UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- -------------------------------------x
:
In re : Chapter 11 Case No.
:
SUNBEAM CORPORATION, : 01-40291 (AJG)
:
:
:
:
Debtor. :
:
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DEBTOR'S PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
---------------------------------------
WEIL, GOTSHAL & MANGES LLP
Attorneys for the Debtor
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
Dated: New York, New York
February 6, 2001
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND CONSTRUCTION OF TERMS......................................................1
1.1 Administrative Expense Claim...................................................................1
1.2 Affiliate......................................................................................1
1.3 Allowed........................................................................................1
1.4 Assumed Corporate Indemnities..................................................................2
1.5 Assumed Indemnification Claims.................................................................2
1.6 Ballot.........................................................................................2
1.7 Bank Credit Agreement..........................................................................2
1.8 Banks..........................................................................................2
1.9 Bankruptcy Code................................................................................2
1.10 Bankruptcy Court...............................................................................2
1.11 Bankruptcy Rules...............................................................................2
1.12 Business Day...................................................................................2
1.13 Cash...........................................................................................2
1.14 Causes of Action...............................................................................2
1.15 Chapter 11 Case................................................................................2
1.16 Claim..........................................................................................2
1.17 Class..........................................................................................3
1.18 Collateral.....................................................................................3
1.19 Commencement Date..............................................................................3
1.20 Committee......................................................................................3
1.21 Confirmation Date..............................................................................3
1.22 Confirmation Hearing...........................................................................3
1.23 Confirmation Order.............................................................................3
1.24 Debtor.........................................................................................3
1.25 Debtor in Possession...........................................................................3
1.26 Derivative Securities Litigation Claims........................................................3
1.27 Disbursing Agent...............................................................................3
1.28 Disclosure Statement...........................................................................3
1.29 Disputed.......................................................................................3
1.30 Disputed Claim Amount..........................................................................3
1.31 Effective Date.................................................................................4
TABLE OF CONTENTS
(continued)
Page
1.32 Entity.........................................................................................4
1.33 Equity Interest................................................................................4
1.34 Equity Holder Securities Claims................................................................4
1.35 Final Order....................................................................................4
1.36 GECC...........................................................................................4
1.37 General Unsecured Claim........................................................................4
1.38 Indenture Trustee..............................................................................5
1.39 Insured Claim..................................................................................5
1.40 Lien...........................................................................................5
1.41 Employee Options...............................................................................5
1.42 New Convertible Secured Notes..................................................................5
1.43 New Convertible Secured Notes Agreement........................................................5
1.44 New Term Debt..................................................................................5
1.45 Other Priority Claim...........................................................................5
1.46 Other Secured Claim............................................................................5
1.47 Performance Bonus Order........................................................................5
1.48 Person.........................................................................................5
1.49 Plan...........................................................................................5
1.50 Plan Supplement................................................................................5
1.51 Post-Petition Banks............................................................................5
1.52 Post-Petition Bank Credit Agreement............................................................5
1.53 Priority Tax Claim.............................................................................5
1.54 Pro Rata Share.................................................................................6
1.55 Punitive Damage Claim..........................................................................6
1.56 Record Date....................................................................................6
1.57 Registration Rights Agreement..................................................................6
1.58 Releasees......................................................................................6
1.59 Reorganized Sunbeam............................................................................6
1.60 Reorganized Sunbeam By-laws....................................................................6
1.61 Reorganized Sunbeam Certificate of Incorporation...............................................6
1.62 Reorganized Sunbeam Common Stock...............................................................6
1.63 Reorganized Sunbeam Stock Option Plan..........................................................6
ii
TABLE OF CONTENTS
(continued)
Page
1.64 Schedules......................................................................................6
1.65 Secured Bank Claims............................................................................6
1.66 Secured Claim..................................................................................7
1.67 Secured Tax Claim..............................................................................7
1.68 Shareholders Agreement.........................................................................7
1.69 Subordinated Note Claims.......................................................................7
1.70 Subordinated Noteholder Securities Claims......................................................7
1.71 Subordinated Notes.............................................................................7
1.72 Subordinated Notes Indenture...................................................................7
1.73 Subsidiaries Plan..............................................................................7
1.74 Sunbeam Affiliate Claim........................................................................8
1.75 Sunbeam Affiliates.............................................................................8
1.76 Sunbeam Group..................................................................................8
Article II TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY TAX CLAIMS.........................8
2.1 Administrative Expense Claims..................................................................8
2.2 Professional Compensation and Reimbursement Claims.............................................9
2.3 Priority Tax Claims............................................................................9
Article III CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS..............................................9
Article IV TREATMENT OF CLAIMS AND EQUITY INTERESTS..................................................10
4.1 CLASS 1 -- OTHER PRIORITY CLAIMS..............................................................10
(a) Impairment and Voting.......................................................10
(b) Distributions...............................................................10
4.2 CLASS 2 -- SECURED TAX CLAIMS.................................................................10
(a) Impairment and Voting.......................................................10
(b) Distributions...............................................................10
(c) Retention of Liens..........................................................10
4.3 CLASS 3 -- OTHER SECURED CLAIMS...............................................................11
(a) Impairment and Voting.......................................................11
(b) Distributions/Reinstatement of Claims.......................................11
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(continued)
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4.4 CLASS 4 - SECURED BANK CLAIMS.................................................................11
(a) Allowance...................................................................11
(b) Impairment and Voting.......................................................11
(c) Distributions...............................................................11
4.5 CLASS 5 -- GENERAL UNSECURED CLAIMS...........................................................11
(a) Impairment and Voting.......................................................11
(b) Distributions...............................................................11
4.6 CLASS 6A -- SUBORDINATED NOTE CLAIMS..........................................................12
(a) Allowance...................................................................12
(b) Impairment and Voting.......................................................12
(c) Distributions...............................................................12
4.7 CLASS 6B - SUBORDINATED NOTEHOLDER SECURITIES CLAIMS..........................................12
(a) Impairment and Voting.......................................................12
(b) Distributions...............................................................12
4.8 CLASS 7 - SUNBEAM AFFILIATE CLAIMS............................................................12
(a) Impairment and Voting.......................................................12
(b) Distributions...............................................................12
4.9 CLASS 8 - PUNITIVE DAMAGE CLAIMS..............................................................12
(a) Impairment and Voting.......................................................12
(b) Distributions...............................................................12
4.10 CLASS 9A -- EQUITY INTERESTS..................................................................12
(a) Impairment and Voting.......................................................12
(b) Distributions...............................................................12
4.11 CLASS 9B - EQUITY HOLDER SECURITIES CLAIMS....................................................12
(a) Impairment and Voting.......................................................13
(b) Distributions...............................................................13
Article V PROVISIONS REGARDING VOTING AND DISTRIBUTION UNDER THE PLAN AND TREATMENT,
OF DISPUTED, CONTINGENT AND UNLIQUIDATED ADMINISTRATIVE EXPENSE CLAIMS AND CLAIMS.........13
5.1 Voting of Claims..............................................................................13
5.2 Enforcement of Subordination of Securities Claims.............................................13
5.3 Elimination of Vacant Classes.................................................................13
5.4 Nonconsensual Confirmation....................................................................13
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(continued)
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5.5 Method of Distributions Under the Plan........................................................13
