Exhibit 99.4
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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: Chapter 11
In re: :
: Case No. 01-1825 (RJN)
Diamond Brands Operating :
Corp., et al., : Jointly Administered
:
Debtors. :
: Related to Docket Nos.
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
CONFIRMING JOINT PLAN OF REORGANIZATION OF
DIAMOND BRANDS OPERATING CORP. AND ITS DEBTOR AFFILIATES
PROPOSED BY THE DEBTORS AND JARDEN CORPORATION
The above-captioned debtors and debtors-in- possession
(collectively, the "Debtors") and Jarden Corporation having proposed the Joint
Plan of Reorganization of Diamond Brands Operating Corp. and its Debtor
Affiliates Proposed by the Debtors and Jarden Corporation, dated December 13,
2002 (Docket No. 610) (the "Plan"), as modified pursuant to this Confirmation
Order; the Bankruptcy Court having entered its order approving the Disclosure
Statement with Respect to Joint Plan of Reorganization of Diamond Brands
Operating Corp. and its
Debtor Affiliates Proposed by the Debtors and Jarden Corporation (the
"Disclosure Statement") on December 13, 2002 (Docket No. 606) (the "Disclosure
Statement Order"), the Debtors having filed the Affidavit of Kathleen M. Logan
Certifying Voting On and Tabulation of Ballots Accepting and Rejecting the
Joint Plan of Reorganization of Diamond Brands Operating Corp. and Its Debtor
Affiliates Proposed by the Debtors and Jarden Corporation (the "Voting
Declaration") on January 24, 2003; the Bankruptcy Court having established, in
the Disclosure Statement Order, January 29, 2003 at 10:00 a.m. (Eastern
Standard Time) as the date and time of the hearing pursuant to section 1129 of
the Bankruptcy Code to consider Confirmation of the Plan (the "Confirmation
Hearing"); affidavits of service having been executed by Kathleen M. Logan and
filed with the Bankruptcy Court (Docket No. 626) (the "Declarations of
Service"), with respect to the mailing of a notice of the Confirmation Hearing
and the other solicitation materials in respect of the Plan in accordance with
the Disclosure Statement Order; affidavits of publication having been filed
with the Bankruptcy Court (Docket No. 625) (collectively, the "Declarations of
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Publication") with respect to the publication of the notice of the
Confirmation Hearing in accordance with the Disclosure Statement Order; the
only objection to Confirmation of the Plan, filed by the United States of
America, having been withdrawn pursuant to a stipulation approved by this
Court; the Debtors having filed a Memorandum of Law in Support of
Confirmation of the Joint Plan of Reorganization of Diamond Brands
Operating Corp. and its Debtor Affiliates Proposed by the Debtors and
Jarden Corporation (the "Memorandum of Law") on January 24, 2003; the
Debtors having filed the Declaration of Naresh K. Nakra in Support of
Confirmation of the Joint Plan of Reorganization of Diamond Brands
Operating Corp. and Its Debtor Affiliates Proposed by the Debtors and
Jarden Corporation (the "Nakra Declaration") and the Declaration of Thane
W. Carlston in Support of Confirmation of the Joint Plan of Reorganization
of Diamond Brands Operating Corp. and Its Debtor Affiliates Proposed by the
Debtors and Jarden Corporation (the "Carlston Declaration") as exhibits to
the Memorandum of Law; and Jarden Corporation having filed the Declaration
of Martin Franklin in Support of Confirmation of Joint Plan of
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Reorganization of Diamond Brands Operating Corp. and Its Debtor Affiliates
Proposed by the Debtors and Jarden Corporation (Docket No. 649) (the
"Franklin Declaration") (collectively, the Nakra Declaration, Carlston
Declaration and Franklin Declaration, the "Supporting Declarations"); the
Bankruptcy Court having reviewed the Plan, the Disclosure Statement, the
Disclosure Statement Order, the Voting Declaration, the Declarations of
Service, the Declarations of Publication, the Objections, the Memorandum of
Law, the Supporting Declarations and the other papers before the Bankruptcy
Court in connection with the Confirmation of the Plan, and the Supporting
Declarations having been admitted into evidence and forming a part of the
