and 331 of the Bankruptcy Code and the attorneys,
financial advisors and other professionals retained by the Bondholder Committee
in the event that their fees and expenses are subject to approval of the
Bankruptcy Court.
"PTK" means PTK Holdings, Inc., a Delaware Corporation.
"PTK Common Stock" means the authorized common stock of PTK.
"PTK Equity Interest" means any equity interest of PTK including, but
not limited to, all issued, unissued, authorized or outstanding shares or stock
(including the PTK Common Stock), together with any warrants, options or
contract rights to purchase or acquire such interests at any time.
"Ratable Portion" means, with reference to any distribution on account
of any Allowed Claim or Allowed Equity Interest in any Class, a distribution
equal in amount to the ratio (expressed as a percentage) that the amount of such
Allowed Claim or number of shares evidencing such Allowed Equity Interest, as
applicable, bears to the aggregate amount of Allowed Claims or aggregate number
of outstanding shares of Allowed Equity Interests in such Class, as applicable.
"Registration Rights Agreement" means a Registration Rights Agreement,
in form and substance acceptable to the Bondholder Committee to be signed by
Reorganized Pathmark for the benefit of certain of the Holders of the Pathmark
Notes that receive New Common Stock under the Plan, the material terms of which
are described in the Disclosure Statement.
"Reorganized Debtors" means, collectively, Pathmark, Riskco and
Plainbridge and any successors thereto, by merger, consolidation or otherwise,
on or after the Effective Date.
"Reorganized Pathmark" means Pathmark, as reorganized on and after the
Effective Date and after giving effect to the mergers to be completed pursuant
to Section 5.2.
"Reorganized Plainbridge" means Plainbridge, as reorganized on and
after the Effective Date.
7
"Reorganized Riskco" means Riskco, as reorganized on and after the
Effective Date.
"Retention and Sale Bonus Agreements" means certain retention and sale
bonus agreements between the Company and certain of its key executive officers,
the material terms of which are described in the Disclosure Statement.
"Riskco" means Pathmark Risk Management Corporation, a New Jersey
corporation.
"Riskco Common Stock" means the authorized common stock of Riskco.
"Riskco Equity Interest" means any equity interest of Riskco including,
but not limited to, all issued, unissued, authorized or outstanding shares or
stock (including the Riskco Common Stock), together with any warrants, options
or contract rights to purchase or acquire such interests at any time.
"Schedules" means the schedules of assets and liabilities, schedules of
executory contracts, and the statement of financial affairs of one or more of
the Debtors filed pursuant to section 521 of the Bankruptcy Code, the Official
Bankruptcy Forms and the Bankruptcy Rules, as they may be amended and
supplemented from time to time.
"Secured Claim" means, with respect to any Debtor, a Claim that is
secured by a Lien on, or security interest in, property of any such Debtor, or
that has the benefit of rights of setoff under section 553 of the Bankruptcy
Code, but only to the extent of the value of the creditor's interest in such
Debtor's interest in such property, or to the extent of the amount subject to
setoff, which value shall be determined as provided in section 506 of the
Bankruptcy Code.
"Secured Credit Agreement Claims" means all Secured Claims arising from
or relating to the Credit Agreement or any guaranty issued in connection
therewith.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Senior Subordinated Note Claims" means all Claims arising from or
related to the Senior Subordinated Notes.
"Senior Subordinated Note Indenture" means the Indenture dated as of
October 26, 1993 between Pathmark and United States Trust Company of New York,
as Trustee, relating to the Senior Subordinated Notes, as amended from time to
time.
"Senior Subordinated Notes" means the 9 5/8% Senior Subordinated Notes
due 2003 issued by Pathmark under the Senior Subordinated Note Indenture.
"SMG-II" means SMG-II Holdings Corporation, a Delaware corporation.
"SMG-II Common Stock" means the authorized Class A and Class B Common
Stock of SMG-II.
"SMG-II Equity Interest" means any equity interest of SMG-II including,
but not limited to, all issued, unissued, authorized or outstanding shares or
stock (including the SMG-II Common Stock and the SMG-II Preferred Stock),
together with any warrants, options or contract rights to purchase or acquire
such interests at any time.
"SMG-II Preferred Stock" means the authorized Series A, Series B and
Series C Preferred Stock of SMG-II.
"Subordinated Debenture Indenture" means the Indenture dated as of
October 26, 1993 between Pathmark and Wilmington Trust Company, as Trustee,
relating to the Subordinated Debentures, as amended from time to time.
8
"Subordinated Debentures" means the 12 5/8% Subordinated Debentures due
2002 issued by Pathmark under the Subordinated Debenture Indenture.
"Subordinated Indebtedness Claims" means all Claims arising from or
related to the Subordinated Debentures or the Subordinated Notes.
"Subordinated Note Indenture" means the Indenture dated as of October
26, 1993 between Pathmark and Wilmington Trust Company, as Trustee, relating to
the Subordinated Notes, as amended from time to time.
"Subordinated Notes" means the 11 5/8% Subordinated Notes due 2002
issued by Pathmark under the Subordinated Note Indenture.
"Voting Instructions" means the instructions for voting on the Plan
contained in the section of the Disclosure Statement entitled "SOLICITATION;
VOTING PROCEDURES" and in the Ballots and the Master Ballots.
"Voting Record Date" means June 2, 2000.
Section 1.2. Rules of Interpretation and Computation of Time
(a) For purposes of the Plan: (i) whenever from the context it is
appropriate, each term, whether stated in the singular or the plural, shall
include both the singular and the plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, feminine and the neuter
gender; (ii) any reference in the Plan to a contract, instrument, release,
indenture or other agreement or document being in a particular form or on
particular terms and conditions means that such document shall be substantially
in such form or substantially on such terms and conditions; (iii) any reference
in the Plan to an existing document or exhibit filed, or to be filed, shall mean
such document or exhibit, as it may have been or may be amended, modified or
supplemented; (iv) unless otherwise specified, all references in the Plan to
Sections, Articles and Exhibits are references to Sections, Articles and
Exhibits of or to the Plan; (v) the words "herein" and "hereto" refer to the
Plan in its entirety rather than to a particular portion of the Plan; (vi)
captions and headings to Articles and Sections are inserted for convenience of
reference only and are not intended to be a part of or to affect the
interpretation of the Plan; (vii) the rules of construction set forth in section
102 of the Bankruptcy Code shall apply; and (viii) any term used in capitalized
form in the Plan that is not defined herein but that is used in the Bankruptcy
Code or the Bankruptcy Rules shall have the meaning assigned to such term in the
Bankruptcy Code or the Bankruptcy Rules, as the case may be.
(b) In computing any period of time prescribed or allowed by the Plan,
the provisions of Bankruptcy Rule 9006(a) shall apply.
ARTICLE II
ADMINISTRATIVE AND PRIORITY TAX CLAIMS
Section 2.1. Administrative Claims
Subject to the provisions of sections 330(a), 331 and 503(b) of the
Bankruptcy Code, each Administrative Claim shall be paid by the Debtors, in
full, in Cash, in such amounts as are incurred in the ordinary course of
business by the Debtors, or in such amounts as such Administrative Claim is
Allowed by the Bankruptcy Court upon (a) the later of the Effective Date or the
date upon which there is a Final Order allowing such Administrative Claim, (b)
such other terms as may exist in the ordinary course of such Debtor's business
or (c) as may be agreed upon between the Holder of such Administrative Claim and
the Debtors.
Section 2.2. Priority Tax Claims
Each Allowed Priority Tax Claim shall be paid by the Debtors in full,
in Cash upon the later of (a) the Effective Date, (b) the date upon which there
is a Final Order allowing such Allowed Priority Tax Claim, (c) the
9
date such an Allowed Priority Tax Claim would have been due and payable if the
Chapter 11 Cases had not been commenced, or (d) as may be agreed upon between
the Holder of such Allowed Priority Tax Claim and the Debtors; provided,
however, that (i)(x) each Debtor may, at its option, in lieu of payment in full
of an Allowed Priority Tax Claim on the Effective Date, make Cash payments on
account of such Allowed Priority Tax Claim, deferred to the extent permitted
pursuant to section 1129(a)(9)(C) of the Bankruptcy Code and, in such event,
interest shall be paid on the unpaid portion of such Allowed Priority Tax Claim
at a rate to be agreed upon by the Debtors and the applicable governmental unit
or as determined by the Bankruptcy Court; and (y) if such Allowed Priority Tax
Claim is for a tax assessed against property of a Debtor's estate in such
property and (ii) in the event an Allowed Priority Tax Claim may also be
classified as an Allowed Other Secured Claim, such Debtor may, at its option,
elect to treat such Allowed Priority Tax Claim as an Allowed Other Secured
Claim.
Section 2.3. Professional Fees
(a) All final applications for Professional Fees for services rendered
in connection with the Chapter 11 Cases prior to the Confirmation Date shall be
filed with the Bankruptcy Court not later than thirty (30) days after the
Effective Date.
(b) Notwithstanding Section 2.3(a), the reasonable fees and expenses
incurred on or after the Petition Date by Cadwalader Wickersham & Taft, as
counsel to the Bondholder Committee, Houlihan, Lokey, Howard & Zukin, as
financial advisors to the Bondholder Committee, and any other professionals
retained by the Bondholder Committee, including but not limited to, local
counsel, pursuant to their respective agreements with Pathmark entered into
prior to or on or subsequent to the Petition Date, shall be paid by Pathmark or
Reorganized Pathmark as Administrative Claims in the ordinary course of
Pathmark's business, without application by or on behalf of any such parties to
the Bankruptcy Court, and without notice and a hearing, unless specifically
required by the Bankruptcy Court. If Pathmark or Reorganized Pathmark and any
such professional cannot agree on the amount of fees and expenses to be paid by
such party, the amount of any such fees and expenses shall be determined by the
Bankruptcy Court.
Section 2.4. Claims under DIP Credit Agreement
On the Effective Date, all amounts outstanding under the DIP Credit
Agreement shall be paid in full in Cash or as otherwise provided in the DIP
Credit Agreement.
ARTICLE III
CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS
Section 3.1. Classification
The categories of Claims and Equity Interests listed below classify
Claims and Equity Interests for all purposes, including voting, confirmation and
distribution pursuant to the Plan and pursuant to sections 1122 and 1123(a)(1)
of the Bankruptcy Code. A Claim or Equity Interest shall be deemed classified in
a particular Class only to the extent that the Claim or Equity Interest
qualifies within the description of that Class and shall be deemed classified in
a different Class to the extent that any remainder of such Claim or Equity
Interest qualifies within the description of such different Class. A Claim or
Equity Interest is in a particular Class only to the extent that such Claim or
Equity Interest is Allowed in that Class and has not been paid or otherwise
settled prior to the Effective Date.