(a) Disbursing Agent............................................................13
(b) Delivery of Distributions...................................................13
(c) Distributions of Cash.......................................................14
(d) Timing of Distributions.....................................................14
(e) Hart-Scott-Rodino Compliance................................................14
(f) Minimum Distributions.......................................................14
(g) Fractional Shares...........................................................14
(h) Unclaimed Distributions.....................................................14
(i) Distributions to Holders as of the Record Date..............................14
5.6 Objections to and Resolution of Administrative Expense Claims and Claims......................14
5.7 Cancellation of Existing Securities and Agreements............................................15
5.8 Registration of New Common Stock..............................................................15
5.9 Shareholders Agreement........................................................................15
Article VI EXECUTORY CONTRACTS AND UNEXPIRED LEASES..................................................15
6.1 Assumption or Rejection of Executory Contracts and Unexpired Leases...........................15
(a) Executory Contracts and Unexpired Leases....................................15
(b) Schedules of Rejected Executory Contracts and Unexpired
Leases; Inclusiveness.......................................................15
(c) Insurance Policies..........................................................16
(d) Approval of Assumption, Assumption and Assignment or
Rejection of Executory Contracts and Unexpired Leases.......................16
(e) Cure of Defaults............................................................16
(f) Bar Date for Filing Proofs of Claim Relating to Executory
Contracts and Unexpired Leases Rejected Pursuant to the Plan................16
(g) Assumed Indemnification Obligations.........................................16
(h) Compensation and Benefit Programs...........................................16
6.2 Retiree Benefits..............................................................................16
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Article VII IMPLEMENTATION OF THE PLAN................................................................17
7.1 General.......................................................................................17
7.2 Dismissal of Derivative Securities Litigation Claims..........................................17
7.3 Directors and Officers of Reorganized Sunbeam.................................................17
(a) Board of Directors..........................................................17
(b) Officers....................................................................17
7.4 By-laws and Certificates of Incorporation.....................................................17
7.5 Issuance of New Securities....................................................................17
7.6 Reorganized Sunbeam Stock Option Plan.........................................................18
7.7 Performance/Retention Bonuses.................................................................18
Article VIII EFFECT OF CONFIRMATION OF PLAN............................................................18
8.1 Term of Bankruptcy Injunction or Stays........................................................18
8.2 Revesting of Assets...........................................................................18
8.3 Claims Extinguished...........................................................................18
8.4 Discharge of Debtor...........................................................................18
8.5 Injunction....................................................................................19
Article IX CONFIRMATION AND EFFECTIVENESS OF THE PLAN................................................19
9.1 Conditions Precedent to Confirmation..........................................................19
9.2 Conditions Precedent to Effectiveness.........................................................20
9.3 Effect of Failure of Conditions...............................................................20
9.4 Waiver of Conditions..........................................................................20
Article X RETENTION OF JURISDICTION.................................................................21
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Article XI MISCELLANEOUS PROVISIONS..................................................................21
11.1 Effectuating Documents and Further Transactions...............................................21
11.2 Corporate Action..............................................................................21
11.3 Exemption from Transfer Taxes.................................................................22
11.4 Limited Releases of Releasees.................................................................22
11.5 Limited Release by Releasees..................................................................22
11.6 Exculpation...................................................................................22
11.7 Termination of Committee......................................................................23
11.8 Post-Effective Date Fees and Expenses.........................................................23
11.9 Payment of Statutory Fees.....................................................................23
11.10 Amendment or Modification of the Plan.........................................................23
11.11 Severability..................................................................................23
11.12 Revocation or Withdrawal of the Plan..........................................................23
11.13 Binding Effect................................................................................23
11.14 Notices.......................................................................................23
11.15 Governing Law.................................................................................24
11.16 Withholding and Reporting Requirements........................................................24
11.17 Plan Supplement...............................................................................24
11.18 Allocation of Plan Distributions..............................................................25
11.19 Headings......................................................................................25
11.20 Exhibits/Schedules............................................................................25
11.21 Filing of Additional Documents................................................................25
vii
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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:
In re :
: Chapter 11 Case No.
SUNBEAM CORPORATION, :
: 01-___ (___)
Debtor. :
:
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DEBTOR'S PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Sunbeam Corporation proposes the following plan of reorganization under
section 1121(a) of title 11 of the United States Code:
ARTICLE I
DEFINITIONS AND CONSTRUCTION OF TERMS
Definitions. As used herein, the following terms have the respective
meanings specified below:
1.1 Administrative Expense Claim means any right to payment
constituting a cost or expense of administration of the Chapter 11 Case under
sections 503(b) and 507(a)(1) of the Bankruptcy Code, including, without
limitation, any actual and necessary costs and expenses of preserving the estate
of the Debtor, any actual and necessary costs and expenses of operating the
business of the Debtor, any indebtedness or obligations incurred or assumed by
the Debtor in Possession in connection with the conduct of its business,
including, without limitation, for the acquisition or lease of property or an
interest in property or the rendition of services, all compensation and
reimbursement of expenses to the extent Allowed by the Bankruptcy Court under
section 330 or 503 of the Bankruptcy Code and any fees or charges assessed
against the estate of the Debtor under section 1930 of chapter 123 of title 28
of the United States Code.
1.2 Affiliate has the meaning ascribed to such term in section 101(2)
of the Bankruptcy Code.
1.3 Allowed means, with reference to any Claim, (a) any Claim against
the Debtor which has been listed by the Debtor in its Schedules, as such
Schedules may be amended by the Debtor from time to time in accordance with
Bankruptcy Rule 1009, as liquidated in amount and not disputed or contingent and
for which no contrary proof of claim has been filed, (b) any Claim allowed
hereunder, (c) any Claim which is not Disputed, (d) any Claim that is
compromised, settled or otherwise resolved pursuant to a Final Order of the
Bankruptcy Court or under the Plan, or (e) any Claim which, if Disputed, has
been Allowed by Final Order; provided, however, that Claims allowed solely for
the purpose of voting to accept or reject the Plan pursuant to an order of the
Bankruptcy Court shall not be considered "Allowed Claims" hereunder. Unless
otherwise specified herein or by order of the Bankruptcy Court, "Allowed
Administrative Expense Claim" or "Allowed Claim" shall not, for any purpose
under the Plan, include interest on such Administrative Expense Claim or Claim
from and after the Commencement Date.
1.4 Assumed Corporate Indemnities mean any obligation of the Debtor to
defend, indemnify, reimburse or limit the liability of its present and any
former officers, directors and/or employees who were officers, directors and/or
employees, respectively, on or after the Commencement Date, solely in their
capacity as officers, directors and/or employees, against any claims or
obligations pursuant to the Debtor's certificate of incorporation or by-laws,
applicable state law or specific agreement, or any combination of the foregoing.
1.5 Assumed Indemnification Claims mean all Claims, if any, as to which
the claimant asserts rights based only upon the Assumed Corporate Indemnities.
1.6 Ballot means the form distributed to each holder of an impaired
Claim on which is to be indicated acceptance or rejection of the Plan.
1.7 Bank Credit Agreement means that certain Senior Credit Agreement,
dated as of March 30, 1998, among Sunbeam, certain Sunbeam Affiliates and the
Banks, and any and all of the documents, instruments and agreements relating
thereto, including, without limitation, all guarantees and security documents,
instruments and agreements executed and delivered in connection with the Senior
Credit Agreement, as same may have been amended, supplemented, modified,
extended, replaced, refinanced, renewed or restated as of the Commencement Date.
1.8 Banks means, collectively, the agents and lenders that are from
time to time parties to the Bank Credit Agreement.
1.9 Bankruptcy Code means title 11 of the United States Code, as
amended from time to time, as applicable to the Chapter 11 Case.
1.10 Bankruptcy Court means the United States Bankruptcy Court for the
Southern District of New York having jurisdiction over the Chapter 11 Case and,
to the extent of any reference under section 157 of title 28 of the United
States Code, the unit of such District Court under section 151 of title 28 of
the United States Code.
1.11 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure
as promulgated by the United States Supreme Court under section 2075 of title 28
of the United States Code, and any Local Rules of the Bankruptcy Court.
1.12 Business Day means any day other than a Saturday, Sunday or any
other day on which commercial banks in New York, New York are required or
authorized to close by law or executive order.
1.13 Cash means legal tender of the United States of America.
1.14 Causes of Action means, without limitation, any and all actions,
causes of action, liabilities, obligations, rights, suits, damages, judgments,
claims and demands whatsoever, whether known or unknown, existing or hereafter
arising, in law, equity or otherwise, based in whole or in part upon any act or
omission or other event occurring prior to the Commencement Date or during the
course of the Chapter 11 Case, including through the Effective Date.
1.15 Chapter 11 Case means the case under chapter 11 of the Bankruptcy
Code commenced by the Debtor, styled In re Sunbeam Corporation, Chapter 11 Case
No. 01-____ (___), currently pending before the Bankruptcy Court.
1.16 Claim has the meaning set forth in section 101 of the Bankruptcy
Code.
2
1.17 Class means a category of holders of Claims or Equity Interests as
set forth in Article III of the Plan.
1.18 Collateral means any property or interest in property of the
estate of the Debtor subject to a Lien to secure the payment or performance of a
Claim, which Lien is not subject to avoidance or otherwise invalid under the
Bankruptcy Code or applicable state law.
1.19 Commencement Date means February 6, 2001, the date on which the
Debtor commenced the Chapter 11 Case.