record in support of Confirmation of the Plan; the Bankruptcy Court having
heard the statements of counsel in support of Confirmation at the
Confirmation Hearing, as reflected in the record at the Confirmation
Hearing; the Bankruptcy Court having considered all testimony presented and
evidence admitted at the Confirmation Hearing; the Bankruptcy Court having
taken judicial notice of the papers and pleadings on file in the Chapter 11
Case; and the Bankruptcy Court finding that (i) notice
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of the Confirmation Hearing and the opportunity of any party in interest to
object to Confirmation were adequate and appropriate, in accordance with
Bankruptcy Rule 2002(b) and the Disclosure Statement Order, as to all
parties to be affected by the Plan and the transactions contemplated
thereby and (ii) the legal and factual bases set forth at the Confirmation
Hearing and as set forth in this Confirmation Order establish just cause
for the relief granted herein; the Bankruptcy Court hereby makes the
following Findings of Fact, Conclusions of Law and Order.(1)
IT HAVING BEEN FOUND AND DETERMINED by this Bankruptcy Court
that:
A. This Bankruptcy Court has jurisdiction over this Chapter 11
Case pursuant to 28 U.S.C. ss.ss. 157 and 1334. Confirmation of the Plan is a
"core proceeding" pursuant to 28 U.S.C. ss. 157(b)(2)(L) and this Bankruptcy
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(1) Unless otherwise specified, capitalized terms and phrases used herein
have the meanings assigned to them in the Plan. The rules of
interpretation set forth in Article I of the Plan shall apply to this
Confirmation order (the "Confirmation Order"). In addition, in
accordance with Section I.A of the Plan, any term used in the Plan or
this Confirmation Order that is not defined in the Plan or this
Confirmation Order, but that is used in the Bankruptcy Code or the
Bankruptcy Rules, shall have the meaning given to that term in the
Bank ruptcy Code or the Bankruptcy Rules, as applicable.
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Court has jurisdiction to determine whether the Plan complies with the
applicable provisions of the Bankruptcy Code, to determine whether the Plan
should be confirmed and to enter a Final Order with respect hereto. Venue
of this Chapter 11 Case is proper pursuant to 28 U.S.C. ss.ss. 1408 and 1409.
B. The Debtors and Jarden Corporation have met their burden
of proving the elements of sections 1129(a) and (b) of the Bankruptcy Code.
C. The Plan complies with the applicable provisions of the
Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules and the
orders of this Bankruptcy Court with respect to the Plan, thus satisfying
the requirements of section 1129(a)(1) of the Bankruptcy Code.
D. The Debtors and Jarden Corporation, as proponents of the
Plan, have complied with the applicable provisions of the Bankruptcy Code,
the Bankruptcy Rules, the Local Bankruptcy Rules and the orders of this
Bankruptcy Court with respect to the solicitation of acceptances or
rejections of the Plan, thus satisfying the requirements of section 1129(a)(2)
of the Bankruptcy Code.
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E. The Plan, and the compromises and settlements embodied
therein, have been proposed in good faith and not by any means forbidden by
law, and the Purchaser is purchasing the Acquired Assets in good faith, as
evidenced by, among other things, the totality of the circumstances
surrounding the formulation of the Plan, the record of the Chapter 11 Case,
and by the recoveries of holders of Claims and Interests thereunder, thus
satisfying the requirements of section 1129(a)(3) of the Bankruptcy Code.
F. All payments that have been made or are to be made by the
Debtors or Reorganized Debtors under the Plan or by any person acquiring
property under the Plan, for services or for costs and expenses in, or in
connection with, the Chapter 11 Case, or in connection with the Plan and
incident to the Chapter 11 Case, has been approved by, or will be subject
to the approval of, the Bankruptcy Court as reasonable, thus satisfying the
requirements of section 1129(a)(4) of the Bankruptcy Code.