Claims (except for Administrative Claims and Priority Tax Claims, which
are not required to be classified pursuant to section 1123(a)(i) of the
Bankruptcy Code) and Equity Interests are classified as follows:
(a) Claims Against and Equity Interests in Pathmark
(i) Pathmark Class 1--Secured Credit Agreement Claims against
Pathmark
10
(ii) Pathmark Class 2--Other Secured Claims against Pathmark
(iii) Pathmark Class 3--Other Priority Claims against Pathmark
(iv) Pathmark Class 4--General Unsecured Claims against Pathmark
(v) Pathmark Class 5--Senior Subordinated Note Claims
(vi) Pathmark Class 6--Subordinated Indebtedness Claims
(vii) Pathmark Class 7--Junior Subordinated Note Claims
(viii) Pathmark Class 8--Guaranty Claims
(ix) Pathmark Class 9--Equity Interests in Pathmark
(b) Claims Against and Equity Interests in PTK
(i) PTK Class 1--General Unsecured Claims against PTK
(ii) PTK Class 2--PTK Equity Interests
(c) Claims Against and Equity Interests in Holdings
(i) Holdings Class 1--General Unsecured Claims against Holdings
(ii) Holdings Class 2--Holdings Bond Claims
(iii) Holdings Class 3--Holdings Preferred Stock Interests
(iv) Holdings Class 4--Holdings Common Stock Interests
(d) Claims Against and Equity Interests in SMG-II
(i) SMG-II Class 1--General Unsecured Claims against SMG-II
(ii) SMG-II Class 2--SMG-II Equity Interests
(e) Claims Against and Equity Interests in Plainbridge
(i) Plainbridge Class 1--Secured Credit Agreement Claims against
Plainbridge
(ii) Plainbridge Class 2--Other Secured Claims against
Plainbridge
(iii) Plainbridge Class 3--Other Priority Claims against
Plainbridge
(iv) Plainbridge Class 4--General Unsecured Claims against
Plainbridge
(v) Plainbridge Class 5--Plainbridge Equity Interests
(f) Claims Against and Equity Interests in Riskco
(i) Riskco Class 1--Secured Credit Agreement Claims against
Riskco
(ii) Riskco Class 2--Other Secured Claims against Riskco
11
(iii) Riskco Class 3--Other Priority Claims against Riskco
(iv) Riskco Class 4--General Unsecured Claims against Riskco
(v) Riskco Class 5--Riskco Equity Interests
Section 3.2. Acceptances and Rejections
Each of Pathmark Class 1, Pathmark Class 2, Pathmark Class 3, Pathmark
Class 4, PTK Class 1, PTK Class 2 (to the extent that the treatment described in
Section 3.4(b)(i)(B) applies to PTK Class 2), Holdings Class 1, SMG-II Class 1,
SMG-II Class 2 (to the extent that the treatment described in Section
3.6(b)(i)(B) applies to SMG-II Class 2), Plainbridge Class 1, Plainbridge Class
2, Plainbridge Class 3, Plainbridge Class 4, Plainbridge Class 5, Riskco Class
1, Riskco Class 2, Riskco Class 3, Riskco Class 4 and Riskco Class 5 is
unimpaired under the Plan and Holders of Claims or Equity Interests in such
Classes are conclusively presumed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Holders of Equity Interests in Pathmark Class 9,
PTK Class 2 (to the extent that the treatment described in Section 3.4(b)(i)(A)
applies to PTK Class 2), Holdings Class 4 and SMG-II Class 2 (to the extent that
the treatment described in Section 3.6(b)(i)(A) of the Plan applies to SMG-II
Class 2) are not receiving or retaining any property on account of the Equity
Interests in such Classes and Holders of such Equity Interests in such Classes
are deemed to have rejected the Plan pursuant to section 1126(g) of the
Bankruptcy Code. Holdings Class 3 is deemed to have rejected the Plan. Pathmark
Class 5, Pathmark Class 6, Pathmark Class 7, Pathmark Class 8, and Holdings
Class 2 are impaired and are entitled to vote to accept or reject the Plan.
Section 3.3. Treatment of Claims Against and Equity Interests in Pathmark
(a) Pathmark Class 1--Secured Credit Agreement Claims against Pathmark
(i) Treatment: Each Secured Credit Agreement Claim
constitutes an Allowed Secured Credit Agreement
Claim. On or prior to the Effective Date, unless such
Holder and Pathmark agree to a different treatment,
each Holder of an Allowed Secured Credit Agreement
Claim will be paid the amount of such Holder's
Allowed Secured Credit Agreement Claim in full in
Cash by Reorganized Pathmark. Therefore, all Secured
Credit Agreement Claims shall be unimpaired in
accordance with section 1124 of the Bankruptcy Code
when paid in accordance with the immediately
preceding sentence. The amount of any Cash
distribution to a Holder of a Secured Credit
Agreement Claim under Pathmark Class 1 shall be
reduced by any Cash distribution on account of any
Allowed Claim of such Holder under Plainbridge Class
1 and Riskco Class 1.
(ii) Voting: Pathmark Class 1 is not impaired and the
Holders of Secured Credit Agreement Claims are
conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
(b) Pathmark Class 2--Other Secured Claims against Pathmark
(i) Treatment: The legal, equitable and contractual
rights of the Holders of Allowed Other Secured Claims
against Pathmark are unaltered by the Plan. Unless
the Holder of such Claim and Pathmark agree to a
different treatment, each Holder of an Allowed Other
Secured Claim shall receive one of the following
alternative treatments, at the election of Pathmark:
(A) the legal, equitable and contractual rights
to which such Claim entitles the Holder
thereof shall be unaltered by the Plan;
(B) the Debtors shall surrender all collateral
securing such Claim to the Holder thereof,
without representation or warranty by or
recourse against the Debtors or Reorganized
Pathmark; or
12
(C) such Claim will be otherwise treated in any
other manner such that Pathmark Class 2
shall not be impaired pursuant to section
1124 of the Bankruptcy Code.
Any default with respect to any Other Secured Claim
against Pathmark that existed immediately prior to
the filing of the Chapter 11 Cases shall be deemed
cured upon the Effective Date.
(ii) Voting: Pathmark Class 2 is not impaired. The Holders
of Other Secured Claims against Pathmark are
conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
(c) Pathmark Class 3--Other Priority Claims against Pathmark
(i) Treatment: The legal, equitable and contractual
rights of the Holders of Allowed Other Priority
Claims against Pathmark are unaltered by the Plan.
Unless the Holder of an Allowed Other Priority Claim
and Pathmark agree to a different treatment, each
Holder of an Allowed Other Priority Claim against
Pathmark shall receive one of the following
alternative treatments, at the election of Pathmark:
(A) to the extent then due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark;
(B) to the extent not due and owing on the
Effective Date, such Claim will be paid in
full in Cash by Reorganized Pathmark when
and as such Claim becomes due and owing in
the ordinary course of business in
accordance with the terms thereof; or
(C) such Claim will be otherwise treated in any
manner such that Pathmark Class 3 shall not
be impaired pursuant to section 1124 of the
Bankruptcy Code.
Any default with respect to any Other Priority Claim
against Pathmark that existed immediately prior to
the filing of the Chapter 11 Cases shall be deemed
cured upon the Effective Date.
(ii) Voting: Pathmark Class 3 is not impaired. The Holders
of Other Priority Claims against Pathmark are
conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
(d) Pathmark Class 4--General Unsecured Claims against Pathmark
(i) Treatment: The legal, equitable and contractual
rights of the Holders of General Unsecured Claims
against Pathmark are unaltered by the Plan. Unless
the Holder of such Claim and Pathmark agree to a
different treatment, each Holder of a General
Unsecured Claim against Pathmark shall receive one of
the following alternative treatments, at the election
of Pathmark:
(A) to the extent then due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark in
accordance with the terms thereof;
(B) to the extent not due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark when
and as such Claim becomes due and owing in
the ordinary course of business in
accordance with the terms thereof; or
13
(C) such Claim will be otherwise treated in any
other manner such that Pathmark Class 4
shall not be impaired pursuant to section
1124 of the Bankruptcy Code.
Any default with respect to any General Unsecured
Claim against Pathmark that existed immediately prior
to the filing of the Chapter 11 Cases shall be deemed
cured upon the Effective Date.
(ii) Voting: Pathmark Class 4 is not impaired. The Holders
of General Unsecured Claims against Pathmark are
conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
(e) Pathmark Class 5--Senior Subordinated Note Claims
(i) Treatment: Each Senior Subordinated Note Claim
constitutes an Allowed Senior Subordinated Note
Claim. On the Effective Date, each Holder of an
Allowed Senior Subordinated Note Claim shall receive,
in full satisfaction of such Allowed Senior
Subordinated Note Claim, its Ratable Portion of
23,270,811 shares of New Common Stock (representing
77.57% of the initial shares of New Common Stock),
subject to dilution by the exercise of the New
Warrants, any options to purchase New Common Stock
pursuant to the Long Term Stock Incentive Plan and/or
restricted shares of New Common Stock issued pursuant
to the Retention and Sale Bonus Agreements. The
aggregate Allowed Amount of all Senior Subordinated
Note Claims shall be $472,453,937, which includes
prepetition interest as of June 30, 2000 and
postpetition interest through August 15, 2000. To the
extent the Extended Petition Date occurs, Senior
Subordinated Note Claims shall include prepetition
interest through such Extended Petition Date and
share allocations to the Holders of Senior
Subordinated Note Claims shall be adjusted
accordingly. If the Extended Effective Date occurs,
then Senior Subordinated Note Claims shall continue
to accrue and include postpetition interest through
the Extended Effective Date.
(ii) Voting: Pathmark Class 5 is impaired and the Holders
of Allowed Senior Subordinated Note Claims are
entitled to vote to accept or reject the Plan.
(f) Pathmark Class 6--Subordinated Indebtedness Claims
(i) Treatment: Each Subordinated Indebtedness Claim
constitutes an Allowed Subordinated Indebtedness
Claim. On the Effective Date, each Holder of an
Allowed Subordinated Indebtedness Claim shall receive
in full satisfaction of such Allowed Subordinated
Indebtedness Claim (x) its Ratable Portion of
5,788,127 shares of New Common Stock (representing
19.29% of initial shares of New Common Stock),
subject to dilution by the exercise of the New
Warrants, any options to purchase New Common Stock
pursuant to the Long Term Stock Incentive Plan and/or
restricted shares of New Common Stock issued pursuant
to the Retention and Sale Bonus Agreements and (y)
its Ratable Portion of New Warrants to purchase
3,970,589 shares of New Common Stock (representing
75% of the New Warrants). The aggregate Allowed
Amount of all Subordinated Indebtedness Claims shall
be $313,874,903, which includes prepetition interest
as of June 30, 2000. To the extent the Extended
Petition Date occurs, Subordinated Indebtedness
Claims shall include prepetition interest through
such Extended Petition Date and share allocations to
the Holders of Subordinated Indebtedness claims shall
be adjusted accordingly.
(ii) Voting: Pathmark Class 6 is impaired and the Holders
of Allowed Subordinated Indebtedness Claims are
entitled to vote to accept or reject the Plan.
14
(g) Pathmark Class 7--Junior Subordinated Note Claims
(i) Treatment: Each Junior Subordinated Note Claim
constitutes an Allowed Junior Subordinated Note
Claim. On the Effective Date, each Holder of an
Allowed Junior Subordinate Note Claim shall receive
in full satisfaction of such Allowed Junior
Subordinated Note Claim (x) its Ratable Portion of
889,590 shares of New Common Stock (representing
2.97% of the initial shares of New Common Stock),
subject to dilution by the exercise of the New
Warrants, any options to purchase New Common Stock
pursuant to the Long Term Stock Incentive Plan and/or
restricted shares of New Common Stock issued pursuant
to the Retention and Sale Bonus Agreements and (y)
its Ratable Portion of New Warrants to purchase
1,323,529 shares of New Common Stock (representing
25% of the New Warrants). The aggregate Allowed
Amount of all Junior Subordinated Note Claims shall
be $241,200,738, which includes prepetition interest
as of June 30, 2000. To the extent the Extended
Petition Date occurs, Subordinated Indebtedness
Claims shall include prepetition interest through the
Extended Petition Date and share allocations to the
Holders of Junior Subordinated Note Claims shall be
adjusted accordingly.
(ii) Voting: Pathmark Class 7 is impaired and the Holders
of Allowed Junior Subordinated Note Claims are
entitled to vote to accept or reject the Plan.
(h) Pathmark Class 8--Guaranty Claims
(i) Treatment: Each Guaranty Claim constitutes an Allowed
Guaranty Claim. On the Effective Date, each Holder of
an Allowed Guaranty Claim shall receive, in full
satisfaction of such Allowed Guaranty Claim, its
Ratable Portion of 51,472 shares of New Common Stock
(representing .17% of the initial shares of New
Common Stock) subject to dilution by the exercise of
the New Warrants, any options to purchase New Common
Stock pursuant to the Long Term Stock Incentive Plan
and/or restricted shares of New Common Stock issued
pursuant to the Retention and Sale Bonus Agreements.
The aggregate Allowed amount of all Guaranty Claims
shall be $1,045,008, which includes prepetition
interest through June 30, 2000. To the extent the
Extended Petition Date occurs, Guaranty Claims shall
include prepetition interest through the Extended
Petition Date and share allocations to the Holders of
Guaranty Claims shall be adjusted accordingly. To the
extent Holders of Guaranty Claims receive a
distribution under Pathmark Class 8, they are
precluded from receiving a distribution under
Holdings Class 2 on account of the same Claim.
(ii) Voting: Pathmark Class 8 is impaired and the Holders
of Guaranty Claims are entitled to vote to accept or
reject the Plan.
(i) Pathmark Class 9--Equity Interests in Pathmark
(i) Treatment: On the Effective Date, the Pathmark Equity
Interests will be canceled and each holder thereof
shall not receive or retain any distribution on
account of its Pathmark Equity Interest.
(ii) Voting: Pathmark Class 9 is impaired. Holders of
Pathmark Equity Interests are deemed to reject the
Plan pursuant to Section 1126(g) of the Bankruptcy
Code and are not entitled to vote to accept or reject
the Plan.