1.20 Committee means the statutory committee of unsecured creditors
appointed in the Chapter 11 Case pursuant to section 1102 of the Bankruptcy
Code.
1.21 Confirmation Date means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on the docket.
1.22 Confirmation Hearing means the hearing held by the Bankruptcy
Court to consider confirmation of the Plan pursuant to section 1129 of the
Bankruptcy Code, as such hearing may be adjourned or continued from time to
time.
1.23 Confirmation Order means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
1.24 Debtor means Sunbeam Corporation.
1.25 Debtor in Possession means the Debtor in its capacity as debtor in
possession in the Chapter 11 Case pursuant to sections 1101, 1107(a) and 1108 of
the Bankruptcy Code.
1.26 Derivative Securities Litigation Claims means the Claims or Causes
of Action set forth in Exhibit A to the Plan and any and all other Claims or
Causes of Action derivative of or from the Debtor that were pending as of the
Commencement Date.
1.27 Disbursing Agent means any Entity in its capacity as a disbursing
agent under Section 5.6(a) hereof.
1.28 Disclosure Statement means the disclosure statement relating to
the Plan, including, without limitation, all exhibits and schedules thereto, as
approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy
Code.
1.29 Disputed means, with reference to any Claim, any Claim proof of
which was timely and properly filed, and in such case or in the case of an
Administrative Expense Claim, any Administrative Expense Claim or Claim which is
disputed under the Plan or as to which the Debtor has interposed a timely
objection and/or request for estimation in accordance with section 502(c) of the
Bankruptcy Code and Bankruptcy Rule 3018, which objection and/or request for
estimation has not been withdrawn or determined by a Final Order, and any Claim
proof of which was required to be filed by order of the Bankruptcy Court but as
to which a proof of claim was not timely or properly filed. A Claim that is
Disputed by the Debtor as to its amount only, shall be deemed Allowed in the
amount the Debtor admits owing, if any, and Disputed as to the excess.
1.30 Disputed Claim Amount means the amount set forth in the proof of
claim relating to a Disputed Claim or, if an amount is estimated in respect of a
Disputed Claim in accordance with section 502(c) of the Bankruptcy Code and
Bankruptcy Rule 3018, the amount so estimated pursuant to an order of the
Bankruptcy Court.
3
1.31 Effective Date means the first Business Day on which the
conditions specified in Section 9.1 of the Plan have been satisfied or waived.
1.32 Entity shall have the meaning set forth in section 101(15) of the
Bankruptcy Code.
1.33 Equity Interest means any share of common stock or other
instrument evidencing an ownership interest in the Debtor, whether or not
transferable, and any option, warrant or right, contractual or otherwise, to
acquire any such interest.
1.34 Equity Holder Securities Claims means any and all Claims and
Causes of Action of any kind whatsoever, known or unknown, asserted or which
might have been, or might in the future be, asserted in a direct or other
capacity against the Debtor arising out of, relating to or in connection with:
(i) the purchase, ownership, sale or other decision or action made or taken, or
declined, or failed or refused to be made or taken, or otherwise foregone,
concerning or relating to the Equity Interests; (ii) the facts, transactions,
events, occurrences, acts, representations, disclosures, statements, omissions
or failures to act which were alleged or could have been alleged in the pending
litigation asserted against the Debtor, whether asserted individually or on
behalf of a class of plaintiffs, which generally arise from allegations of
alleged acts or omissions of the Debtor or any other Persons or Entities prior
to the Commencement Date with respect to or concerning the Equity Interests, or
the purchase, sale or ownership thereof, including, without limitation, the
litigation or causes of action set forth in Exhibit B to the Plan; (iii)
accounting irregularities or errors, if any, or alleged accounting
irregularities or errors relating to the Sunbeam Group; (iv) the historical or
projected financial condition or results of the Sunbeam Group; (v) state law
appraisal rights sought or requested in connection with or relating in any
manner to the Sunbeam Group, including, without limitation the appraisal rights
action set forth in Exhibit C to the Plan; (vi) any restatements of the Debtor's
or any member of the Sunbeam Group's financial statements or results of
operations; (vii) any other Claims and Causes of Action arising out of, relating
to, or in connection with the Equity Interests that would be subject to and
subordinated under section 510(b) of the Bankruptcy Code; and (viii)
indemnification, reimbursement or contribution Claims with respect to any of the
foregoing; provided, however, that, notwithstanding the foregoing, Equity Holder
Securities Claims shall not include Assumed Indemnification Claims and
Derivative Securities Litigation Claims.
1.35 Final Order means an order of the Bankruptcy Court or any other
court of competent jurisdiction as to which the time to appeal, petition for
certiorari, or move for reargument or rehearing has expired and as to which no
appeal, petition for certiorari, or other proceedings for reargument or
rehearing shall then be pending or as to which any right to appeal, petition for
certiorari, reargue, or rehear shall have been waived in writing in form and
substance satisfactory to the Debtor or, on and after the Effective Date,
Reorganized Sunbeam, or, in the event that an appeal, writ of certiorari, or
reargument or rehearing thereof has been sought, such order of the Bankruptcy
Court or other court of competent jurisdiction shall have been determined by the
highest court to which such order was appealed, or certiorari, reargument or
rehearing shall have been denied and the time to take any further appeal,
petition for certiorari or move for reargument or rehearing shall have expired;
provided, however, that the possibility that a motion under Rule 59 or Rule 60
of the Federal Rules of Civil Procedure, or any analogous rule under the
Bankruptcy Rules or applicable state court rules of civil procedure, may be
filed with respect to such order shall not cause such order not to be a Final
Order.
1.36 GECC means General Electric Credit Corporation.
1.37 General Unsecured Claim means any Claim other than a Secured
Claim, Administrative Expense Claim, Priority Tax Claim, Other Priority Claim,
Subordinated Note Claim, Punitive Damage Claim, Derivative Securities Litigation
Claim, Affiliate Claim, Subordinated Noteholder Securities Claim and Equity
Holder Securities Claim.
4
1.38 Indenture Trustee means The Bank of New York, as indenture trustee
under the Subordinated Notes Indenture, and any successor indenture trustee that
may be appointed.
1.39 Insured Claim means any Claim arising from an incident or
occurrence that is covered under the Debtor's insurance policies.
1.40 Lien has the meaning set forth in section 101 of the Bankruptcy
Code.
1.41 Employee Options shall have the meaning set forth in Section 7.6
hereof.
1.42 New Convertible Secured Notes means the convertible secured
promissory notes authorized and to be issued by Reorganized Sunbeam in the
principal amount of $600,000,000 on the Effective Date, pursuant to the Plan, on
the terms and subject to the conditions described in Exhibit D to the Plan.
1.43 New Convertible Secured Notes Agreement means the agreement under
which the New Convertible Secured Notes will be issued, which shall be in
substantially the form contained in the Plan Supplement.
1.44 New Term Debt means the secured term debt authorized and to be
issued by Reorganized Sunbeam in the principal amount of $200,000,000 on the
Effective Date, pursuant to the Plan, on the terms and subject to the conditions
set forth in Exhibit E to the Plan.
1.45 Other Priority Claim means any Claim, other than an Administrative
Expense Claim or a Priority Tax Claim, entitled to priority in right of payment
under section 507(a) of the Bankruptcy Code.
1.46 Other Secured Claim means any Secured Claim, other than Secured
Tax Claims, Secured Bank Claims and Affiliate Claims that are Secured Claims.
1.47 Performance Bonus Order shall have the meaning set forth in
Section 7.7 of the Plan.
1.48 Person shall have the meaning set forth in section 101(41) of the
Bankruptcy Code.
1.49 Plan means this chapter 11 plan of reorganization, including,
without limitation, the Plan Supplement and all exhibits, supplements,
appendices and schedules hereto, either in its present form or as the same may
be altered, amended or modified from time to time.
1.50 Plan Supplement means the forms of documents specified in Section
11.17 of the Plan.
1.51 Post-Petition Banks means, collectively, the agents and lenders
that are from time to time parties to the Post-Petition Bank Credit Agreement.
1.52 Post-Petition Bank Credit Agreement means that certain Revolving
Credit and Guarantee Agreement, dated as of February 6, 2001, among Sunbeam
Corporation, the subsidiaries of Sunbeam Corporation parties thereto, and the
agents and lenders from time to time parties thereto, and any and all of the
documents, instruments and agreements relating thereto, including, without
limitation, all guarantees and security documents, instruments and agreements
executed and delivered in connection with the Post-Petition Credit Agreement, as
the same may have been amended, restated, supplemented or otherwise modified
from time to time.
