UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re : Chapter 11
:
United Pan-Europe Communications N.V., : Case No. 02-16020 (BRL)
:
Debtor. :
:
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SECOND AMENDED CHAPTER 11 PLAN OF
REORGANIZATION JOINTLY PROPOSED BY UNITED
PAN-EUROPE COMMUNICATIONS N.V. AND NEW UPC, INC.
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WHITE & CASE LLP SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Howard S. Beltzer (HSB 5721) Richard Levin (California State Bar No.
Daniel P. Ginsberg (DPG 5290) 66578)
1155 Avenue of the Americas Van C. Durrer II (VCD 0689)
New York, New York 10036 300 South Grand Avenue
(212) 819-8200 Los Angeles, CA 90071
(213) 687-5000
Attorneys for United Pan-Europe
Communications N.V. Attorneys for New UPC, Inc.
Dated: New York, New York
January 7, 2003
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS, INTERPRETATION AND EXHIBITS...........................2
Section 1.1 Definitions................................................2
Section 1.2 Rules of Interpretation...................................18
Section 1.3 Exhibits..................................................18
Section 1.4 Administrator Consent.....................................18
ARTICLE II ADMINISTRATIVE AND PRIORITY TAX CLAIMS...........................18
Section 2.1 Unclassified Claims.......................................18
Section 2.2 Administrative Claims.....................................18
Section 2.3 Priority Tax Claims.......................................19
ARTICLE III CLASSIFICATION OF CLAIMS, EQUITY INTERESTS AND OLD OTHER EQUITY
INTERESTS........................................................20
Section 3.1 Generally.................................................20
Section 3.2 Classified Claims Against and Equity Interests in UPC.....20
Section 3.3 Elimination of Classes....................................20
ARTICLE IV TREATMENT OF CLAIMS, EQUITY INTERESTS AND OLD OTHER EQUITY
INTERESTS........................................................21
Section 4.1 Satisfaction of Claims, Equity Interests and Old
Other Equity Interests......................................21
Section 4.2 No Effect on Section 508 of the U.S. Bankruptcy Code......21
Section 4.3 Class 1: Miscellaneous Secured Claims.....................21
Section 4.4 Class 2: Classified Priority Claims.......................21
Section 4.5 Class 3: Critical Creditor Claims.........................22
Section 4.6 Class 4: Belmarken Notes Claims...........................22
Section 4.7 Class 5: UPC Notes Claims and General Unsecured
Claims......................................................22
Section 4.8 Class 6: UPC Preference Shares A..........................23
Section 4.9 Class 7: UPC Priority Shares..............................23
Section 4.10 Class 8: UPC Ordinary Shares A...........................24
Section 4.11 Class 9: Equity Securities Claims........................24
Section 4.12 Class 10: Old Other Equity Interests.....................24
ARTICLE V ACCEPTANCE OR REJECTION OF THE PLAN; CRAMDOWN.....................25
Section 5.1 Unimpaired Classes........................................25
Section 5.2 Impaired Classes..........................................25
Section 5.3 Acceptance by Impaired Classes of Claims and Equity
Interests...................................................25
Section 5.4 Cramdown..................................................25
(i)
Table of Contents
(continued)
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ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS UNDER THE PLAN................26
Section 6.1 General...................................................26
Section 6.2 Delivery of Distributions.................................26
Section 6.3 Disbursing Agent..........................................26
Section 6.4 Distribution Notification Date............................27
Section 6.5 Distributions to Holders of Allowed Claims and
Allowed Equity Interests....................................27
Section 6.6 Disputed Distributions....................................28
Section 6.7 Distributions of Cash.....................................28
Section 6.8 Failure to Negotiate Checks...............................28
Section 6.9 Unclaimed Distributions...................................29
Section 6.10 Limitation on Distribution Rights........................29
Section 6.11 Fractional Euros.........................................29
Section 6.12 Fractional Shares........................................29
Section 6.13 Compliance With Tax Requirements.........................29
Section 6.14 Documentation Necessary to Release Liens.................30
Section 6.15 Distributions by Indenture Trustee.......................30
Section 6.16 Setoffs..................................................30
ARTICLE VII EXECUTORY CONTRACTS AND UNEXPIRED LEASES; INDEMNIFICATION
OBLIGATIONS; BENEFIT PROGRAMS....................................30
Section 7.1 Treatment of Executory Contracts and Unexpired Leases.....30
Section 7.2 Cure of Defaults for Assumed Contracts and Leases.........31
Section 7.3 Resolution of Objections to Assumption of Executory
Contracts and Unexpired Leases; Cure Payments..............32
Section 7.4 Claims for Rejection Damages..............................33
Section 7.5 Treatment of Rejection Claims.............................33
Section 7.6 Executory Contracts and Unexpired Leases Entered Into
and Other Obligations Incurred After the Petition Date......33
Section 7.7 Reorganized Debtor's Indemnification Obligations..........33
Section 7.8 Benefit Programs..........................................33
ARTICLE VIII RESOLUTION OF DISPUTED CLAIMS..................................34
Section 8.1 Preservation of Rights....................................
Section 8.2 Objections to and Resolution of Claims,
Administrative Claims, Equity Interests and Old Other
Equity Interests............................................34
Section 8.3 Estimation of Claims......................................34
Section 8.4 Distributions Withheld For Disputed Unsecured Claims
and Equity Interests........................................35
Section 8.5 Dutch Bankruptcy Case.....................................36
(ii)
Table of Contents
(continued)
Page
ARTICLE IX MEANS FOR IMPLEMENTATION OF THE PLAN.............................36
Section 9.1 Continued Corporate Existence.............................36
Section 9.2 Cancellation of Claims, Equity Interests and Old
Other Equity Interests......................................36
Section 9.3 Extraordinary General Meeting.............................37
Section 9.4 Amendment of Organizational Documents.....................39
Section 9.5 Corporate Action..........................................39
Section 9.6 Implementation of the Restructuring Under Dutch Law.......39
Section 9.7 Contribution of UPC Shares................................39
Section 9.8 New UPC Common Stock......................................39
Section 9.9 Offer Memorandum..........................................39
Section 9.10 Listing of New UPC Common Stock..........................40
Section 9.11 Transfers Under Plan.....................................40
Section 9.12 Operations Between the Confirmation Date and the
Effective Date..............................................40
Section 9.13 Revesting of Assets......................................40
Section 9.14 Approval of Agreements...................................41
Section 9.15 Incentive Plan...........................................41
Section 9.16 Stockholders Agreement...................................41
Section 9.17 New UPC Equity Purchase Rights...........................41
Section 9.18 UGC Subscription Commitment..............................42
Section 9.19 Treatment of UPC Owned UPC Notes.........................42
Section 9.20 Rights of Action.........................................42
ARTICLE X OPERATION AND MANAGEMENT OF THE REORGANIZED DEBTOR................43
Section 10.1 Post-Effective Date Operation of Business................43
Section 10.2 Post-Confirmation Directors and Officers of the
Debtor and New UPC..........................................43
ARTICLE XI CONDITIONS TO CONFIRMATION AND CONSUMMATION OF THE PLAN..........43
Section 11.1 Conditions Precedent to Confirmation.....................43
Section 11.2 Conditions Precedent to Consummation.....................43
Section 11.3 Waiver of Conditions to Consummation.....................45
ARTICLE XII EFFECTS OF CONFIRMATION.........................................45
Section 12.1 Discharge................................................45
Section 12.2 Injunction...............................................46
Section 12.3 Exculpation..............................................46
Section 12.4 Releases.................................................48
Section 12.5 Binding Effect of Plan...................................49
Section 12.6 Indemnification..........................................49
Section 12.7 Term of Injunctions or Stays.............................50
(iii)
Table of Contents
(continued)
Page
Section 12.8 Preservation of Insurance................................50
Section 12.9 Waiver of Subordination Rights...........................50
Section 12.10 No Successor Liability..................................50
ARTICLE XIII RETENTION OF JURISDICTION......................................51
Section 13.1 Continuing Jurisdiction of U.S. Bankruptcy Court.........51
Section 13.2 Failure of U.S. Bankruptcy Court to Exercise
Jurisdiction................................................53
ARTICLE XIV MISCELLANEOUS PROVISIONS........................................53
Section 14.1 Revocation or Withdrawal of the Plan.....................53
Section 14.2 Final Order..............................................54
Section 14.3 Modification of the Plan.................................54
Section 14.4 Business Days............................................54
Section 14.5 Severability.............................................54
Section 14.6 Governing Law............................................54
Section 14.7 Dissolution of Committees................................54
Section 14.8 Payment of Statutory Fees................................55
Section 14.9 Notices..................................................55
Section 14.10 Time....................................................55
Section 14.11 No Attorneys' Fees......................................56
Section 14.12 No Injunctive Relief....................................56
Section 14.13 Continued Confidentiality Obligations...................56
Section 14.14 No Admissions or Waivers................................56
Section 14.15 Entire Agreement........................................56
Section 14.16 Waiver..................................................57
Section 14.17 Bar Date for Professional Claims........................57
Section 14.18 Compromise of Controversies.............................57
Schedule 1 UPC Notes Schedule
EXHIBIT A Restructuring Agreement
EXHIBIT B Amended and Restated UPC Articles of Association
(iv)
INTRODUCTION
United Pan-Europe Communications N.V., a corporation organized under the
laws of The Netherlands ("UPC" or the "Debtor"), together with New UPC, Inc., a
newly-formed company incorporated under the laws of the State of Delaware that
will become a holding company for the Debtor upon consummation of the
Restructuring (as defined herein) and is an integral component of the Plan ("New
UPC"), hereby jointly propose this second amended plan of reorganization under
Chapter 11 of the U.S. Bankruptcy Code. This Plan, which amends and supersedes
the "First Amended Chapter 11 Plan of Reorganization Jointly Proposed by United
Pan-Europe Communications N.V. and New UPC, Inc.," dated and filed with the U.S.
Bankruptcy Court on December 23, 2002, sets forth a restructuring of UPC's
capital structure through the transfer of shares of common stock in New UPC for
certain outstanding debt and equity securities in UPC. The restructuring of
UPC's balance sheet is intended to be implemented in compliance with applicable
laws, including the applicable laws of the United States of America and The
Netherlands. In order to achieve this objective, the restructuring will consist
of several different elements, each of which is an integral part of the
restructuring and, as such, are non-severable. In particular, (a) UPC commenced
a moratorium proceeding in The Netherlands under Dutch law simultaneously with
the commencement of the Chapter 11 Case, and (b) New UPC shall commence the
Dutch Implementing Offer. Together, these steps will allow UPC to complete the
contemplated restructuring of its balance sheet.
Reference is made to the Disclosure Statement accompanying the Plan for a
discussion of the Debtor's history, business, results of operations, historical
financial information, properties, projections for future operations, risk
factors, a summary and analysis of the Plan, and certain related matters,
including a description of the shares of New UPC Common Stock to be issued under
the Plan. The Debtor and New UPC are proponents of the Plan and are
participating in this joint Plan within the meaning of the U.S. Bankruptcy Code.
ALL CREDITORS AND EQUITY INTEREST HOLDERS ARE ENCOURAGED TO READ THE PLAN
AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT
THE PLAN.
SUBJECT TO CERTAIN RESTRICTIONS AND REQUIREMENTS SET FORTH IN SECTION 1127
OF THE U.S. BANKRUPTCY CODE, U.S. BANKRUPTCY RULE 3019 AND IN THE PLAN, THE
DEBTOR AND NEW UPC RESERVE THE RIGHT TO ALTER, AMEND, MODIFY, REVOKE OR WITHDRAW
THE PLAN PRIOR TO ITS SUBSTANTIAL CONSUMMATION.
Capitalized terms herein shall have the meanings set forth in Article I
hereof.
Claims against, and Equity Interests in, the Debtor (other than
Administrative Claims and Priority Tax Claims) are classified in Article III
hereof and treated in Article IV hereof.
ARTICLE I
DEFINITIONS, INTERPRETATION AND EXHIBITS
Section 1.1 Definitions. Unless the context requires otherwise, the
following terms shall have the following meanings whether presented in the Plan
or the Disclosure Statement with initial capital letters or otherwise. As used
herein:
"A-FM" means the Netherlands Authority for the Financial Markets
(Autoriteit Financiele Markten).
"Administrative Claim" means a Claim for (a) any cost or expense of
administration (including, without limitation, the fees and expenses of
Professionals) of the Chapter 11 Case asserted or arising under Sections 503,
507(a)(1), 507(b) or 1114(e)(2) of the U.S. Bankruptcy Code including, but not
limited to (i) any actual and necessary post-petition cost or expense of
preserving the Estate or operating the businesses of the Debtor, (ii) any
payment to be made under the Plan to cure a default on an assumed executory
contract or unexpired lease, (iii) any post-petition cost, indebtedness or
contractual obligation duly and validly incurred or assumed by the Debtor in the
ordinary course of its businesses, (iv) compensation or reimbursement of
expenses of Professionals to the extent Allowed by the U.S. Bankruptcy Court
under Section 330(a) or Section 331 of the U.S. Bankruptcy Code, (v) all Allowed
Claims that are entitled to be treated as Administrative Claims pursuant to a
Final Order of the U.S. Bankruptcy Court under Section 546(c)(2)(A) of the
Bankruptcy Code, and (vi) the Indenture Trustee Claims as set forth in Section
2.2(b) of the Plan; and (b) any fees or charges assessed against the Estate
under Section 1930 of title 28 of the United States Code.
"Administrator" means the administrator or administrators (bewindvoerders)
appointed by the Dutch Bankruptcy Court to oversee the affairs of UPC during the
period it is subject to a moratorium of payments pursuant to the Dutch
Bankruptcy Code.
"Akkoord" means the draft plan of compulsory composition, consistent in all
material respects with the Restructuring Agreement, which was filed on December
3, 2002 by UPC with the Dutch Bankruptcy Court under the Dutch Bankruptcy Code,
as the same may be altered, amended, supplemented or modified from time to time.
"Allowed" means any Claim or Equity Interest or portion thereof (a) as to
which the liability of the Debtor and the amount thereof are agreed to by the
Debtor or Reorganized Debtor and the Holder of the Claim or Equity Interest (but
only to the extent so agreed), (b) as to which the liability of the Debtor and
the amount thereof are determined by Final Order of a court of competent
jurisdiction, (c) which has been expressly allowed in a liquidated amount under
the provisions of the Plan (but only to the extent so allowed), (d) which is a
Professional Claim for which a fee award amount has been approved by Final Order
of the U.S. Bankruptcy Court, (e) which is set forth in the Debtor's books and
records as liquidated in amount and not Disputed or contingent, (f) proof of
which was filed within the applicable period of limitation fixed by the U.S.
Bankruptcy Court in accordance with U.S. Bankruptcy Rule 3003(c) as to which no
objection to the allowance thereof has been interposed within the applicable
period of limitation
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fixed by the Plan, the U.S. Bankruptcy Code, the U.S. Bankruptcy Rules or a
Final Order, or (g) which is, in the case of an Equity Interest or any portion
thereof only, held of record as set forth in the books and records maintained by
or on behalf of the Debtor as of the Distribution Notification Date.
"Amended and Restated New UPC By-Laws" means the Amended and Restated
By-Laws of New UPC, a substantially final form of which shall have been Filed on
or before the Document Filing Date.
"Amended and Restated New UPC Certificate of Incorporation" means the
Amended and Restated Certificate of Incorporation of New UPC, a substantially
final form of which shall have been Filed on or before the Document Filing Date.
"Amended and Restated UPC Articles of Association" means the Amended and
Restated Articles of Association of UPC, a substantially final form of which is
annexed as Exhibit "B" to the Plan.
"Avoidance Action" means any and all Causes of Action which a trustee,
debtor in possession, the Estate or any other appropriate party in interest may
assert under Sections 502, 510, 522(f), 522(h), 542, 543, 544, 545, 547, 548,
549, 550, 551, 553 and 724(a) of the U.S. Bankruptcy Code including the Debtor's
rights of setoff, recoupment, contribution, reimbursement, subrogation or
indemnity (as those terms are defined by the non-bankruptcy law of any relevant
jurisdiction) and any other indirect claim of any kind whatsoever, whenever and
wherever arising or asserted.
"Belmarken" means Belmarken Holding B.V., a company with limited liability
organized under the laws of The Netherlands and a wholly-owned subsidiary of
UPC.
"Belmarken Loan Agreements" means that certain Loan Agreement, dated as of
May 25, 2001, among Belmarken and UPC, as obligors, UPC Internet Holding B.V.,
as guarantor, and Liberty-Belmarken, Inc., as lender, together with all other
documentation entered into in connection with the issuance of the Belmarken
Notes, as the same may have been amended, supplemented or modified in any
respect.
"Belmarken Notes" means the US$1,255.0 million 6% Guaranteed Discount Notes
due 2007, co-issued by Belmarken and UPC and guaranteed by UPC Internet Holding
B.V.
"Belmarken Notes Claims" means any Claims of the Holder(s) of the Belmarken
Notes against UPC under the Belmarken Loan Agreements.
"Belmarken Notes Consideration" has the meaning set forth in Section 4.6(a)
of the Plan.
"Beneficial Ownership" has the meaning attributed to such term in Rules
13d-3 and 13d-5 under the Exchange Act (as in effect on the date of the
Restructuring Agreement), whether or not applicable.
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"Board of Management Schedule" means that certain schedule, a copy of which
shall have been Filed on or before the Document Filing Date, setting forth the
members of the Board of Management of the Debtor as of the Effective Date as
well as the proposed compensation of such members.
"Book-Entry Account" means an account established by the Disbursing Agent
at a Book-Entry Transfer Facility to effectuate transfers of the UPC Notes, the
UPC Ordinary Shares A or the UPC ADSs to the Disbursing Agent for purposes of
the Plan.
"Book-Entry Transfer Facility" means (i) in the case of the UPC Notes and
the UPC ADSs, DTC and (ii) in the case of the UPC Ordinary Shares A, the
NECIGEF.
"Business Day" means any day which is not a Saturday, a Sunday, a "legal
holiday" as defined in U.S. Bankruptcy Rule 9006(a), or a day on which banking
institutions located in New York, New York or Amsterdam, The Netherlands are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Cash" means money, currency and coins, negotiable checks, balances in bank
accounts and other lawful currency of The Netherlands and their equivalents.
"Causes of Action" means any and all actions, claims, rights, defenses,
third-party claims, damages, executions, demands, cross-claims, counterclaims,
suits, causes of action, choses in action, controversies, agreements, promises,
rights to legal remedies, rights to equitable remedies, rights to payment and
claims whatsoever, whether known, unknown, reduced to judgment, not reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured and whether asserted or assertable
directly, indirectly or derivatively, at law, in equity or otherwise, accruing
to the Debtor or the Estate, including, but not limited to, the Avoidance
Actions.
"Certificates" means any physical instruments, securities or certificates
representing Belmarken Notes, UPC Notes, UPC Preference Shares A, UPC Priority
Shares or UPC Ordinary Shares A.
"Chapter 11 Case" means the case under Chapter 11 of the U.S. Bankruptcy
Code commenced by the Debtor in the U.S. Bankruptcy Court on the Petition Date,
Case No. 02-16020 (BRL).
"Class" means each class, subclass or category of Claims, Equity Interests
or Old Other Equity Interests as classified in Article III of the Plan.
"Class [__] Claim" means a Claim in the particular Class of Claims
identified in Article III of the Plan.
"Class [__] Equity Interest" means an Equity Interest in the particular
Class of Equity Interests identified in Article III of the Plan.
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"Classified Priority Claims" means any and all Claims to the extent
entitled to priority under Section 507(a) or (b) of the U.S. Bankruptcy Code,
other than Administrative Claims and Priority Tax Claims.
"Committee" means any committee appointed in the Chapter 11 Case pursuant
to Section 1102(a) of the U.S. Bankruptcy Code by the United States Trustee, as
the membership of such committee is from time to time constituted and
reconstituted.
"Confirmation" means the entry by the U.S. Bankruptcy Court of the
Confirmation Order.
"Confirmation Date" means the date on which the Clerk of the U.S.
Bankruptcy Court enters the Confirmation Order on the docket of the U.S.
Bankruptcy Court with respect to the Chapter 11 Case within the meaning of U.S.
Bankruptcy Rules 5003 and 9021.
"Confirmation Hearing" means the hearing held before the U.S. Bankruptcy
Court to consider confirmation of the Plan pursuant to Sections 1128 and 1129 of
the U.S. Bankruptcy Code, as such hearing may be adjourned or continued from
time to time.
"Confirmation Order" means the order entered by the U.S. Bankruptcy Court
confirming the Plan pursuant to Section 1129 of the U.S. Bankruptcy Code.
"Control" means, with respect to any Person, (i) the power, directly or
indirectly by contract, proxy or otherwise, to vote or cause to be voted more
than fifty percent (50%) of the Voting Securities of such Person or (ii) the
power (as general partner, manager or otherwise) to control the management and
affairs of such Person. The words "controlled", "controlling" and "under common
control with" shall have correlative meanings.
"Critical Creditor Claims" means any and all pre-petition Claims of the
Critical Creditors.