15
Section 3.4. Treatment of Claims Against and Equity Interests in PTK
(a) PTK Class 1--General Unsecured Claims against PTK
(i) Treatment: The legal, equitable and contractual
rights of the Holders of Allowed General Unsecured
Claims against PTK are unaltered by the Plan. Unless
the Holder of such a Claim and PTK agree to a
different treatment, each Holder of an Allowed
General Unsecured Claim against PTK shall receive one
of the following alternative treatments, at the
election of PTK:
(A) to the extent then due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark;
(B) to the extent not due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark when
and as such Claim becomes due and owing in
the ordinary course of business; or
(C) such Claim will be otherwise treated in any
other manner such that PTK Class 1 shall not
be impaired pursuant to section 1124 of the
Bankruptcy Code.
Any default with respect to any General Unsecured
Claim against PTK that existed immediately prior to
the filing of the Chapter 11 Cases shall be deemed
cured upon the Effective Date.
(ii) Voting: PTK Class 1 is not impaired. The Holders of
General Unsecured Claims against PTK are conclusively
presumed to have accepted the Plan pursuant to
section 1126(f) of the Bankruptcy Code and are not
entitled to vote to accept or reject the Plan.
(b) PTK Class 2--PTK Equity Interests
(i) Treatment: On the Effective Date, either (A) the PTK
Equity Interests will be canceled and each holder
thereof shall not receive any distribution on account
of its PTK Equity Interest; or (B) the Holders of PTK
Equity Interests shall retain their interests in the
PTK Equity Interests under the Plan, but the PTK
Equity Interests shall be canceled in accordance with
applicable non-bankruptcy law pursuant to the mergers
and other transactions described in Section 5.2 of
the Plan. Consummation of the transactions
contemplated under Section 5.2 of the Plan will be
conditioned upon the Holders of PTK Equity Interests
having voted their interests in favor of such mergers
and other transactions described in Section 5.2 of
the Plan in such number and in such manner as shall
be binding upon all Holders of PTK Equity Interests.
(ii) Voting: To the extent the treatment described in the
immediately preceding clause (A) applies to PTK Class
2, PTK Class 2 is impaired; the Holders of PTK Equity
Interests are deemed to reject the Plan and are not
entitled to vote to accept or reject the Plan
pursuant to section 1126(g) of the Bankruptcy Code.
Alternatively, to the extent that the treatment
described in the immediately preceding clause (B)
applies to PTK Class 2, PTK Class 2 is not impaired;
the Holders of PTK Equity Interests are conclusively
presumed to have accepted the Plan and are not
entitled to vote to accept or reject the Plan
pursuant to section 1126(f) of the Bankruptcy Code.
16
Section 3.5. Treatment of Claims Against and Equity Interests in Holdings
(a) Holdings Class 1--General Unsecured Claims against Holdings
(i) Treatment: The legal, equitable and contractual
rights of the Holders of General Unsecured Claims
against Holdings are unaltered by the Plan. Unless
the Holder of such Claim and Holdings agree to a
different treatment, each Holder of an Allowed
General Unsecured Claim against Holdings shall
receive one of the following alternative treatments,
at the election of Holdings:
(A) to the extent then due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark;
(B) to the extent not due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark when
and as such Claim becomes due and owing in
the ordinary course of business; or
(C) such Claim will be otherwise treated in any
other manner such that Holdings Class 1
shall not be impaired pursuant to section
1124 of the Bankruptcy Code.
Any default with respect to any General Unsecured
Claim against Holdings that existed immediately prior
to the filing of the Chapter 11 Cases shall be deemed
cured upon the Effective Date.
(ii) Voting: Holdings Class 1 is not impaired. The Holders
of General Unsecured Claims against Holdings are
conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
(b) Holdings Class 2--Holdings Bond Claims
(i) Treatment: Each Holdings Bond Claim constitutes an
Allowed Holdings Bond Claim. On the Effective Date,
each Holder of an Allowed Holdings Bond Claim shall
receive in full satisfaction of such Allowed Holdings
Bond Claim, its Ratable Portion of 51,472 shares of
New Common Stock (representing .17% of the initial
shares of New Common Stock), subject to dilution by
the exercise of the New Warrants, any options to
purchase New Common Stock pursuant to the Long Term
Stock Incentive Plan and/or restricted shares of New
Common Stock issued pursuant to the Retention and
Sale Bonus Agreements. The aggregate Allowed amount
of all Holdings Bond Claims shall be $1,045,008,
which includes prepetition interest as of June 30,
2000. To the extent the Extended Petition Date
occurs, Holdings Bond Claims shall include
prepetition interest through the Extended Petition
Date and share allocations to the Holders of Holdings
Bond Claims shall be adjusted accordingly. To the
extent Holders of Holdings Bond Claims receive a
distribution under Holdings Class 2, they are
precluded from receiving a distribution under
Pathmark Class 8 on account of the same Claim.
(ii) Voting: Class 2 is impaired and the Holders of
Allowed Holding Bond Claims are entitled to vote to
accept or reject the Plan.
(c) Holdings Class 3--Holdings Preferred Stock Interests
(i) Treatment: On the Effective Date, each Holder of an
Allowed Holdings Preferred Stock Interest shall
receive in full satisfaction of such Allowed Holdings
Preferred Stock Interest its Ratable Portion of
$500,000 in Cash. In addition, each Holder of an
Allowed Holdings Preferred Stock Interest shall
retain all Causes of Action it may have against
17
any Debtor, Reorganized Debtor or other entity in
respect of the Preferred Stockholder Litigation.
(ii) Voting: Holdings Class 3 is impaired. The Holders of
Preferred Stock Interests are deemed to reject the
Plan pursuant to Section 1126(g) of the Bankruptcy
Code and are not entitled to vote to accept or reject
the Plan.
(d) Holdings Class 4--Holdings Common Stock Interests
(i) Treatment: On the Effective Date, the Holdings Common
Stock Interests will be canceled and each holder
thereof shall not receive or retain any distribution
on account of its Holdings Common Stock Interests.
(ii) Voting: Holdings Class 4 is impaired. Holders of
Holdings Common Stock Interests are deemed to reject
the Plan pursuant to section 1126(g) of the
Bankruptcy Code and are not entitled to vote to
accept or reject the Plan.
Section 3.6. Treatment of Claims Against and Equity Interests in SMG-II
(a) SMG-II Class 1--General Unsecured Claims against SMG-II
(i) Treatment: The legal, equitable and contractual
rights of the Holders of General Unsecured Claims
against SMG-II are unaltered by the Plan. Unless the
Holder of such a Claim and SMG-II agree to a
different treatment, each Holder of an Allowed
General Unsecured Claim against SMG-II shall receive
one of the following alternative treatments, at the
election of SMG-II:
(A) to the extent then due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark;
(B) to the extent not due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark when
and as such Claim becomes due and owing in
the ordinary course of business; or
(C) such Claim will be otherwise treated in any
other manner such that SMG-II Class 1 shall
not be impaired pursuant to section 1124 of
the Bankruptcy Code.
Any default with respect to any General Unsecured
Claim against SMG-II that existed immediately prior
to the filing of the Chapter 11 Cases shall be deemed
cured upon the Effective Date.
(ii) Voting: SMG-II Class 1 is not impaired. The Holders
of General Unsecured Claims against SMG-II are
conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
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(b) SMG-II Class 2--SMG-II Equity Interests
(i) Treatment: On the Effective Date, either (A) the
SMG-II Equity Interests will be canceled and each
holder thereof shall not receive any distribution on
account of its SMG-II Equity Interest; or (B) the
Holders of SMG-II Equity Interests shall retain their
interests in the SMG-II Equity Interests under the
Plan, but the SMG-II Equity Interests shall be
canceled in accordance with applicable non-bankruptcy
law pursuant to the mergers and other transactions
described in Section 5.2 of the Plan. Consummation of
the transactions contemplated under Section 5.2 of
the Plan will be conditioned upon the Holders of
SMG-II Equity Interests having voted their interests
in favor of such mergers and other transactions
described in Section 5.2 of the Plan in such number
and in such manner as shall be binding upon all
Holders of SMG-II Equity Interests.
(ii) Voting: To the extent the treatment described in the
immediately preceding clause (A) applies to SMG-II
Class 2, SMG-II Class 2 is impaired; the Holders of
SMG-II Equity Interests are deemed to reject the Plan
and are not entitled to vote to accept or reject the
Plan pursuant to section 1126(g) of the Bankruptcy
Code. Alternatively, to the extent that the treatment
described in the immediately preceding clause (B)
applies to SMG-II Class 2, SMG-II Class 2 is not
impaired; the Holders of SMG-II Equity Interests are
conclusively presumed to have accepted the Plan and
are not entitled to vote to accept or reject the Plan
pursuant to section 1126(f) of the Bankruptcy Code.
Section 3.7. Treatment of Claims Against and Equity Interests in Plainbridge
(a) Plainbridge Class 1--Secured Credit Agreement Claims against
Plainbridge
(i) Treatment: Each Secured Credit Agreement Claim
constitutes an Allowed Secured Credit Agreement
Claim. On or prior to the Effective Date, unless such
Holder and Plainbridge agree to a different
treatment, each Holder of an Allowed Secured Credit
Agreement Claim will be paid the amount of such
Holder's Allowed Secured Credit Agreement Claim in
full in Cash by Reorganized Plainbridge. Therefore,
all Secured Credit Agreement Claims shall be
unimpaired in accordance with section 1124 of the
Bankruptcy Code when paid in accordance with the
immediately preceding sentence. The amount of any
Cash distribution to a Holder of a Secured Credit
Agreement Claim under Plainbridge Class 1 shall be
reduced by any Cash distribution on account of any
Allowed Claim of such Holder under Pathmark Class 1
and Riskco Class 1.
(ii) Voting: Plainbridge Class 1 is not impaired and the
Holders of Secured Credit Agreement Claims are
conclusively presumed to accept the Plan pursuant to
section 1126(f) of the Bankruptcy Code and are not
entitled to vote to accept or reject the Plan.
(b) Plainbridge Class 2--Other Secured Claims against Plainbridge
(i) Treatment: The legal, equitable and contractual
rights of the Holders of Other Secured Claims against
Plainbridge are unaltered by the Plan. Unless the
Holder of such a Claim and Plainbridge agree to a
different treatment, each Holder of an Allowed Other
Secured Claim against Plainbridge shall receive one
of the following alternative treatments, at the
election of Plainbridge:
(A) the legal, equitable and contractual rights
to which such Claim entitles the Holder
thereof shall be unaltered by the Plan;
(B) Plainbridge shall surrender all collateral
securing such Claim to the Holder thereof,
without representation or warranty by or
recourse against Plainbridge or Reorganized
Pathmark; or
19
(C) such Claim will be otherwise treated in any
other manner such that Plainbridge Class 2
shall not be impaired pursuant to section
1124 of the Bankruptcy Code.
Any default with respect to any Other Secured Claim
against Plainbridge that existed immediately prior to
the filing of the Chapter 11 Cases shall be deemed
cured upon the Effective Date.
(ii) Voting: Plainbridge Class 2 is not impaired. The
Holders of Other Secured Claims against Plainbridge
are conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
(c) Plainbridge Class 3--Other Priority Claims against Plainbridge
(i) Treatment: The legal, equitable and contractual
rights of the Holders of Other Priority Claims
against Plainbridge are unaltered by the Plan. Unless
the Holder of such a Claim and Plainbridge agree to a
different treatment, each Holder of an Allowed Other
Priority Claim against Plainbridge shall receive one
of the following alternative treatments, at the
election of Plainbridge:
(A) to the extent then due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark;
(B) to the extent not due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark when
and as such Claim becomes due and owing in
the ordinary course of business; or
(C) such Claim will be otherwise treated in any
manner such that Plainbridge Class 3 shall
not be impaired pursuant to section 1124 of
the Bankruptcy Code.
Any default with respect to any Other Priority Claim
against Plainbridge that existed immediately prior to
the filing of the Chapter 11 Cases shall be deemed
cured upon the Effective Date.
(ii) Voting: Plainbridge Class 3 is not impaired. The
Holders of Other Priority Claims against Plainbridge
are conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
(d) Plainbridge Class 4--Plainbridge General Unsecured Claims
(i) Treatment: The legal, equitable and contractual
rights of the Holders of General Unsecured Claims
against Plainbridge are unaltered by the Plan. Unless
the Holder of such a Claim and Plainbridge agree to a
different treatment, each Holder of an Allowed
General Unsecured Claim against Plainbridge shall
receive one of the following alternative treatments,
at the election of Plainbridge:
(A) to the extent then due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark;
(B) to the extent not due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark when
and as such Claim becomes due and owing in
the ordinary course of business; or
20
(C) such Claim will be otherwise treated in any
other manner such that Plainbridge Class 4
shall not be impaired pursuant to section
1124 of the Bankruptcy Code.