1.53 Priority Tax Claim means any Claim of a governmental unit of the
kind specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
5
1.54 Pro Rata Share means a proportionate share, so that the ratio of
the consideration distributed on account of an Allowed Claim in a Class to the
amount of such Allowed Claim is the same as the ratio of the amount of the
consideration distributed on account of all Allowed Claims in such Class to the
amount of all Allowed Claims in such Class.
1.55 Punitive Damage Claim means any Claim arising prior to the
Commencement Date, whether secured or unsecured, for any fine, penalty or
forfeiture, or for multiple, exemplary or punitive damages, to the extent that
such fine, penalty, forfeiture or damages is not compensation for actual
pecuniary loss suffered by the holder of such Claim.
1.56 Record Date means the day that is five Business Days from and
after the Confirmation Date.
1.57 Registration Rights Agreement means a registration rights
agreement to be entered into pursuant to Section 5.12 of the Plan between
Reorganized Sunbeam and all holders of Allowed Secured Bank Claims, which
agreement shall be in substantially the form contained in the Plan Supplement.
1.58 Releasees means all present and former officers and directors of
the Debtor who were directors or officers, respectively, on or after the
Commencement Date, and any other Persons who serve or served as members of
management of the Debtor on or after the Commencement Date, all present and
former members of the Committee, all present and former Banks and Post-Petition
Banks, all present and former officers and directors and other Persons who serve
or served as members of the management of any present or former member of the
Committee or of any present or former Bank or Post-Petition Bank, and all
advisors, consultants or professionals of or to the Debtor, the Committee, the
members of the Committee, the Banks and the Post-Petition Banks.
1.59 Reorganized Sunbeam means Sunbeam Corporation on and after the
Effective Date.
1.60 Reorganized Sunbeam By-laws means the amended and restated By-laws
of Reorganized Sunbeam, which shall be in substantially the form contained in
the Plan Supplement.
1.61 Reorganized Sunbeam Certificate of Incorporation means the amended
and restated Certificate of Incorporation of Reorganized Sunbeam, which shall be
in substantially the form contained in the Plan Supplement.
1.62 Reorganized Sunbeam Common Stock means the number of shares of
common stock of Reorganized Sunbeam authorized and to be issued pursuant to the
Plan, which number shall be disclosed prior to the Confirmation Hearing. The
Reorganized Sunbeam Common Stock shall have a par value of $.01 per share and
such rights with respect to dividends, liquidation, voting and other matters as
are provided for by applicable nonbankruptcy law or in the Reorganized Sunbeam
Certificate of Incorporation and the Reorganized Sunbeam By-laws.
1.63 Reorganized Sunbeam Stock Option Plan means the Stock Option Plan
to be adopted by Reorganized Sunbeam, which shall be in substantially the form
contained in the Plan Supplement.
1.64 Schedules means the schedule of assets and liabilities, the list
of holders of Equity Interests and the statement of financial affairs filed by
the Debtor under section 521 of the Bankruptcy Code and Bankruptcy Rule 1007,
and all amendments and modifications thereto through and including the date by
which objections to Claims must be filed with the Bankruptcy Court pursuant to
Section 5.8 of the Plan.
1.65 Secured Bank Claims means all Claims of the Banks against the
Debtor arising under or in connection with the Bank Credit Agreement, including,
without limitation, any Claims of the Banks that are converted to postpetition
administrative expense claims pursuant to any order of the Bankruptcy Court
approving the provision of adequate protection to holders of Secured Bank
Claims.
6
1.66 Secured Claim means any Claim, to the extent reflected in the
Schedules or a proof of claim as a Secured Claim, which is secured by a Lien on
Collateral to the extent of the value of such Collateral, as determined in
accordance with section 506(a) of the Bankruptcy Code, or, in the event that
such Claim is subject to a permissible setoff under section 553 of the
Bankruptcy Code, to the extent of such permissible setoff, including, without
limitation, Secured Bank Claims, Secured Tax Claims and Other Secured Claims.
1.67 Secured Tax Claim means any Secured Claim which, absent its
secured status, would be entitled to priority in right of payment under section
507(a)(8) of the Bankruptcy Code.
1.68 Shareholders Agreement means a shareholders agreement to be
entered into pursuant to Section 5.13 of the Plan between Reorganized Sunbeam
and all holders of Allowed Secured Bank Claims, which agreement shall be in
substantially the form contained in the Plan Supplement.
1.69 Subordinated Note Claims means all Claims arising under or in
connection with the Subordinated Notes Indenture; provided, however, that
Subordinated Noteholder Securities Claims shall not be Subordinated Note Claims.
1.70 Subordinated Noteholder Securities Claims means any and all Claims
and Causes of Action of any kind whatsoever, known or unknown, asserted or which
might have been, or might in the future be, asserted in a direct or other
capacity against the Debtor arising out of, relating to or in connection with:
(i) the purchase, ownership, sale or other decision or action made or taken, or
declined, or failed or refused to be made or taken, or otherwise foregone,
concerning or relating to the Subordinated Notes; (ii) the facts, transactions,
events, occurrences, acts, representations, disclosures, statements, omissions
or failures to act which were alleged or could have been alleged in the pending
litigation asserted against the Debtor, whether asserted individually or on
behalf of a class of plaintiffs, which generally arise from allegations of
alleged acts or omissions of the Debtor or any other Persons or Entities prior
to the Commencement Date with respect to or concerning the Subordinated Notes,
or the purchase, sale or ownership thereof, including, without limitation, the
litigation or causes of action set forth on Exhibit F to the Plan; (iii)
accounting irregularities or errors, if any, or alleged accounting
irregularities or errors relating to the Debtor or the Sunbeam Group; (iv) or
the historical or projected financial condition or results of the Sunbeam Group;
(v) any restatements of the Debtor's or any member of the Sunbeam Group's
financial statements or results of operations; (vi) any other Claims and Causes
of Action arising out of, relating to, or in connection with the Subordinated
Notes that would be subject to and subordinated under section 510(b) of the
Bankruptcy Code; and (vii) indemnification, reimbursement or contribution Claims
against the Debtor with respect to any of the foregoing; provided, however,
that, notwithstanding the foregoing, Subordinated Noteholder Securities Claims
shall not include Assumed Indemnification Claims and Derivative Securities
Litigation Claims.
1.71 Subordinated Notes means all notes issued and outstanding under
the Subordinated Notes Indenture as of the Commencement Date.
1.72 Subordinated Notes Indenture means the trust indenture, dated as
of March 25, 1998, between Sunbeam, as issuer of the Subordinated Notes, and the
Indenture Trustee, and all of the documents and instruments relating thereto, as
amended, supplemented, modified or restated as of the Commencement Date.
1.73 Subsidiaries Plan means the joint chapter 11 plan of
reorganization proposed by certain domestic Sunbeam Affiliates in their
separately (but jointly) administered chapter 11 cases pending in the Bankruptcy
Court.
7
1.74 Sunbeam Affiliate Claim means any Claim, whether secured or
unsecured, of a Sunbeam Affiliate.
1.75 Sunbeam Affiliates means, collectively, AI Realty Marketing of New
York, Inc.; Australian Coleman, Inc.; Beacon Exports, Inc.; BRK Brands, Inc.; CC
Outlet, Inc.; CMO, Inc.; Coleman Argentina, Inc.; Coleman Country Ltd.; Coleman
International Holdings, LLC; Coleman Powermate, Inc.; Coleman Puerto Rico, Inc.;
Coleman Venture Capital, Inc.; Coleman Worldwide Corp.; DDG I, Inc.; Family
Gard, Inc.; First Alert, Inc.; General Archery Industries, Inc.; GHI I, Inc.;
JGK, Inc.; Kaimona, Inc.; Kansas Acquisition Corp.; L.A. Services, Inc.; Laser
Acquisition Corp.; Nippon Coleman, Inc.; Packs & Travel Corporation; Pearson
Holdings, Inc.; PH III, Inc.; River View Corporation of Barling, Inc.; SI II,
Inc.; Sierra Corporation of Fort Smith, Inc.; Sunbeam Americas Holdings, Ltd.;
Sunbeam Health & Safety Company; Sunbeam Latin America, LLC; Sunbeam Products,
Inc.; Sunbeam Services, Inc.; Survival Gear, Inc.; Thalia Products Inc.; The
Coleman Company, Inc.; THL-FA IP Corp; Vero Dunes Venturer, Inc.; Woodcraft
Equipment Company; Application Des Gaz, S.A.S. (France); Bafiges S.A.S.