"Critical Creditors" means those certain creditors of UPC to be identified
by UPC (with the consent of the Administrator and after consultation with the
Committee) in an exhibit to the Plan to be Filed not less than five (5) Business
Days prior to the Confirmation Hearing, who are critical to the operation of
UPC's business as a going concern and are determined by the Administrator to be
"ransom-suppliers" (dwangcrediteuren).
"Debtor" has the meaning set forth in the Introduction to the Plan.
"Disallowed" means, with respect to any Claim or Equity Interest or portion
thereof, any Claim against or Equity Interest in the Debtor which (a) has been
withdrawn, in whole or in part, by the Holder thereof or (b) has been
disallowed, in whole or part, by Final Order of a court of competent
jurisdiction.
"Disbursing Agent" means New UPC or such other Person that is designated as
set forth in Section 6.3 of the Plan.
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"Disclosure Statement" means the written disclosure statement that relates
to this Plan, including all exhibits, appendices, schedules and annexes, if any,
attached thereto, as the same may be altered, amended, supplemented or modified
from time to time.
"Disputed" means any Claim or Equity Interest, or any portion thereof, that
has neither been Disallowed nor become Allowed.
"Distribution" means any transfer of Cash or other property or instruments
from the Debtor, the Reorganized Debtor or New UPC to the Disbursing Agent or
from the Disbursing Agent to Holders of Allowed Claims or Allowed Equity
Interests.
"Distribution Date" means any date upon which a Distribution is made under
the Plan, including, without limitation, the Initial Distribution Date.
"Distribution Notification Date" means the date established by order of the
U.S. Bankruptcy Court for purposes of determining the Holders of the Belmarken
Notes, the UPC Notes, the UPC Preference Shares A, the UPC Priority Shares, the
UPC Ordinary Shares A and the Equity Securities Claims for the purpose of
mailing documentation relating to Distributions under the Plan.
"Document Filing Date" means February 10, 2003.
"DTC" means The Depository Trust Company.
"Dutch Bankruptcy Case" means the moratorium of payments proceeding
commenced on December 3, 2002 by UPC in the Dutch Bankruptcy Court.
"Dutch Bankruptcy Code" means the Dutch Faillissementswet, together with
all related rules and regulations.
"Dutch Bankruptcy Court" means the Amsterdam Court (Rechtbank).
"Dutch Implementing Offer" means the offer, undertaken to facilitate
implementation of the Plan with respect to certain of the UPC Ordinary Shares A
in accordance with Dutch law, solely with respect to Persons who are not U.S.
Persons (as defined in Rule 902(k) of Regulation S promulgated under the U.S.
Securities Act) and who are not located or residing within the United States, by
New UPC to deliver shares of New UPC Common Stock to the Holders of UPC Ordinary
Shares A in consideration for the delivery by such Holders of their UPC Ordinary
Shares A to New UPC.
"Effective Date" means the Business Day identified by the Debtor that is no
more than eleven (11) Business Days following the date on which all conditions
precedent to the consummation of the Plan (set forth in Article XI hereof) and
the Akkoord shall have either been satisfied or, to the extent permitted herein
and in the Akkoord, duly waived and on which such day the Plan and the Akkoord
shall have become effective.
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"11-1/4% Euro Senior Notes due 2009" means the (euro)101.0 million of
11-1/4% Senior Notes due 2009 issued by UPC in October 1999.
"11-1/4% Euro Senior Notes due 2010" means the (euro)200.0 million of
11-1/4% Senior Notes due 2010 issued by UPC in January 2000.
"11-1/4% U.S. Senior Notes due 2009" means the U.S. $252.0 million of
11-1/4% Senior Notes due 2009 issued by UPC in October 1999.
"11-1/4% U.S. Senior Notes due 2010" means the U.S. $600.0 million of
11-1/4% Senior Notes due 2010 issued by UPC in January 2000.
"11-1/2% U.S. Senior Notes due 2010" means the U.S. $300.0 million of
11-1/2% Senior Notes due 2010 issued by UPC in January 2000.
"Employee Options" means any rights, options and warrants to acquire UPC
Ordinary Shares A held by employees of UPC and employees of subsidiaries of UPC
pursuant to existing equity incentive plans of UPC.
"Equity Interests" means any and all equity interests, ownership interests
or shares in the Debtor and issued by the Debtor prior to the Petition Date
(including, without limitation, all capital stock, stock certificates, common
stock, preferred stock, depositary shares, partnership interests, rights,
options, warrants, contingent warrants, convertible or exchangeable securities,
investment securities, subscriptions or other agreements and contractual rights
to acquire or obtain such an interest or share in the Debtor, stock appreciation
rights, conversion rights, repurchase rights, redemption rights, dividend
rights, preemptive rights and liquidation preferences, puts, calls or
commitments of any character whatsoever relating to any such equity, ownership
interests or shares of capital stock of the Debtor or obligating the Debtor to
issue, transfer or sell any shares of capital stock) or any certificate or
receipt evidencing or representing an interest in any such equity interest
whether or not certificated, transferable, voting or denominated "stock" or a
similar security, other than the Old Other Equity Interests.
"Equity Securities Claims" means any and all Claims arising from the
rescission of a purchase or sale of an Equity Interest, for damages arising from
the purchase or sale of such Equity Interest, or for reimbursement or
contribution allowed under Section 502 of the U.S. Bankruptcy Code on account of
such Claims.
"Estate" means the estate of the Debtor created in the Chapter 11 Case
pursuant to Section 541 of the U.S. Bankruptcy Code upon commencement of the
Chapter 11 Case.
"Euronext" means Euronext Amsterdam N.V.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations promulgated thereunder.
"Exculpated Parties" has the meaning set forth in Section 12.3(a) of the
Plan.
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"Extraordinary General Meeting" shall have the meaning set forth in Section
9.3 of the Plan.
"Face Amount" means (a) when used in reference to a Disputed Claim or
Disputed Equity Interest, the full stated amount claimed by the Holder of such
Claim or Equity Interest in any proof of claim or proof of interest timely filed
with the U.S. Bankruptcy Court, (b) when used in reference to a contingent or
unliquidated Claim, the amount of the Claim as estimated by the U.S. Bankruptcy
Court under Section 502(c) of the U.S. Bankruptcy Code and (c) when used in
reference to an Allowed Claim or Allowed Equity Interest, the Allowed amount of
such Claim or Equity Interest.
"File, Filed or Filing" means file, filed or filing with the U.S.
Bankruptcy Court in the Chapter 11 Case.
"Final Order" means an order, ruling, judgment, or other decree issued and
entered by the U.S. Bankruptcy Court or by any state or other federal court or
other court of competent jurisdiction which has not been reversed, vacated,
stayed, modified or amended and as to which (i) the time to appeal or petition
for review, rehearing, certiorari, reargument or retrial has expired and as to
which no appeal or petition for review, rehearing, certiorari, reargument or
retrial is pending or (ii) any appeal or petition for review, rehearing,
certiorari, reargument or retrial has been finally decided and no further appeal
or petition for review, rehearing, certiorari, reargument or retrial can be
taken or granted.
"First Amendment" has the meaning set forth in Section 9.3(b) of the Plan.
"General Unsecured Claims" means all pre-petition Claims against the Debtor
other than Administrative Claims, Priority Tax Claims, Miscellaneous Secured
Claims, Classified Priority Claims, Critical Creditor Claims, Belmarken Notes
Claims, UPC Notes Claims and Equity Securities Claims.
"General Unsecured Creditors" means the Holders of the General Unsecured
Claims.
"Governmental Entity" means any national, state, provincial, municipal,
local or foreign government, any court, arbitral tribunal, administrative agency
or commission or other governmental or regulatory authority, commission or
agency or any non-governmental, self-regulatory authority, commission or agency.
"Holder" means a Person holding (a) a Claim or a beneficial interest in a
Claim or (b) an Equity Interest or a beneficial interest in an Equity Interest
and, when used in conjunction with a Class or type of Claim or Equity Interest,
means a holder of (i) a beneficial interest in a Claim or (ii) an Equity
Interest in such Class or of such type.
"Impaired", when used with reference to a Claim or Equity Interest, has the
meaning set forth in Section 1124 of the U.S. Bankruptcy Code.
"Implied Purchase Price" means the per share price of the New UPC Common
Stock implied by the Plan and as set forth in the Disclosure Statement, which
has been calculated by
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dividing the imputed equity value of the Reorganized Debtor by the number of
shares of New UPC Common Stock to be issued under the Plan to the Holders of
Allowed Belmarken Notes Claims, Allowed Claims 5 Claims, Allowed Class 9 Claims
and Allowed Equity Interests (not including any additional shares of New UPC
Common Stock issued under the New UPC Equity Purchase Rights or the UGC
Subscription Commitment).
"Incentive Plan" means that certain incentive plan, a copy of which shall
have been Filed on or before the Document Filing Date, pursuant to which, at the
discretion of New UPC's board of directors, options with respect to no more than
five percent (5%) of New UPC's common equity outstanding immediately after the
Effective Date, on a fully-diluted basis, can be issued during the period
beginning on the Effective Date and continuing until the third (3rd) anniversary
of the Effective Date to certain members of New UPC's and its Subsidiaries'
management and other employees pursuant to compensation arrangements adopted by
New UPC's board of directors, which options, if any, issued under such incentive
plan on the Effective Date shall have an exercise price no less than the share
price implied by the Plan and as set forth in the Disclosure Statement.
"Indenture(s)" means, individually and collectively, those indentures
pursuant to which the UPC Notes were issued, as such indentures are or have been
amended or supplemented from time to time in accordance with the terms thereof.
"Indenture Trustee" means Citibank, N.A. (London Branch), in its capacity
as indenture trustee, paying agent and registrar under the Indentures.
"Indenture Trustee Claims" means the Claims of the Indenture Trustee for
reasonable fees and expenses, including the reasonable fees and expenses of its
counsel and indemnification as set forth in the Indentures.
"Initial Distribution Date" means the first Business Day following the
Effective Date upon which it is practicable for the Disbursing Agent to make a
Distribution under the Plan.
"Judgment" means any order, writ, injunction, award, judgment, ruling or
decree of any Governmental Entity.
"Law" means any statute, law, code, ordinance, rule or regulation of any
Governmental Entity.
"Liens" means, with respect to any asset or Property (or the rents,
revenues, income, profits or proceeds therefrom), and in each case, whether the
same is consensual or nonconsensual or arises by contract, operation of law,
legal process or otherwise: (a) any and all mortgages, liens, pledges,
attachments, charges, easements, rights-of-way, leases evidencing a
capitalizable lease obligation, conditional sale or other title retention
agreement, call rights, rights of first refusal, "tag"-or-"drag" along rights,
or other security interest or encumbrance or other legally cognizable security
devices of any kind in respect of any asset or Property, or upon the rents,
revenues, income, profits or proceeds therefrom; or (b) any arrangement, express
or implied, under which any Property is transferred, sequestered or otherwise
identified for the
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purpose of subjecting or making available the same for the payment of debt or
performance of any other obligation in priority to the payment of General
Unsecured Creditors, but in either case excluding any of the foregoing created
or imposed by or pursuant to the Plan or the Restructuring Agreement.
"Majority-in-Interest of the Participating Noteholders" means, with respect
to any date of determination, Participating Noteholders holding a majority of
the claims arising under the UPC Notes held by all of the Participating
Noteholders on such date of determination (using for this purpose the prevailing
exchange rate in effect on the Petition Date).
"Maximum Subscription Amount" means (euro)100 million, as such amount may
be reduced on a Euro-for-Euro basis by an amount equal to (a) the net proceeds
of any assets sold by the Debtor prior to the Effective Date, other than assets
sold in the ordinary course of the Debtor's business in a manner consistent with
its past practices, and (b) the net proceeds from any non-dilutive capital
raised by the Debtor (other than capital received by the Debtor from UGC or its
Related Parties).
"Miscellaneous Secured Claims" means any Claim arising before the Petition
Date that is (a) secured in whole or part, as of the Petition Date, by a Lien
which is valid, perfected and enforceable under applicable law on Property in
which the Estate has an interest and is not subject to avoidance under the U.S.
Bankruptcy Code or applicable non-bankruptcy law, or (b) subject to setoff under
Section 553 of the U.S. Bankruptcy Code, but, with respect to both case (a) and
(b), only to the extent of the Estate's interest in the value of the assets or
Property securing any such Claim or the amount subject to setoff, as the case
may be.
"Moratorium Petition" means the voluntary provisional moratorium petition
which was filed on December 3, 2002 by UPC under the Dutch Bankruptcy Code in
the Dutch Bankruptcy Court.
"NASDAQ" means the NASDAQ Stock Market.
"NECIGEF" means Nederlands Centraal Instituut voor Giraal Effectenverkeer
B.V.
"New UPC" has the meaning set forth in the Introduction to the Plan.
"New UPC Common Stock" means the shares of common stock of New UPC, par
value $0.01 per share, some of which will be issued pursuant to the Plan, having
the terms set forth in the certificate of incorporation or other organizational
documents of New UPC.
"New UPC Equity Purchase Rights" has the meaning set forth in Section 9.17
of the Plan.
"New UPC Equity Subscription" means, collectively, the New UPC Equity
Purchase Rights (and the subscription of shares of New UPC Common Stock upon
exercise of the New UPC Equity Purchase Rights) and the UGC Subscription
Commitment (and the subscription of shares of New UPC Common Stock by UGC under
the UGC Subscription Commitment).
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"New UPC Management Schedule" means that certain schedule, a copy of which
shall have been Filed on or before the Document Filing Date, setting forth the
identity of the officers and directors of New UPC as of the Effective Date as
well as the proposed compensation of such individuals.
"Objection" means any objection, application, motion, complaint or any
other legal proceeding seeking, in whole or in part, to Disallow, determine,
liquidate, classify, reclassify or establish the priority of, expunge,
subordinate or estimate any Claim (including the resolution of any request for
payment of any Administrative Claim) or Equity Interest other than a Claim or an
Equity Interest that is Allowed.
"Offer Memorandum" has the meaning set forth in Section 9.9 of the Plan.
"Old Other Equity Interests" means any and all rights, options and warrants
to acquire UPC Ordinary Shares A, including any Employee Options, outstanding
immediately prior to the Effective Date, including, without limitation, those
set forth on Annex F to the Restructuring Agreement.
"Ordinary Creditors" means the holders of non-preferred, unsecured claims
against the Debtor under Dutch law.
"Ordinary Share Distribution Amount" means 800,000 shares of New UPC Common
Stock.
"Ordinary Shares Consideration" has the meaning set forth in Section
4.10(a) of the Plan.
"Participating Noteholders" means those Holders of the UPC Notes (other
than the UGC Group) who are party to the Restructuring Agreement.
"Person" includes an individual, a corporation, a limited or general
partnership, a joint venture, an association, a joint stock company, a limited
liability company, a limited liability partnership, an estate, a trust, a
trustee, a United States Trustee, an unincorporated organization, a government,
a governmental unit, or any agency, department or political subdivision thereof.
"Petition Date" means December 3, 2002.
"Plan" means this Second Amended Chapter 11 Plan of Reorganization, dated
January 7, 2003, together with all exhibits, appendices, schedules and annexes,
if any, hereto, as such Plan may be altered, amended, supplemented or modified
from time to time in accordance with the provisions of the U.S. Bankruptcy Code,
the U.S. Bankruptcy Rules, the Confirmation Order and the terms and conditions
of Section 14.3 of the Plan.
"Preference Shares Consideration" has the meaning set forth in Section
4.8(a) of the Plan.
"Priority Shares Consideration" has the meaning set forth in Section 4.9(a)
of the Plan.
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"Priority Tax Claim" means any and all Claims accorded priority in payment
pursuant to Section 507(a)(8) of the U.S. Bankruptcy Code.
"pro rata" means, except to the extent otherwise specifically provided in
the Plan, at any time, the proportion that the Face Amount of an Allowed Claim
or Allowed Equity Interest in a particular Class bears to the aggregate Face
Amount of all Claims or Equity Interests (including Disputed Claims or Disputed
Equity Interests, but excluding Disallowed Claims or Disallowed Equity
Interests) in that Class; provided, however, that with respect to the UPC
Ordinary Shares A, UPC Priority Shares and Equity Securities Claims, pro rata
means the proportion that the Face Amount of an Allowed UPC Ordinary Share A,
Allowed UPC Priority Share or Allowed Equity Securities Claim bears to the
aggregate Face Amount of all UPC Ordinary Shares A, UPC Priority Shares and
Equity Securities Claims (including Disputed UPC Ordinary Shares A, Disputed UPC
Priority Shares and Disputed Equity Securities Claims, but excluding Disallowed
UPC Ordinary Shares A, Disallowed UPC Priority Shares and Disallowed Equity
Securities Claims); provided further that when used in connection with the
calculation of distributions or reserves to be made under the Plan on account of
a Claim, pro rata shall also include Claims allowed, disputed or disallowed in
connection with the Dutch Bankruptcy Case, as the case may be, to the extent
that such Claims are not duplicative of Claims Allowed, Disputed or Disallowed
in the U.S. Bankruptcy Case.
"Professional" means any professional employed in the Chapter 11 Case
pursuant to Sections 327 or 1103 of the U.S. Bankruptcy Code or to be
compensated pursuant to Sections 327, 328, 330, 331, 503(b)(2) or (4) or 1103 of
the U.S. Bankruptcy Code.
"Professional Claim" means a Claim of a Professional for compensation
and/or reimbursement of expenses pursuant to Sections 327, 328, 330, 331 or
503(b) of the U.S. Bankruptcy Code relating to services incurred on and after
the Petition Date and prior to and including the Effective Date.
"Property" means all assets or property of any nature whatsoever, real or
personal, tangible or intangible, including contract rights, accounts and Causes
of Action.
"Reinstated or Reinstatement" means (i) leaving unaltered the legal,
equitable, and contractual rights to which a Claim entitles the Holder of such
Claim so as to leave such Claim Unimpaired in accordance with Section 1124 of
the U.S. Bankruptcy Code or (ii) notwithstanding any contractual provision or
applicable law that entitles the Holder of such Claim to demand or receive
accelerated payment of such Claim after the occurrence of a default, (a) curing
any such default that occurred before or after the Petition Date, other than a
default of a kind specified in Section 365(b)(2) of the U.S. Bankruptcy Code;
(b) reinstating the maturity of such Claim as such maturity existed before such
default; (c) compensating the Holder of such Claim for any damages incurred as a
result of any reasonable reliance by such Holder on such contractual provision
or such applicable law; and (d) not otherwise altering the legal, equitable, or
contractual rights to which such Claim entitles the Holder of such Claim.
"Related Party" means, with respect to any Person (the "First Person"), (a)
any other Person (the "Second Person") having Beneficial Ownership of forty
percent (40%) or more of the
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Voting Securities of such First Person and (b) any other Person, forty percent
(40%) or more of whose Voting Securities are owned, controlled or held with
power to vote, directly or indirectly, by that Second Person.
"Reorganized Debtor" means United Pan-Europe Communications N.V. on and
after the Effective Date.
"Reserve" has the meaning set forth in Section 8.4(b) of the Plan.
"Restriction" means, with respect to any capital stock, partnership
interest, membership interest in a limited liability company or other equity
interest or security, any voting or other trust or agreement, option, warrant,
preemptive right, right of first offer, right of first refusal, escrow
arrangement, proxy, buy-sell agreement, power of attorney or other contract (but
excluding the Belmarken Loan Agreements and the Restructuring Agreement), Law,
license, permit or Judgment that, conditionally or unconditionally, (i) grants
to any Person the right to purchase or otherwise acquire, or obligates any
Person to sell or otherwise dispose of or issue, or otherwise results or,
whether upon the occurrence of any event or with notice or lapse of time or both
or otherwise, may result in any Person acquiring, (x) any of such capital stock,
partnership interest, membership interest in a limited liability company or
other equity interest or security; (y) any of the proceeds of, or any
distributions paid or that are or may become payable with respect to, any of
such capital stock, partnership interest, membership interest in a limited
liability company or other equity interest or security; or (z) any interest in
such capital stock, partnership interest, membership interest in a limited
liability company or other equity interest or security or any such proceeds or
distributions; (ii) restricts or, whether upon the occurrence of any event or
with notice or lapse of time or both or otherwise, is reasonably likely to
restrict the transfer or voting of, or the exercise of any rights or the
enjoyment of any benefits arising by reason of ownership of, any such capital
stock, partnership interest, membership interest in a limited liability company
or other equity interest or security or any such proceeds or distributions; or
(iii) creates or, whether upon the occurrence of any event or with notice or
lapse of time or both or otherwise, is reasonably likely to create a Lien or
purported Lien affecting any such capital stock, partnership interest,
membership interest in a limited liability company or other equity interest or
security, proceeds or distributions.
"Restructuring" means the restructuring of UPC's capital structure in
accordance with the terms of the Restructuring Agreement, the Plan, the Akkoord
and any associated documents.
"Restructuring Agreement" means that certain Restructuring Agreement
(including any exhibits and amendments, if any, thereto), dated as of September
30, 2002, by and among UPC, New UPC, UGC, UGC Holdings, United Europe, UUB and
certain holders of the UPC Notes, a copy of which (as the same may have been
amended through the date hereof) is annexed as Exhibit "A" to the Plan.