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G. Jarden Corporation, a public company, has been identified
along with its Affiliates, as the purchasers of substantially all of the
Debtors' assets and information about Jarden was set forth in the Disclosure
Statement. The Purchaser has available all necessary cash and other resources
required to consummate the Purchase Agreement and the Plan in accordance with
their terms. The Purchaser is a third-party purchaser unrelated to the
Debtors. No common identity of incorporators, directors or stockholders exists
between the Purchaser and the Debtors. The Purchaser is not holding itself out
to the public as a continuation of the Debtors. The Purchaser is not the
Debtors' successor. The Purchaser shall not be liable for any of the Debtors'
obligations and shall not be responsible for satisfying any claims against the
Debtors or the Estates, except as specifically set forth in the Plan or the
Purchase Agreement. The identity of the sole officer and director of the
Reorganized Debtors has been disclosed as the Plan Administrator and is named
in the Plan Administrator Agreement, and the manner of selection and
appointment of the Plan Administrator is consistent with the interests
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of holders of Claims and Interests and with public policy, thus satisfying the
requirements of section 1129(a)(5) of the Bankruptcy Code. H. The Debtors'
businesses do not involve the establishment of rates over which any regulatory
commission has jurisdiction or will have jurisdiction after Confirmation.
Thus, Section 1129(a)(6) of the Bankruptcy Code is inapplicable to these
Chapter 11 Case. I. Section 1129(a)(7) of the Bankruptcy Code requires that
each holder of a Claim or Interest in an impaired Class accept the Plan, or
receive or retain under the Plan property having a value, as of the Effective
Date of the Plan, that is not less than the amount that such holder would
receive on account of such Claim or Interest if the Debtors were liquidated
under Chapter 7 of the Bankruptcy Code. The following Classes are impaired
under the Plan: Classes H-3, H-4, O-3 and O- 4. Article IX of the Disclosure
Statement and the other evidence proffered or adduced at the Confirmation
Hearing (i) are persuasive and credible, (ii) have not been controverted by
other evidence or challenged in any of the Objections, and (iii) establish
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that each holder of an unimpaired Claim or Interest, as the
case may be, in such impaired Classes has either accepted the Plan, or will
receive or retain under the Plan property having a value, as of the Effective
Date of the Plan, that is not less than the amount that such holder would
receive or retain if the Debtors were liquidated under Chapter 7 of the
Bankruptcy Code on such date, thus satisfying the requirements of section
1129(a)(7) of the Bankruptcy Code.
J. Section 1129(a)(8) of the Bankruptcy Code requires that
for each Class of Claims or Interests under the Plan, such Class has either
accepted the Plan or is not impaired under the Plan. Unimpaired Classes H-1
and H-2 and O-1 and O-2 are conclusively presumed to have accepted the Plan
without the solicitation of acceptances or rejections pursuant to section
1126(f) of the Bankruptcy Code. Impaired Classes H-3, O-3 and O-4 have
accepted the Plan. Because holders of Interests in impaired Class H-4 neither
receive or retain any property under the Plan, they are deemed to have
rejected the Plan under section 1126(g) of the Bankruptcy Code, and the
requirements of section 1129(a)(8) have not been met,
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thereby requiring application of section 1129(b) of the Bankruptcy Code. As is
more fully set forth in P. P of this Confirmation Order, the Plan satisfies
section 1129(b) of the Bankruptcy Code with respect to Class H-4.
K. The treatment of Administrative Claims, Priority Tax
Claims and Other Priority claims are set forth in sections 2.1(b), 2.1(c),
2.3(b) and 2.4(b) of the Plan, thus satisfying the requirements of section
1129(a)(9).
L. The Plan has been accepted by impaired Classes H-3 and
O-3, determined without inclusion of any acceptance of the Plan by any
insider, thus satisfying the requirement of section 1129(a)(10) of the
Bankruptcy Code.
M. Confirmation of the Plan is not likely to be followed by the
liquidation, or the need for further financial reorganization of, the Debtors,
as the Plan provides for the sale of substantially all of the assets of the
Debtors in accordance with the Purchase Agreement, the orderly liquidation of
all of the Debtors' remaining assets not the subject of the Purchase
Agreement, the payment of all Allowed Administrative and Priority Claims
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and a distribution to holders of Allowed General Unsecured Claims of Cash, or
Cash and Additional Consideration, in accordance with the priority scheme of
the Bankruptcy Code and the provisions of the Plan, thus satisfying the
feasibility requirements of section 1129(a)(11) of the Bankruptcy Code.