Any default with respect to any General Unsecured
Claim against Plainbridge that existed immediately
prior to the filing of the Chapter 11 Cases shall be
deemed cured upon the Effective Date.
(ii) Voting: Plainbridge Class 4 is not impaired and the
Holders of General Unsecured Claims against
Plainbridge are conclusively presumed to have
accepted the Plan pursuant to section 1126(f) of the
Bankruptcy Code.
(e) Plainbridge Class 5--Plainbridge Equity Interests
(i) Treatment: Each Plainbridge Equity Interest shall be
an Allowed Plainbridge Equity Interest and each
Holder of an Allowed Plainbridge Equity Interest
shall, on the Effective Date, retain its Plainbridge
Equity Interest.
(ii) Voting: Plainbridge Class 5 is not impaired and
Holders of Plainbridge Equity Interests are
conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
Section 3.8. Treatment of Claims Against and Equity Interests in Riskco
(a) Riskco Class 1--Secured Credit Agreement Claims against Riskco
(i) Treatment: Each Secured Credit Agreement Claim
constitutes an Allowed Secured Credit Agreement
Claim. On or prior to the Effective Date, unless such
Holder and Riskco agree to a different treatment,
each Holder of an Allowed Secured Credit Agreement
Claim will be paid the amount of such Holder's
Allowed Secured Credit Agreement Claim in full in
Cash by Reorganized Riskco. Therefore, all Secured
Credit Agreement Claims shall be unimpaired in
accordance with section 1124 of the Bankruptcy Code
when paid in accordance with the immediately
preceding sentence. The amount of any Cash
distribution to a Holder of a Secured Credit
Agreement Claim under Riskco Class 1 shall be reduced
by any Cash distribution on account of an Allowed
Claim of such Holder under Pathmark Class 1 and
Plainbridge Class 1.
(ii) Voting: Riskco Class 1 is not impaired and the
Holders of Secured Credit Agreement Claims are
conclusively presumed to accept the Plan pursuant to
section 1126(f) of the Bankruptcy Code and are not
entitled to vote to accept or reject the Plan.
(b) Riskco Class 2--Other Secured Claims against Riskco
(i) Treatment: The legal, equitable and contractual
rights of the Holders of Other Secured Claims against
Riskco are unaltered by the Plan. Unless the Holder
of such a Claim and Riskco agree to a different
treatment, each Holder of an Allowed Other Secured
Claim against Riskco shall receive one of the
following alternative treatments, at the election of
Riskco:
(A) the legal, equitable and contractual rights
to which such Claim entitles the Holder
thereof shall be unaltered by the Plan;
(B) Riskco shall surrender all collateral
securing such Claim to the Holder thereof,
without representation or warranty by or
recourse against Riskco or Reorganized
Pathmark; or
21
(C) such Claim will be otherwise treated in any
other manner such that Riskco Class 2 shall
not be impaired pursuant to section 1124 of
the Bankruptcy Code.
Any default with respect to any Other Secured Claim
against Riskco that existed immediately prior to the
filing of the Chapter 11 Cases shall be deemed cured
upon the Effective Date.
(ii) Voting: Riskco Class 2 is not impaired. The Holders
of Other Secured Claims against Riskco are
conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
(c) Riskco Class 3--Other Priority Claims against Riskco
(i) Treatment: The legal, equitable and contractual
rights of the Holders of Other Priority Claims
against Riskco are unaltered by the Plan. Unless the
Holder of such a Claim and Riskco agree to a
different treatment, each Holder of an Allowed Other
Priority Claim against Riskco shall receive one of
the following alternative treatments, at the election
of Riskco:
(A) to the extent then due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark;
(B) to the extent not due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark when
and as such Claim becomes due and owing in
the ordinary course of business; or
(C) such Claim will be otherwise treated in any
manner such that Riskco Class 3 shall not be
impaired pursuant to section 1124 of the
Bankruptcy Code.
Any default with respect to any Other Priority Claim
against Riskco that existed immediately prior to the
filing of the Chapter 11 Cases shall be deemed cured
upon the Effective Date.
(ii) Voting: Riskco Class 3 is not impaired. The Holders
of Other Priority Claims against Riskco are
conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code
and are not entitled to vote to accept or reject the
Plan.
(d) Riskco Class 4--Riskco General Unsecured Claims
(i) Treatment: The legal, equitable and contractual
rights of the Holders of General Unsecured Claims
against Riskco are unaltered by the Plan. Unless the
Holder of such a Claim and Riskco agree to a
different treatment, each Holder of an Allowed
General Unsecured Claim against Riskco shall receive
one of the following alternative treatments, at the
election of Riskco:
(A) to the extent then due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark;
(B) to the extent not due and owing on the
Effective Date, such Claim will be paid in
full, in Cash by Reorganized Pathmark when
and as such Claim becomes due and owing in
the ordinary course of business; or
(C) such Claim will be otherwise treated in any
other manner such that Riskco Class 4 shall
not be impaired pursuant to section 1124 of
the Bankruptcy Code.
22
Any default with respect to any General Unsecured
Claim against Riskco that existed immediately prior
to the filing of the Chapter 11 Cases shall be deemed
cured upon the Effective Date.
(ii) Voting: Riskco Class 4 is not impaired and the
Holders of General Unsecured Claims against Riskco
are conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code.
(e) Riskco Class 5--Riskco Equity Interests
(i) Treatment: Each Riskco Equity Interest shall be an
Allowed Riskco Equity Interest and each Holder of an
Allowed Riskco Equity Interest shall, on the
Effective Date, retain its Riskco Equity Interest.
(ii) Voting: Riskco Class 5 is not impaired and Holders of
Riskco Equity Interests are conclusively presumed to
have accepted the Plan pursuant to section 1126(f) of
the Bankruptcy Code and are not entitled to vote to
accept or reject the Plan.
ARTICLE IV
CRAM DOWN
If (a) any impaired Class of Claims or Equity Interests shall not
accept the Plan in accordance with sections 1126 and 1129(a)(8) of the
Bankruptcy Code, or (b) any Class is deemed to have rejected the Plan pursuant
to section 1126(b) of the Bankruptcy Code, or the terms of the Plan or
otherwise, the Debtors reserve the right to request that the Bankruptcy Court
confirm the Plan in accordance with section 1129(b) of the Bankruptcy Code, or
amend or modify the Plan in accordance with Section 12.4.
ARTICLE V
MEANS FOR IMPLEMENTATION OF THE PLAN
Section 5.1. Continued Corporate Existence and Vesting of Assets in
Reorganized Pathmark
Each of Pathmark, Riskco and Plainbridge shall, as Reorganized
Pathmark, Reorganized Riskco and Reorganized Plainbridge, respectively, continue
to exist after the Effective Date as a separate corporate entity, with all the
powers of a corporation under the laws of the State of Delaware or the State of
New Jersey, as applicable, and without prejudice to any right to alter or
terminate such existence (whether by merger or otherwise) under such applicable
state law. Except as otherwise provided in the Plan or any agreement, instrument
or indenture relating thereto, on or after the Effective Date, all property of
the Estates of SMG-II, Holdings, PTK and Pathmark, and any property acquired by
such Debtors or Reorganized Pathmark under the Plan, shall vest in Reorganized
Pathmark, free and clear of all Claims, Liens, charges or other encumbrances and
Equity Interests. Except as otherwise provided in the Plan or any agreement,
instrument or indenture relating thereto, on or after the Effective Date, all
property of Plainbridge's Estate and any property acquired by Plainbridge or
Reorganized Plainbridge under the Plan, shall vest in Reorganized Plainbridge,
free and clear of all Claims, Liens, charges or other encumbrances and Equity
Interests. Except as otherwise provided in the Plan or any agreement, instrument
or indenture relating thereto, on or after the Effective Date, all property of
Riskco's Estate, and any property acquired by Riskco or Reorganized Riskco under
the Plan, shall vest in Reorganized Riskco, free and clear of all Claims, Liens,
charges, or other encumbrances and Equity Interests. On and after the Effective
Date, the Reorganized Debtors may operate their respective businesses and may
use, acquire or dispose of property and compromise or settle any Claims or
Equity Interests, without supervision or approval by the Bankruptcy Court and
free of any restrictions of the Bankruptcy Code or Bankruptcy Rules, other than
those restrictions expressly imposed by the Plan and the Confirmation Order. In
accordance with section 1109(b) of the Bankruptcy Code, nothing in this Article
V shall preclude any party in interest from appearing and being heard on any
issue in the Chapter 11 Cases.
23
Section 5.2. Mergers
On the Effective Date the following mergers shall occur in the
following order:
(i) PTK shall merge with Pathmark; Pathmark shall be the
surviving entity;
(ii) Holdings shall merge with Pathmark; Pathmark shall be
the surviving entity; and
(iii) SMG-II shall merge with Pathmark; Pathmark shall be
the surviving entity.
On the Effective Date and in the above-referenced order, each of SMG-II,
Holdings, PTK and Pathmark will take all such actions as may be necessary or
appropriate to effect the mergers on the terms and subject to the conditions set
forth in this Plan. Without limiting the generality of the foregoing sentence,
on the Effective Date, the Debtors will cause a certificate of merger conforming
to the applicable provisions of the Delaware General Corporation Law to be filed
with the Secretary of State of Delaware pursuant to applicable provisions of the
Delaware General Corporation Law and will take or cause to be taken all other
actions, including making appropriate filings or recordings, that may be
required by the Delaware General Corporation Law or other applicable law in
connection with these mergers. In addition, Reorganized Pathmark shall, on the
Effective Date, file Certificates of Elimination with the Secretary of the State
of Delaware.
Section 5.3. Cancellation of Notes, Instruments, Debentures, Common Stock and
Stock Options
On the Effective Date, except to the extent provided in Section 7.2 or
elsewhere in the Plan or the Confirmation Order, and provided that the
treatments provided for herein and the distributions contemplated by Article VII
hereof are made, (a) all notes, instruments, certificates, guaranties and other
documents evidencing the Secured Credit Agreement Claims, (b) the Senior
Subordinated Notes, (c) the Subordinated Debentures, (d) the Subordinated Notes,
(e) the Junior Subordinated Notes, (f) the Holdings Bonds, (g) the Guaranty and
(h) all Equity Interests of SMG-II, Holdings, PTK and Pathmark, including all
common stock and preferred stock of such Debtors, shall be canceled and deemed
terminated. On the Effective Date, except to the extent provided in Section 7.2
or otherwise in the Plan, any indenture relating to any of the foregoing,
including, without limitation, the Pathmark Indentures and the Holdings Bond
Indenture, shall be deemed to be canceled, as permitted by section 1123(a)(5)(F)
of the Bankruptcy Code.
Section 5.4. Issuance of New Securities; Execution of Related Documents
On the Effective Date, Reorganized Pathmark shall issue the New Common
Stock and New Warrants. All Plan Documents including without limitation, the
Exit Facility, the New Warrant Agreement, the Registration Rights Agreement
and/or any other agreement entered into or instrument issued or in connection
with any of the foregoing or any other Plan Document, shall become effective and
binding in accordance with their respective terms and conditions upon the
parties thereto and shall be deemed to become effective simultaneously.
Section 5.5. Corporate Governance, Directors and Officers, and Corporate
Action
(a) Amended Certificates of Incorporation. On the Effective Date,
Reorganized Pathmark shall file the Amended Pathmark Certificate of
Incorporation, and Reorganized Plainbridge shall file the Amended Plainbridge
Certificate of Incorporation, with the Secretary of the State of Delaware in
accordance with sections 102 and 103 of the Delaware General Corporation Law. On
the Effective Date, Reorganized Riskco shall file the Amended Riskco Certificate
of Incorporation with the Secretary of the State of New Jersey in accordance
with sections 14A:1-6 and 14A:2-7 of the New Jersey General Corporations Law.
Each of the Amended Certificates of Incorporation will, among other things,
prohibit the issuance of nonvoting equity securities to the extent required by
section 1123(a) of the Bankruptcy Code. The Amended Pathmark Certificate of
Incorporation shall provide that the number of authorized shares of New Common
Stock of Reorganized Pathmark shall be 100,000,000 and provide that the par
value of the New Common Stock shall be $0.01. After the Effective Date, each of
the Reorganized Debtors may amend and restate its Amended Certificate of
Incorporation and other constituent documents as permitted by the Delaware
General Corporation Law and New Jersey General Corporations Law.