"Schedule of Assumed Contracts" means the schedule, as the same may be
amended at any time prior to the Confirmation Hearing, listing certain executory
contracts and unexpired leases to be assumed by the Debtor (along with
associated amounts for cure claims), which schedule is to be served on the
counterparties to such executory contracts and unexpired leases,
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along with a motion or motions to approve the assumption thereof under Section
365(a) of the U.S. Bankruptcy Code, and Filed by the Debtor on or before the
Document Filing Date.
"Schedule of Rejected Contracts" means the schedule, as the same may be
amended at any time prior to the Confirmation Hearing, listing certain executory
contracts and unexpired leases to be rejected by the Debtor (along with the
associated amounts for rejection damage claims), which schedule is to be served
on the counterparties to such executory contracts and unexpired leases, along
with a motion or motions to approve the rejection thereof under Section 365(a)
of the U.S. Bankruptcy Code, and Filed by the Debtor on or before the Document
Filing Date.
"SEC" means the United States Securities and Exchange Commission or any
successor agency.
"Second Amendment" has the meaning set forth in Section 9.3(c) of the Plan.
"Shareholder Proposals" has the meaning set forth in Section 9.3 of the
Plan.
"Stockholders Agreement" means that certain stockholders agreement by and
among UGC, New UPC, the Participating Noteholders, and any other Holder of an
Allowed Class 5 Claim who elects to become a party thereto, a copy of which
shall have been Filed on or before the Document Filing Date.
"Subscription Shares" has the meaning set forth in Section 9.17 of the
Plan.
"Subsidiary" means, with respect to any Person, (i) a corporation, a
majority in voting power of whose capital stock with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly owned by such Person, by a Subsidiary of such Person, or by such
Person and one or more Subsidiaries of such Person, without regard to whether
the voting of such stock is subject to a voting agreement or similar
Restriction, controlled by or under common control with the respective Person,
(ii) a partnership or limited liability company in which such Person or a
Subsidiary of such Person is, at the date of determination, (x) in the case of a
partnership, a general partner of such partnership with the power affirmatively
to direct the policies and management of such partnership or (y) in the case of
a limited liability company, the managing member or, in the absence of a
managing member, a member with the power affirmatively to direct the policies
and management of such limited liability company, or (iii) any other Person
(other than a corporation) in which such Person, a Subsidiary of such Person or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination thereof, has (x) the power to elect or direct the
election of a majority of the members of the governing body of such Person
(whether or not such power is subject to a voting agreement or similar
Restriction) or (y) in the absence of such a governing body, a majority
ownership interest.
"Tax" means any tax, charge, fee, levy, impost or other assessment by any
federal, state, local or foreign governmental authority, including, without
limitation, income, excise, property, sales, transfer, employment, payroll,
franchise, profits, license, use, ad valorem, estimated,
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severance, stamp, occupation and withholding tax, together with any interest,
penalties, fines or additions attributable to, imposed on, or collected by any
such federal, state, local or foreign governmental authority.
"10-7/8% Euro Senior Notes due 2007" means the (euro)100.0 million of
10-7/8% Senior Notes due 2007 issued by UPC in October 1999.
"10-7/8% Euro Senior Notes due 2009" means the (euro)300.0 million of
10-7/8% Senior Notes due 2009 issued by UPC in July 1999.
"10-7/8% U.S. Senior Notes due 2007" means the U.S. $200.0 million of
10-7/8% Senior Notes due 2007 issued by UPC in October 1999.
"10-7/8% U.S. Senior Notes due 2009" means the U.S. $800.0 million of
10-7/8% Senior Notes due 2009 issued by UPC in July 1999.
"Third Amendment" has the meaning set forth in Section 9.3(e) of the Plan.
"13-3/8% Euro Senior Discount Notes due 2009" means the (euro)191.0 million
of 13-3/8% Senior Discount Notes due 2009 issued by UPC in October 1999.
"13-3/8% U.S. Senior Discount Notes due 2009" means the U.S. $478.0 million
of 13-3/8% Senior Discount Notes due 2009 issued by UPC in October 1999.
"13-3/4% U.S. Senior Discount Notes due 2010" means the U.S. $1.0 billion
of 13-3/4% Senior Discount Notes due 2010 issued by UPC in January 2000.
"12-1/2% U.S. Senior Discount Notes due 2009" means the U.S. $735.0 million
of 12-1/2% Senior Discount Notes due 2009 issued by UPC in July 1999.
"UGC" means UnitedGlobalCom, Inc., a corporation organized under the laws
of the State of Delaware and the parent of UGC Holdings.
"UGC Group" means UGC and its Subsidiaries, other than UPC and its
Subsidiaries.
"UGC Holdings" means UGC Holdings, Inc., a corporation organized under the
laws of the State of Delaware and the parent of United Europe.
"UGC Subscription Commitment" has the meaning set forth in Section 9.18 of
the Plan.
"Unclaimed Property" means any Cash or other Property distributed to the
Holder of an Allowed Claim or Allowed Equity Interest pursuant to the Plan that
(a) is returned to the Reorganized Debtor as undeliverable and no appropriate
forwarding address is received within the later of (i) six (6) months after the
Effective Date and (ii) six (6) months after such Distribution is made to such
Holder, (b) was not mailed or delivered because of the absence of a proper
address to which to mail or deliver such Property, or (c) in the case of a
Distribution made
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in the form of a check, is not negotiated and no request for reissuance is made
as provided for in Section 6.8 of the Plan.
"Unimpaired" means any Claim that is not Impaired within the meaning of
Section 1124 of the U.S. Bankruptcy Code.
"United Europe" means United Europe, Inc., a corporation organized under
the laws of the State of Delaware and the parent of UPC.
"United States Trustee" means the United States Trustee appointed under
Section 581(a)(3) of title 28 of the United States Code to serve in the Southern
District of New York, or its legally designated and authorized representative.
"UPC" has the meaning set forth in the Introduction to the Plan.
"UPC ADSs" means the American Depositary Shares representing UPC Ordinary
Shares A deposited with Citibank N.A., as depositary under the Deposit
Agreement, dated February 1999, among the Debtor, Citibank N.A., as depositary,
and all holders and beneficial owners of American Depositary Shares evidenced by
American Depositary Receipts thereunder.
"UPC Dollar-Denominated Notes" means, collectively, the following series of
outstanding senior notes and senior discount notes of UPC: (a) the 10-7/8% U.S.
Senior Notes due 2007; (b) the 10-7/8% U.S. Senior Notes due 2009; (c) the
12-1/2% U.S. Senior Discount Notes due 2009; (d) the 11-1/4% U.S. Senior Notes
due 2009; (e) the 13-3/8% U.S. Senior Discount Notes due 2009; (f) the 11-1/4%
U.S. Senior Notes due 2010; (g) the 11-1/2% U.S. Senior Notes due 2010; and (h)
the 13-3/4% U.S. Senior Discount Notes due 2010.
"UPC Euro-Denominated Notes" means, collectively, the following series of
outstanding senior notes and senior discount notes of UPC: (a) the 10-7/8% Euro
Senior Notes due 2007; (b) the 10-7/8% Euro Senior Notes due 2009; (c) the
11-1/4% Euro Senior Notes due 2009; (d) the 13-3/8% Euro Senior Discount Notes
due 2009; and (e) the 11-1/4% Euro Senior Notes due 2010.
"UPC Notes" means the UPC Dollar-Denominated Notes and the UPC
Euro-Denominated Notes, collectively.
"UPC Notes Claims" means any and all Claims of the Holders of the UPC Notes
arising under the Indentures, the UPC Notes or the related transaction documents
pursuant to which the UPC Notes were issued.
"UPC Ordinary Shares A" means all authorized, issued and outstanding
ordinary shares A of UPC, par value (euro)1.00, as of the Petition Date,
including such shares held in the form of UPC ADSs.
"UPC Ordinary Shares C" has the meaning set forth in Section 9.3 of the
Plan.
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"UPC Preference Shares A" means all authorized, issued and outstanding
Series 1 convertible preference shares A of UPC, par value (euro)1.00, as of the
Petition Date.
"UPC Priority Shares" means all authorized, issued and outstanding priority
shares of UPC, par value (euro)1.00, as of the Petition Date.
"UPC SEC Documents" means all forms, reports, schedules, statements and
other documents (including, in each case, exhibits, schedules, amendments or
supplements thereto, and any other information incorporated by reference
therein) required to be filed by UPC since January 1, 1999 under the Exchange
Act or the Securities Act, as such documents have been amended or supplemented
between the time of their respective filing and the date of the Restructuring
Agreement.
"UPC Voting Securities" means all equity securities of UPC, including,
without limitation, all UPC Ordinary Shares A, UPC Priority Shares and UPC
Preference Shares A, entitled to vote at a general meeting of the shareholders
of UPC.
"U.S. Bankruptcy Code" means title 11 of the United States Code, 11 U.S.C.
ss.ss.101-1330, as applicable to the Chapter 11 Case.
"U.S. Bankruptcy Court" means the United States Bankruptcy Court for the
Southern District of New York or, if such court ceases to exercise jurisdiction
over these proceedings, the court or adjunct thereof that exercises jurisdiction
over the Chapter 11 Case.
"U.S. Bankruptcy Rules" means (i) the Federal Rules of Bankruptcy Procedure
and the Official Bankruptcy Forms, as amended and promulgated under Section 2075
of title 28 of the United States Code, (ii) the Local Rules of the U.S.
Bankruptcy Court, and (iii) any standing orders governing practice and procedure
issued by the U.S. Bankruptcy Court, each as in effect on the Petition Date,
together with all amendments and modifications thereto that were subsequently
made applicable to the Chapter 11 Case or proceedings therein, as the case may
be.
"U.S. Securities Act" means the U.S. Securities Act of 1933, as amended
from time to time, and the rules and regulations promulgated thereunder.
"U.S. Trustee's Fee Claims" means any fees assessed against the Estate
pursuant to Section 1930(a)(6) of title 28 of the United States Code.
"UUB" means United Bonds, LLC, a limited liability company organized under
the laws of the State of Delaware and a wholly owned indirect subsidiary of UGC.
"Voting Securities" means, with respect to any Person, any equity interest
of such Person having general voting power under ordinary circumstances to
participate in the election of a majority of the governing body of such Person
(irrespective of whether at the time any other class of equity interest of such
Person shall have or might have voting power by reason of the happening of any
contingency).
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Section 1.2 Rules of Interpretation. All references to "the Plan"
herein shall be construed, where applicable, to include references to this
document and all its exhibits, appendices, schedules and annexes, if any (and
any amendments thereto made in accordance with the U.S. Bankruptcy Code).
Whenever from the context it appears appropriate, each term stated in either the
singular or the plural shall include the singular and the plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
feminine and the neuter. The words "herein," "hereof," "hereto," "hereunder,"
and other words of similar import refer to the Plan as a whole and not to any
particular paragraph, subparagraph, or clause contained in the Plan. The words
"includes" and "including" are not limiting and mean that the things
specifically identified are set forth for purposes of illustration, clarity or
specificity and do not in any respect qualify, characterize or limit the
generality of the class within which such things are included. The captions and
headings in the Plan are for convenience of reference only and shall not limit
or otherwise affect the provisions hereof. To the extent of a conflict between
any matter specifically addressed in the Plan and any general provision of the
Plan, such specific provision shall prevail. Any term used in the Plan that is
not defined in the Plan, either in Article I hereof or elsewhere, but that is
used in the U.S. Bankruptcy Code or the U.S. Bankruptcy Rules shall have the
meaning assigned to that term in (and shall be construed in accordance with the
rules of construction under) the U.S. Bankruptcy Code or the U.S. Bankruptcy
Rules (with the U.S. Bankruptcy Code controlling in the case of a conflict or
ambiguity). Without limiting the preceding sentence, the rules of construction
set forth in Section 102 of the U.S. Bankruptcy Code shall apply to the Plan,
unless superseded herein.
Section 1.3 Exhibits. All Exhibits to the Plan are incorporated into and
are a part of the Plan as if set forth in full herein, regardless of when Filed.
Section 1.4 Administrator Consent. Nothing in this Plan shall relieve the
Debtor of the need to gain the approval of the Administrator for any acts which
require such approval under Dutch Law.
ARTICLE II
ADMINISTRATIVE AND PRIORITY TAX CLAIMS
Section 2.1 Unclassified Claims. In accordance with Section 1123(a)(1) of
the U.S. Bankruptcy Code, Administrative Claims and Priority Tax Claims are not
classified and are excluded from the Classes designated in Article III of the
Plan. The treatment accorded to Holders of Administrative Claims and Priority
Tax Claims, which is set forth below, shall be in full satisfaction, settlement,
release, extinguishment and discharge of their respective Claims against the
Debtor and the Estate, except as otherwise provided in the Plan or the
Confirmation Order.
Section 2.2 Administrative Claims.
(a) Unless otherwise provided for herein, each Holder of an Allowed
Administrative Claim shall receive in full satisfaction, settlement,
release, extinguishment and discharge of such Claim: (A) the amount of such
unpaid Allowed Claim in Cash on
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or as soon as reasonably practicable after the later of (i) the Effective
Date, (ii) the date on which such Administrative Claim becomes Allowed and
(iii) a date agreed to in writing by the Debtor or the Reorganized Debtor,
as the case may be, and the Holder of such Administrative Claim; (B)
treatment such that such Administrative Claim is Reinstated; or (C) such
other treatment on such other terms and conditions as may be agreed upon in
writing by the Holder of such Claim and the Debtor or the Reorganized
Debtor, as the case may be, or as the U.S. Bankruptcy Court may order;
provided, however, that Allowed Administrative Claims representing (y)
liabilities, accounts payable or other Claims, liabilities or obligations
incurred subsequent to the Petition Date in the ordinary course of business
of the Debtor consistent with past practices and (z) contractual
liabilities arising under loans or advances to the Debtor incurred
subsequent to the Petition Date, whether or not incurred in the ordinary
course of business of the Debtor, shall be paid or performed by the Debtor
or the Reorganized Debtor in accordance with the terms and conditions of
the particular transactions relating to such liabilities and any agreements
relating thereto.
(b) All Indenture Trustee Claims shall be paid by the Debtor in full,
in Cash, on the Effective Date upon presentation of customary invoices to
the Debtor; provided, however, that if the Debtor disputes any Indenture
Trustee Claim and such dispute is not resolved, then such disputed
Indenture Trustee Claim may, solely at the option of the Indenture Trustee,
be submitted to the U.S. Bankruptcy Court for final resolution; provided
further, however, that if the Indenture Trustee does not submit any such
unresolved dispute to the U.S. Bankruptcy Court for final resolution within
five (5) Business Days of receiving notification from the Debtor of such
dispute, then the Indenture Trustee shall not have any further right to
seek payment of such disputed amount from the Debtor, but shall only have
recourse to its charging liens under the Indentures with respect to such
disputed amount. Any such disputed Indenture Trustee Claim shall not
prevent confirmation of the Plan, the occurrence of the Effective Date or
consummation of the Plan. The Indenture Trustee shall not be required to
file an application for payment of the Indenture Trustee Claims. Except as
set forth above, nothing contained herein shall affect the Indenture
Trustee's charging liens under the Indentures with respect to any Indenture
Trustee Claim that is not paid in full, in Cash, by the Debtor on the
Effective Date.
Section 2.3 Priority Tax Claims. Each Holder of an Allowed Priority Tax
Claim shall receive, at the option of the Debtor or the Reorganized Debtor, as
the case may be, in full satisfaction, settlement, release, extinguishment and
discharge of such Claim: (A) the amount of such unpaid Allowed Claim in Cash on
or as soon as reasonably practicable after the latest of (i) the Effective Date,
(ii) the date on which such Priority Tax Claim becomes Allowed and (iii) a date
agreed to by the Debtor or the Reorganized Debtor, as the case may be, and the
Holder of such Priority Tax Claim; or (B) such other treatment on such other
terms and conditions as may be agreed upon in writing by the Holder of such
Claim and the Debtor or the Reorganized Debtor, as the case may be, or as the
U.S. Bankruptcy Court may order; provided, however, that the Debtor or the
Reorganized Debtor, as the case may be, shall have the right, in its sole
discretion, to prepay at any time any Allowed Priority Tax Claim without premium
or penalty of any sort or nature.
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ARTICLE III
CLASSIFICATION OF CLAIMS, EQUITY
INTERESTS AND OLD OTHER EQUITY INTERESTS
Section 3.1 Generally. Pursuant to Section 1122 of the U.S. Bankruptcy
Code, set forth below is a designation of Classes of Claims, Equity Interests
and Old Other Equity Interests, other than Administrative Claims and Priority
Tax Claims. A Claim or an Equity Interest is classified in a particular Class
only to the extent that the Claim, Equity Interest or Old Other Equity Interest
qualifies within the description of that Class and is classified in a different
Class to the extent that the balance of such Claim, Equity Interest or Old Other
Equity Interest qualifies within the description of that different Class. A
Claim, Equity Interest or Old Other Equity Interest is placed in a particular
Class for the purpose of receiving distributions pursuant to the Plan only to
the extent that such Claim, Equity Interest or Old Other Equity Interest is an
Allowed Claim, an Allowed Equity Interest or an Allowed Old Other Equity
Interest in that Class and such Claim, Equity Interest or Old Other Equity
Interest has not been paid, released, settled or otherwise satisfied prior to
the Effective Date.
Section 3.2 Classified Claims Against and Equity Interests in UPC.
(a) Class 1: Miscellaneous Secured Claims
(b) Class 2: Classified Priority Claims
(c) Class 3: Critical Creditor Claims
(d) Class 4: Belmarken Notes Claims
(e) Class 5: UPC Notes Claims and General Unsecured Claims
(f) Class 6: UPC Preference Shares A
(g) Class 7: UPC Priority Shares
(h) Class 8: UPC Ordinary Shares A
(i) Class 9: Equity Securities Claims
(j) Class 10: Old Other Equity Interests
Section 3.3 Elimination of Classes. Any Class that does not contain, as of
the date of the commencement of the Confirmation Hearing, any Allowed Claims,
Allowed Equity Interests or Allowed Old Other Equity Interests or any Claims,
Equity Interests or Old Other Equity Interests temporarily allowed for voting
purposes under U.S. Bankruptcy Rule 3018 shall be deemed to have been deleted
from this Plan for purposes of (i) voting to accept or reject this Plan and (ii)
determining whether it has accepted or rejected this Plan under Section
1129(a)(8) of the U.S. Bankruptcy Code.
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ARTICLE IV
TREATMENT OF CLAIMS, EQUITY INTERESTS
AND OLD OTHER EQUITY INTERESTS
Section 4.1 Satisfaction of Claims, Equity Interests and Old Other Equity
Interests. The treatment of and consideration to be received by Holders of
Allowed Claims, Allowed Equity Interests and Allowed Old Other Equity Interests
pursuant to this Article IV and the Plan shall be in full satisfaction,
settlement, release, extinguishment and discharge of their respective Claims,
Equity Interests or Old Other Equity Interests, except as otherwise provided in
the Plan or the Confirmation Order.
Section 4.2 No Effect on Section 508 of the U.S. Bankruptcy Code. Nothing
contained in the Plan shall have any effect on the operation of Section 508 of
the U.S. Bankruptcy Code, and such section shall apply in all respects in the
Chapter 11 Case.
Section 4.3 Class 1: Miscellaneous Secured Claims.
(a) Treatment. Each Holder of an Allowed Miscellaneous Secured Claim
shall receive, in the sole discretion of the Debtor or the Reorganized
Debtor, as the case may be, in full satisfaction, settlement, release,
extinguishment and discharge of such Allowed Claim: (A) Cash equal to the
amount of such Allowed Miscellaneous Secured Claim on or as soon as
reasonably practicable after the later of (i) the Effective Date and (ii)
the date that such Miscellaneous Secured Claim becomes Allowed; (B)
treatment such that such Miscellaneous Secured Claim is Reinstated; or (C)
such other treatment on such other terms and conditions as may be agreed
upon in writing by the Holder of such Claim and the Debtor or Reorganized
Debtor, as the case may be, or as the U.S. Bankruptcy Court may order.
(b) Voting. Class 1 is Unimpaired and the Holders of Miscellaneous
Secured Claims are conclusively presumed to have accepted the Plan pursuant
to Section 1126(f) of the U.S. Bankruptcy Code and are not entitled to vote
to accept or reject the Plan.
Section 4.4 Class 2: Classified Priority Claims.
(a) Treatment. Each Holder of an Allowed Classified Priority Claim
shall receive in full satisfaction, settlement, release, extinguishment and
discharge of such Allowed Claim: (A) the amount of such unpaid Allowed
Claim in Cash on or as soon as reasonably practicable after the later of
(i) the Effective Date, (ii) the date on which such Claim becomes Allowed
and (iii) a date agreed to by the Debtor or the Reorganized Debtor, as the
case may be, and the Holder of such Claim; (B) treatment such that such
Claim is Reinstated; or (C) such other treatment on such other terms and
conditions as may be agreed upon in writing by the Holder of such Claim and
the Debtor or Reorganized Debtor, as the case may be, or as the U.S.