N. The Debtors have paid, or will pay on the Effective Date, all
amounts due under 28 U.S.C. ss. 1930, thus satisfying the requirements of
section 1129(a)(12) of the Bankruptcy Code.
O. Section 4.8 of the Plan provides that all employee
compensation and benefit plans of the Debtors identified on schedule 2.1.1.22
of the Purchase Agreement, including programs subject to sections 1114 and
1129(a)(13) of the Bankruptcy Code, entered into before or after the Petition
Date and not since terminated, shall be deemed to be, and shall be treated as
though they are, executory contracts that are assumed under Section 6.1 of the
Plan, thus satisfying section 1129(a)(13) of the Bankruptcy Code.
P. Holders of Interests in Class H-4 will receive no
distributions under the Plan and, accordingly,
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are deemed to have rejected the Plan pursuant to section 1126(g) of the
Bankruptcy Code. This is the only Class which has not accepted, or has been
deemed to have rejected, the Plan. The Debtors presented uncontroverted
evidence at the Confirmation Hearing that the Plan does not discriminate
unfairly and is fair and equitable with respect to the treatment of Interests
in Class H-4 because, as required by section 1129(b)(2)(C) of the Bankruptcy
Code, there are no holders of interests junior to the holders of Interests in
Class H-4 which will receive or retain under the Plan any property on account
of such junior interests. Thus, the Plan satisfies section 1129(b) of the
Bankruptcy Code and may be confirmed notwithstanding its failure to satisfy
section 1129(a)(8) of the Bankruptcy Code. The Plan shall be binding upon the
members of Class H-4 upon Confirmation and the occurrence of the Effective
Date.
Q. The principal purpose of the Plan is not the avoidance of
taxes or avoidance of the requirements of section 5 of the Securities Act of
1933 and no governmental unit has requested that the Bankruptcy Court deny
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confirmation on such basis, thus satisfying the requirements of section
1129(d) of the Bankruptcy Code.
R. The Technical Modifications to the Plan (the "Technical
Modifications") filed contemporaneously herewith and attached hereto as
Exhibit B shall be, and they are hereby are, incorporated into and shall be
deemed a part of the Plan. Such modifications constitute technical changes and
do not materially adversely affect or change the treatment of any Claims or
Interests. Accordingly, pursuant to Bankruptcy Rule 3019, these modifications
do not require additional disclosure under section 1125 of the Bankruptcy Code
or re-solicitation of votes under section 1126 of the Bankruptcy Code, nor do
they require that holders of Claims or Interests be afforded an opportunity to
change previously cast acceptances or rejections of the original Plan.
Pursuant to Bankruptcy Rule 3019, such technical modifications shall be deemed
accepted by all holders of Claims and Interests who have previously accepted
the Plan.
S. The Bankruptcy Court finds that it may properly retain
jurisdiction over the matters set forth in Article X of the Plan and section
1142 of the Bankruptcy Code.
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T. All conditions precedent to confirmation set forth in Article
IX of the Plan have been satisfied, will be satisfied by entry of this
Confirmation Order, or have been duly waived.
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED that:
A. Confirmation.
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1. Approval. The Plan, which consists of the Plan as originally
filed on December 17, 2002, and the Technical Modifications, and all
exhibits, provisions, terms and conditions thereto, and the Plan
Administrator Agreement (substantially in the form attached hereto as Exhibit
C) are approved and confirmed as having satisfied all of the requirements of
Chapter 11 of the Bankruptcy Code. The terms of the Plan, as modified, are
incorporated herein by reference and are an integral part of this Confirmation
Order. Copies of the Plan and the Technical Modifications are attached hereto
as Exhibits A and B respectively. All references to the Plan herein
shall be with respect to the Plan as modified by theTechnical Modifications.
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2. Findings of Fact and Conclusions of Law. The findings of
fact and conclusions of law of the Bankruptcy Court set forth herein and at
the Confirmation Hearing shall constitute findings of fact and conclusions of
law pursuant to Bankruptcy Rule 7052, as made applicable herein by Bankruptcy
Rule 9014, and the findings and conclusions of the Bankruptcy Court at the
Confirmation Hearing are incorporated herein by reference. To the extent any
finding of fact shall be determined to be a conclusion of law, it shall be so
deemed, and vice versa.