(France); BRK Brands Europe Limited (England and Wales); BRK Brands Pty Limited
(Australia); BRK Electronics (Europe); BRK Electronics S.A. (Belgium); Camping
Gaz CS Spol S.R.O. (Czech Republic); Camping Gaz GmbH (Austria); Camping Gaz
Great Britain, L.T.D. (Great Britain); Camping Gaz International Deutschland
GmbH (Germany); Camping Gaz International Portugal, L.T.D. (Portugal); Camping
Gaz Italie S.r.L. (Italy); Camping Gaz Kft (Hungary); Camping Gaz Suisse A.G.
(Switzerland); Coleman Argentina S.A. (Argentina); Coleman Asia Limited (Hong
Kong); Coleman Benelux B.V. (Netherlands); Coleman do Brasil Ltda. (Brasil);
Coleman Deutschland GmbH (Germany); Coleman Europe S.A./N.V. (Belgium); Coleman
Japan Company, Ltd. (Japan); Coleman Life Styles KK (Japan); Coleman SVB S.r.L
(Italy); Electronica BRK de Mexico (Mexico); Oster de Venezuela (Venezuela);
Oster GmbH (Germany); Oster International GmbH (Germany); Productos Coleman,
S.A. (Spain); SI China Ventures, Ltd. (Hong Kong); Sunbeam Corporation (Canada)
Limited (Ontario) ; Sunbeam Europe Limited (UK); Sunbeam Holdings S.A. de C.V.
(Mexico); Sunbeam International (Asia), Ltd.; Sunbeam International (Asia), Ltd.
(Hong Kong); Sunbeam Mexicana S.A. de C.V. (Mexico); Sunbeam-Oster de Acuna S.A.
de C.V. (Mexico); Sunbeam-Oster de Matarmoros S.A. de C.V. (Mexico);
Sunbeam-Oster International (FSC), Inc. (Barbados); and all other Affiliates of
Sunbeam Corporation.
1.76 Sunbeam Group means, collectively, Sunbeam and the Sunbeam
Affiliates.
Interpretation; Application of Definitions and Rules of Construction.
Wherever from the context it appears appropriate, each term stated in either the
singular or the plural shall include both the singular and the plural and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter. Unless otherwise specified, all section,
article, schedule or exhibit references in the Plan are to the respective
Section in, Article of, Schedule to, or Exhibit to, the Plan. The words
"herein," "hereof," "hereto," "hereunder" and other words of similar import
refer to the Plan as a whole and not to any particular section, subsection or
clause contained in the Plan. The rules of construction contained in section 102
of the Bankruptcy Code shall apply to the construction of the Plan. A term used
herein that is not defined herein, but that is used in the Bankruptcy Code,
shall have the meaning ascribed to that term in the Bankruptcy Code. The
headings in the Plan are for convenience of reference only and shall not limit
or otherwise affect the provisions of the Plan.
8
ARTICLE II
TREATMENT OF ADMINISTRATIVE
EXPENSE CLAIMS AND PRIORITY TAX CLAIMS
2.1 Administrative Expense Claims. Except to the extent that any entity
entitled to payment of any Allowed Administrative Expense Claim agrees to a less
favorable treatment, each holder of an Allowed Administrative Expense Claim
shall receive Cash in an amount equal to such Allowed Administrative Expense
Claim on the later of the Effective Date and the date such Administrative
Expense Claim becomes an Allowed Administrative Expense Claim, or as soon
thereafter as is practicable; provided, however, that Allowed Administrative
Expense Claims representing liabilities incurred in the ordinary course of
business by the Debtor in Possession or liabilities arising under loans or
advances to or other obligations incurred by the Debtor in Possession shall be
paid in full and performed by Reorganized Sunbeam in the ordinary course of
business in accordance with the terms and subject to the conditions of any
agreements governing, instruments evidencing or other documents relating to such
transactions.
2.2 Professional Compensation and Reimbursement Claims. All entities
seeking an award by the Bankruptcy Court of compensation for services rendered
or reimbursement of expenses incurred through and including the Effective Date
under sections 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy
Code shall (a) file their respective final applications for allowances of
compensation for services rendered and reimbursement of expenses incurred
through the Effective Date by no later than the date that is 60 days after the
Effective Date, or such other date as may be fixed by the Bankruptcy Court and
(b) if granted such an award by the Bankruptcy Court, be paid in full in such
amounts as are Allowed by the Bankruptcy Court (i) on the date such
Administrative Expense Claim becomes an Allowed Administrative Expense Claim, or
as soon thereafter as is practicable or (ii) upon such other terms as may be
mutually agreed upon between such holder of an Administrative Expense Claim and
Reorganized Sunbeam.
2.3 Priority Tax Claims. Except to the extent that a holder of an
Allowed Priority Tax Claim has been paid by the Debtor prior to the Effective
Date or agrees to a different treatment, each holder of an Allowed Priority Tax
Claim shall receive, in full and complete settlement, satisfaction and discharge
of its Allowed Priority Tax Claim, at the option of Reorganized Sunbeam, (a)
Cash in an amount equal to such Allowed Priority Tax Claim on the later of the
Effective Date and the date such Priority Tax Claim becomes an Allowed Priority
Tax Claim, or as soon thereafter as is practicable or (b) equal annual Cash
payments in an aggregate amount equal to such Allowed Priority Tax Claim,
together with interest at a fixed annual rate equal to 8.0%, over a period
through the sixth anniversary of the date of assessment of such Allowed Priority
Tax Claim, or upon such other terms determined by the Bankruptcy Court to
provide the holder of such Allowed Priority Tax Claim deferred Cash payments
having a value, as of the Effective Date, equal to such Allowed Priority Tax
Claim; provided, however, that the Debtor must obtain the consent of the Banks
in order to elect option (a).
9
ARTICLE III
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
Claims, other than Administrative Expense Claims and Priority Tax
Claims, and Equity Interests, are classified for all purposes, including voting,
confirmation and distribution pursuant to the Plan, as follows:
Class Status
- ----- ------
Class 1 -- Other Priority Claims Unimpaired
Class 2 -- Secured Tax Claims Impaired
Class 3 -- Other Secured Claims Unimpaired
Class 4 -- Secured Bank Claims Impaired
Class 5 -- General Unsecured Claims Impaired
Class 6A -- Subordinated Note Claims Impaired
Class 6B -- Subordinated Noteholder Securities Claims Impaired
Class 7 - Sunbeam Affiliate Claims Unimpaired
Class 8 -- Punitive Damage Claims Impaired
Class 9A -- Equity Interests Impaired
Class 9B -- Equity Holder Securities Claims Impaired
ARTICLE IV
TREATMENT OF CLAIMS AND EQUITY INTERESTS
4.1 CLASS 1 -- OTHER PRIORITY CLAIMS.
(a) Impairment and Voting. Class 1 is unimpaired by the Plan. Each
holder of an Allowed Other Priority Claim is conclusively presumed to have
accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that a holder of an Allowed
Other Priority Claim has been paid by the Debtor prior to the Effective Date or
agrees to a different treatment, each holder of an Allowed Other Priority Claim
shall receive, in full and complete settlement, satisfaction and discharge of
its Allowed Other Priority Claim, Cash in an amount equal to such Allowed Other
Priority Claim on the later of the Effective Date and the date such Allowed
Other Priority Claim becomes an Allowed Other Priority Claim, or as soon
thereafter as is practicable.
4.2 CLASS 2 -- SECURED TAX CLAIMS.
(a) Impairment and Voting. Class 2 is impaired by the Plan. Each holder
of an Allowed Secured Tax Claim is entitled to vote to accept or reject the
Plan.