Bankruptcy Court may order.
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(b) Voting. Class 2 is Unimpaired and the Holders of Classified
Priority Claims are conclusively presumed to have accepted the Plan
pursuant to Section 1126(f) of the U.S. Bankruptcy Code and are not
entitled to vote to accept or reject the Plan.
Section 4.5 Class 3: Critical Creditor Claims.
(a) Treatment. Each Holder of an Allowed Critical Creditor Claim shall
receive in full satisfaction, settlement, release, extinguishment and
discharge of such Claim: (A) payment in full in Cash on the later of (i)
the Effective Date and (ii) the date such Claim becomes Allowed; (B)
treatment such that such Claim is Reinstated; or (C) such other treatment
on such other terms and conditions as may be agreed upon in writing by the
Holder of such Claim and the Debtor or the Reorganized Debtor, as the case
may be, or as the U.S. Bankruptcy Court may order.
(b) Voting. Class 3 is Unimpaired and the Holders of Critical Creditor
Claims are conclusively presumed to have accepted the Plan pursuant to
Section 1126(f) of the U.S. Bankruptcy Code and are not entitled to vote to
accept or reject the Plan.
Section 4.6 Class 4: Belmarken Notes Claims.
(a) Treatment. On the Effective Date, the Holder of the Belmarken
Notes shall receive, in consideration for the Belmarken Notes and the
obligations of all other parties under the Belmarken Notes and the
Belmarken Loan Agreements, 23,853,179 shares of New UPC Common Stock (the
"Belmarken Notes Consideration"). The Belmarken Notes Claims shall be
deemed Allowed for all purposes, including, but not limited to, voting and
distributions, in the aggregate amount of $937,482,330.51 and the Allowed
Belmarken Notes Claims shall not be subject to defense, setoff or
counterclaim.
(b) Voting. Class 4 is Impaired and the Holder of the Belmarken Notes
Claims is entitled to vote to accept or reject the Plan.
Section 4.7 Class 5: UPC Notes Claims and General Unsecured Claims.
(a) Treatment. On or as soon as practicable after the Effective Date,
each Holder of an Allowed Class 5 Claim shall receive in consideration for
its Claim, a number of shares of New UPC Common Stock. In the aggregate,
the Holders of all Allowed UPC Notes Claims shall receive 25,146,821 shares
of New UPC Common Stock, and each Holder of an Allowed UPC Notes Claim
shall receive the number of shares of New UPC Common Stock equal to such
Holder's pro rata portion of those shares of New UPC Common Stock. The UPC
Notes Claims shall be deemed Allowed for all purposes, including, but not
limited to, voting and distributions for each series in the amounts set
forth on Schedule 1 hereto and for all UPC Notes Claims in the aggregate
amount of $4,688,233,885.90 (which shall exclude any amounts on account of
UPC Notes held by UPC as set forth on Annex C to the Restructuring
Agreement) and the Allowed UPC Notes Claims shall not be subject to
defense, setoff or counterclaim. Each Holder of an Allowed Class 5 Claim
that is not a UPC Notes Claim shall receive a
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number of shares of New UPC Common Stock so that the number of shares per
amount of Allowed Claim received by such Holder is the same as the number
of shares per amount of Allowed Claim that the Holders of Allowed UPC Notes
Claims receive. The number of shares of New UPC Common Stock to be
distributed on account of Allowed Class 5 Claims that are not UPC Notes
Claims shall be in addition to the 25,146,821 shares of New UPC Common
Stock to be distributed on account of the Allowed UPC Notes Claims. The
receipt of such shares of New UPC Common Stock by the Holders of the Class
5 Claims shall constitute a full satisfaction, settlement, release and
discharge of such Class 5 Claims; provided, however, that, notwithstanding
anything in the Plan to the contrary, except as set forth in Section 9.2,
any UPC Notes acquired by New UPC through the Plan and the Akkoord shall
remain outstanding and shall not be deemed to be satisfied, settled,
released or discharged.
(b) Voting. Class 5 is Impaired and the Holders of the UPC Notes
Claims and the General Unsecured Claims are entitled to vote to accept or
reject the Plan.
Section 4.8 Class 6: UPC Preference Shares A.
(a) Treatment. On or as soon as practicable after the Effective Date,
and after the sale by New UPC of the Belmarken Notes to UPC, each Holder of
outstanding Allowed UPC Preference Shares A shall receive from New UPC a
number of shares of New UPC Common Stock equal to such Holder's pro rata
portion of 200,000 shares of New UPC Common Stock (collectively, the
"Preference Shares Consideration"). The receipt of the Preference Shares
Consideration by the Holders of the UPC Preference Shares A shall
constitute a full satisfaction, settlement, release and discharge of the
Claims and Equity Interests of each Holder of UPC Preference Shares A in
respect of such UPC Preference Shares A; provided, however, that,
notwithstanding anything to the contrary contained herein, except as set
forth in Section 9.2, any UPC Preference Shares A acquired by New UPC
through the Plan shall remain outstanding and shall not be deemed to be
satisfied, settled, released or discharged.
(b) Voting. Class 6 is Impaired and the Holders of the UPC Preference
Shares A are entitled to vote to accept or reject the Plan.
Section 4.9 Class 7: UPC Priority Shares.
(a) Treatment. On or as soon as practicable after the Effective Date,
and after the sale by New UPC of the Belmarken Notes to UPC, the Holder of
the Allowed UPC Priority Shares shall receive from New UPC a number of
shares of New UPC Common Stock equal to such Holder's pro rata portion of
the Ordinary Share Distribution Amount (the "Priority Shares
Consideration") in a per share amount equal to the Ordinary Shares
Consideration. The receipt of the Priority Shares Consideration by the
Holder of the UPC Priority Shares shall constitute a full satisfaction,
settlement, release and discharge of the Claims and Equity Interests of the
Holder of the UPC Priority Shares in respect of the UPC Priority Shares;
provided, however, that, notwithstanding anything to the contrary contained
herein, except as set forth in Section 9.2, any UPC Priority Shares
acquired by
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New UPC through the Plan shall remain outstanding and shall not be deemed
to be satisfied, settled, released or discharged.
(b) Voting. Class 7 is Impaired and the Holder of the UPC Priority
Shares is entitled to vote to accept or reject the Plan.
Section 4.10 Class 8: UPC Ordinary Shares A.
(a) Treatment. On or as soon as practicable after the Effective Date,
and after the sale by New UPC of the Belmarken Notes to UPC, each Holder of
Allowed UPC Ordinary Shares A shall receive from New UPC a number of shares
of New UPC Common Stock equal to such Holder's pro rata portion of the
Ordinary Share Distribution Amount (collectively, the "Ordinary Shares
Consideration"). The receipt of the Ordinary Shares Consideration by the
Holders of the UPC Ordinary Shares A shall constitute a full satisfaction,
settlement, release and discharge of the Claims and Equity Interests of
each Holder of UPC Ordinary Shares A; provided, however, that,
notwithstanding anything to the contrary contained herein, any UPC Ordinary
Shares A acquired by New UPC through the Plan shall remain outstanding and
shall not be deemed to be satisfied, settled, released or discharged.
(b) Voting. Class 8 is Impaired and the Holders of the Allowed UPC
Ordinary Shares A are entitled to vote to accept or reject the Plan.
Section 4.11 Class 9: Equity Securities Claims.
(a) Treatment. Subject to the Allowance of the Equity Securities
Claims, each Holder of an Allowed Equity Securities Claim shall receive, in
full satisfaction, settlement, release, extinguishment and discharge of its
Claim, a number of shares of New UPC Common Stock equal to such Holder's
pro rata portion of the Ordinary Share Distribution Amount as if such
Holder had (a) purchased, on the date its Equity Securities Claim first
arose, UPC Ordinary Shares A with a value equal to the amount of such
Holder's Allowed Equity Securities Claim and (b) retained such shares as of
the Effective Date.
(b) Voting. Class 9 is Impaired and the Holders of the Equity
Securities Claims are entitled to vote to accept or reject the Plan.
Section 4.12 Class 10: Old Other Equity Interests.
(a) Treatment. All Holders of Old Other Equity Interests shall not be
entitled to, and shall not, receive or retain, any property under the Plan
on account of such Old Other Equity Interests, and, to the extent permitted
under applicable law, such Old Other Equity Interests shall be cancelled on
the Effective Date.
(b) Voting. Class 10 is Impaired, and the Holders of Old Other Equity
Interests are deemed to have rejected the Plan pursuant to Section 1126(g)
of the U.S. Bankruptcy Code and are not entitled to vote to accept or
reject the Plan.
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ARTICLE V
ACCEPTANCE OR REJECTION OF THE PLAN; CRAMDOWN
Section 5.1 Unimpaired Classes. Classes 1, 2 and 3 are Unimpaired under the
Plan. As such, pursuant to Section 1126(f) of the U.S. Bankruptcy Code, the
Holders of Claims in such Classes are conclusively presumed to have accepted the
Plan in respect of such Claims and, therefore, are not entitled to vote to
accept or reject the Plan. Administrative Claims and Priority Tax Claims are
Unimpaired under the Plan and not classified under the Plan and hence are not
entitled to vote to accept or reject the Plan.
Section 5.2 Impaired Classes. Classes 4, 5, 6, 7, 8 and 9 are Impaired and
are entitled to vote to accept or reject the Plan. Holders in Class 10 are not
receiving or retaining any property under the Plan on account of their Old Other
Equity Interests in such Class. As such, pursuant to Section 1126(g) of the U.S.
Bankruptcy Code, the Holders in such Class are deemed to have rejected the Plan
in respect of such Old Other Equity Interests and, therefore, are not entitled
to vote to accept or reject the Plan.
Section 5.3 Acceptance by Impaired Classes of Claims and Equity Interests.
(a) Acceptance by an Impaired Class of Claims. Pursuant to Section
1126(c) of the U.S. Bankruptcy Code, an Impaired Class of Claims shall have
accepted the Plan if (a) the Holders of at least two-thirds (2/3) in dollar
amount of the Allowed Claims actually voting in such Class (other than
Claims held by any Holder designated pursuant to Section 1126(e) of the
U.S. Bankruptcy Code) have timely and properly voted to accept the Plan and
(b) more than one-half (1/2) in number of the Holders of such Allowed
Claims actually voting in such Class (other than Claims held by any Holder
designated pursuant to Section 1126(e) of the U.S. Bankruptcy Code) have
timely and properly voted to accept the Plan.
(b) Acceptance by an Impaired Class of Equity Interests. Pursuant to
Section 1126(d) of the U.S. Bankruptcy Code, an Impaired Class of Equity
Interests shall have accepted the Plan if the Holders of at least
two-thirds (2/3) in amount of the Allowed Equity Interests actually voting
in such Class (other than Equity Interests held by any Holder designated
pursuant to Section 1126(e) of the U.S. Bankruptcy Code) have timely and
properly voted to accept the Plan.
Section 5.4 Cramdown. If all applicable requirements for Confirmation of
the Plan are met as set forth in Section 1129(a)(1) through (13) of the U.S.
Bankruptcy Code except subsection (8) thereof, the Debtor requests that the U.S.
Bankruptcy Court confirm the Plan in accordance with Section 1129(b) of the U.S.
Bankruptcy Code, notwithstanding the requirements of Section 1129(a)(8) thereof,
on the basis that the Plan is fair and equitable, and does not discriminate
unfairly, with respect to each Class of Claims, Equity Interests or Old Other
Equity Interests that is Impaired under, and has not accepted, the Plan.
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ARTICLE VI
PROVISIONS GOVERNING DISTRIBUTIONS UNDER THE PLAN
Section 6.1 General. The Debtor, through the Disbursing Agent, shall make
all Distributions required by the Plan. Furthermore, the Debtor, New UPC and the
Disbursing Agent are authorized to make distributions required in connection
with ratification of the Akkoord or consummation of the Restructuring. In
particular, on the Initial Distribution Date, the Disbursing Agent shall make a
Distribution of New UPC Common Stock and Cash, as applicable, to the Holders of
Allowed Claims and Allowed Equity Interests in accordance with Article IV of the
Plan. Thereafter, Distributions may be made from time to time in the reasonable
discretion of the Disbursing Agent. Notwithstanding any other provision in the
Plan, no Distributions shall be made to a Holder of a Claim or Equity Interest
unless and until such Claim or Equity Interest is an Allowed Claim or an Allowed
Equity Interest, respectively.
Section 6.2 Delivery of Distributions. Subject to U.S. Bankruptcy Rule
9010, Distributions to Holders of Allowed Claims or Allowed Equity Interests
shall be made by the Disbursing Agent (a) at the last known addresses of such
Holders, (b) at the addresses set forth in any written notices of address
changes delivered to the Disbursing Agent, (c) in the case of Allowed UPC Notes
Claims, to the Indenture Trustee as set forth in Section 6.15 of the Plan or (d)
at the addresses set forth in any properly completed letters of transmittal
accompanying Certificates properly remitted to, or book-entry transfers made to
the Book-Entry Account of, the Disbursing Agent. If any Holder's Distribution is
returned as undeliverable, no further Distributions to such Holder shall be made
unless and until the Disbursing Agent is notified of such Holder's then current
address, at which time all missed Distributions shall be made to such Holder
without interest and without any dividends that would have been payable on any
equity securities to be distributed. All Distributions pursuant to the Plan
shall be at the Reorganized Debtor's expense. Nothing contained in the Plan
shall require the Reorganized Debtor or the Disbursing Agent or New UPC to
attempt to locate any Holder of an Allowed Claim or Allowed Equity Interest
other than by reviewing the records of the Reorganized Debtor. Notwithstanding
anything to the contrary contained in the Plan, the Reorganized Debtor and New
UPC shall be entitled to implement additional, supplemental or modified
distribution procedures, upon terms approved by the U.S. Bankruptcy Court after
at least ten (10) days notice to UGC and the Participating Noteholders.
Section 6.3 Disbursing Agent. The Disbursing Agent shall fulfill the
obligations under the Plan with respect to the Distributions of Property to the
Holders of Allowed Claims and Allowed Equity Interests, including, without
limitation, holding all reserves and accounts pursuant to the Plan. The identity
of the initial Disbursing Agent shall be disclosed by the Debtor prior to the
Confirmation Hearing and shall be approved by the U.S. Bankruptcy Court pursuant
to the Confirmation Order. The terms of employment of the Disbursing Agent shall
be submitted to the U.S. Bankruptcy Court for approval at the Confirmation
Hearing. In the event of the resignation of the Disbursing Agent, a replacement
shall be appointed by the Reorganized Debtor and New UPC, without the need for
further U.S. Bankruptcy Court approval.
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Section 6.4 Distribution Notification Date. As of the close of business on
the Distribution Notification Date, all transfer ledgers, transfer books,
registers and any other records maintained by the designated transfer agents
with respect to ownership of the Belmarken Notes, the UPC Notes, the UPC
Preference Shares A, the UPC Priority Shares and the UPC Ordinary Shares A will
be closed and, for purposes of the Plan, there shall be no further changes in
the record holders of the Belmarken Notes, the UPC Notes, the UPC Preference
Shares A, the UPC Priority Shares or the UPC Ordinary Shares A. The Disbursing
Agent shall have no obligation to recognize the transfer of any Belmarken Notes,
UPC Notes, UPC Preference Shares A, UPC Priority Shares or UPC Ordinary Shares A
occurring after the Distribution Notification Date, and will be entitled for all
purposes to recognize and deal only with those Holders of Belmarken Notes, UPC
Notes, UPC Preference Shares A, UPC Priority Shares and UPC Ordinary Shares A as
of the close of business on the Distribution Notification Date, as reflected on
such ledgers, books, registers or records.
Section 6.5 Distributions to Holders of Allowed Claims and Allowed Equity
Interests.
(a) Non-Securities. Except for Distributions to Holders of Allowed
Belmarken Notes Claims, Allowed UPC Notes Claims, Allowed UPC Preference
Shares A, Allowed UPC Priority Shares and Allowed UPC Ordinary Shares A,
which will be made in accordance with Section 6.5(b) of the Plan, on the
Effective Date, the Reorganized Debtor or New UPC, as applicable, shall
deliver to the Disbursing Agent sufficient Cash and shares of New UPC
Common Stock to make the Distributions to be made on the Effective Date to
the Holders of Allowed Claims. Payments of Cash to be made pursuant to the
Plan will be available from funds held by the Reorganized Debtor as of the
Effective Date.
(b) Securities. Promptly after the later of (i) the Effective Date or
(ii) the date of Allowance of such Claims or Equity Interests, the
Reorganized Debtor shall cause the Disbursing Agent to mail to the Holders
of Allowed Belmarken Notes Claims, Allowed UPC Notes Claims, Allowed UPC
Preference Shares A, Allowed UPC Priority Shares and Allowed UPC Ordinary
Shares A appropriate transmittal materials (which shall specify that
delivery shall be effected, and risk of loss and title to the Belmarken
Notes and the UPC Notes theretofore evidencing the Allowed Class 4 Claims
and certain of the Allowed Class 5 Claims, respectively, or any
Certificates theretofore representing UPC Preference Shares A, UPC Priority
Shares and UPC Ordinary Shares A shall pass, only upon (i) proper physical
delivery of Certificates representing such Belmarken Notes to the
Disbursing Agent, (ii) proper delivery of such UPC Notes or UPC Ordinary
Shares A held in bearer form through a book-entry transfer into a
Book-Entry Account at the Book-Entry Transfer Facility for the UPC Notes or
UPC Ordinary Shares A held in bearer form in accordance with the Book-Entry
Transfer Facility's procedures for transfer and (iii) proper entries being
made with respect to such UPC Preference Shares A, UPC Priority Shares or
UPC Ordinary Shares A held in registered form to the register of the
Debtor, maintained by the Debtor's Board of Management, containing the
names and addresses of the Holders of the UPC Preference Shares A, the UPC
Priority Shares and the UPC Ordinary Shares A held in registered form). The
Disbursing Agent may establish reasonable and customary rules and
procedures in connection with its duties. No
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distribution of New UPC Common Stock under the Plan shall be made to
Holders of Allowed Belmarken Notes Claims, Allowed UPC Notes Claims,
Allowed UPC Preference Shares A, Allowed UPC Priority Shares or Allowed UPC
Ordinary Shares A until one of the following occurs: (i) the Holder thereof
(A) surrenders any Certificate(s) representing such Allowed Claim or
Allowed Equity Interest, as the case may be, to the Disbursing Agent or (B)
executes and delivers an affidavit of loss and/or indemnity reasonably
satisfactory to the Reorganized Debtor; (ii) there is a transfer of such
Allowed Claim or Allowed Equity Interest, as the case may be, in book-entry
form to the Book-Entry Account; or (iii) there is an entry made with
respect to such Allowed Claim or Allowed Equity Interest, as the case may
be, in the register of the Debtor, maintained by the Debtor's Board of
Management, containing the names and addresses of the Holders thereof;
provided, however, that any Holder of an Allowed Claim or Allowed Equity
Interest to which clause (i) above applies that fails to (y) surrender its
Certificate(s) or (z) execute and deliver an affidavit of loss and/or
indemnity reasonably satisfactory to the Reorganized Debtor before the
later to occur of (I) six (6) months after the Effective Date and (II) six
(6) months following the date such Holder's Claim or Equity Interest
becomes an Allowed Claim or Allowed Equity Interest, as applicable, shall
be deemed to have forfeited all of its rights against, Claims against
and/or Equity Interests in the Debtor, may not participate in any
distribution under the Plan and shall be forever barred from asserting any
such rights against the Reorganized Debtor, New UPC or their respective
property.
Section 6.6 Disputed Distributions. If any dispute arises as to the
identity of any Holder of an Allowed Claim or Allowed Equity Interest who is to
receive a Distribution, the Disbursing Agent shall, in lieu of making such
Distribution to such Holder, delay such Distribution until the disposition
thereof shall be determined by Final Order of the U.S. Bankruptcy Court or by
written agreement among the interested parties to such dispute.
Section 6.7 Distributions of Cash. Any Cash payment to be made pursuant to
the Plan may be made by Cash, draft, check, wire transfer, or as otherwise
required or provided in any relevant agreement or applicable law at the option
of the Reorganized Debtor.
Section 6.8 Failure to Negotiate Checks. Checks issued in respect of
Distributions under the Plan shall be null and void if not negotiated within
sixty (60) days after the date of issuance. Any amounts returned to the
Reorganized Debtor in respect of such non-negotiated checks shall be held by the
Reorganized Debtor, as appropriate. Requests for reissuance of any such check
shall be made directly to the Reorganized Debtor by the Holder of the Allowed
Claim with respect to which such check originally was issued. All amounts
represented by any voided check will be held until the later to occur of (i)
nine (9) months after the Effective Date and (ii) nine (9) months after such
voided check was issued, and all requests for reissuance by the Holder of the
Allowed Claim in respect of a voided check are required to be made prior to such
date. Thereafter, all such amounts shall be deemed to be Unclaimed Property, in
accordance with Section 6.9 of the Plan, and all Claims in respect of void
checks and the underlying Distributions shall be forever barred, estopped and
enjoined from assertion in any manner against the Debtor or its Property or the
Reorganized Debtor or its Property.