B. Effects of Confirmation
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3. Non-discharge of Claims. Pursuant to section 1141(d)(3) of
the Bankruptcy Code, Confirmation will not discharge Claims against the
Debtors; provided, however, that no holder of a Claim against any Debtor may,
on account of such Claim, seek or receive any payment or other distribution
from, or seek recourse against, any Debtor, Reorganized Debtor, their
respective successors or their respective property, except as expressly
provided in the Plan.
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4. Binding Effect. Notwithstanding the stay contemplated by
Bankruptcy Rule 3020(e) and except as otherwise provided in section 1141(d)
of the Bankruptcy Code, immediately after entry of this Confirmation Order,
the provisions of the Plan and this Confirmation Order shall be deemed
binding against the Debtors, the Reorganized Debtors, any and all holders of
Claims or Interests in the Debtors (irrespective of whether such Claims or
Interests are impaired under the Plan or whether the holders of such Claims
or Interests accepted, rejected or are deemed to have accepted or rejected
the Plan), any and all non-debtor parties to executory contracts or unexpired
leases with the Debtors, and any and all entities that are parties to or are
subject to the settlements, compromises, releases, discharges and injunctions
described in the Plan. Accordingly, as permitted by Bankruptcy Rule 3020(e),
the ten (10) day period provided by such rule is hereby waived in its entirety.
C. Implementation of the Plan.
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5. Sale Free and Clear of Liens. In accordance with the terms
of the Plan and the Purchase Agreement, all of the Acquired Assets shall be
sold, assigned,
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transferred, and delivered to Purchaser free and clear of any lien,
encumbrance, claim, or interest of any kind or nature (collectively, the
"Liens"; provided, however, such term shall exclude any and all permitted
Liens under the Purchase Agreement) of any person or entity that encumber or
relate to or purport to encumber or relate to the Acquired Assets, with all
such Liens to attach to the Cash Consideration in the order of their
priority, with the same validity, force and effect which they now have as
against the Acquired Assets, subject to any claims and defenses the Debtors
may possess with respect thereto. 6. Section 1146(c) Waiver. Pursuant to
section 1146(c) of the Bankruptcy Code, any issuance, transfer, or exchange
of any security under the Plan, or the making or delivery of any instrument
of transfer under the Plan shall not be taxed under any law imposing a stamp
tax or other similar tax.
7. Withdrawal of Motion for Substantive Consolidation. As of
the later to occur of the Closing or the Effective Date, the Motion of Stephen
Compagni Portis for Substantive Consolidation of the Estates of Diamond Brands
Incorporated and Diamond Brands Operating Corp. (Docket No. 503) is hereby
deemed withdrawn, with prejudice.
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8. Retention of Jurisdiction. Notwithstanding confirmation of
the Plan or the occurrence of the Effective Date, the Bankruptcy Court shall
retain jurisdiction over all matters arising out of, and related to, the
Chapter 11 Case and the Plan to the fullest extent permitted by law,
including among other things, jurisdiction over the matters set forth in
Article X of the Plan, which provisions are incorporated herein by reference.
9. Notice of Entry of Confirmation Order. The Debtors and their
authorized agent shall serve notice of (a) entry of this Confirmation Order
and (b) the last date to file (i) Professional Fee Claims (ii) Administrative
Expense Claims and (iii) Claims arising from the rejection of executory
contracts and unexpired leases, substantially in the form annexed hereto as
Exhibit D, which form is hereby approved, on all creditors of the Debtors as
of the date hereof, and other parties in interest within five (5) Business
Days from the date of entry of this Confirmation Order.
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Dated: Wilmington Delaware
January 29, 2003
/s/ Randall J. Newsome
______________________________
Honorable Randall J. Newsome
United States Bankruptcy Judge
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Exhibit A
Plan
Exhibit B
Technical Modifications to Plan
Exhibit C
Plan Administrator Agreement
Exhibit D
Notice of Entry of Confirmation Order