24
(b) Directors and Officers of the Reorganized Debtors. Subject to any
requirement of Bankruptcy Court approval pursuant to section 1129(a)(5) of the
Bankruptcy Code, as of the Effective Date, the initial officers of the
Reorganized Debtors shall be the officers of the Debtors immediately prior to
the Effective Date. On the Effective Date, the directors designated by the
Bondholder Committee prior to the Confirmation Date shall serve as directors of
Reorganized Pathmark. On the Effective Date, the directors of Reorganized
Plainbridge and Reorganized Riskco shall be either (i) the directors of
Plainbridge and Riskco, respectively, immediately prior to the Effective Date or
(ii) one or more of the directors of Reorganized Pathmark, as designated by the
Bondholder Committee. Pursuant to section 1129(a)(5), the Debtors will disclose,
on or prior to the Confirmation Date, the identity and affiliations of any
Person proposed to serve on the initial board of directors of Reorganized
Pathmark (which persons shall have been designated by the Bondholder Committee),
and, to the extent such Person is an insider, the nature of any compensation for
such Person. The classification and composition of the board of directors of
each of the Reorganized Debtors shall be consistent with the Amended
Certificates of Incorporation. Each such director and officer shall serve from
and after the Effective Date pursuant to the terms of the Amended Certificates
of Incorporation, the other constituent documents of the Reorganized Debtors,
the Delaware General Corporation Law and the New Jersey General Corporations
Law.
(c) Corporate Action. On the Effective Date, the adoption of the
Amended Certificates of Incorporation or similar constituent documents, the
adoption of the Amended By-Laws, the selection of directors and officers for the
Reorganized Debtors, the mergers contemplated in Section 5.2 above and all other
actions contemplated by the Plan shall be authorized and approved in all
respects (subject to the provisions of the Plan). All matters provided for in
the Plan involving the corporate structure of the Debtors or the Reorganized
Debtors, and any corporate action required by the Debtors or the Reorganized
Debtors in connection with the Plan, shall be deemed to have occurred and shall
be in effect, without any requirement of further action by the security holders
or directors of the Debtors or the Reorganized Debtors. On the Effective Date,
the appropriate officers of the Reorganized Debtors and members of the boards of
directors of the Reorganized Debtors are authorized and directed to issue,
execute and deliver the agreements, documents, securities and instruments
contemplated by the Plan in the name of and on behalf of the Reorganized
Debtors.
Section 5.6. Sources of Cash for Plan Distribution
All Cash necessary for the Reorganized Debtors to make payments
pursuant to the Plan shall be obtained from existing Cash balances, the
operations of the Debtors or Reorganized Debtors, or post-Confirmation Date
borrowing under other available facilities of the Debtors or Reorganized
Debtors, including, without limitation, to the extent available, the Exit
Facility. The Reorganized Debtors may also make such payments using Cash
received from their subsidiaries through the Reorganized Debtors' consolidated
cash management system and from advances or dividends from such subsidiaries in
the ordinary course.
Section 5.7. Ahold Litigation; Preferred Stock Litigation
On the Effective Date, Reorganized Pathmark shall be vested with all of
the Causes of Action and liabilities of SMG-II, Holdings, PTK or Pathmark
arising in connection with the Ahold Litigation including, without limitation,
any Cause of Action for money damages or equitable or other relief therein and
to retain counsel in connection therewith. On the Effective Date, Reorganized
Pathmark shall be vested with all of the Causes of Action and liabilities of
SMG-II, Holdings, PTK or Pathmark arising in connection with the Preferred
Stockholder Litigation including, without limitation, any Cause of Action for
money damages or equitable or other relief therein and to retain counsel in
connection therewith.
Section 5.8. Elimination of Classes
Any Class of Claims or Equity Interests that is not occupied as of the
date of the commencement of the Confirmation Hearing by an Allowed Claim or an
Allowed Equity Interest, or a Claim or Equity Interest temporarily allowed under
Rule 3018 of the Bankruptcy Rules, shall be deemed deleted from the Plan for all
purposes.
25
Section 5.9. Issuance of New Pathmark Common Stock
On or as soon as practicable after the Effective Date, Reorganized
Pathmark shall issue, in accordance with the terms of the Plan, 30,000,000
shares of New Common Stock to be distributed to Holders of the Pathmark Notes
and the Holdings Bonds and 98,510 shares of New Common Stock to be distributed
pursuant to modifications to the Retention and Sale Bonus Agreement of
Pathmark's Chief Executive Officer. The New Warrant Agreement shall be executed
and delivered by Reorganized Pathmark and American Stock Transfer & Trust
Company or any replacement agent reasonably acceptable to Reorganized Pathmark
and the Bondholder Committee. The issuance of New Common Stock and the New
Warrants by Reorganized Pathmark is hereby authorized without the need for any
further corporate action.
Section 5.10. Long Term Stock Incentive Plan; Employment Agreements; Retention
and Sale Bonus Agreements
(a) On or prior to the Confirmation Date, the Long Term Stock Incentive
Plan, acceptable in form and substance to the Bondholder Committee, shall be
adopted by Pathmark and become effective only after the occurrence of the
Effective Date. Following the Effective Date, the Long Term Stock Incentive Plan
may be amended or modified by the board of directors of Reorganized Pathmark in
accordance with the terms thereof and any such amendment or modification shall
not require an amendment of this Plan.
(b) On the Effective Date, the Employment Agreements and the Retention
and Sale Bonus Agreements shall be modified as described in the Disclosure
Statement.
Section 5.11. Registration Rights Agreement; Listing Requirements
The Registration Rights Agreement, which shall be in form and substance
satisfactory to the Bondholder Committee, shall be executed and delivered by
Reorganized Pathmark on the Effective Date. Reorganized Pathmark will use its
best efforts to continue to be a reporting company under the Exchange Act and to
be listed, as soon as practicable after the Effective Date, on a nationally
recognized market system of the National Association of Securities Dealers'
Automated Quotation System or the New York Stock Exchange. All of the New Common
Stock and the New Warrants shall be included in the Registration Rights
Agreement.
Section 5.12. Exit Facility
On the Effective Date, the Reorganized Debtors shall be authorized to
execute and deliver the Exit Facility Documents, which shall be in form and
substance satisfactory to the Bondholder Committee.
ARTICLE VI
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
Section 6.1. Assumption of Executory Contracts and Unexpired Leases
(a) Immediately prior to the Effective Date, all executory contracts or
unexpired leases of the Reorganized Debtors will be deemed assumed in accordance
with the provisions and requirements of sections 365 and 1123 of the Bankruptcy
Code except those executory contracts and unexpired leases that (1) have been
rejected by order of the Bankruptcy Court, (2) are the subject of a motion to
reject pending on the Effective Date, (3) are identified on a list to be filed
with the Bankruptcy Court on or before the Confirmation Date as to be rejected,
or (4) are rejected pursuant to the terms of the Plan. Entry of the Confirmation
Order by the Bankruptcy Court shall constitute approval of such assumptions and
rejections pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Each
executory contract and unexpired lease assumed pursuant to this Article VI shall
revest in and be fully enforceable by the respective Reorganized Debtor in
accordance with its terms, except as modified by the provisions of the Plan, or
any order of the Bankruptcy Court authorizing and providing for its assumption
or applicable federal law.
(b) No Debtor shall be permitted to reject any executory contract or
unexpired lease if the Allowed Claims arising out of such rejection (as
determined by such Debtor after consultation with the Bondholder Committee),
26
when taken together with all Allowed Claims arising out of the rejection of all
other executory contracts or unexpired leases by all Debtors (as determined by
the Debtors after consultation with the Bondholder Committee) would exceed $15
million in the aggregate.
Section 6.2. Claims Based on Rejection of Executory Contracts or Unexpired
Leases
All proofs of claim with respect to Claims arising from the rejection
of executory contracts or unexpired leases, if any, must be filed with the
Bankruptcy Court within thirty (30) days after the date of entry of an order of
the Bankruptcy Court approving such rejection. Any Claims arising from the
rejection of an executory contract or unexpired lease not filed within such
times will be forever barred from assertion against the Debtors or Reorganized
Debtors, their Estates and property unless otherwise ordered by the Bankruptcy
Court or provided for in this Plan. All such Allowed Claims for which proofs of
claim are required to be filed will be, and will be treated as, Allowed General
Unsecured Claims subject to the provisions of Article III hereof, subject to any
limitation on allowance of such Claims under section 502(b) of the Bankruptcy
Code or otherwise.
Section 6.3. Cure of Defaults for Assumed Executory Contracts and Unexpired
Leases
Any monetary amounts by which each executory contract and unexpired
lease to be assumed pursuant to the Plan is in default shall be satisfied,
pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the default
amount in Cash on the Effective Date or on such other terms as the parties to
such executory contracts or unexpired leases may otherwise agree. In the event
of a dispute regarding: (1) the amount of any cure payments, (2) the ability of
the Reorganized Debtors or any assignee to provide "adequate assurance of future
performance" (within the meaning of section 365 of the Bankruptcy Code) under
the contract or lease to be assumed, or (3) any other matter pertaining to
assumption, the cure payments required by section 365(b)(1) of the Bankruptcy
Code shall be made following the entry of a Final Order resolving the dispute
and approving the assumption.
Section 6.4. Indemnification of Directors, Officers and Employees
The obligations of the Debtors to indemnify any Person or Entity
serving at any time on or prior to the Effective Date as one of their directors,
officers or employees by reason of such Person's or Entity's service in such
capacity, or as a director, officer or employee of any other corporation or
legal entity, to the extent provided in the Debtors' constituent documents or by
a written agreement with the Debtors or the Delaware General Corporation Law or
New Jersey General Corporations Law, each as applicable, shall be deemed and
treated as executory contracts that are assumed by the Debtors pursuant to the
Plan and section 365 of the Bankruptcy Code as of the Effective Date.
Accordingly, such indemnification obligations shall be treated as General
Unsecured Claims, and shall survive unimpaired and unaffected by entry of the
Confirmation Order, irrespective of whether such indemnification is owed for an
act or event occurring before or after the Petition Date.
Section 6.5. Compensation and Benefit Programs
Except as otherwise expressly provided hereunder, all employment and
severance policies, and all compensation and benefit plans, policies, and
programs of the Debtors applicable to their employees, retirees and non-employee
directors and the employees and retirees of its subsidiaries, including, without
limitation, all savings plans, retirement plans, healthcare plans, disability
plans, severance benefit plans, incentive plans, and life, accidental death and
dismemberment insurance plans are treated as executory contracts under the Plan
and on the Effective Date will be assumed pursuant to the provisions of sections
365 and 1123 of the Bankruptcy Code.
ARTICLE VII
PROVISIONS GOVERNING DISTRIBUTIONS
Section 7.1. Distribution for Claims and Equity Interests Allowed as of the
Effective Date
(a) Except as otherwise provided in this Article VII or as may be
ordered by the Bankruptcy Court, distributions to be made on the Effective Date
on account of Claims and Equity Interests that are Allowed as of the
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Effective Date and are entitled to receive distributions under the Plan shall be
made on the Effective Date or as soon as practicable thereafter. Distributions
on account of Claims that become Allowed Claims and Equity Interests that become
Allowed Equity Interests after the Effective Date shall be made pursuant to
Articles II and III above.
(b) For purposes of determining the accrual of interest or rights in
respect of any other payment from and after the Effective Date, the New Common
Stock and the New Warrants to be issued under the Plan shall be deemed issued as
of the Effective Date regardless of the date on which they are actually dated,
authenticated or distributed.
Section 7.2. Distribution by the Reorganized Debtors; Distributions with
Respect to Debt Securities
Reorganized Pathmark, as Disbursing Agent, shall make all distributions
required under the Plan. Notwithstanding the provisions of Article V above
regarding the cancellation of the Indentures, the Indentures shall continue in
effect to the extent necessary to allow the Reorganized Debtors to receive and
make distributions pursuant to the Plan on account of the Senior Subordinated
Notes, the Subordinated Debentures, the Subordinated Notes, the Junior
Subordinated Notes and the Holdings Bonds. Each Indenture Trustee providing
services related to distributions to the Holders of Allowed Senior Subordinated
Note Claims, Allowed Subordinated Indebtedness Claims, Allowed Junior
Subordinated Note Claims and Allowed Holdings Bond Claims shall receive, from
the Reorganized Debtors, with such approval as the Bankruptcy Court may require,
reasonable compensation for such services and reimbursement of reasonable
out-of-pocket expenses incurred in connection with such services. These payments
shall be made on terms agreed upon with the Reorganized Debtors.