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Section 6.9 Unclaimed Distributions. Any Cash that becomes Unclaimed
Property shall revest in the Reorganized Debtor and shall no longer be subject
to Distribution to Creditors or Equity Interest Holders. Any New UPC Common
Stock that becomes Unclaimed Property shall be canceled and shall no longer be
subject to Distribution to Creditors or Equity Interest Holders. All full or
partial payments made by the Disbursing Agent or the Debtor and received by the
Holder of a Claim or Equity Interest prior to the Effective Date will be deemed
to be payments under the Plan for purposes of satisfying the obligations of the
Debtor pursuant to the Plan. Pursuant to Section 1143 of the U.S. Bankruptcy
Code, all Claims in respect of Unclaimed Property shall be deemed Disallowed and
the Holder of any Claim or Equity Interest Disallowed in accordance with this
Section 6.9 will be forever barred, expunged, estopped and enjoined from
asserting such Claim or Equity Interest in any manner against the Debtor or its
Property or the Reorganized Debtor or its Property.
Section 6.10 Limitation on Distribution Rights. If a claimant holds more
than one Claim in any one Class, all Claims of the claimant in that Class may be
aggregated into one Claim and one distribution may be made with respect to the
aggregated Claim.
Section 6.11 Fractional Euros. Notwithstanding any other provision of the
Plan, Cash distributions of fractions of Euros will not be made; rather,
whenever any payment of a fraction of a Euro would be called for, the actual
payment made shall reflect a rounding of such fraction to the nearest whole Euro
(up or down), with half-Euros being rounded down. To the extent that Cash
remains undistributed as a result of the rounding of such fraction, such Cash
shall be treated as Unclaimed Property pursuant to Section 6.9 of this Plan.
Section 6.12 Fractional Shares. No fractional shares of New UPC Common
Stock shall be issued or distributed under the Plan. Each person entitled to
receive New UPC Common Stock shall receive the total number of whole shares of
New UPC Common Stock to which such Person is entitled. Whenever any Distribution
to a particular Person would otherwise call for Distribution of a fraction of a
share of New UPC Common Stock, the actual Distribution of such shares shall be
rounded to the next higher or lower whole number as follows: (A) fractions
one-half (1/2) or greater shall be rounded to the next higher whole number and
(B) fractions of less than one-half (1/2) shall be rounded to the next lower
whole number. The total number of shares of New UPC Common Stock to be
distributed to a Class of Claims or Equity Interests shall be adjusted as
necessary to account for the rounding provided for in this Section 6.12. No
consideration shall be provided in lieu of fractional shares that are rounded
down.
Section 6.13 Compliance With Tax Requirements. In connection with each
Distribution with respect to which the filing of an information return (such as
an Internal Revenue Service Form 1099 or 1042) or withholding is required, the
Reorganized Debtor shall file such information return with the Internal Revenue
Service and provide any required statements in connection therewith to the
recipients of such Distribution or effect any such withholding and deposit all
moneys so withheld as required by law. With respect to any Person from whom a
tax identification number, certified tax identification number or other tax
information required by law to avoid withholding has not been received by the
Reorganized Debtor within thirty (30) days from the date of such request, the
Reorganized Debtor may, at its option, withhold the
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amount required from the Property to be distributed and distribute the balance
to such Person or decline to make such Distribution until the information is
received.
Section 6.14 Documentation Necessary to Release Liens. Each Creditor which
is to receive a Distribution under the Plan in full satisfaction of a
Miscellaneous Secured Claim shall not receive such Distribution until such
Creditor (a) executes and delivers any documents necessary to release all Liens
arising under any applicable security agreement or non-bankruptcy law (in
recordable form if appropriate) in connection with such Miscellaneous Secured
Claim and such other documents as the Debtor or the Reorganized Debtor, as
applicable, may reasonably request or (b) otherwise turns over and releases any
and all property of the Debtor that secures or purportedly secures such Claim.
Any such Holder that fails to execute and deliver such release of liens within
120 days of the Effective Date shall be deemed to have no further Claim against
the Debtor, the Reorganized Debtor or their assets or property in respect of
such Claim and shall not participate in any Distribution hereunder on account of
such Claim. Notwithstanding the immediately preceding sentence, any such Holder
of a Disputed Claim shall not be required to execute and deliver such release
until such time as the Claim is Allowed or Disallowed.
Section 6.15 Distributions by Indenture Trustee. Notwithstanding any other
provision of the Plan, any Distributions on account of any Allowed UPC Notes
Claims shall be made by the Disbursing Agent to the Indenture Trustee, which, in
turn, shall make any such Distributions to the Holders of such Allowed Claims
under the Plan. Except as expressly provided in the Plan, Distributions made by
any Indenture Trustee shall be in accordance with and subject to the
requirements set forth in the applicable Indenture, and any Indenture Trustee
acting in good faith pursuant to the Plan shall be entitled to the same
indemnification the Disbursing Agent receives from the Debtor or the Reorganized
Debtor, as the case may be, and to payment from the Reorganized Debtor of its
customary fees and expenses for making distributions under the Plan to Holders
of UPC Notes.
Section 6.16 Setoffs. The Debtor or the Reorganized Debtor, as applicable,
may, but shall not be required to, set off against any Claims and the payments
or distributions to be made pursuant to the Plan in respect of such Claims, any
and all debts, liabilities and claims of every type and nature whatsoever which
the Estate, the Debtor or the Reorganized Debtor may have against the Holders of
such Claims; provided, however, that neither the failure to do so nor the
allowance of any such Claims, whether pursuant to the Plan or otherwise, shall
constitute a waiver or release by the Debtor or the Reorganized Debtor of any
such claims the Debtor or the Reorganized Debtor may have against such
Creditors, and all such claims shall be reserved to and retained by the
Reorganized Debtor.
ARTICLE VII
EXECUTORY CONTRACTS AND UNEXPIRED LEASES;
INDEMNIFICATION OBLIGATIONS; BENEFIT PROGRAMS
Section 7.1 Treatment of Executory Contracts and Unexpired Leases. On the
Effective Date, all of the executory contracts and unexpired leases that exist
between the Debtor and any
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Person which (a) have not expired or terminated pursuant to their own terms, (b)
have not previously been assumed, assumed and assigned, or rejected pursuant to
an order of the U.S. Bankruptcy Court on or prior to the Confirmation Date or
(c) are not the subject of pending motions to assume, assume and assign, or
reject as of the Confirmation Date, will be (i) deemed assumed if listed on the
Schedule of Assumed Contracts or (ii) deemed rejected if listed on the Schedule
of Rejected Contracts; provided, however, that any executory contracts or
unexpired leases which are omitted from both the Schedule of Assumed Contracts
and the Schedule of Rejected Contracts are assumed as of the Effective Date, all
in accordance with the provisions and requirements of Section 365 of the U.S.
Bankruptcy Code; provided, however, that the Debtor shall have the right, at any
time prior to the Confirmation Date, to amend the Schedule of Assumed Contracts
and the Schedule of Rejected Contracts upon notice to the counterparty to a
contract or lease (i) to delete any executory contract or unexpired lease listed
therein or (ii) to add any executory contract or unexpired lease thereto. The
Confirmation Order (except as otherwise provided therein) shall constitute an
order of the U.S. Bankruptcy Court pursuant to Section 365 of the U.S.
Bankruptcy Code, effective as of the Effective Date, approving such assumptions
and rejections, as applicable. Each contract and lease assumed or rejected, as
the case may be, pursuant to this Section 7.1 shall be assumed or rejected, as
the case may be, only to the extent that any such contract or lease constitutes
an executory contract or unexpired lease. Assumption or rejection, as the case
may be, of a contract or lease pursuant to this Section 7.1 shall not constitute
an admission by the Debtor or the Reorganized Debtor that such contract or lease
is an executory contract or unexpired lease or that the Debtor or the
Reorganized Debtor has any liability thereunder. All executory contracts and
unexpired leases that are assumed will be assumed under their present terms or
upon such terms as are agreed to between the Debtor and the other party to the
executory contract or unexpired lease. Each executory contract and unexpired
lease that is assumed and relates to the use, ability to acquire, or occupancy
of real property shall include: (y) all modifications, amendments, supplements,
restatements, or other agreements made directly or indirectly by any agreement,
instrument, or other document that in any manner affect such executory contract
or unexpired lease and (z) all executory contracts or unexpired leases
appurtenant to the premises, including all easements, licenses, permits, rights,
privileges, immunities, options, rights of first refusal, powers, uses,
reciprocal easement agreements, vaults, tunnel or bridge agreements or
franchises, and any other interests in real estate or rights in rem related to
such premises, unless any of the foregoing agreements has been rejected pursuant
to an order of the U.S. Bankruptcy Court.
Section 7.2 Cure of Defaults for Assumed Contracts and Leases. All
undisputed cure and any other monetary default payments required by Section
365(b)(1) of the U.S. Bankruptcy Code under any assumed executory contract and
unexpired lease which is in default shall be satisfied by the Reorganized Debtor
(to the extent such obligations are enforceable under the U.S. Bankruptcy Code
and applicable non-bankruptcy law), pursuant to Section 365(b)(1) of the U.S.
Bankruptcy Code, at the option of the Reorganized Debtor: (A) by payment of such
undisputed cure amount, without interest, in Cash within sixty (60) days
following the Effective Date; (B) by payment of such other amount as ordered by
the U.S. Bankruptcy Court; or (C) on such other terms as may be agreed to by the
parties to such executory contract or unexpired lease. In the event of a
dispute, payment of the amount otherwise payable hereunder shall be made without
interest, in Cash (i) on or before the later of sixty (60) days following the
Effective Date or thirty
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(30) days following entry of a Final Order liquidating and allowing any disputed
amount or (ii) on such other terms as may be agreed to by the parties to such
executory contract or unexpired lease.
Section 7.3 Resolution of Objections to Assumption of Executory Contracts
and Unexpired Leases; Cure Payments.
(a) Resolution of Objections to Assumption of Executory Contracts and
Unexpired Leases. Any party objecting to the Debtor's proposed assumption
of an executory contract or unexpired lease or the ability of the
Reorganized Debtor to provide "adequate assurance of future performance"
(within the meaning of Section 365 of the U.S. Bankruptcy Code) under the
contract or lease to be assumed shall File and serve on counsel for the
Debtor a written objection to the assumption of such contract or lease
within thirty (30) days after the service of the notice of Confirmation.
Failure to File an objection within the time period set forth above shall
constitute consent to the assumption and revestment of such contract or
lease, including an acknowledgment that the proposed assumption provides
adequate assurance of future performance. To the extent that any objections
to the assumption of a contract or lease are timely Filed and served and
such objections are not resolved between the Debtor and the objecting
parties, the U.S. Bankruptcy Court shall resolve such disputes at a hearing
to be held on a date to be determined by the U.S. Bankruptcy Court.
(b) Resolution of Cure Payments. If, the counterparty to a contract or
lease assumed by the Debtor believes that, as of the Confirmation Date, a
cure payment is due and owing under such contract or lease, such
counterparty shall File and serve on counsel for the Debtor a notification
setting forth the amount of the cure payment which such party believes is
due and owing, which notification shall be Filed and served no later than
thirty (30) days after the service of the notice of Confirmation. Failure
to File such a notification within the time period set forth above shall
constitute an acknowledgment that no cure payment is due and owing in
connection with the assumption of such contract or lease and an
acknowledgment that no other defaults exist under said contract or lease.
To the extent that any such notifications are timely Filed and served and
are not resolved between the Debtor and the applicable counterparty, the
U.S. Bankruptcy Court shall resolve such disputes at a hearing to be held
on a date to be determined by the U.S. Bankruptcy Court. The resolution of
such disputes shall not affect the Debtor's assumption of the contracts or
leases that are subject of such a dispute, but rather shall affect only the
"cure" amount the Debtor must pay in order to assume such contract or
lease. Notwithstanding the immediately preceding sentence, if the Debtor in
its discretion determines that the amount asserted to be the necessary
"cure" amount would, if ordered by the U.S. Bankruptcy Court, make the
assumption of the contract or lease imprudent, then the Debtor may elect to
(i) reject the contract or lease pursuant to Section 7.1 hereof or (ii)
request an expedited hearing on the resolution of the "cure" dispute,
exclude assumption or rejection of the contract or lease from the scope of
the Confirmation Order, and retain the right to reject the contract or
lease pursuant to Section 7.1 hereof pending the outcome of such dispute.
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Section 7.4 Claims for Rejection Damages. Objections to the amounts listed
on the Schedule of Rejected Contracts for damages allegedly arising from the
rejection pursuant to the Plan or the Confirmation Order of any executory
contract or any unexpired lease shall be Filed with the U.S. Bankruptcy Court
and served on counsel for the Debtor not later than thirty (30) days after the
service of the earlier of (A) notice of Confirmation or (B) other notice that
the executory contract or unexpired lease has been rejected. Any Holder of a
Claim arising from the rejection of any executory contract or any unexpired
lease that fails to File such Objection on or before the dates specified in this
paragraph shall be forever barred, estopped and enjoined from asserting any
Claims in any manner against the Debtor or its Property or the Reorganized
Debtor or its Property for any amounts in excess of the amount scheduled by the
Debtor on the Schedule of Rejected Contracts for such contract or lease and the
Debtor and the Reorganized Debtor shall be forever discharged from all
indebtedness or liability with respect to such Claims for such excess amounts
and such Holders shall be bound by the terms of the Plan.
Section 7.5 Treatment of Rejection Claims. The U.S. Bankruptcy Court shall
determine any Objections Filed in accordance with Section 7.4 hereof at a
hearing to be held on a date to be determined by the U.S. Bankruptcy Court.
Subject to any statutory limitation, including, but not limited to the
limitations contained in Sections 502(b)(6) and 502(b)(7) of the U.S. Bankruptcy
Code, any Claims arising out of the rejection of executory contracts and
unexpired leases shall, pursuant to Section 502(g) of the U.S. Bankruptcy Code,
be treated as Class 5 Claims in accordance with Section 4.7 of the Plan.
Section 7.6 Executory Contracts and Unexpired Leases Entered Into and Other
Obligations Incurred After the Petition Date. On the Effective Date, all
contracts, leases, and other agreements entered into by the Debtor on or after
the Petition Date, which agreements have not been terminated in accordance with
their terms or been rejected on or before the Confirmation Date, shall revest in
and remain in full force and effect as against the Reorganized Debtor and the
other parties to such contracts, leases and other agreements.
Section 7.7 Reorganized Debtor's Indemnification Obligations. To the extent
not inconsistent with the Plan, any obligations of the Debtor or the Reorganized
Debtor, pursuant to their respective organizational documents, applicable
non-bankruptcy law or a specific agreement, to indemnify a Person with respect
to all present and future actions, suits and proceedings against the Debtor, the
Reorganized Debtor or such indemnified Person, based upon any act or omission
related to service with, or for or on behalf of, the Debtor, the Reorganized
Debtor shall survive Confirmation and shall not be impaired by Confirmation,
except to the extent any such obligation has been released, discharged or
modified pursuant to the Plan. Such indemnification obligations shall be
performed and honored by the Reorganized Debtor, as applicable.
Section 7.8 Benefit Programs. Notwithstanding anything to the contrary
contained in the Plan, nothing in the Plan shall adversely affect the payment of
any "retiree benefits" (as such term is defined in Section 1114(a) of the U.S.
Bankruptcy Code) to the extent required by Section 1129(a)(13) of the U.S.
Bankruptcy Code.
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ARTICLE VIII
RESOLUTION OF DISPUTED CLAIMS
Section 8.1 Preservation of Rights. Except as to applications for allowance
of compensation and reimbursement of expenses under Sections 330 and 503 of the
U.S. Bankruptcy Code, the Reorganized Debtor shall have the exclusive right to
make and file objections to Administrative Claims, other Claims, Equity
Interests and Old Other Equity Interests, subsequent to the Confirmation Date.
Except to the extent that any Claim, Equity Interest or Old Other Equity
Interest is Allowed in the Plan, nothing, including the failure of the Debtor or
the Reorganized Debtor to object to a Claim, Equity Interest or Old Other Equity
Interest for any reason during the pendency of the Chapter 11 Case, shall
affect, prejudice, diminish or impair the rights and legal and equitable
defenses of the Debtor or the Reorganized Debtor with respect to any Claim,
Equity Interest or Old Other Equity Interest, including, but not limited to, all
rights of the Debtor or Reorganized Debtor (i) to contest or defend themselves
against such Claims, Equity Interests or Old Other Equity Interests in any
lawful manner or forum when and if such Claim, Equity Interest or Old Other
Equity Interest is sought to be enforced by the Holder thereof or (ii) in
respect of legal and equitable defenses to setoffs or recoupments against
Claims, Equity Interests or Old Other Equity Interests. The distributions
provided for in Article IV of the Plan shall at all times be subject to this
Section 8.1 of the Plan and to Section 502(d) of the U.S. Bankruptcy Code.
Section 8.2 Objections to and Resolution of Claims, Administrative Claims,
Equity Interests and Old Other Equity Interests. Unless otherwise ordered by the
U.S. Bankruptcy Court, the Reorganized Debtor shall file all objections to
Claims (including Administrative Claims) that are the subject of proofs of claim
or requests for payment filed with the U.S. Bankruptcy Court (other than
applications for allowance of compensation and reimbursement of expenses under
Sections 330 and 503 of the U.S. Bankruptcy Code), Equity Interests or Old Other
Equity Interests and serve such objections upon the Holder as to which the
objection is made as soon as is practicable, but, with respect to Claims (other
than Administrative Claims), Equity Interests and Old Other Equity Interests, in
no event later than one hundred and eighty (180) days after the Effective Date,
or, in either case, such later date as may be approved by the U.S. Bankruptcy
Court upon request made before or after expiration of such applicable objection
period. All objections shall be litigated to Final Order; provided, however,
that the Reorganized Debtor shall have the authority to compromise, settle,
otherwise resolve or withdraw any objections without any requirement of approval
by the U.S. Bankruptcy Court.
Section 8.3 Estimation of Claims. The Debtor or the Reorganized Debtor, as
applicable, may, at any time, request that the U.S. Bankruptcy Court estimate
any contingent or unliquidated Claim pursuant to Section 502(c) of the U.S.
Bankruptcy Code regardless of whether or not the Debtor or the Reorganized
Debtor has previously objected to such Claim or the U.S. Bankruptcy Court has
previously ruled on any such objection. Claims may be estimated and subsequently
compromised, settled, withdrawn or resolved by any mechanism approved by the
U.S. Bankruptcy Court; provided, however, that commencing on the Effective Date
the Reorganized Debtor may compromise, settle or resolve any such Claims without
further approval of the U.S. Bankruptcy Court.
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Section 8.4 Distributions Withheld For Disputed Unsecured Claims and Equity
Interests.
(a) No Distribution Pending Allowance. Notwithstanding any other
provision of the Plan, no payments or Distributions shall be made with
respect to all or any portion of a Disputed Claim or Disputed Equity
Interest unless and until some portion thereof has become an Allowed Claim
or Allowed Equity Interest, respectively.
(b) Establishment And Maintenance Of Reserve. On each applicable
Distribution Date, the Disbursing Agent shall reserve for the benefit of
Holders of Disputed Claims and Disputed Equity Interests (the "Reserve")
the distributions to which the Holders of Disputed Claims and Disputed
Equity Interests as of such Distribution Date would be entitled under the
Plan if such Disputed Claims and Disputed Equity Interests were Allowed
Claims and Allowed Equity Interests in the amounts of their Disputed Claims
and Disputed Equity Interests, respectively, as if the Holders thereof had
received such distributions on the Initial Distribution Date. Such amounts
shall be determined by reference to the aggregate Face Amount of all
Disputed Claims or Disputed Equity Interests as of such date. The
Disbursing Agent shall maintain a register of all Disputed Claims and
Disputed Equity Interests, the amounts upon which to base reserves for such
Disputed Claims and Disputed Equity Interests pursuant to the preceding
sentence and, where the property to be reserved is New UPC Common Stock,
the number of shares of New UPC Common Stock to which the Holders of the
Disputed Claims and Disputed Equity Interests would be entitled if such
Disputed Claims and Disputed Equity Interests were Allowed Claims and
Allowed Equity Interests, as applicable.