(b) Distributions. Except to the extent that a holder of an Allowed
Secured Tax Claim has been paid by the Debtor prior to the Effective Date or
agrees to a different treatment, each holder of an Allowed Secured Tax Claim
shall receive, in full and complete settlement, satisfaction and discharge of
its Allowed Secured Tax Claim, at the option of Reorganized Sunbeam, (i) Cash in
an amount equal to such Allowed Secured Tax Claim, including any interest on
such Allowed Secured Tax Claim required to be paid pursuant to section 506(b) of
the Bankruptcy Code, on the later of the Effective Date and the date such
Allowed Secured Tax Claim becomes an Allowed Secured Tax Claim, or as soon
thereafter as is practicable or (ii) equal annual Cash payments in an aggregate
amount equal to such Allowed Secured Tax Claim, together with interest at a
fixed annual rate equal to 8.0%, over a period through the sixth anniversary of
the date of assessment of such Allowed Secured Tax Claim, or upon such other
terms determined by the Bankruptcy Court to provide the holder of such Allowed
Secured Tax Claim deferred Cash payments having a value, as of the Effective
Date, equal to such Allowed Secured Tax Claim; provided, however, that the
Debtor must obtain the consent of the Banks in order to elect option (i).
10
(c) Retention of Liens. Except to the extent that a holder of an
Allowed Secured Tax Claim has been paid by the Debtor prior to the Effective
Date or agrees to a different treatment, each holder of an Allowed Secured Tax
Claim shall retain the Liens (or replacement Liens as may be contemplated under
nonbankruptcy law) securing its Allowed Secured Tax Claim as of the Effective
Date until full and final payment of such Allowed Secured Tax Claim is made as
provided herein, and upon such full and final payment, such Liens shall be
deemed null and void and shall be unenforceable for all purposes.
4.3 CLASS 3 -- OTHER SECURED CLAIMS.
(a) Impairment and Voting. Class 3 is unimpaired by the Plan. Each
holder of an Allowed Other Secured Claim is conclusively presumed to have
accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions/Reinstatement of Claims. Except to the extent that a
holder of an Allowed Other Secured Claim has been paid by the Debtor prior to
the Effective Date or agrees to a different treatment, each holder of an Allowed
Other Secured Claim shall, in full and complete settlement, satisfaction and
discharge of its Allowed Other Secured Claim, at the option of Reorganized
Sunbeam, (i) be reinstated and rendered unimpaired in accordance with section
1124 of the Bankruptcy Code, (ii) receive Cash in an amount equal to such
Allowed Other Secured Claim, including any interest on such Allowed Other
Secured Claim required to be paid pursuant to section 506(b) of the Bankruptcy
Code, on the later of the Effective Date and the date such Allowed Other Secured
Claim becomes an Allowed Other Secured Claim, or as soon thereafter as is
practicable or (iii) receive the Collateral securing its Allowed Other Secured
Claim and any interest on such Allowed Other Secured Claim required to be paid
pursuant to section 506(b) of the Bankruptcy Code, on the later of the Effective
Date and the date such Allowed Other Secured Claim becomes an Allowed Other
Secured Claim, or as soon thereafter as is practicable; provided, however, that
the Debtor must obtain the consent of the Banks in order to elect option (ii).
4.4 CLASS 4 -- SECURED BANK CLAIMS.
(a) Allowance. The Secured Bank Claims shall be deemed Allowed Claims
in the aggregate amount of [$1,665,000,000].
(b) Impairment and Voting. Class 4 is impaired by the Plan. Each holder
of an Allowed Secured Bank Claim is entitled to vote to accept or reject the
Plan.
(c) Distributions. On the Effective Date, each holder of an Allowed
Secured Bank Claim as of the Record Date shall receive in full and complete
settlement, satisfaction, release and discharge of its Allowed Secured Bank
Claim: (i) its Pro Rata Share of (A) 100% of the Reorganized Sunbeam Common
Stock, (B) $200,000,000 in principal amount of the New Term Debt and (C)
$600,000,000 in principal amount of the New Convertible Secured Notes; (ii)
cancellation without draw of any then outstanding letters of credit issued under
the Bank Credit Agreement; and (iii) the releases set forth in Section 11.4 of
the Plan. In addition, each holder of an Allowed Secured Bank Claim shall be
entitled to retain all amounts paid to it or on its behalf as adequate
protection or otherwise, and Reorganized Sunbeam will continue to pay the
professional fees of the holders of the Allowed Secured Bank Claims after the
Confirmation Date with respect to matters relating to the Plan or the Chapter 11
Case in accordance with the terms and conditions of the orders approving the
Post-Petition Credit Agreement.
4.5 CLASS 5 -- GENERAL UNSECURED CLAIMS
(a) Impairment and Voting. Class 5 is impaired by the Plan. Each holder
of an Allowed General Unsecured Claim is conclusively presumed to have rejected
the Plan as a holder of General Unsecured Claims and is not entitled to vote to
accept or reject the Plan.
(b) Distributions. The holder of General Unsecured Claims shall not
receive any distributions on account of such Claims. On the Effective Date, all
General Unsecured Claims shall be extinguished.
11
4.6 CLASS 6A -- SUBORDINATED NOTE CLAIMS
(a) Allowance. The Subordinated Note Claims shall be deemed Allowed
Claims solely for purposes of this Plan in the aggregate amount of
[$870,000,000].
(b) Impairment and Voting. Class 6A is impaired by the Plan. Each
holder of a Subordinated Note Claim is conclusively presumed to have rejected
the Plan as a holder of Subordinated Note Claims and is not entitled to vote to
accept or reject the Plan.
(c) Distributions. The holders of Subordinated Note Claims shall not
receive any distributions on account of such Claims. On the Effective Date, all
Subordinated Note Claims shall be extinguished.
4.7 CLASS 6B -- SUBORDINATED NOTEHOLDER SECURITIES CLAIMS
(a) Impairment and Voting. Class 6B is impaired by the Plan. Each
holder of a Subordinated Noteholder Securities Claim is conclusively presumed to
have rejected the Plan as a holder of Subordinated Noteholder Securities Claims
and is not entitled to vote to accept or reject the Plan.
(b) Distributions. In accordance with Section 5.2 of the Plan, the
holders of Subordinated Noteholder Securities Claims shall not receive any
distributions on account of such Claims.
4.8 CLASS 7 -- SUNBEAM AFFILIATE CLAIMS
(a) Impairment and Voting. Class 7 is unimpaired by the Plan. Each
holder of a Sunbeam Affiliate Claim is are conclusively presumed to have
accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions. Each holder of an Allowed Sunbeam Affiliate Claim
shall, in full and complete settlement, satisfaction and discharge of its
Allowed Sunbeam Affiliate Claim, be reinstated and rendered unimpaired in
accordance with section 1124 of the Bankruptcy Code
4.9 CLASS 8 -- PUNITIVE DAMAGE CLAIMS
(a) Impairment and Voting. Class 8 is impaired by the Plan. Each holder
of a Punitive Damage Claim is conclusively presumed to have rejected the Plan as
a holder of Punitive Damage Claims and is not entitled to vote to accept or
reject the Plan.
(b) Distributions. The holders of Punitive Damage Claims shall not
receive any distributions on account of such Claims.
4.10 CLASS 9A -- EQUITY INTERESTS
(a) Impairment and Voting. Class 9A is impaired by the Plan. Each
holder of an Equity Interest is conclusively presumed to have rejected the Plan
as a holder of Equity Interests and is not entitled to vote to accept or reject
the Plan.
(b) Distributions. The holders of Equity Interests shall not receive
any distributions on account of such Equity Interests. On the Effective Date,
all Equity Interests shall be extinguished.
12
4.11 CLASS 9B -- EQUITY HOLDER SECURITIES CLAIMS
(a) Impairment and Voting. Class 9B is impaired by the Plan. Each
holder of an Equity Holder Securities Claim is conclusively presumed to have
rejected the Plan as a holder of Equity Holder Securities Claims and is not
entitled to vote to accept or reject the Plan.
(b) Distributions. In accordance with Section 5.2 of the Plan, the
holders of Equity Holder Securities Claims shall not receive any distributions
on account of such Claims.
ARTICLE V
PROVISIONS REGARDING VOTING AND
DISTRIBUTIONS UNDER THE PLAN AND TREATMENT,
OF DISPUTED, CONTINGENT AND UNLIQUIDATED
ADMINISTRATIVE EXPENSE CLAIMS AND CLAIMS
5.1 Voting of Claims. Each holder of an Allowed Claim in an impaired
Class of Claims that is entitled to vote on the Plan pursuant to Article IV of
the Plan shall be entitled to vote separately to accept or reject the Plan as
provided in such order as is entered by the Bankruptcy Court establishing
procedures with respect to the solicitation and tabulation of votes to accept or
reject the Plan, or any other order or orders of the Bankruptcy Court.