Section 7.3. Delivery and Distributions and Undeliverable or Unclaimed
Distributions
(a) Delivery of Distributions in General. Distributions to Holders of
Allowed Claims shall be made at the address of the Holder of such Claim as
indicated in the records of the Debtors. Except as otherwise provided by the
Plan or the Bankruptcy Code with respect to undeliverable distributions, (i)
distributions to Holders of Allowed Secured Credit Agreement Claims shall be
delivered to Chase, as agent under the Credit Agreement, and (ii) distributions
to Holders of Senior Subordinated Note Claims, Subordinated Indebtedness Claims,
Junior Subordinated Note Claims and Holdings Bonds shall be made to the
Indenture Trustees under the respective Indentures for further distribution to
the Holders of the Pathmark Notes and to Holders of the Holdings Bonds, as
applicable. Distributions shall be made in accordance with the provisions of the
applicable indenture, participation agreement, loan agreement or analogous
instrument or agreement and the provisions of this Plan, and distributions will
be made to Holders of record as of the Distribution Record Date.
(b) Undeliverable Distributions
(i) Holding of Undeliverable Distributions. If any
Allowed Claim Holder's distribution is returned to
the Reorganized Debtors as undeliverable, no further
distributions shall be made to such Holder unless and
until the Reorganized Debtors are notified in writing
of such Holder's then current address. Undeliverable
distributions shall remain in the possession of the
Reorganized Debtors pursuant to this Article VII
until such time as a distribution becomes
deliverable. Undeliverable Cash shall not be entitled
to any interest, dividends or other accruals of any
kind.
(ii) After Distributions Become Deliverable. Within 20
days after the end of each calendar quarter following
the Effective Date, the Reorganized Debtors shall
make all distributions that become deliverable during
the preceding calendar quarter.
(iii) Failure to Claim Undeliverable Distributions.
Reorganized Pathmark will file with the Bankruptcy
Court, from time to time, a listing of the Holders of
unclaimed distributions. This list will be maintained
until the entry of an order and/or final decree
concluding the Chapter 11 Cases. Any Holder of an
Allowed Claim that does not assert a Claim pursuant
to the Plan for an undeliverable distribution within
one year after the Effective Date shall have its
Claim for such undeliverable distribution discharged
and shall be forever barred from asserting any such
Claim against the Reorganized Debtors or their
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property. In such cases: (A) any Cash held for
distribution on account of such Claims shall be the
property of Reorganized Pathmark, free of any
restrictions thereon; (B) any New Common Stock held
for distribution on account of such Claims shall be
canceled and of no further force or effect; and (C)
any New Warrant held for distribution on account of
such Claim shall be canceled and of no further force
or effect. Nothing contained in the Plan shall
require the Reorganized Debtors to attempt to locate
any Holder of an Allowed Claim.
(iv) Compliance with Tax Requirements. Any federal, state
or local withholding taxes or amounts required to be
withheld under applicable law shall be deducted from
distributions hereunder. All Entities holding Claims
shall be required to provide any information
necessary to effect the withholding of such taxes.
Section 7.4. Distribution Record Date
As of the close of business on the Distribution Record Date, the
transfer registers for the Senior Subordinated Notes, the Subordinated
Debentures, the Subordinated Notes, the Junior Subordinated Notes, and the
Holdings Bonds, as maintained by the Debtors, the Indenture Trustees, or their
respective agents, shall be closed and the transfer of Senior Subordinated
Notes, Subordinated Debentures, Subordinated Notes, Junior Subordinated Notes
and Holdings Bonds, or any interest therein, will be prohibited. Moreover, the
Reorganized Debtors shall have no obligation to recognize the transfer of any
Senior Subordinated Notes, Subordinated Debentures, Subordinated Notes, Junior
Subordinated Notes and Holdings Bonds occurring after the Distribution Record
Date, and shall be entitled for all purposes herein to recognize and deal only
with those Holders of record as of the close of business on the Distribution
Record Date.
Section 7.5. Timing and Calculation of Amounts to be Distributed
On or as soon as practicable after the Effective Date, each Holder of
an Allowed Claim against or Allowed Equity Interest in the Debtors shall receive
the full amount of the distributions that the Plan provides for such Allowed
Claims or Allowed Equity Interests in the applicable Class. Beginning on the
date that is 20 calendar days after the end of the calendar quarter following
the Effective Date and 20 calendar days after the end of each calendar quarter
thereafter, distributions shall also be made, pursuant to Section 8.3 below, to
Holders of Disputed Claims or Disputed Equity Interests in any such Class whose
Disputed Claims or Disputed Equity Interests were allowed during the preceding
calendar quarter. Such quarterly distributions shall also be in the full amount
that the Plan provides for Allowed Claims or Allowed Equity Interests in the
applicable Class.
Section 7.6. Setoffs and Recoupments
The Reorganized Debtors may, pursuant to section 553 of the Bankruptcy
Code or applicable non-bankruptcy law, set off against any Allowed Claim (other
than to the Senior Subordinated Note Claims, the Subordinated Indebtedness
Claims, the Junior Subordinated Note Claims, the Holdings Bond Claims and the
Secured Credit Agreement Claims (which claims shall not be subject to set off,
recoupment or reduction of any kind, including pursuant to section 502(d) of the
Bankruptcy Code)) and the distributions to be made pursuant to the Plan on
account of such Claim (before any distribution is made on account of such
Claim), the claims, rights and causes of action of any nature that the Debtors
or Reorganized Debtors may hold against the Holder of such Allowed Claim;
provided, however, that neither the failure to effect such a setoff or
recoupment nor the allowance of any Claim hereunder shall constitute a waiver or
release by the Debtors or Reorganized Debtors of any such claims, rights and
causes of action that the Debtors or Reorganized Debtors may possess against
such Holder.
Section 7.7. Surrender of Canceled Instruments or Securities
As a condition precedent to receiving any distribution pursuant to the
Plan on account of an Allowed Claim evidenced by the instruments, securities or
other documentation canceled pursuant to Article V above, the Holder of such
Claim shall tender the applicable instruments, securities or other documentation
evidencing such Claim to the Reorganized Debtors unless waived in writing by the
Debtors or the Reorganized Debtors. Any New Common
29
Stock and any New Warrants to be distributed pursuant to the Plan on account of
any such Claim shall, pending such surrender, be treated as an undeliverable
distribution pursuant to Section 7.3 above.
(a) Notes, Debentures and Bonds. Each Holder of a Senior Subordinated
Note Claim, a Subordinated Indebtedness Claim, a Junior Subordinated Note Claim
or a Holdings Bond Claim shall tender its Senior Subordinated Notes,
Subordinated Debentures, Subordinated Notes, Junior Subordinated Notes or
Holding Bonds relating to such Claim to the Reorganized Debtors in accordance
with written instructions to be provided to such Holders by the Reorganized
Debtors or the applicable Indenture Trustee as promptly as practicable following
the Effective Date. Such instructions shall specify that delivery of such Senior
Subordinated Notes, Subordinated Debentures, Subordinated Notes, Junior
Subordinated Notes or Holdings Bonds will be effected, and risk of loss and
title thereto will pass, only upon the proper delivery of such Senior
Subordinated Notes, Subordinated Debentures, Subordinated Notes, Junior
Subordinated Notes or Holdings Bonds with a letter of transmittal in accordance
with such instructions. All surrendered Senior Subordinated Notes, Subordinated
Debentures, Subordinated Notes, Junior Subordinated Notes or Holdings Bonds
shall be marked as canceled.
(b) Failure to Surrender Canceled Instruments. Any Holder of Senior
Subordinated Notes, Subordinated Debentures, Subordinated Notes, Junior
Subordinated Notes or Holdings Bonds that fails to surrender or is deemed to
have failed to surrender the applicable Senior Subordinated Notes, Subordinated
Debentures, Subordinated Notes, Junior Subordinated Notes or Holdings Bonds
required to be tendered hereunder within one year after the Effective Date shall
have its Claim for a distribution pursuant to the Plan on account of such Senior
Subordinated Notes, Subordinated Debentures, Subordinated Notes, Junior
Subordinated Notes or Holdings Bonds discharged and shall be forever barred from
asserting any such Claim against the Reorganized Debtor or its respective
property. In such cases, any New Common Stock or New Warrants held for
distribution on account of such Claim shall be disposed of pursuant to the
provisions set forth above in Section 7.3.
Section 7.8. Lost, Stolen, Mutilated or Destroyed Debt Securities
In addition to any requirements under the Indentures, or any related
agreement, any Holder of a Claim evidenced by a Senior Subordinated Note,
Subordinated Debenture, Subordinated Note, Junior Subordinated Note, or Holdings
Bond that has been lost, stolen, mutilated or destroyed shall, in lieu of
surrendering such Senior Subordinated Note, Subordinated Debenture, Subordinated
Note, Junior Subordinated Note or Holdings Bond, deliver to Reorganized
Pathmark: (i) evidence reasonably satisfactory to Reorganized Pathmark of the
loss, theft, mutilation or destruction; and (ii) such security or indemnity as
may be required by Reorganized Pathmark to hold Reorganized Pathmark harmless
from any damages, liabilities or costs incurred in treating such individual as a
Holder of an Allowed Claim. Upon compliance with this Article VII by a Holder of
a Claim evidenced by a Senior Subordinated Note, Subordinated Debenture,
Subordinated Note, Junior Subordinated Note or Holdings Bond, such Holder shall,
for all purposes under the Plan, be deemed to have surrendered such note,
debenture or bond.
Section 7.9. Fractional Shares
No fractional shares of New Common Stock or New Warrants in lieu
thereof shall be distributed. When any issuance of a fraction of a share of New
Common Stock or New Warrant would otherwise be called for, the actual issuance
shall reflect a rounding up (in the case of .50 or more than .50) of such
fraction to the nearest whole New Common Stock share or New Warrant or a
rounding down of such fraction (in the case of less than .50).
Section 7.10. Manner of Payment Under Plan of Reorganization
At the option of the Disbursing Agent, any Cash payment to be made
hereunder may be made by a check or wire transfer or as otherwise required or
provided in applicable agreements.
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ARTICLE VIII
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
Section 8.1. Prosecution of Objections to Claims and Equity Interests
After the Confirmation Date, the Debtors and the Reorganized Debtors
shall have the exclusive authority to file objections, settle, compromise,
withdraw or litigate to judgment objections to Claims and Equity Interests. From
and after the Confirmation Date, the Debtors and the Reorganized Debtors may
settle or compromise any Disputed Claim or Disputed Equity Interests without
approval of the Bankruptcy Court.
Section 8.2. Estimation of Claims
The Debtors or the Reorganized Debtors may, at any time, request that
the Bankruptcy Court estimate any contingent or unliquidated Claim pursuant to
section 502(c) of the Bankruptcy Code regardless of whether the Debtors or the
Reorganized Debtors have previously objected to such Claim or whether the
Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court will
retain jurisdiction to estimate any Claim at any time during litigation
concerning any objection to any Claim, including during the pendency of any
appeal relating to any such objection. In the event that the Bankruptcy Court
estimates any contingent or unliquidated Claim, that estimated amount will
constitute either the Allowed amount of such Claim or a maximum limitation on
such Claim, as determined by the Bankruptcy Court. If the estimated amount
constitutes a maximum limitation on such Claim, the Debtors or Reorganized
Debtors may elect to pursue any supplemental proceedings to object to any
ultimate payment on such Claim. All of the aforementioned Claims objection,
estimation and resolution procedures are cumulative and not necessarily
exclusive of one another. Claims may be estimated and subsequently compromised,
settled, withdrawn or resolved by any mechanism approved by the Bankruptcy
Court.
Section 8.3. Payments and Distributions on Disputed Claims and Disputed Equity
Interests
Notwithstanding any provision in the Plan to the contrary, except as
otherwise agreed by the Reorganized Debtors in their sole discretion, no partial
payments and no partial distributions will be made with respect to a Disputed
Claim or Equity Interest until the resolution of such disputes by settlement or
Final Order. Subject to the provisions of this Article VIII, as soon as
practicable after a Disputed Claim or Equity Interest becomes an Allowed Claim
or Equity Interest, the Holder of such Allowed Claim will receive all payments
and distributions to which such Holder is then entitled under the Plan.