(c) Distributions Upon Allowance Of Disputed Claims and Disputed
Equity Interests. The Holder of a Disputed Claim or Disputed Equity
Interest that becomes an Allowed Claim or Allowed Equity Interest
subsequent to the Initial Distribution Date shall receive Distributions of
the applicable New UPC Common Stock or Cash previously reserved on account
of such Claim or Equity Interest in the Reserve as soon as reasonably
practicable following the allowance of any such Claim or Equity Interest;
provided, however, that neither the Debtor, the Reorganized Debtor, New UPC
or the Disbursing Agent shall be required to make a Distribution until the
aggregate Distribution to be made is equal to or greater than(euro)500,000
or 10,000 shares of New UPC Common Stock, as applicable; provided further,
however, that if the aggregate Distribution that would be required to be
made to the Holders of all remaining Disputed Claims and Disputed Equity
Interests if all such remaining Disputed Claims and Disputed Equity
Interests were to become Allowed Claims and Allowed Equity Interests, as
applicable, could not exceed either(euro)500,000 or 10,000 shares of New
UPC Common Stock, as applicable, then the Debtor, the Reorganized Debtor,
New UPC or the Disbursing Agent shall make a Distribution to any Holder of
a Disputed Claim or Disputed Equity Interest as soon as reasonably
practicable after the allowance of any such Claim or Equity Interest. Such
Distributions shall be made in accordance with the Plan based upon the
Distributions that would have been made to such holder under the Plan if
the Disputed Claim or Disputed Equity Interest had been an Allowed Claim or
Allowed Equity Interest, respectively, on or prior to the Effective Date.
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(d) Excess Reserves. Upon any Disputed Claim or Disputed Equity
Interest becoming a Disallowed Claim or Disallowed Equity Interest,
respectively, in whole or in part, the Property, if any, reserved for the
payment of or Distribution on the Disallowed portion of such Disputed Claim
or Disputed Equity Interest (i) if in the form of Cash, shall revest in the
Reorganized Debtor and no longer be subject to Distribution to Creditors or
Equity Interest Holders and (ii) if in the form of New UPC Common Stock,
shall either (A) be cancelled or (B) be returned to New UPC to be held as
treasury shares and no longer be subject to Distribution to Creditors or
Equity Interest Holders.
Section 8.5 Dutch Bankruptcy Case. Nothing in this Plan shall impair the
rights of the Debtor or the Administrator to contest any claim filed or
otherwise asserted against the Debtor in the Dutch Bankruptcy Case.
ARTICLE IX
MEANS FOR IMPLEMENTATION OF THE PLAN
Section 9.1 Continued Corporate Existence. The Debtor shall, as the
Reorganized Debtor, continue to exist after the Effective Date in accordance
with applicable law of the jurisdiction in which it is organized, under its
organizational documents in effect before the Effective Date, except as such
documents are amended in connection with this Plan.
Section 9.2 Cancellation of Claims, Equity Interests and Old Other Equity
Interests. As of consummation of the Plan, all Claims against, and Equity
Interests in, the Debtor and, to the extent permitted under applicable law, all
Old Other Equity Interests shall be cancelled and all agreements, notes,
instruments, depositary shares, depositary receipts, indentures, certificates,
guaranties and any other documents evidencing or relating to such Claims, Equity
Interests and Old Other Equity Interests shall be cancelled and deemed
terminated, as permitted by Section 1123(a)(5)(F) of the U.S. Bankruptcy Code,
and the Holders thereof shall have no rights and such notes, instruments,
depositary shares, depositary receipts, indentures, certificates, guaranties and
other documents shall evidence no rights, except the right to receive the
Distributions, if any, to be made to Holders of such Claims, Equity Interests or
Old Other Equity Interests under the Plan; provided, however, that,
notwithstanding the foregoing or anything else to the contrary contained in the
Plan or the Confirmation Order, none of the Belmarken Notes, UPC Notes, UPC
Preference Shares A, UPC Priority Shares and UPC Ordinary Shares A shall be
cancelled pursuant to the Plan and such Claims and Equity Interests shall
instead be dealt with as follows:
(a) Belmarken Notes. On the Effective Date, but subsequent to the
transfer of the Belmarken Notes for shares of New UPC Common Stock pursuant
to Section 4.6 of the Plan, New UPC will sell the Belmarken Notes to the
Debtor in consideration for a receivable payable by the Debtor in the
aggregate principal amount of the Belmarken Notes (plus accrued but unpaid
interest). Subsequently, the Debtor will satisfy its obligations under such
receivable through the issuance to New UPC of a number of shares of UPC
Ordinary Shares C equal to the amount of the receivable divided by the par
value of the UPC Ordinary Shares C.
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(b) UPC Notes. Subsequent to the transfer of the UPC Notes for shares
of New UPC Common Stock pursuant to Section 4.7 of the Plan, UPC and New
UPC shall, conditional upon the occurrence of the Effective Date, replace
the UPC Notes with an intercompany note between UPC and New UPC and,
thereafter, New UPC shall contribute such intercompany note to the capital
of UPC.
(c) UPC Preference Shares A. Subsequent to the transfer of the UPC
Preference Shares A for shares of New UPC Common Stock pursuant to Section
4.8 of the Plan, all UPC Preference Shares A shall be registered in the
name of New UPC; provided, however, that in the event that the UPC
Preference Shares A are not transferred to New UPC under the Plan, the
Debtor shall use reasonable efforts to have the UPC Preference Shares A
converted on a one-for-one basis into registered UPC Ordinary Shares A.
(d) UPC Priority Shares. After the Effective Date, as soon as the
Debtor becomes a wholly-owned subsidiary of New UPC, the UPC Priority
Shares will convert on a one-for-one basis into UPC Ordinary Shares C.
(e) UPC Ordinary Shares A. The UPC Ordinary Shares A shall remain
outstanding.
Section 9.3 Extraordinary General Meeting. Because the Dutch Bankruptcy
Code does not provide for the Dutch Bankruptcy Case to avoid compliance with
otherwise applicable corporate law, in order to facilitate implementation of the
Plan, the Debtor shall hold an extraordinary meeting of the Holders of the UPC
Ordinary Shares A, the UPC Priority Shares and the UPC Preference Shares A (the
"Extraordinary General Meeting"). The purpose of the Extraordinary General
Meeting is to facilitate the implementation of the Plan by:
(a) explaining the terms of the Restructuring (including the terms of
the Plan) to the Debtor's shareholders at the Extraordinary General
Meeting;
(b) considering and acting upon a proposal to amend the Debtor's
Articles of Association (the "First Amendment") (effective before the
Effective Date) to (i) decrease the nominal value of each issued and
outstanding UPC Ordinary Share A from(euro)1.00 to(euro)0.02 without any
repayment; and (ii) decrease the nominal value of each UPC Priority Share
and UPC Preference Share A from(euro)1.00 to(euro)0.02 without any
repayment, which capital reduction will permit the Debtor to eliminate its
accumulated deficit;
(c) considering and acting upon a proposal to amend the Debtor's
Articles of Association (the "Second Amendment") (effective on the
Effective Date) to (i) decrease the number of authorized UPC Ordinary
Shares A to 450,000,000; (ii) remove the UPC Preference Shares A from the
authorized capital of the Debtor; (iii) authorize a new class of
50,000,000,000 registered ordinary shares C with a nominal value of
(euro)0.02 ("UPC Ordinary Shares C"); (iv) in the event Dutch law allows
the issuance of nonvoting stock, prohibit the issuance of nonvoting stock
and prohibit cooperation in connection with the
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issuance of depository receipts; and (v) remove the UPC Ordinary Shares B
and the UPC Preference Shares B from the authorized capital of the Debtor.
(d) considering and acting upon a proposal to convert the UPC
Preference Shares A on a one-for-one basis into registered UPC Ordinary
Shares A, effective upon the Second Amendment and the Effective Date;
(e) considering and acting upon a proposal to amend the Debtor's
Articles of Association (effective on the later to occur of the Effective
Date and the date of the delisting of the UPC Ordinary Shares A from
Euronext) (the "Third Amendment") to effectuate that the Debtor will have
Articles of Association of a non-listed company, including, inter alia, the
following contents: (i) allow only for registered shares; (ii) restrictions
on transfers of shares; (iii) amend the management structure of the Debtor
to a one-tier board (i.e., that the Debtor's Supervisory Board will be
eliminated, the holders of the UPC Priority Shares will have certain rights
with respect to the Debtor's Board of Management and the Debtor's Board of
Management will consist of one or more members); (iv) holders of UPC
Ordinary Shares A only to be authorized to exercise the rights attached to
their UPC Ordinary Shares A upon exchange of their bearer UPC Ordinary
Shares A into registered UPC Ordinary Shares A; and (v) as soon as all
issued shares in the Debtor will be held by one shareholder, each issued
UPC Priority Share will convert into one UPC Ordinary Share C, and all
powers of the holders of the UPC Priority Shares under the Articles of
Association of the Debtor shall, to the extent possible, be vested in the
general meeting of shareholders of the Debtor;
(f) accepting the resignations of (i) John F. Riordan, (ii) Nimrod J.
Kovacs, (iii) Charles H.R. Bracken, (iv) James S. O'Neill, (v) Gene
Musselman and (vi) Anton M. Tuijten, as managing directors of the Debtor
with effect on the later to occur of the Effective Date and the date of the
delisting of the UPC Ordinary Shares A from Euronext and granting a full
and final release from liability with respect to their management of the
Debtor;
(g) accepting the resignations of (i) Michael T. Fries, (ii) John P.
Cole, Jr., (iii) Richard J.A. de Lange, (iv) Ellen P. Spangler, (v) Tina M.
Wildes and (vi) John W. Dick, as supervisory directors of the Debtor with
effect on the later to occur of the Effective Date and the date of the
delisting of the UPC Ordinary Shares A from Euronext and granting a full
and final release from liability with respect to their supervision of the
Debtor;
(h) appointing New UPC as sole managing director of the Debtor with
effect as of the later to occur of the Effective Date and the delisting of
the UPC Ordinary Shares A from Euronext;
(i) authorizing the Board of Management of the Debtor and Allen &
Overy, Amsterdam, The Netherlands, to apply for the ministerial statements
of no objections and to execute deeds of amendment of the Articles of
Association of the Debtor as set forth in the First, Second and Third
Amendments; and
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(j) transacting such other business as may properly come before the
Extraordinary General Meeting or any postponements or adjournments thereof
(collectively, the "Shareholder Proposals")
Section 9.4 Amendment of Organizational Documents.
(a) Amendment of Articles of Association. A substantially final form
of the Amended and Restated UPC Articles of Association is annexed hereto
as Exhibit "B" and shall include such provisions as are necessary to
satisfy the provisions of the Plan and the U.S. Bankruptcy Code including,
among other things, (i) in the event Dutch law allows the issuance of
nonvoting stock, prohibit the issuance of nonvoting stock to the extent,
and only to the extent, required by Section 1123(a)(6) of the U.S.
Bankruptcy Code, and prohibit cooperation in connection with the issuance
of depository receipts and (ii) such provisions as are necessary to effect
the Shareholder Proposals; provided, however, that the effectiveness of any
such amendments shall be subject to the approval thereof at the
Extraordinary General Meeting as well as to the occurrence of the Effective
Date.
(b) New UPC Organizational Documents. A substantially final form of
the Amended and Restated New UPC Certificate of Incorporation and the
Amended and Restated New UPC By-Laws shall each be Filed on or before the
Document Filing Date and shall each include those terms and conditions as
are contemplated to be included in such documents in the Disclosure
Statement.
Section 9.5 Corporate Action. On the Effective Date, subject to any
requirements of Dutch law, the Reorganized Debtor shall execute and deliver, and
is authorized, without any further corporate action, to execute and deliver all
agreements, documents and instruments (and all exhibits, schedules and annexes
thereto) contemplated by the Plan or the exhibits thereto and take such other
action as is necessary or appropriate to effectuate the transactions provided
for in the Plan.
Section 9.6 Implementation of the Restructuring Under Dutch Law. In order
to facilitate implementation of the Plan, on the Effective Date, UPC shall
consummate, in accordance with and under the provisions of Dutch Law, all
transactions contemplated by the Restructuring, including the consummation of
the Akkoord and the Dutch Implementing Offer.
Section 9.7 Contribution of UPC Shares. Simultaneously with, and
conditional upon the occurrence of, the Effective Date, UGC shall contribute, or
shall cause the other members of the UGC Group to contribute, to New UPC any and
all UPC Ordinary Shares A, UPC Preference Shares A and UPC Priority Shares owned
by the UGC Group.
Section 9.8 New UPC Common Stock. No later than the Effective Date, New UPC
shall authorize the New UPC Common Stock and shall issue a sufficient number of
shares of New UPC Common Stock to implement the Plan.
Section 9.9 Offer Memorandum. To the extent required by applicable Dutch
securities laws and regulations of the A-FM, New UPC and UPC shall, prior to the
Effective Date, prepare,
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and, subject to the approval of UGC and after consultation with the
Participating Noteholders, file with the A-FM and make generally available and
mail to the Holders of UPC Ordinary Shares A in bearer form an offer memorandum
(together with all materials included therewith and any amendments or
supplements thereto, the "Offer Memorandum") in respect of the New UPC Common
Stock to be issued in connection with the Restructuring pursuant to the Plan.
The procedures for exchanging shares of New UPC Common Stock for the UPC
Ordinary Shares A in bearer form shall be included in the Offer Memorandum.
Section 9.10 Listing of New UPC Common Stock. New UPC shall use its
commercially reasonable efforts to cause the shares of New UPC Common Stock to
be issued in the Restructuring to be listed on NASDAQ, but obtaining such
listing shall not be a condition to either Confirmation or consummation of the
Plan.
Section 9.11 Transfers Under Plan. On the Effective Date, all of the
outstanding Belmarken Notes, UPC Notes, General Unsecured Claims, UPC Preference
Shares A, UPC Priority Shares, UPC Ordinary Shares A and Equity Securities
Claims shall be transferred for shares of New UPC Common Stock, in accordance
with Sections 4.6, 4.7, 4.8, 4.9, 4.10 and 4.11 of the Plan, as applicable. The
transfers of the Belmarken Notes, the UPC Notes, the General Unsecured Claims,
the UPC Preference Shares A, the UPC Priority Shares, the UPC Ordinary Shares A
and the Equity Securities Claims for New UPC Common Stock, shall be in full
satisfaction, settlement, release and discharge of all Allowed Belmarken Notes
Claims, all Allowed UPC Notes Claims, all Allowed UPC Preference Shares A, all
Allowed UPC Priority Shares, all Allowed UPC Ordinary Shares A and all Allowed
Equity Securities Claims, other than any Belmarken Notes, UPC Notes, UPC
Preference Shares A, UPC Priority Shares or UPC Ordinary Shares A held by New
UPC on the Effective Date. In connection with the foregoing, New UPC Common
Stock shall be credited to the accounts maintained on behalf of the Holders of
the UPC Notes, the UPC Preference Shares A, the UPC Priority Shares and the UPC
Ordinary Shares A at the applicable registered record holder.
Section 9.12 Operations Between the Confirmation Date and the Effective
Date. The Debtor shall continue to operate as debtor in possession, subject to
the supervision of the U.S. Bankruptcy Court during the period from the
Confirmation Date through and until the Effective Date.
Section 9.13 Revesting of Assets. Except as otherwise expressly provided in
the Plan or the Confirmation Order, pursuant to Sections 1123(a)(5), 1123(b)(3)
and 1141(b) of the U.S. Bankruptcy Code, all Property comprising the Estate,
including, but not limited to, all Causes of Action shall automatically be
retained and revest in the Reorganized Debtor or its successors or assigns, free
and clear of all Claims, Liens, contractually-imposed restrictions, charges,
encumbrances and interests of Creditors and Equity Interest Holders on the
Effective Date, with all such Claims, Liens, contractually-imposed restrictions,
charges, encumbrances and interests being extinguished except as otherwise
provided in the Plan. As of the Effective Date, the Reorganized Debtor may
operate its business and use, acquire and dispose of Property and settle and
compromise Claims, Equity Interests or Old Other Equity Interests without
supervision of the U.S. Bankruptcy Court and free of any restrictions of the
U.S. Bankruptcy Code or the U.S. Bankruptcy Rules, other than those restrictions
expressly imposed by the Plan, the Akkoord, and
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the Confirmation Order. Without limiting the foregoing, the Reorganized Debtor
may pay the charges it incurs for professional fees, disbursements, expenses, or
related support services incurred after the Effective Date without any
application to the U.S. Bankruptcy Court.
Section 9.14 Approval of Agreements. Subject to any relevant approvals at
the Extraordinary General Meeting, Confirmation shall constitute approval of all
other agreements and transactions contemplated by the Plan and the Confirmation
Order shall so provide.
Section 9.15 Incentive Plan. On the Effective Date, New UPC shall adopt the
Incentive Plan.
Section 9.16 Stockholders Agreement. On or prior to the Effective Date,
UGC, New UPC, the Participating Noteholders and any other Holder of Allowed
Class 5 Claims who elects to become a party thereto shall enter into the
Stockholders Agreement.
Section 9.17 New UPC Equity Purchase Rights.
(a) On the Effective Date, New UPC shall provide each Holder of a
Class 4 Claim or Class 5 Claim the right (the "New UPC Equity Purchase
Rights") to purchase for Cash a pro rata portion of Subscription Shares (as
defined below) of New UPC Common Stock, at the Implied Purchase Price per
Subscription Share, in addition to the shares of New UPC Common Stock to be
received by the Holders of such Claims under Sections 4.6 and 4.7 of the
Plan. The total number of "Subscription Shares" is equal to (a) the Maximum
Subscription Amount, (b) divided by the Implied Purchase Price.
(b) For the purposes of Section 9.17(a) of the Plan, "pro rata" shall
be based on the number of shares of New UPC Common Stock to be distributed
under the Plan on account of Class 4 Claims and UPC Notes Claims. A Holder
of a General Unsecured Claim may purchase Subscription Shares pursuant to
its New UPC Equity Purchase Rights in an amount equal to (a) the amount of
its General Unsecured Claim (in Euros) multiplied by (b) the ratio of (i)
the number of Subscription Shares per(euro)1,000 of Allowed UPC Notes
Claims allotted to the Holders of the UPC Notes Claims to (ii) 1,000. Any
such purchase shall reduce the number of Subscription Shares that the
Holder of the Class 4 Claims is entitled to purchase pursuant to its New
UPC Equity Purchase Rights until the number of Subscription Shares that the
Holder of the Class 4 Claim is entitled to purchase pursuant to its New UPC
Equity Purchase Rights is reduced to zero and, thereafter, shall ratably
reduce the number of Subscription Shares that the Holders of UPC Notes
Claims are entitled to purchase pursuant to their New UPC Equity Purchase
Rights.
(c) The New UPC Equity Purchase Rights shall be exercisable only on
the Effective Date, but notice of intent to exercise must be given by a
subscribing holder not later than the deadline fixed by the U.S. Bankruptcy
Court for voting to accept or reject the Plan and payment for the
Subscription Shares subscribed for by such subscribing holder must be
received by the subscription agent for New UPC at least five (5) Business
Days prior to the Effective Date. All purchases of Subscription Shares
under the New UPC Equity Purchase Rights shall be in Euros. A payment
invoice will be sent to each
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subscribing holder promptly after the Confirmation Date. The invoice will
set forth (i) the number of Subscription Shares to be subscribed for by the
subscribing holder, (ii) the aggregate subscription amount in Euros for
such subscribing holder's purchase of such Subscription Shares and (iii)
the payment deadline by which such subscribing holder will be required to
make payment of the subscription amount to New UPC's subscription agent. If
the subscribing holder holds UPC Notes Claims denominated in United States
Dollars, the subscription amount set forth in such subscribing holder's
invoice will be denominated in United States Dollars, converted from Euros
and adjusted to take account of currency exchange rates at the time the
invoice is sent and any administrative and other costs associated with the
currency exchange. Once notice of exercise is given, the exercise of the
New UPC Equity Purchase Rights is irrevocable, even if the subscribing
holder's Claim becomes a Disallowed Claim or is classified into a different
Class after the exercise.
Section 9.18 UGC Subscription Commitment. Subject to confirmation of the
Plan and the ratified Akkoord becoming final and conclusive (in kracht van
gewijsde gaan), on the Effective Date, in accordance with the Restructuring
Agreement, New UPC shall sell to UGC on the terms set forth in the Restructuring
Agreement and at the Implied Purchase Price, the total number of Subscription
Shares of New UPC Common Stock that were not subscribed for by the Holders of
Class 4 Claims and Class 5 Claims pursuant to the New UPC Equity Purchase Rights
(the "UGC Subscription Commitment").
Section 9.19 Treatment of UPC Owned UPC Notes. All of the UPC Notes owned
by UPC as a result of the settlement and termination of (i) the swaps
transactions documented by the ISDA Master Agreement, dated as of April 29,
1998, between The Toronto-Dominion Bank, London Branch and UPC, and the related
schedules, annexes and confirmations, as the same shall have been amended from
time to time on the terms contemplated therein and (ii) the swaps transactions
documented by the ISDA Master Agreement, dated as of May 4, 2000, between The
Chase Manhattan Bank and UPC, and the related schedules, annexes and
confirmations, as the same shall have been amended from time to time on the
terms contemplated therein, in each case, which are set forth on Annex C to the
Restructuring Agreement, shall be deemed to be cancelled on or before the
Effective Date without any further action by UPC or the Indenture Trustee and
UPC shall not be entitled to receive any consideration under the Plan on account
thereof.
Section 9.20 Rights of Action. Except as otherwise provided in the Plan,
all Causes of Action, other than Avoidance Actions, shall automatically be
retained and preserved and will revest in the Reorganized Debtor or its
successors or assigns. Pursuant to Section 1123(b)(3) of the U.S. Bankruptcy
Code, the Reorganized Debtor (as a representative of the Estate) or its
successors or assigns shall retain and have the exclusive right to enforce and
prosecute such Causes of Action against any Person, that arose before the
Effective Date, other than those expressly released or compromised as part of or
pursuant to the Plan.