5.2 Enforcement of Subordination of Securities Claims. The treatment of
the Subordinated Noteholder Securities Claims and Equity Holder Securities
Claims pursuant to the Plan is in accordance with and gives effect to the
provisions of section 510(b) of the Bankruptcy Code.
5.3 Elimination of Vacant Classes. Any Class of Claims that is not
occupied as of the date of commencement of the Confirmation Hearing by an
Allowed Claim or a Claim temporarily allowed under Bankruptcy Rule 3018 shall be
deemed eliminated from the Plan for purposes of voting to accept or reject the
Plan and for purposes of determining acceptance or rejection of the Plan by such
Class pursuant to section 1129(a)(8) of the Bankruptcy Code.
5.4 Nonconsensual Confirmation. If any impaired Class of Claims
entitled to vote shall not accept the Plan by the requisite statutory majorities
provided in section 1126(c) of the Bankruptcy Code, the Debtor reserves the
right to amend the Plan in accordance with Section 11.10 hereof or undertake to
have the Bankruptcy Court confirm the Plan under section 1129(b) of the
Bankruptcy Code or both. With respect to impaired Classes of Claims that are
deemed to reject the Plan, the Debtor shall request the Bankruptcy Court to
confirm the Plan under section 1129(b) of the Bankruptcy Code.
5.5 Method of Distributions Under the Plan.
(a) Disbursing Agent. All distributions under the Plan shall be made by
Reorganized Sunbeam as Disbursing Agent or such other entity designated by
Reorganized Sunbeam as Disbursing Agent. A Disbursing Agent shall not be
required to provide any bond, surety or other security for the performance of
its duties, unless otherwise ordered by the Bankruptcy Court; and, in the event
that a Disbursing Agent is so otherwise ordered, all costs and expenses of
procuring any such bond, surety or other security shall be borne by Reorganized
Sunbeam.
(b) Delivery of Distributions. Subject to Bankruptcy Rule 9010, all
distributions under the Plan shall be made to the holder of each Allowed Claim
at the address of such holder as listed on the Schedules as of the Record Date,
unless the Debtor or, on and after the Effective Date, Reorganized Sunbeam, has
been notified in writing of a change of address, including, without limitation,
by the filing of a timely proof of Claim by such holder that provides an address
for such holder different from the address reflected on the Schedules.
13
(c) Distributions of Cash. Any payment of Cash made by Reorganized
Sunbeam pursuant to the Plan shall, at Reorganized Sunbeam's option, be made by
check drawn on a domestic bank or wire transfer.
(d) Timing of Distributions. Any payment or distribution required to be
made under the Plan on a day other than a Business Day shall be made on the next
succeeding Business Day.
(e) Hart-Scott-Rodino Compliance. Any shares of Reorganized Sunbeam
Common Stock to be distributed under the Plan to any entity required to file a
Premerger Notification and Report Form under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, shall not be distributed until the
notification and waiting periods applicable under such Act to such entity shall
have expired or been terminated.
(f) Minimum Distributions. No payment of Cash less than one hundred
dollars shall be made by Reorganized Sunbeam to any holder of a Claim unless a
request therefor is made in writing to Reorganized Sunbeam.
(g) Fractional Shares. No fractional shares of Reorganized Sunbeam
Common Stock or Cash in lieu thereof, shall be distributed under the Plan. When
any distribution pursuant to the Plan would otherwise result in the issuance of
a number of shares of Reorganized Sunbeam Common Stock that is not a whole
number, the actual distribution of shares of Reorganized Sunbeam Common Stock
shall be rounded as follows: (i) fractions of 1/2 or greater shall be rounded to
the next higher whole number; and (ii) fractions of less than 1/2 shall be
rounded to the next lower whole number. The total number of shares of
Reorganized Sunbeam Common Stock to be distributed pursuant to the Plan shall be
adjusted as necessary to account for the rounding provided in this Section
5.4(g).
(h) Unclaimed Distributions. All distributions under the Plan that are
unclaimed for a period of one year after distribution thereof shall be deemed
unclaimed property under section 347(b) of the Bankruptcy Code and revested in
Reorganized Sunbeam and any entitlement of any holder of any Claim to such
distributions shall be extinguished and forever barred.
(i) Distributions to Holders as of the Record Date. As at the close of
business on the Record Date, the claims register shall be closed, and there
shall be no further changes in the record holder of any Claim. The Debtor and
Reorganized Sunbeam shall have no obligation to recognize any transfer of any
Claim occurring after the Record Date. The Debtor and Reorganized Sunbeam shall
instead be authorized and entitled to recognize and deal for all purposes under
the Plan with only those record holders stated on the claims register as of the
close of business on the Record Date.
5.6 Objections to and Resolution of Administrative Expense Claims and
Claims. Except as to applications for allowance of compensation and
reimbursement of expenses under sections 330 and 503 of the Bankruptcy Code,
Reorganized Sunbeam shall, on and after the Effective Date, have the exclusive
right to make and file objections to Administrative Expense Claims and Claims.
On and after the Effective Date, Reorganized Sunbeam shall have the authority to
compromise, settle, otherwise resolve or withdraw any objections to
Administrative Expense Claims and Claims and compromise, settle or otherwise
resolve Disputed Administrative Expense Claims and Disputed Claims without
approval of the Bankruptcy Court. Unless otherwise ordered by the Bankruptcy
Court, the Debtor and, on and after the Effective Date, Reorganized Sunbeam,
shall file all objections to Administrative Expense Claims that are the subject
of proofs of claim or requests for payment filed with the Bankruptcy Court
(other than applications for allowances of compensation and reimbursement of
expenses) and Claims and serve such objections upon the holder of the
Administrative Expense Claim or Claim as to which the objection is made as soon
as is practicable, but in no event later than 90 days after the Effective Date
or such later date as may be approved by the Bankruptcy Court.
14
5.7 Cancellation of Existing Securities and Agreements. On the
Effective Date, the promissory notes, share certificates, option agreements,
bonds and any and all other instruments or documents evidencing any Claim or
Equity Interest, other than an Other Secured Claim or a Sunbeam Affiliate Claim
that is reinstated and rendered unimpaired pursuant to Sections 4.3 and 4.7 of
the Plan, respectively, shall be deemed cancelled without further act or action
under any applicable agreement, law, regulation, order or rule and the
obligations of the Debtor under the agreements, indentures and certificates of
designations governing such Claims and Equity Interests, as the case may be,
shall be discharged.
5.8 Registration of New Common Stock. Each holder of Allowed Secured
Bank Claims receiving a distribution of Reorganized Sunbeam Common Stock
pursuant to the Plan shall automatically become a party to the Registration
Rights Agreement.
5.9 Shareholders Agreement. Each holder of Allowed Secured Bank Claims
receiving a distribution of Reorganized Sunbeam Common Stock pursuant to the
Plan shall automatically become a party to the Shareholders Agreement.
ARTICLE VI
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
6.1 Assumption or Rejection of Executory Contracts and Unexpired
Leases.
(a) Executory Contracts and Unexpired Leases. Pursuant to sections
365(a) and 1123(b)(2) of the Bankruptcy Code, all executory contracts and
unexpired leases that exist between the Debtor and any Person or Entity shall be
deemed assumed by the Debtor as of the Effective Date, except for any executory
contract or unexpired lease (i) that has been rejected pursuant to an order of
the Bankruptcy Court entered prior to the Confirmation Date, (ii) as to which a
motion for approval of the rejection of such executory contract or unexpired
lease has been filed and served prior to the Confirmation Date or (iii) that is
set forth in Schedule 6.1(a)(x) (executory contracts) or Schedule 6.1(a)(y)
(unexpired leases), which Schedules shall be included in the Plan Supplement;
provided, however, that the Debtor reserves the right, on or prior to the
Confirmation Date, to amend Schedules 6.1(a)(x) or 6.1(a)(y) to delete any
executory contract or unexpired lease therefrom or add any executory contract or
unexpired lease thereto, in which event such executory contract(s) or unexpired
lease(s) shall be deemed to be, respectively, assumed by the Debtor or rejected.
The Debtor shall provide notice of any amendments to Schedules 6.1(a)(x) or
6.1(a)(y) to the parties to the executory contracts and unexpired leases
affected thereby. The listing of a document on Schedules 6.1(a)(x) and 6.1(a)(y)
shall not constitute an admission by the Debtor that such document is an
executory contract or an unexpired lease or that the Debtor has any liability
thereunder.