Notwithstanding the foregoing, any Person or Entity who holds both an Allowed
Claim(s) or Equity Interest and a Disputed Claim(s) or Equity Interest will
receive the appropriate payment or distribution on the Allowed Claim(s) or
Equity Interest, although, except as otherwise agreed by the Reorganized Debtors
in their sole discretion, no payment or distribution will be made on the
Disputed Claim(s) or Equity Interest until such dispute is resolved by
settlement or Final Order.
ARTICLE IX
CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN
Section 9.1. Conditions Precedent to Confirmation
It shall be a condition to confirmation of the Plan that the following
condition shall have been satisfied or waived pursuant to the provisions of
Section 9.3 of the Plan: approval of all provisions, terms and conditions of the
Plan in the Confirmation Order.
Section 9.2. Conditions Precedent to Consummation
It shall be a condition to consummation of the Plan that the following
conditions shall have been satisfied or waived pursuant to the provisions of
Section 9.3 of the Plan:
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(a) the Confirmation Order shall have been approved by the Bankruptcy
Court and duly entered on the docket for the Chapter 11 Cases by the Clerk of
the Bankruptcy Court in form and substance acceptable to the Debtors and the
Bondholder Committee;
(b) ten days shall have passed since the entry of the Confirmation
Order, and the Confirmation Order shall not have been stayed or reversed,
modified without the consent of the Debtors, the Bondholder Committee and,
insofar as any such modification affects the Secured Credit Agreement Claims,
Chase, or be subject to an effective stay or injunction;
(c) all agreements, notes, instruments, certificates and other
documents necessary to be executed and/or delivered in order to implement the
Exit Facility on substantially the same terms and conditions as set forth in the
Exit Facility Commitment shall have been duly executed and/or delivered in form
and substance satisfactory to the Reorganized Debtors, the Bondholder Committee
and Chase;
(d) all outstanding obligations of the Debtors under any debtor in
possession financing arrangements shall have been paid in full or otherwise
satisfied, and such arrangements shall have been terminated;
(e) the New Warrant Agreement shall have been duly executed and
delivered in form and substance satisfactory to the Bondholder Committee;
(f) the Registration Rights Agreement shall have been duly executed and
delivered in form and substance satisfactory to the Bondholder Committee;
(g) all mergers contemplated in Section 5.2 of the Plan shall have been
duly authorized, consented to, approved and consummated under applicable law and
shall be binding upon all Holders of Equity Interests;
(h) all notes, instruments, certificates and other documents evidencing
the Secured Credit Agreement Claims, the Senior Subordinated Notes, the
Subordinated Debentures, the Subordinated Notes, the Junior Subordinated Notes,
the Holdings Bonds, the Guaranty and all Equity Interests of SMG-II, Holdings,
PTK and Pathmark, including all Common Stock and Preferred Stock of such Debtors
shall have been canceled; provided, however, that, as to the Credit Agreement,
such cancellation shall not occur until all Allowed Secured Credit Agreement
Claims have been paid in full in Cash;
(i) the Amended Certificates of Incorporation of Pathmark and
Plainbridge shall have been filed with the Secretary of the State of Delaware;
(j) the Amended Certificate of Incorporation of Riskco shall have been
filed with the Secretary of State of the State of New Jersey;
(k) all authorizations, consents and regulatory approvals required (if
any) in connection with the effectiveness of this Plan shall have been obtained;
and
(l) all other actions and documents necessary to implement the
provisions of the Plan on the Effective Date shall have been, respectively,
effected or duly executed and delivered.
Section 9.3. Waiver of Conditions
Other than the conditions precedent to Consummation set forth in
Section 9.2, which may not be waived without the consent of the Bondholder
Committee and Chase, the Debtors, with the prior written consent of the
Bondholder Committee, may waive any of the conditions precedent to confirmation
of the Plan and/or to consummation of the Plan set forth in this Article IX of
the Plan at any time, without notice, without leave or order of the Bankruptcy
Court, and without any formal action other than proceeding to confirm and/or
consummate the Plan.
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Section 9.4. Effect of Non-Occurrence of Conditions to Consummation
If the Confirmation Order is vacated, the Plan shall be null and void
in all respects and nothing contained in the Plan or the Disclosure Statement
shall: (1) constitute a waiver or release of any Claims by or against, or any
Equity Interests in, the Debtors; (2) prejudice in any manner the rights of the
Debtors, or (3) constitute an admission, acknowledgment, offer or undertaking by
the Debtors in any respect.
ARTICLE X
RELEASE, INJUNCTIVE AND RELATED PROVISIONS
Section 10.1. Subordination
The classification and manner of satisfying all Claims and Equity
Interests and the respective distributions and treatments under the Plan take
into account or conform to the relative priority and rights of the Claims and
Equity Interests in each Class in connection with any contractual, legal and
equitable subordination rights relating thereto whether arising under general
principles of equitable subordination, section 510(b) of the Bankruptcy Code or
otherwise, and any and all such rights are settled, compromised and released
pursuant to the Plan. The Confirmation Order shall permanently enjoin, effective
as of the Effective Date, all Persons and Entities from enforcing or attempting
to enforce any such contractual, legal and equitable subordination rights
satisfied, compromised and settled pursuant to this Article X.
Section 10.2. Releases
In consideration of the contributions of certain parties to the Chapter
11 Cases to be commenced by the Debtors, including, but not limited to (a)
SMG-II's transfer of its rights in the Ahold Litigation to Reorganized Pathmark,
(b) the consent by SMG-II to the mergers of SMG-II, Holdings and PTK into
Pathmark pursuant to the Plan and (c) the waiver by certain parties (or their
affiliates) of rights against one or more of the Debtors, the Plan provides for
certain waivers, exculpations, releases and injunctions.
(a) Releases by Debtors
Except as otherwise specifically provided herein, for good and valuable
consideration, including, but not limited to, the commitments and obligations of
the Investor Releasees necessary for consummation of the Plan, the service of
the D&O Releasees to facilitate the expeditious reorganization of the Debtors
and the implementation of the restructuring contemplated by the Plan, and the
consent of and authorization by, as required by applicable non-bankruptcy law,
all current Holders of Equity Interests to the mergers contemplated in Section
5.2, and the service of the Bondholder Committee to facilitate the expeditious
reorganization of the Debtors and the implementation of the restructuring
contemplated by the Plan, the Debtors and the Reorganized Debtors will release
(i) all D&O Releasees;
(ii) all Investor Releasees;
(iii) all Holders of Equity Interests, except for Holders
of Holdings Preferred Stock;
(iv) the members of the Bondholder Committee and their
respective officers, directors, employees, attorneys,
financial advisors, accountants, investment bankers,
agents and representatives; and
(v) Chase
from any and all claims (as defined in section 101(5) of the Bankruptcy Code),
and from all Causes of Action that the Debtors or their subsidiaries would have
been legally entitled to assert in their own right (whether individually or
collectively) or on behalf of the Holder of any Claim or Equity Interest or
other Person or Entity, based in whole or
33
in part upon any act or omission, transaction, agreement, event or other
occurrence taking place on or before the Effective Date, except in the case of
the D&O Releasees, for claims or liabilities (x) in respect of any loan, advance
or similar payment by the Debtors or their subsidiaries to any such Person, or
(y) in respect of any contractual obligation owed by such Person to the Debtors
or their subsidiaries.
(b) Limited Releases by and of Holder of Claims and Investor Releasees
On the Effective Date, each Holder of a Claim and/or Equity Interest
and each Investor Releasee, other than as otherwise provided in the Plan or the
Confirmation Order, shall be deemed to have released unconditionally, the
Investor Releasees from any and all Causes of Action based in whole or in part
upon any act or omission, transaction, agreement, event or other occurrence
taking place on or before the Effective Date in any way relating or pertaining
to (i) the Debtors or the Reorganized Debtors, (ii) the Chapter 11 Cases, or
(iii) the negotiation, formulation and preparation of the Plan or Plan
Documents, except that no Investor Releasee shall be released from acts or
omissions which are the result of fraud, willful misconduct, gross negligence
or, with respect to officers and directors of the Debtors, the usurpation of any
corporate opportunity.
On the Effective Date, each Holder of a Claim and/or Equity Interest
and each Investor Releasee, other than as otherwise provided in the Plan or the
Confirmation Order, shall be deemed to have released unconditionally, and is
hereby deemed to release unconditionally on such date, all Holders of Claims
and/or Equity Interests from any and all Causes of Action based in whole or in
part upon any act or omission, transaction, agreement event or other occurrence
taking place on or before the Effective Date in any way relating to or
pertaining to (i) the Debtors or the Reorganized Debtors, (ii) the Chapter 11
Cases, or (iii) the negotiation formulation and preparation of the Plan or Plan
Documents, except that no Holder of a Claim or Equity Interest shall be released
from acts or omissions which are the result of fraud, willful misconduct, gross
negligence or, with respect to officers and directors of the Debtors, the
usurpation of any corporate opportunity.
Section 10.3. Preservation of Rights of Action
Except as otherwise provided in the Plan or in any contract,
instrument, release, indenture or other agreement entered into in connection
with the Plan, in accordance with section 1123(b) of the Bankruptcy Code, the
Reorganized Debtors shall retain and may exclusively enforce any claims, rights
and Causes of Action that the Debtors or Estates may hold against any Person or
Entity. The Reorganized Debtors may pursue such retained claims, rights or
causes of action, as appropriate, in accordance with the best interests of the
Reorganized Debtors. On the Effective Date, the Reorganized Debtors shall be
deemed to waive and release any claims, rights or Causes of Action arising under
sections 544, 547, 548, 549, 550 and 553 of the Bankruptcy Code or otherwise
arising under the Bankruptcy Code held by the Reorganized Debtors against any
Person or Entity.
Section 10.4. Exculpation
The Debtors, the Reorganized Debtors, each of the members of the
Bondholder Committee, each of the Holders of the Pathmark Notes, the Indenture
Trustees, Chase and the Disbursing Agent, and their respective members,
partners, officers, directors, employees and agents (including any attorneys,
financial advisors, investment bankers and other professionals retained by such
persons) shall have no liability to any Holder of any Claim or Equity Interest
for any act or omission in connection with, or arising out of the Disclosure
Statement, the Plan, the DIP Credit Agreement (and any Bankruptcy Court orders
related thereto), the Exit Facility, the Plan Documents, the solicitation of
votes for and the pursuit of confirmation of this Plan, the consummation of this
Plan, or the administration of this Plan or the property to be distributed under
this Plan, except for willful misconduct or gross negligence as determined by a
Final Order of the Bankruptcy Court and, in all respects, shall be entitled to
rely upon the advice of counsel with respect to their duties and
responsibilities under this Plan.
Section 10.5. Injunction
Except as otherwise provided in the Plan, the Confirmation Order shall
provide, among other things, that all Entities who have held, hold or may hold
Claims against or Equity Interests in the Debtors are, with respect to those
Claims and Equity Interests, permanently enjoined, on and after the Confirmation
Date, from:
34
(a) (i) asserting, commencing or continuing in any manner any action
against the Debtors or the Reorganized Debtors or their respective officers and
directors, equity holders or affiliates, or any member of the Bondholder
Committee with respect to such Claim or Equity Interest, any action against any
of the assets of the Debtors or Reorganized Debtors or their affiliates, and any
other or further Claim or Equity Interest based upon any document, instrument or
act, omission, transaction or other activity of any kind or nature that occurred
prior to the Confirmation Date, (ii) the enforcement, attachment, collection or
recovery, by any manner or means of any judgment, award or decree or order
against the Debtors or the Reorganized Debtors or their affiliates, or any
member of the Bondholder Committee, (iii) creating, perfecting or enforcing any
Lien of any kind against the Debtors, the Reorganized Debtors or their
affiliates, or any member of the Bondholder Committee, (iv) asserting any
setoff, right of subrogation or recoupments of any kind against any obligation
due the Debtors, the Reorganized Debtors or their affiliates, or any member of
the Bondholder Committee and (v) any action, in any manner, in any place
whatsoever, that does not conform or comply with the Plan; and
(b) all Persons and Entities are permanently enjoined from commencing
or continuing in any manner, any suit, action or other proceeding, on account of
or respecting any Claim, Equity Interest, interest, obligation, debt, right,
remedy or liability released or to be released pursuant to this Article X;
provided, however, that this injunction shall not preclude police or regulatory
agencies from fulfilling their statutory duties.