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ARTICLE X
OPERATION AND MANAGEMENT OF THE REORGANIZED DEBTOR
Section 10.1 Post-Effective Date Operation of Business. From and after the
Effective Date, the Reorganized Debtor will continue to exist and engage in
business, in accordance with the applicable law in the jurisdiction in which it
is incorporated and pursuant to its organizational documents as amended pursuant
to this Plan.
Section 10.2 Post-Confirmation Directors and Officers of the Debtor and New
UPC. From and after the Effective Date, the corporate governance of the Debtor
shall be modified to ensure that the decisions taken by the Board of Directors
of New UPC, subject to the Amended and Restated New UPC Certificate of
Incorporation and the Amended and Restated New UPC By-Laws, will be implemented
by the Debtor. The members of the Board of Management of the Debtor as of the
Effective Date shall be those individuals set forth on the Board of Management
Schedule. It is the intention of New UPC and the Debtor that, under the Third
Amendment upon the later to occur of the Effective Date and the date on which
the Debtor is delisted from Euronext, the Board of Management of the Debtor
shall be New UPC. Effective upon the Third Amendment, there will be no
Supervisory Board for the Debtor. The officers and directors of New UPC as of
the Effective Date shall be those individuals set forth on the New UPC
Management Schedule.
ARTICLE XI
CONDITIONS TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
Section 11.1 Conditions Precedent to Confirmation. Confirmation is subject
to the following conditions precedent:
(a) The Confirmation Order shall be in form and substance reasonably
acceptable to the Debtor, New UPC, UGC and the Participating Noteholders;
provided that none of UGC, New UPC or the Participating Noteholders may
request that the Confirmation Order contain a provision that is
inconsistent with any of the provisions of the Restructuring Agreement; and
(b) the Offer Memorandum, which will be comprised of the Disclosure
Statement and an offer memorandum supplement, shall have been submitted to
the A-FM prior to the commencement of the Dutch Implementing Offer and
generally made available to the Holders of the UPC Ordinary Shares A
outside the United States to effectuate the Restructuring.
Section 11.2 Conditions Precedent to Consummation. The Plan shall be
consummated and the Effective Date shall occur if and only if the following
conditions shall have occurred or shall have been duly waived (if waivable)
pursuant to Section 11.3 below:
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(a) the Confirmation Order shall not have been vacated, reversed,
stayed, modified, amended, enjoined or restrained by order of a court of
competent jurisdiction and shall have become a Final Order;
(b) the Akkoord shall have been adopted by the requisite majority of
Ordinary Creditors and subsequently ratified by the Dutch Bankruptcy Court,
all conditions to the effectiveness of the Akkoord shall have been
satisfied or duly waived to the extent permitted therein, and the Dutch
Bankruptcy Court's ratification of the Akkoord shall have become final and
binding and no longer subject to appeal;
(c) the UPC Voting Securities and Belmarken Notes held by the UGC
Group shall have been contributed to the capital of New UPC;
(d) the Debtor's shareholders shall have duly authorized the
Shareholder Proposals at the Extraordinary General Meeting;
(e) New UPC shall have issued sufficient shares of New UPC Common
Stock to effect the Restructuring in accordance with the Plan;
(f) New UPC shall have sold the Belmarken Notes to the capital of UPC;
(g) the Dutch Implementing Offer shall have been declared
unconditional;
(h) all UPC Preference Shares A shall have been registered in the name
of New UPC after giving effect to the consummation of the Restructuring or,
in the event that the UPC Preference Shares A are not transferred to New
UPC under the Plan, shall have been converted on a one-for-one basis into
registered UPC Ordinary Shares A in accordance with Section 9.2(c) of the
Plan; provided, however, that this condition shall be deemed satisfied
unless, on or before the date that is ten (10) days prior to the date of
the hearing to ratify the Akkoord, UGC or a Majority-in-Interest of the
Participating Noteholders shall serve written notice on the other that such
condition has not been satisfied;
(i) UGC and the Holders of Class 4 Claims and Class 5 Claims shall
have subscribed for and purchased for Cash the total number of Subscription
Shares of New UPC Common Stock pursuant to the New UPC Equity Purchase
Rights and the UGC Subscription Commitment;
(j) the Incentive Plan shall have been adopted by New UPC;
(k) all documents and agreements required to be executed or delivered
under the Plan, the Akkoord or the Restructuring Agreement on or prior to
the Effective Date, including, without limitation, the Stockholders
Agreement, shall have been executed and delivered by the parties thereto;
(l) the U.S. Bankruptcy Court shall have entered an order
(contemplated to be part of the Confirmation Order) authorizing and
directing the Debtor and the Reorganized
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Debtor to take all actions necessary or appropriate to enter into,
implement, and consummate the contracts, instruments, releases, indentures
and other agreements or documents created, amended, supplemented, modified
or adopted in connection with the Plan;
(m) the Amended and Restated UPC Articles of Association, the Amended
and Restated New UPC Certificate of Incorporation and the Amended and
Restated New UPC By-Laws shall have been filed with the applicable
authority of each entity's jurisdiction of incorporation or organization in
accordance with such jurisdiction's applicable law;
(n) all authorizations, consents and regulatory approvals required, if
any, in order to consummate the Plan or the Akkoord shall have been
obtained; and
(o) no order of a court shall have been entered and shall remain in
effect restraining the Debtor from consummating the Plan.
Section 11.3 Waiver of Conditions to Consummation. The conditions to
consummation in Section 11.2 may be waived at any time by a writing signed by an
authorized representative of the Debtor, New UPC and the Participating
Noteholders, without notice or order of the U.S. Bankruptcy Court or any further
action other than proceeding to consummation of the Plan.
ARTICLE XII
EFFECTS OF CONFIRMATION
Section 12.1 Discharge. To the fullest extent permitted by applicable law
(including, without limitation, Section 105 of the U.S. Bankruptcy Code), and
except as otherwise provided in the Plan or in the Confirmation Order: (A) all
property distributed under the Plan shall be in consideration for, and in
complete satisfaction, settlement, discharge and release of, all Claims of any
nature whatsoever against, Equity Interests in, or Old Other Equity Interests
in, the Debtor, the Reorganized Debtor, the Estate or any of their assets or
properties and, regardless of whether any property shall have been distributed
or retained pursuant to the Plan on account of such Claims, Equity Interests or
Old Other Equity Interests, upon the Effective Date, except as otherwise set
forth in the Plan, (i) the Debtor shall be deemed discharged and released under
Section 1141(d)(1)(A) of the U.S. Bankruptcy Code from any and all Claims,
including, but not limited to, demands and liabilities that arose before the
Confirmation Date, debts (as such term is defined in Section 101(12) of the U.S.
Bankruptcy Code), Liens, security interests, and encumbrances of and against all
Property of the Estate, the Debtor and its Affiliates, that arose before the
Confirmation Date, including without limitation, all debts of the kind specified
in Sections 502(g), 502(h) or 502(i) of the U.S. Bankruptcy Code, whether or not
(a) such Claim has been Allowed pursuant to Section 502 of the U.S. Bankruptcy
Code, or (b) the Holder of such Claim has voted to accept the Plan and (ii) all
interests of the Holders of Equity Interests and, to the extent permitted under
applicable law, Old Other Equity Interests shall be terminated; and (B) as of
the Confirmation Date, all Persons, including, without limitation, all Holders
of Claims, Equity Interests or Old Other Equity Interests, shall be barred and
enjoined from asserting against the Debtor or the Reorganized Debtor, their
successors or their property any
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other or further Claims, debts, rights, Causes of Action, liabilities, Equity
Interests or Old Other Equity Interests relating to the Debtor based upon any
act, omission, transaction or other activity of any nature that occurred prior
to the Confirmation Date. In accordance with the foregoing, except as provided
in the Plan or the Confirmation Order, the Confirmation Order shall be a
judicial determination of discharge of all such Claims and other debts and
liabilities against the Debtor and termination of all Equity Interests and, to
the extent permitted under applicable law, Old Other Equity Interests, pursuant
to Sections 524 and 1141 of the U.S. Bankruptcy Code, and such discharge and
termination shall void any judgment obtained against the Debtor at any time, to
the extent that such judgment relates to a discharged Claim or terminated Equity
Interest or Old Other Equity Interest. In particular, Confirmation shall
permanently enjoin all Holders of Claims against, Equity Interests in or Old
Other Equity Interests in the Debtor and any other parties in interest from
taking any action whatsoever, whether within or outside of the United States,
that in any way is inconsistent with or contrary to the classification and/or
treatment of Claims, Equity Interests or Old Other Equity Interests under this
Plan, and all Holders are bound by the Plan; provided, however, that nothing in
the Plan shall enjoin a Holder of a Claim against the Debtor from asserting its
Claim in the Dutch Bankruptcy Case or asserting any position therein with
respect to the classification or treatment thereof. Notwithstanding the
foregoing, nothing in this Section 12.1 or the Confirmation Order shall affect
the rights of New UPC with respect to any Belmarken Notes, UPC Notes, UPC
Preference Shares A, UPC Priority Shares or UPC Ordinary Shares A, transferred
to it in accordance with the Plan.
Section 12.2 Injunction. Except as otherwise expressly provided for in the
Plan or the Confirmation Order and to the fullest extent authorized or provided
by the U.S. Bankruptcy Code, including Sections 524 and 1141 thereof,
Confirmation shall, provided that the Effective Date occurs, permanently enjoin
all Persons that have held, currently hold or may hold a Claim or other debt or
liability that is discharged or an Equity Interest, Old Other Equity Interest or
other right of an equity security Holder that is Impaired or terminated pursuant
to the terms of the Plan from taking any of the following actions against the
Debtor, the Reorganized Debtor or their property on account of any such
discharged Claims, debts or liabilities or such terminated Equity Interests, Old
Other Equity Interests or rights: (a) commencing, conducting or continuing in
any manner, directly or indirectly, any suit, action or other proceeding of any
kind; (b) enforcing, levying, attaching, collecting or otherwise recovering in
any manner or by any means, whether directly or indirectly, any judgment, award,
decree or order; (c) creating, perfecting or enforcing in any manner, directly
or indirectly, any Lien or encumbrance of any kind; (d) asserting any setoff,
offset, right of subrogation or recoupment of any kind, directly or indirectly,
against any debt, liability or obligation due to the Debtor or the Reorganized
Debtor; and/or (e) proceeding in any manner in any place whatsoever, including
employing any process, that does not conform to or comply with or is
inconsistent with the provisions of the Plan.
Section 12.3 Exculpation.
(a) None of UGC, UGC Holdings, the Debtor, the Reorganized Debtor, New
UPC, the Administrator, the Committee, any Participating Noteholder, any
Indenture Trustee, any holder of UPC Notes, UPC Preference Shares A, UPC
Priority Shares or UPC Ordinary Shares A, or any of the foregoing's
respective current or former officers, directors, Subsidiaries, Affiliates,
members, managers, shareholders, partners,
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representatives, employees, attorneys, financial advisors, accountants and
agents, or any of their respective successors and assigns (collectively,
the "Exculpated Parties"), or any of their respective property, shall have
or incur any liability to any Holder of a Claim, an Equity Interest or an
Old Other Equity Interest, or any other party in interest, or any of their
respective officers, directors, Subsidiaries, Affiliates, members,
managers, shareholders, partners, representatives, employees, attorneys,
financial advisors and agents, or any of their respective successors and
assigns, and their respective property, for any act or omission in
connection with, relating to, or arising out of, the Restructuring, the
Moratorium Petition, the Chapter 11 Case, the solicitation of acceptances
of the Plan or the Akkoord, the pursuit of Confirmation or the acceptance
of the Akkoord, the consummation of the Plan or the Akkoord, or the
administration of the Plan or the Akkoord or the property to be distributed
under the Plan or the Akkoord, except (i) for their gross negligence or
willful misconduct, (ii) solely in the case of attorneys, to the extent
that such exculpation would violate any applicable professional
disciplinary rules, including Disciplinary Rule 6-102 of the Code of
Professional Conduct, (iii) solely in the case of UPC, New UPC, UGC or any
Participating Noteholder, for failure to comply with, or breach of such
Person's obligations under, the Plan, the Akkoord or the Restructuring
Agreement and (iv) solely in the case of the Indenture Trustee, for failure
to comply with, or breach of such Person's obligations under, the
Indentures, and in all respects (x) UPC, New UPC, UGC and the Participating
Noteholders shall be entitled to reasonably rely upon the advice of counsel
with respect to their duties and responsibilities under the Plan, the
Akkoord and the Restructuring Agreement and (y) the Indenture Trustee shall
be entitled to reasonably rely upon the advice of counsel with respect to
its duties and responsibilities under the Indentures.
(b) Notwithstanding any other provision of the Plan or the Akkoord, no
holder of a Claim, Equity Interest or Old Other Equity Interest, no other
party in interest, none of their respective current or former officers,
directors, Subsidiaries, Affiliates, members, managers, shareholders,
partners, representatives, employees, attorneys, financial advisors,
accountants and agents, or any of their respective successors and assigns,
and their respective property, shall have any right of action, demand, suit
or proceeding against UGC, UGC Holdings, the Debtor, the Reorganized
Debtor, New UPC, the Administrator, each Participating Noteholder, any
Indenture Trustee, each Holder of UPC Notes, the Belmarken Notes, the UPC
Preference Shares A, the UPC Priority Shares or the UPC Ordinary Shares A
and each of the foregoing's respective current or former officers,
directors, Subsidiaries, Affiliates, members, managers, shareholders,
partners, representatives, employees, attorneys, financial advisors and
agents, or any of their respective successors and assigns, and their
respective property, for any act or omission in connection with, relating
to, or arising out of, the Restructuring, the Moratorium Petition, the
Chapter 11 Case, the solicitation of acceptances of the Plan or the
Akkoord, the pursuit of Confirmation or the acceptance of the Akkoord, the
consummation of the Plan or the Akkoord, or the administration of the Plan
or the Akkoord or the property to be distributed under the Plan or the
Akkoord, except (i) for their gross negligence or willful misconduct, (ii)
solely in the case of attorneys, to the extent that such exculpation would
violate any applicable professional disciplinary rules, including
Disciplinary Rule 6-102
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of the Code of Professional Conduct, (iii) solely in the case of UPC, New
UPC, UGC or any Participating Noteholder, for failure to comply with, or
breach of such Person's obligations under, the Plan, the Akkoord or the
Restructuring Agreement and (iv) solely in the case of the Indenture
Trustee, for failure to comply with, or breach of such Person's obligations
under, the Indentures, and in all respects (x) UPC, New UPC, UGC and the
Participating Noteholders shall be entitled to reasonably rely upon the
advice of counsel with respect to their duties and responsibilities under
the Plan, the Akkoord and the Restructuring Agreement and (y) the Indenture
Trustee shall be entitled to reasonably rely upon the advice of counsel
with respect to its duties and responsibilities under the Indentures.
Section 12.4 Releases.
(a) Effective on the Confirmation Date, but subject to the occurrence
of the Effective Date, UGC, UGC Holdings, United Europe, Inc., the Debtor,
the Reorganized Debtor, New UPC, the Administrator, each Participating
Noteholder, any Indenture Trustee, each Holder of UPC Notes, and each of
the foregoing's respective current officers, directors, members, managers,
representatives, employees, attorneys, financial advisors and agents, or
any of their respective successors and assigns, and their respective
property, shall be released from any and all claims, obligations, rights,
causes of action, choses in action, demands, suits, proceedings and
liabilities which the Debtor or any Holder of a Claim against, Equity
Interest in, or Old Other Equity Interest in, the Debtor may be entitled to
assert, whether for fraud, tort, contract, violations of applicable
securities laws, or otherwise, whether known or unknown, foreseen or
unforeseen, existing or hereafter arising, contingent or non-contingent,
based in whole or in part upon any act, omission, transaction, state of
facts, circumstances or other occurrence or failure of an event to occur,
taking place before the Confirmation Date and in any way relating to the
Debtor, the Reorganized Debtor, New UPC, the issuance, purchase or sale of
the Belmarken Notes, the UPC Notes, the UPC Preference Shares A, the UPC
Priority Shares or the UPC Ordinary Shares A, the Restructuring, the
Chapter 11 Case, the Moratorium Petition, the Plan, or the Akkoord;
provided, however, that nothing herein shall release any Person from any
claims, obligations, rights, causes of action, choses in action, demands,
suits, proceedings or liabilities based upon any act or omission arising
out of such Person's gross negligence or willful misconduct; provided
further that nothing herein shall release (i) UPC, New UPC, UGC or any
Participating Noteholder from any claims, obligations, rights, causes of
action, choses in action, demands, suits, proceedings or liabilities based
upon such Person's failure to comply with, or breach of such Person's
obligations under, the Plan, the Akkoord or the Restructuring Agreement or
(ii) the Indenture Trustee from any claims, obligations, rights, causes of
action, choses in action, demands, suits, proceedings or liabilities based
upon such Person's failure to comply with, or breach of such Person's
obligations under, the Indentures; provided further that to the extent
that, on the Effective Date, New UPC is the holder of any Belmarken Notes,
UPC Notes, UPC Preference Shares A, UPC Priority Shares or UPC Ordinary
Shares A, whether obtained through the Dutch Implementing Offer and the
Plan or otherwise, the Claims and Equity Interests represented by such
Belmarken Notes, UPC Notes, UPC Preference Shares A, UPC Priority Shares
and UPC Ordinary Shares A held by New UPC
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will not be released, but will instead remain outstanding. Effective as of
the Confirmation Date, but subject to the occurrence of the Effective Date,
all holders of Belmarken Notes, UPC Notes, UPC Preference Shares A, UPC
Priority Shares and UPC Ordinary Shares A shall be deemed to release, and
shall be permanently enjoined from bringing, maintaining, facilitating or
assisting any action, demand, suit or proceeding against the Debtor, the
Reorganized Debtor, New UPC and their respective current officers,
directors, members, managers, representatives, employees, attorneys,
financial advisors and agents, or any of their respective successors and
assigns, and their respective property, in respect of any claims,
obligations, rights, causes of action, demands, suits, proceedings and
liabilities related to, or arising from, any and all claims or interests
arising under, in connection with, or related to the Belmarken Notes, the
UPC Notes, the UPC Preference Shares A, the UPC Priority Shares, the UPC
Ordinary Shares A, or the issuance, purchase, or sale thereof; provided
that such release and injunction shall not be binding on New UPC to the
extent of New UPC's claims and interests solely against UPC on account of
any Belmarken Notes, UPC Notes, UPC Preference Shares A, UPC Priority
Shares or UPC Ordinary Shares A held by New UPC, whether obtained through
the Dutch Implementing Offer and the Plan or otherwise.
(b) Nothing in the Plan shall effect a release in favor of any
released party from any liability arising under (i) the Internal Revenue
Code, or any state, city or municipal tax code, (ii) the environmental laws
of the United States, any state, city or municipality, or (iii) any
criminal laws of the United States, any state, city or municipality; nor
shall anything in the Plan enjoin the United States government or any
state, city or municipality, as applicable, from bringing any claim, suit,
action or other proceeding against any released party for any liability
arising under (i) the Internal Revenue Code, or any state, city or
municipal tax code, (ii) the environmental laws of the United States, any
state, city or municipality, or (iii) any criminal laws of the United
States, any state, city or municipality; provided, however, that this
paragraph shall in no way affect or limit the discharge granted to the
Debtor under Chapter 11 of the U.S. Bankruptcy Code and pursuant to Section
12.1 of the Plan.
(c) Solely in the case of attorneys, nothing in the Plan shall effect
a release from any liability arising under any applicable professional
disciplinary rule, including Disciplinary Rule 6-102 of the Code of
Professional Conduct.
Section 12.5 Binding Effect of Plan. The provisions of the Plan shall be
binding upon and inure to the benefit of the Debtor, the Estate, the Reorganized
Debtor, any Holder of any Claim, Equity Interest or Old Other Equity Interest
treated herein or any Person named or referred to in the Plan, the Indenture
Trustee and each of their respective heirs, executors, administrators,
representatives, predecessors, successors, assigns, agents, officers and
directors, and, to the fullest extent permitted under the U.S. Bankruptcy Code
and other applicable law, each other Person affected by the Plan.