ARTICLE XI
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order, the Bankruptcy
Court shall retain such jurisdiction as legally permissible, including, without
limitation, jurisdiction to:
(a) Allow, disallow, determine, liquidate, classify, estimate or
establish the priority or secured or unsecured status of any Claim or Equity
Interest, including the resolution of any request for payment of any
Administrative Claim and the resolution of any and all objections to the
allowance or priority of Claims or Equity Interests;
(b) Grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code or the
Plan, for periods ending on or before the Effective Date;
(c) Resolve any matters related to the assumption, assumption and
assignment or rejection of any executory contract or unexpired lease to which
the Debtors are party or with respect to which the Debtors may be liable and to
hear, determine and, if necessary, liquidate, any Claims arising therefrom,
including those matters related to the amendment after the Effective Date
pursuant to Article VI above to add any executory contracts or unexpired leases
to the list of executory contracts and unexpired leases to be rejected;
(d) Ensure that distributions to Holders of Allowed Claims or Allowed
Equity Interests are accomplished pursuant to the provisions of the Plan,
including ruling on any motion filed pursuant to Article VIII;
(e) Decide or resolve any motions, adversary proceedings, contested or
litigated matters and any other matters and grant or deny any applications
involving the Debtors that may be pending on the Effective Date;
(f) Enter such orders as may be necessary or appropriate to implement
or consummate the provisions of the Plan, including, but not limited to,
modification or amendment thereof pursuant to Section 12.4 of the Plan, and all
contracts, instruments, releases, indentures and other agreements or documents
created in connection with the Plan or the Disclosure Statement; provided,
however, that, after the Effective Date, the Bankruptcy Court shall not have
jurisdiction over issues arising under the Exit Facility;
(g) Resolve any cases, controversies, suits or disputes that may arise
in connection with the interpretation or enforcement of the Plan or any Person's
or Entity's obligations incurred in connection with the Plan;
35
(h) Issue injunctions, enter and implement other orders or take such
other actions as may be necessary or appropriate to restrain interference by any
Person or Entity with the occurrence of the Effective Date or enforcement of the
Plan, except as otherwise provided herein;
(i) Resolve any cases, controversies, suits or disputes with respect to
the releases, injunction and other provisions contained in Article X and enter
such orders as may be necessary or appropriate to implement such releases,
injunction and other provisions;
(j) Enter and implement such orders as are necessary or appropriate if
the Confirmation Order is for any reason modified, stayed, reversed, revoked or
vacated;
(k) Decide, hear or resolve litigation matters relating to the Ahold
Litigation;
(l) Determine any other matters that may arise in connection with or
relate to the Plan, the Disclosure Statement, the Confirmation Order or any
contract, instrument, release, indenture or other agreement or document created
in connection with the Plan or the Disclosure Statement;
(m) Enter an order or final decree concluding the Chapter 11 Cases;
(n) Resolve disputes concerning any reserves with respect to Disputed
Claims, Disputed Equity Interests or the administration thereof;
(o) Resolve any disputes concerning whether a Person or Entity had
sufficient notice of the Chapter 11 Cases, the applicable Claims Bar Date, the
hearing on the approval of the Disclosure Statement as containing adequate
information, the hearing on the confirmation of this Plan for the purpose of
determining whether a Claim or Equity Interest is discharged hereunder or for
any other purpose;
(p) Recover all assets of the Debtors and property of the Estate,
wherever located, including any Causes of Action under sections 554 through 550
of the Bankruptcy Code; and
(q) Hear and resolve all matters concerning state, local, and federal
taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy Code.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Dissolution of Committees
On the Effective Date, all Committees shall dissolve and members shall
be released and discharged from all rights and duties arising from, or related
to, the Chapter 11 Cases.
Section 12.2. Payment of Statutory Fees
All fees payable pursuant to section 1930 of title 28 of the United
States Code, as determined by the Bankruptcy Court at the hearing pursuant to
section 1128 of the Bankruptcy Code, shall be paid on or before the Effective
Date.
Section 12.3. Discharge of Debtors
Except as otherwise provided herein or the Confirmation Order, pursuant
to section 1141(d) of the Bankruptcy Code, (1) the rights afforded in the Plan
and the treatment of all Claims and Equity Interests therein, shall be in
exchange for and in complete satisfaction, discharge and release of Claims and
Equity Interests of any nature whatsoever, known or unknown, including any
interest accrued or expenses incurred on such Claims from and after the Petition
Date, against the Debtors, the Reorganized Debtors, or any of their Estates,
assets or
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properties, (2) on the Effective Date, all such Claims against, and Equity
Interests in the Debtors shall be satisfied, discharged and released in full and
(3) all Persons and Entities shall be precluded from asserting against the
Reorganized Debtors, their successors or their assets or properties any other or
further Claims or Equity Interests based upon any act or omission, transaction
or other activity of any kind or nature that occurred prior to the Confirmation
Date.
Section 12.4. Modification of Plan
The Debtors reserve the right, with the prior consent of Bondholder
Committee and Chase, to the extent any proposed alteration, amendment or
modification to the Plan affects the Secured Credit Agreement Claims, to alter,
amend or modify the Plan prior to the entry of the Confirmation Order. After the
entry of the Confirmation Order, the Debtors or the Reorganized Debtors, as the
case may be, may, upon order of the Bankruptcy Court, amend or modify the Plan,
in accordance with section 1127(b) of the Bankruptcy Code, or remedy any defect
or omission or reconcile any inconsistency in the Plan in such manner as may be
necessary to carry out the purpose and intent of the Plan.
Section 12.5. Revocation of Plan
The Debtors reserve the right to revoke and withdraw the Plan at any
time prior to the Confirmation Date. If the Plan is so revoked or withdrawn, or
if the Effective Date does not occur, then the Plan shall be deemed null and
void, and of no force or effect.
Section 12.6. Successors and Assigns
The rights, benefits and obligations of any Person or Entity named or
referred to in the Plan shall be binding on, and shall inure to the benefit of
any heir, executor, administrator, successor or assign of such Person or Entity.
Section 12.7. Reservation of Rights
Except as expressly set forth herein, the Plan shall have no force or
effect unless the Bankruptcy Court shall enter the Confirmation Order. None of
the filing of this Plan, any statement or provision contained herein, or the
taking of any action by the Debtors with respect to this Plan shall be or shall
be deemed to be an admission or waiver of any rights of the Debtors with respect
to the Holders of Claims or Equity Interests prior to the Effective Date.
Section 12.8. Section 1145 Exemption
Pursuant to section 1145(a) of the Bankruptcy Code, the offer,
issuance, transfer or exchange of any security under the Plan, or the making or
delivery of an offering memorandum or other instrument of offer or transfer
under this Plan, shall be exempt from section 5 of the Securities Act or any
similar state or local law requiring the registration for offer or sale of a
security or registration or licensing of an issuer or a security.
Section 12.9. Avoidance and Recovery Actions
Effective as of the Effective Date, the Debtors release and waive the
right to prosecute any avoidance or recovery actions under sections 544, 545,
547, 548, 549, 550, 551 and 553 of the Bankruptcy Code or any other Causes of
Action or rights to payments of Claims that belong to or could have been raised
by the Debtors or their respective Estates, except for any such action which may
be pending on the Effective Date as to which Reorganized Pathmark's rights shall
not be waived and released and Reorganized Pathmark shall retain and may
prosecute any such actions.
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Section 12.10. Headings
Headings utilized in the Plan are for the convenience of reference only
and shall not constitute a part of the Plan for any other purpose.
Section 12.11. Governing Law
Except to the extent that the Bankruptcy Code or other federal law is
applicable, the Plan shall be governed by and construed in accordance with the
laws of the State of New York.
Section 12.12. Severability
Except as to terms which would frustrate the overall purposes of this
Plan, should any provision in the Plan be determined to be unenforceable, such
determination shall in no way limit or affect the enforceability and operative
effect of any or all other provisions of the Plan.
Section 12.13. Implementation
The Debtors shall take all steps, and execute all documents, including
appropriate releases, necessary to effectuate the provisions contained in this
Plan.
Section 12.14. Inconsistency
In the event of any inconsistency among the Plan, the Disclosure
Statement, the Plan Documents, any exhibit to the Plan or any other instrument
or document created or executed pursuant to the Plan, the provisions of the Plan
shall govern.
Section 12.15. Further Assurances
The Debtors, the Reorganized Debtors and all Holders of Claims and
Equity Interests receiving distributions under the Plan and all other parties in
interest shall, from time to time, prepare, execute and deliver any agreements
or documents and take any other actions as may be necessary or advisable to
effectuate the provisions and intent of this Plan.
Section 12.16. Service of Documents
Any pleading, notice or other document required by the Plan to be
served on or delivered to the Reorganized Debtors shall be sent by first class
U.S. mail, postage prepaid to:
Pathmark Stores, Inc.
200 Milik Street
Carteret, New Jersey 07008
Attn: Marc A. Strassler, Esq.
with copies to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attn: Douglas P. Bartner, Esq.,
38
the Bondholder Committee:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attn: Bruce Zirinsky, Esq.
and Chase:
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
Attn: Luc A. Despins, Esq.
Richard J. Wight, Esq.
-and-
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Attn: Robert H. Scheibe, Esq.
Section 12.17. Jurisdiction over the Reorganized Debtors
Notwithstanding the jurisdiction retained in Section 12.01 hereof, from
and after the Effective Date, the Bankruptcy Court shall not have the power to
issue any order which modifies the New Common Stock and New Warrants or the
rights of the holders thereof with respect to such New Common Stock and New
Warrants.
Section 12.18. Exemption from Certain Transfer Taxes
Pursuant to section 1146 of the Bankruptcy Code: (a) the issuance,
transfer or exchange of any securities, instruments or documents; (b) the
creation of any other Lien, mortgage, deed of trust or other security interest;
(c) the making or assignment of any lease or sublease or the making or delivery
of any deed or other instrument of transfer under, pursuant to, in furtherance
of, or in connection with the Plan, including, without limitation, any deeds,
bills of sale or assignments executed in connection with any of the transactions
contemplated under the Plan or the reinvesting, transfer or sale of any real or
personal property of the Debtors pursuant to, in implementation of, or as
contemplated in the Plan, and (d) the issuance, renewal, modification or
securing of indebtedness by such means, and the making, delivery or recording of
any deed or other instrument of transfer under, in furtherance of, or in
connection with, the Plan, including, without limitation, the Confirmation
Order, shall not be subject to any document recording tax, stamp tax, conveyance
fee or other similar tax, mortgage tax, real estate transfer tax, mortgage
recording tax or other similar tax or governmental assessment. Consistent with
the foregoing, each recorder of deeds or similar official for any county, city
or governmental unit in which any instrument hereunder is to be recorded shall,
pursuant to the Confirmation Order, be ordered and directed to accept such
instrument without requiring the payment of any filing fees, documentary stamp
tax, deed stamps, stamp tax, transfer tax, intangible tax or similar tax.
Section 12.19. Compromise of Controversies
Pursuant to Bankruptcy Rule 9019, and in consideration for the
classification, distribution and other benefits provided under the Plan, the
provisions of this Plan shall constitute a good faith compromise and settlement
of all Claims or controversies resolved pursuant to the Plan. The entry of the
Confirmation Order shall constitute the Bankruptcy Court's approval of each of
the foregoing compromises or settlements, and all other compromises and
settlements provided for in the Plan, and the Bankruptcy Court's findings shall
constitute its determination that such compromises and settlements are in the
best interests of the Debtors, the Reorganized Debtors, the Estates, and any
Entity holding Claims against the Debtors.
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Section 12.20. No Admissions
Notwithstanding anything herein to the contrary, nothing contained in
the Plan shall be deemed as an admission by an Entity with respect to any matter
set forth herein.
Section 12.21. Filing of Additional Documents
On or before the Effective Date, the Debtors may file with the
Bankruptcy Court such agreements and other documents as may be necessary or
appropriate to effectuate and further evidence the terms and conditions of the
Plan.
40
Respectfully Submitted,
PATHMARK STORES, INC.
By:
-------------------------------------------------
Name: James Donald
Title: President and Chief Executive Officer
SMG-II HOLDINGS CORPORATION
By:
-------------------------------------------------
Name: James Donald
Title: President and Chief Executive Officer
SUPERMARKETS GENERAL HOLDINGS CORPORATION
By:
-------------------------------------------------
Name: James Donald
Title: President and Chief Executive Officer
PTK HOLDINGS, INC.
By:
-------------------------------------------------
Name: James Donald
Title: President and Chief Executive Officer
PLAINBRIDGE, INC.
By:
-------------------------------------------------
Name: James Donald
Title: President and Chief Executive Officer
PATHMARK RISK MANAGEMENT CORPORATION
By:
-------------------------------------------------
Name: James Donald
Title: President and Chief Executive Officer