Section 12.6 Indemnification. To the extent not inconsistent with the Plan
or the Confirmation Order and to the fullest extent permitted by applicable law,
including, but not limited to, the extent provided in the Debtor's, the
Reorganized Debtor's or New UPC's
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constituent documents, contracts (including, but limited to, any indemnification
agreements), statutory law or common law, the Reorganized Debtor and New UPC
shall indemnify, hold harmless and reimburse the Exculpated Parties from and
against any and all losses, claims, Causes of Action, damages, fees, expenses,
liabilities and actions: (A) for any act taken or omission made in good faith in
connection with or in any way related to negotiating, formulating, implementing,
confirming or consummating the Plan, the Akkoord, the Disclosure Statement, the
Restructuring Agreement or any contract, instrument, release or other agreement
or document created in connection with the Plan or the Akkoord or the
administration of the Chapter 11 Case or the Dutch Bankruptcy Case; or (B) for
any act or omission in connection with or arising out of the administration of
the Plan or the Akkoord or the property to be distributed under the Plan or the
Akkoord or the operations or activities of the Debtor, the Reorganized Debtor or
New UPC, and any Claims of any such Exculpated Party against the Reorganized
Debtor or New UPC, as applicable, on account of such indemnification obligations
shall be unaltered and Unimpaired within the meaning of Section 1124(l) of the
U.S. Bankruptcy Code, except that neither the Reorganized Debtor nor New UPC
shall have any obligation to indemnify any Exculpated Party for any acts or
omissions that constitute gross negligence or willful misconduct; provided,
however, that upon request of an Exculpated Party covered by this Section 12.6,
the Reorganized Debtor and New UPC shall advance amounts to cover any and all
losses, claims, Causes of Action, damages, fees, expenses, liabilities and
actions; provided further, that if a court of a competent jurisdiction
determines that such Exculpated Party is not entitled to the amounts that were
advanced, such Exculpated Party shall return the funds to the Reorganized Debtor
or New UPC, as applicable. Such indemnification obligations shall survive
unaffected by Confirmation, irrespective of whether such indemnification is owed
for an act or event occurring before or after the Petition Date.
Section 12.7 Term of Injunctions or Stays. Unless otherwise provided herein
or in the Confirmation Order, all injunctions or stays provided for in the
Chapter 11 Case under Sections 105(a) or 362 of the U.S. Bankruptcy Code, or
otherwise, and in existence on the Confirmation Date, shall remain in full force
and effect until the Effective Date.
Section 12.8 Preservation of Insurance. Except as necessary to be
consistent with the Plan, the Plan and the discharge provided herein shall not
diminish or impair (A) the enforceability of insurance policies that may cover
Claims against the Debtor or any other Person or (B) the continuation of
workers' compensation programs in effect, including self-insurance programs.
Section 12.9 Waiver of Subordination Rights. Any Distributions under the
Plan shall be received and retained free of and from any obligations to hold or
transfer the same to any other Creditor, and shall not be subject to levy,
garnishment, attachment or other legal process by any Holder by reason of any
claimed contractual, legal or equitable subordination rights, and the
Confirmation Order shall constitute an injunction enjoining any Person from
enforcing or attempting to enforce any contractual, legal or equitable
subordination rights to Property distributed under the Plan, in each case other
than as provided in the Plan.
Section 12.10 No Successor Liability. Except as otherwise expressly
provided in the Plan, the Debtor and the Reorganized Debtor do not, pursuant to
the Plan or otherwise, assume,
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agree to perform, pay, or indemnify Creditors or otherwise have any
responsibilities for any liabilities or obligations of the Debtor relating to or
arising out of the operations or assets of the Debtor, whether arising prior to,
on, or after the Confirmation Date. The Reorganized Debtor is not, and shall not
be, a successor to the Debtor by reason of any theory of law or equity, and
shall not have any successor or transferee liability of any kind or character,
except that the Reorganized Debtor shall assume the obligations specified
therefor in the Plan and the Confirmation Order.
ARTICLE XIII
RETENTION OF JURISDICTION
Section 13.1 Continuing Jurisdiction of U.S. Bankruptcy Court.
Notwithstanding Confirmation and the occurrence of the Effective Date, the U.S.
Bankruptcy Court shall retain after the Effective Date jurisdiction of all
matters arising out of, arising in or related to, the Chapter 11 Case to the
fullest extent permitted by applicable law, including, without limitation,
jurisdiction to:
(a) classify or establish the priority or secured or unsecured status
of any Claim or Equity Interest (whether Filed before or after the
Effective Date and whether or not contingent, Disputed or unliquidated) or
resolve any dispute as to the treatment necessary to Reinstate such a Claim
pursuant to the Plan;
(b) allow, disallow, determine, liquidate or estimate any Claim,
Equity Interest or Old Other Equity Interest, including the compromise,
settlement and resolution of any request for payment of any such Claim and
the resolution of any Objections to the allowance of any such Claims,
Equity Interests or Old Other Equity Interests, and to hear and determine
any other issue presented hereby or arising hereunder, including during the
pendency of any appeal relating to any Objection to such Claims, Equity
Interests or Old Other Equity Interests;
(c) grant or deny any applications for allowance of compensation or
reimbursement of expenses pursuant to Sections 330, 331 or 503(b) of the
U.S. Bankruptcy Code or otherwise provided for in the Plan, for periods
ending on or before the Effective Date;
(d) determine and resolve any and all controversies arising in
connection with the Chapter 11 Case and relating to the rights and
obligations of the Indenture Trustee, the Disbursing Agent and any voting
agent and/or claims agent retained by the Debtor in connection with the
Chapter 11 Case, including, without limitation, any dispute arising in
connection with the payment of the reasonable fees and expenses of the
Indenture Trustee, the Disbursing Agent and such voting agent and/or claims
agent in connection with their duties in the Chapter 11 Case;
(e) enter and implement such orders as are necessary or appropriate if
the Confirmation Order is for any reason modified, stayed, reversed,
revoked or vacated;
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(f) determine such other matters and for such other purposes as may be
provided in the Confirmation Order;
(g) hear and determine any other matters related hereto and not
inconsistent with Chapter 11 of the U.S. Bankruptcy Code;
(h) continue to enforce the automatic stay and any stay imposed under
Section 105(a) of the U.S. Bankruptcy Code through the Effective Date;
(i) hear and determine (i) disputes arising in connection with the
interpretation, implementation or enforcement of the Plan or (ii) issues
presented or arising under the Plan, including disputes among Holders and
arising under agreements, documents or instruments executed in connection
with the Plan;
(j) enter a final decree closing the Chapter 11 Case or converting it
to a Chapter 7 case;
(k) determine and resolve any matters related to the assumption,
assumption and assignment or rejection of any executory contract or
unexpired lease to which the Debtor is a party or with respect to which the
Debtor may be liable, and to hear, determine and, if necessary, liquidate
any Claims arising therefrom;
(l) ensure that all payments due under the Plan and performance of the
provisions of the Plan are accomplished as provided herein (including by
the approval of additional, supplemental or modified distribution
procedures or otherwise) and resolve any issues relating to distributions
to Holders of Allowed Claims or Allowed Equity Interests pursuant to the
provisions of the Plan;
(m) construe, take any action and issue such orders, prior to and
following the Confirmation Date and consistent with Section 1142 of the
U.S. Bankruptcy Code, as may be necessary for the enforcement,
implementation, execution and consummation of the Plan and all contracts,
instruments, releases, indentures and other agreements or documents created
in connection with the Plan, including, without limitation, the Disclosure
Statement and the Confirmation Order, for the maintenance of the integrity
of the Plan and protection of the Reorganized Debtor in accordance with
Sections 524 and 1141 of the U.S. Bankruptcy Code following consummation;
(n) determine any other matters that may arise in connection with or
relating 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, the Disclosure Statement or the
Confirmation Order, except as otherwise provided in the Plan;
(o) determine and resolve any cases, controversies, suits or disputes
that may arise in connection with the consummation, interpretation,
implementation or enforcement of the Plan (and all Exhibits to the Plan) or
the Confirmation Order, including the indemnification and injunction
provisions set forth in and contemplated by
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the Plan or the Confirmation Order, or any Person's rights arising under or
obligations incurred in connection therewith;
(p) hear any application of the Debtor, the Reorganized Debtor or New
UPC to modify the Plan before or after the Effective Date pursuant to
Section 1127 of the U.S. Bankruptcy Code and Section 14.3 hereof or modify
the Confirmation Order or any contract, instrument, release, indenture or
other agreement or document created in connection with the Plan, the
Disclosure Statement or the Confirmation Order, or remedy any defect or
omission or reconcile any inconsistency in any U.S. Bankruptcy Court order,
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, the Disclosure Statement or the Confirmation
Order, in such manner as may be necessary or appropriate to consummate the
Plan, to the extent authorized by the U.S. Bankruptcy Code and the Plan;
(q) issue injunctions, enter and implement other orders or take such
other actions as may be necessary or appropriate to restrain interference
by any Person with consummation, implementation or enforcement of the Plan
or the Confirmation Order;
(r) recover all assets of the Debtor and its Estate, wherever located;
(s) hear and determine any motions, applications, adversary
proceedings, contested matters and other litigated matters pending on,
Filed or commenced after the Effective Date that may be commenced by the
Debtor thereafter, including proceedings with respect to the rights of the
Debtor to recover Property under Sections 542, 543 or 553 of the U.S.
Bankruptcy Code or to otherwise collect to recover on account of any claim
or Cause of Action that the Debtor may have; and
(t) hear any other matter not inconsistent with the U.S. Bankruptcy
Code.
Section 13.2 Failure of U.S. Bankruptcy Court to Exercise Jurisdiction. If
the U.S. Bankruptcy Court abstains from exercising or declines to exercise
jurisdiction over any matter related to the Debtor, including with respect to
the matters set forth above in Section 13.1 hereof, this Article XIII shall not
prohibit or limit the exercise of jurisdiction by any other court having
competent jurisdiction with respect to such subject matter.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Revocation or Withdrawal of the Plan. The Debtor reserves the
right, at any time prior to substantial consummation of the Plan, to revoke or
withdraw the Plan, but only to the extent that the Debtor could terminate the
Restructuring Agreement under Article XI thereof. If the Plan is revoked or
withdrawn, if the Confirmation Date does not occur or if Confirmation occurs,
but the Effective Date does not occur, then the Plan shall be null and void and
have no force and effect. In such event, nothing contained herein shall be
deemed to constitute a waiver
-53-
or release of any claims by or against the Debtor or any other Person or to
prejudice in any manner the rights of the Debtor or any Person in any further
proceedings involving the Debtor.
Section 14.2 Final Order. Except as otherwise expressly provided in the
Plan, any requirement in the Plan for a Final Order may be waived by the Debtor
or, after the Effective Date, the Reorganized Debtor, and New UPC, upon written
notice to the U.S. Bankruptcy Court. No such waiver shall prejudice the right of
any party in interest to seek a stay pending appeal of any order that is not a
Final Order.
Section 14.3 Modification of the Plan. The Debtor and New UPC may alter,
amend or modify the Plan in accordance with Section 1127 of the U.S. Bankruptcy
Code or as otherwise permitted; provided, however, that neither the Debtor nor
New UPC may modify the Plan without the consent of the other or, to the extent
required in Section 5.3(b) of the Restructuring Agreement, the consent of a
Majority-in-Interest of the Participating Noteholders.
Section 14.4 Business Days. If any payment or act under the Plan is
required to be made or performed on a date that is not a Business Day, then the
making of such payment or the performance of such act may be completed on the
next succeeding Business Day, but shall be deemed to have been completed as of
the required date.
Section 14.5 Severability. Should the U.S. Bankruptcy Court determine,
prior to the Confirmation Date, that any provision of the Plan is either illegal
on its face or illegal as applied to any Claim, Equity Interest or Old Other
Equity Interest, such provision shall be unenforceable as to all Holders of
Claims, Equity Interests or Old Other Equity Interests or to the specific Holder
of such Claim, Equity Interest or Old Other Equity Interest, as the case may be,
as to which such provision is illegal. Unless otherwise determined by the U.S.
Bankruptcy Court, such a determination of unenforceability shall in no way limit
or affect the enforceability and operative effect of any other provision of the
Plan. The Debtor reserves the right not to proceed with Confirmation or
consummation of the Plan if any such ruling occurs.
Section 14.6 Governing Law. EXCEPT AS OTHERWISE SET FORTH HEREIN OR TO THE
EXTENT THAT THE U.S. BANKRUPTCY CODE OR U.S. BANKRUPTCY RULES OR OTHER FEDERAL
LAWS ARE APPLICABLE, AND SUBJECT TO THE PROVISIONS OF ANY CONTRACT, INSTRUMENT,
RELEASE, INDENTURE OR OTHER AGREEMENT OR DOCUMENT ENTERED INTO IN CONNECTION
WITH THE PLAN, THE CONSTRUCTION, IMPLEMENTATION AND ENFORCEMENT OF THE PLAN AND
ALL RIGHTS AND OBLIGATIONS ARISING UNDER THE PLAN SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO CONFLICTS-OF-LAW PRINCIPLES WHICH WOULD APPLY THE LAW
OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK OR THE UNITED STATES OF
AMERICA.
Section 14.7 Dissolution of Committees. On the Effective Date, any
Committee shall be automatically dissolved and all members, Professionals and
agents of such Committee shall be deemed released of their duties,
responsibilities and obligations, and shall be without further
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duties, responsibilities and authority in connection with the Debtor, the
Chapter 11 Case, the Plan or its implementation.
Section 14.8 Payment of Statutory Fees. All U.S. Trustee's Fee Claims, as
determined, if necessary, by the U.S. Bankruptcy Court, shall be paid on or
before the Effective Date. All such fees that arise after the Effective Date,
but before the closing of the Chapter 11 Case, shall be paid by the Reorganized
Debtor.
Section 14.9 Notices. Any notice required or permitted to be provided under
this Plan shall be in writing and served by either (A) certified mail, return
receipt requested, postage prepaid, (B) hand delivery or (C) reputable overnight
delivery service, freight prepaid, to be addressed as follows:
If to UPC, to:
United Pan-Europe Communications N.V.
Boeing Avenue 53
Schiphol Rijk 1119
The Netherlands
Attn.: Anton M. Tuijten
With a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attn.: Howard S. Beltzer, Esq.
If to New UPC, to:
New UPC, Inc.
4643 South Ulster Street, 13th Floor
Denver, Colorado 80237
Attn.: President
With a copy to:
Skadden Arps Slate Meagher & Flom, LLP
300 South Grand Avenue
Los Angeles, California 90071
Attn.: Richard Levin, Esq.
If to the Participating Noteholders, to:
Paul, Weiss, Rifkind, Wharton & Garrisson
1285 Avenue of the Americas
New York, New York 10019
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Attn.: Jeffrey D. Saferstein, Esq.
If to the United States Trustee, to:
Office of the United States Trustee
33 Whitehall Street, Suite 2100
New York, New York 10004
Attn.: Paul Schwartzberg, Esq.
Section 14.10 Time. Unless otherwise specified herein, in computing any
period of time prescribed or allowed by the Plan, the provisions of U.S.
Bankruptcy Rule 9006(a) shall apply.
Section 14.11 No Attorneys' Fees. No attorneys' fees will be paid by the
Debtor with respect to any Claim, Equity Interest or Old Other Equity Interest
except as expressly specified herein or Allowed by a Final Order of the U.S.
Bankruptcy Court, and except that the Debtor shall pay the post-petition fees
and expenses of advisors and attorneys in Cash as provided in Section 10.9 of
the Restructuring Agreement to the extent that such fees and expenses are not
paid by UPC Services BV.
Section 14.12 No Injunctive Relief. No Claim, Equity Interest or Old Other
Equity Interest shall under any circumstances be entitled to specific
performance or other injunctive, equitable or other prospective relief.
Section 14.13 Continued Confidentiality Obligations. Pursuant to the terms
thereof, members of and advisors to any Committee, any other Holder of a Claim,
Equity Interest or Old Other Equity Interest and their respective predecessors,
successors and assigns shall continue to be obligated and bound by the terms of
any confidentiality agreement executed by them in connection with the Chapter 11
Case or the Debtor, to the extent that such agreement, by its terms, may
continue in effect after the Confirmation Date; provided, however, that the
confidentiality agreements with the Participating Noteholders and their advisors
shall terminate on the Effective Date and be of no further force and effect.
Section 14.14 No Admissions or Waivers. Notwithstanding anything herein to
the contrary, nothing contained in the Plan shall be deemed an admission or
waiver by the Debtor with respect to any matter set forth herein, including
liability on any Claim, Equity Interest or Old Other Equity Interest or the
propriety of any classification of any Claim, Equity Interest or Old Other
Equity Interest.
Section 14.15 Entire Agreement. Upon consummation of the Plan, the Plan and
the documents executed and delivered on the Effective Date and in consummation
of the Plan shall be deemed to set forth the entire agreement and undertakings
relating to the subject matter thereof and shall supersede all prior discussions
and documents related thereto, including the Restructuring Agreement. The Debtor
shall not be bound by any terms, conditions, definitions, warranties,
understandings, or representations with respect to the subject matter thereof,
other than as expressly provided for therein or as may hereafter be agreed to by
the parties in writing.
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Section 14.16 Waiver. The Debtor or the Reorganized Debtor, as applicable,
reserves the right to waive any provision of this Plan to the extent such
provision is for the sole benefit of the Debtor and/or its officers or
directors.
Section 14.17 Bar Date for Professional Claims. Final applications for
compensation for services rendered and reimbursement of expenses incurred by
Professionals (a) from the later of the Petition Date or the date on which
retention was approved through the Effective Date or (b) pursuant to Section
503(b)(4) of the Bankruptcy Code, shall be Filed no later than sixty (60) days
after the Effective Date or such later date as the Bankruptcy Court approves,
and shall be served on (i) counsel to the Debtor at the address set forth in
Section 14.9 of the Plan, (ii) counsel to New UPC at the address set forth in
Section 14.9 of the Plan, (iii) counsel to the Participating Noteholders at the
address set forth in Section 14.9 of the Plan, and (iv) the Office of the United
States Trustee at the address set forth in Section 14.9 of the Plan. Any
objections to an application for the payment of Professional Claims must be
filed and served on the Reorganized Debtor and its counsel and the requesting
Professional no later than twenty-five (25) days (or such longer period as may
be granted by order of the Bankruptcy Court) after the date on which such
application was served. Applications that are not timely Filed will not be
considered by the U.S. Bankruptcy Court. The Reorganized Debtor may pay any
Professional fees and expenses incurred after the Effective Date without any
application to the U.S. Bankruptcy Court.
Section 14.18 Compromise of Controversies. Pursuant to Bankruptcy Rule
9019, and in consideration for the classification, Distributions 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 and released by the Plan, including, without limitation, any
Avoidance Actions, and Confirmation 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.
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CONFIRMATION REQUEST
The Debtor hereby requests confirmation of the Plan pursuant to Section
1129(a) or Section 1129(b) of the Bankruptcy Code.
Dated: January 7, 2003
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ Anton M. Tuijten
---------------------------------------
Name: Anton M. Tuijten
Title: General Counsel and Member
of the Board of Management
By: /s/ Charles H. R. Bracken
--------------------------------------
Name:Charles H. R. Bracken
Title: Chief Financial Officer and
Member of the Board of Management
NEW UPC, INC.
By: /s/ Michael T. Fries
--------------------------------------
Name:Michael T. Fries
Title: President
Submitted by:
WHITE & CASE LLP
Attorneys for United Pan-Europe Communications N.V.
Debtor and Debtor in Possession
By: /s/ Howard S. Beltzer
--------------------------------------
Howard S. Beltzer (HSB 5721)
Daniel P. Ginsberg (DPG 5290)
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
- and -
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Attorneys for New UPC, Inc.
By: /s/ Richard Levin
--------------------------------------------------
Richard Levin (California State Bar No. 66578)
Van C. Durrer II (VCD 0689)
300 South Grand Avenue
Los Angeles, California 90071
(213) 687-5000
Schedule 1
Allowed UPC Notes Claims by Series
- --------------------------------------------------------------------------------
Series of UPC Notes Allowed UPC Notes Claims
- --------------------------------------------------------------------------------
10 7/8% Senior Notes due 2007(United States Dollar) US$190,714,890.25
- --------------------------------------------------------------------------------
10 7/8% Senior Notes due 2009 (United States Dollar) US$877,954,231.76
- --------------------------------------------------------------------------------
12 1/2% Senior Discount Notes due 2009 (United States US$600,919,401.12
Dollar)
- --------------------------------------------------------------------------------
11 1/4% Senior Notes due 2009 (United States Dollar) US$269,862,290.19
- --------------------------------------------------------------------------------
13 3/8% Senior Discount Notes due 2009 (United States US$371,663,598.93
Dollar)
- --------------------------------------------------------------------------------
11 1/4% Senior Notes due 2010 (United States Dollar) US$658,378,082.21
- --------------------------------------------------------------------------------
11 1/2% Senior Notes due 2010 (United States Dollar) US$266,648,907.71
- --------------------------------------------------------------------------------
13 3/4% Senior Discount Notes due 2010 (United States US$737,994,370.22
Dollar)
- --------------------------------------------------------------------------------
10 7/8% Senior Notes due 2007 (Euro) US$77,387,159.85
- --------------------------------------------------------------------------------
10 7/8% Senior Notes due 2009 (Euro) US$244,800,169.38
- --------------------------------------------------------------------------------
11 1/4% Senior Notes due 2009 (Euro) US$78,767,689.67
- --------------------------------------------------------------------------------
13 3/8% Senior Discount Notes due 2009 (Euro) US$143,986,850.74
- --------------------------------------------------------------------------------
11 1/4% Senior Notes due 2010 (Euro) US$169,156,243.86
- --------------------------------------------------------------------------------