(b) Schedules of Rejected Executory Contracts and Unexpired Leases;
Inclusiveness. Each executory contract and unexpired lease listed or to be
listed on Schedules 6.1(a)(x) or 6.1(a)(y) that relates to the use or occupancy
of real property shall include (i) modifications, amendments, supplements,
restatements, or other agreements made directly or indirectly by any agreement,
instrument, or other document that in any manner affects such executory contract
or unexpired lease, without regard to whether such agreement, instrument or
other document is listed on Schedules 6.1(a)(x) or 6.1(a)(y) and (ii) executory
contracts or unexpired leases appurtenant to the premises listed on Schedules
6.1(a)(x) or 6.1(a)(y), including, without limitation, all easements, licenses,
permits, rights, privileges, immunities, options, rights of first refusal,
powers, uses, usufructs, reciprocal easement agreements, vault, tunnel or bridge
agreements or franchises, and any other interests in real estate or rights in
rem relating to such premises to the extent any of the foregoing are executory
contracts or unexpired leases, unless any of the foregoing agreements previously
has been assumed or assumed and assigned by the Debtor.
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(c) Insurance Policies. All of the Debtor's insurance policies and any
agreements, documents or instruments relating thereto, are treated as executory
contracts under the Plan. Notwithstanding the foregoing, distributions under the
Plan to any holder of an Insured Claim shall be in accordance with the treatment
provided under Article IV and Section 4.5 of the Plan. Nothing contained in this
Section 6.1(c) shall constitute or be deemed a waiver of any Cause of Action
that the Debtor may hold against any entity, including, without limitation, the
insurer under any of the Debtor's policies of insurance.
(d) Approval of Assumption, Assumption and Assignment or Rejection of
Executory Contracts and Unexpired Leases. Entry of the Confirmation Order shall,
subject to and upon the occurrence of the Effective Date, constitute (i) the
approval, pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of
the assumption of the executory contracts and unexpired leases assumed pursuant
to Section 6.1(a) hereof, (ii) the extension of time, pursuant to section
365(d)(4) of the Bankruptcy Code, within which the Debtor may assume, assume and
assign or reject the unexpired leases specified in Section 6.1(a) hereof through
the date of entry of an order approving the assumption, assumption and
assignment or rejection of such unexpired leases and (iii) the approval,
pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the
rejection of the executory contracts and unexpired leases rejected pursuant to
Section 6.1(a) hereof.
(e) Cure of Defaults. Except as may otherwise be agreed to by the
parties, within 30 days after the Effective Date, Reorganized Sunbeam shall cure
any and all undisputed defaults under any executory contract or unexpired lease
assumed by the Debtor pursuant to Section 6.1(a) hereof, in accordance with
section 365(b)(1) of the Bankruptcy Code. All disputed defaults that are
required to be cured shall be cured either within 30 days of the entry of a
Final Order determining the amount, if any, of Reorganized Sunbeam's liability
with respect thereto, or as may otherwise be agreed to by the parties.
(f) Bar Date for Filing Proofs of Claim Relating to Executory Contracts
and Unexpired Leases Rejected Pursuant to the Plan. Claims arising out of the
rejection of an executory contract or unexpired lease pursuant to Section 6.1 of
the Plan must be filed with the Bankruptcy Court and served upon the Debtor or,
on and after the Effective Date, Reorganized Sunbeam, by no later than 30 days
after the later of (i) notice of entry of an order approving the rejection of
such executory contract or unexpired lease, (ii) notice of entry of the
Confirmation Order and (iii) notice of an amendment to Schedule 6.1(a)(x) or
6.1(a)(y). All such Claims not filed within such time will be forever barred
from assertion against the Debtor and its estate and Reorganized Sunbeam and its
property.
(g) Assumed Indemnification Obligations. Entry of the Confirmation
Order shall, subject to and upon the occurrence of the Effective Date,
constitute the approval, pursuant to sections 365(a) and 1123(b)(2) of the
Bankruptcy Code, of the assumption of the Assumed Indemnification Claims. The
Assumed Indemnification Claims shall, in all respects, irrespective of whether
such obligations arise under contracts or executory contracts, survive
confirmation of the Plan, remain unaffected thereby, and not be discharged
irrespective of whether indemnification, defense, reimbursement or limitation is
owed in connection with an event occurring before, on or after the Commencement
Date.
(h) Compensation and Benefit Programs. Except as provided in Section
6.1(a) of the Plan, all savings plans, retirement plans, health care plans,
severance plans, performance-based incentive plans, retention plans, workers'
compensation programs and life, disability, directors and officers liability and
other insurance and similar plans are treated as executory contracts under the
Plan and shall, on the Effective Date, be deemed assumed by the Debtor in
accordance with sections 365(a) and 1123(b)(2) of the Bankruptcy Code.
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6.2 Retiree Benefits. Payments, if any, due to any Person for the
purpose of providing or reimbursing payments for retired employees and their
spouses and dependents for medical, surgical, or hospital care benefits, or
benefits in the event of sickness, accident, disability, or death under any
plan, fund, or program (through the purchase of insurance or otherwise)
maintained or established in whole or in part by the Debtor prior to the
Commencement Date shall be continued for the duration of the period the Debtor
has obligated itself to provide such benefits.
ARTICLE VII
IMPLEMENTATION OF THE PLAN
7.1 General. On the Effective Date, the management, control and
operation of Reorganized Sunbeam shall become the general responsibility of the
Board of Directors of Reorganized Sunbeam.
7.2 Dismissal of Derivative Securities Litigation Claims. The
Derivative Securities Litigation Claims are property of the estate of the Debtor
pursuant to section 541 of the Bankruptcy Code. For good and valuable
consideration, including the benefits of the Plan, and to facilitate expeditious
and effective reorganization of the Debtor, on or after the Effective Date, all
Derivative Securities Litigation Claims shall be dismissed with prejudice and
Reorganized Sunbeam shall be entitled to effect any actions which may be
necessary or appropriate, and to execute, deliver and file in all courts in
which the Derivative Securities Litigation Claims are pending, all documents and
instruments, including, without limitation, stipulations of dismissal of the
Derivative Securities Litigation Claims, to fully implement and effect the
dismissal of the Derivative Securities Litigation Claims. The Confirmation Order
shall provide that all named plaintiffs, including certified and uncertified
classes of plaintiffs, in the actions currently pending relating to the
Derivative Securities Litigation Claims and their respective servants, agents,
attorneys and representatives shall, on and after the Effective Date, be
permanently enjoined, stayed and restrained from pursuing or prosecuting any of
the Derivative Securities Litigation Claims.
7.3 Directors and Officers of Reorganized Sunbeam.
(a) Board of Directors. The initial Board of Directors of Reorganized
Sunbeam shall consist of a number of individuals to be selected by the Banks and
one of whom shall be the Chief Executive Officer and Chairman of the Board of
Directors of Reorganized Sunbeam. The names of the members of the initial Board
of Directors of Reorganized Sunbeam shall be disclosed prior to the date of the
Confirmation Hearing. Each of the members of such initial Board of Directors
shall serve in accordance with the Reorganized Sunbeam Certificate of
Incorporation or Reorganized Sunbeam By-laws, as the same may be amended from
time to time.
(b) Officers. The officers of the Debtor immediately prior to the
Effective Date shall serve as the initial officers of Reorganized Sunbeam on and
after the Effective Date. Such officers shall serve in accordance with any
employment agreement with Reorganized Sunbeam and applicable nonbankruptcy law.
7.4 By-laws and Certificates of Incorporation. The Reorganized Sunbeam
By-laws and the Reorganized Sunbeam Certificate of Incorporation shall contain
provisions necessary (a) to prohibit the issuance of nonvoting equity securities
as required by section 1123(a)(6) of the Bankruptcy Code, subject to further
amendment of such certificates of incorporation and by-laws as permitted by
applicable law and (b) to effectuate the provisions of the Plan.
7.5 Issuance of New Securities. The issuance of the following
securities by Reorganized Sunbeam is hereby authorized without further act or
action under applicable law, regulation, order or rule:
(a) the Reorganized Sunbeam Common Stock; and
(b) the Employee Options.
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7.6 Reorganized Sunbeam Stock Option Plan. Prior to the Effective Date,
and subject to the separate affirmative vote of the holders of Allowed Secured
Bank Claims in Class 4, which holders will receive, in the aggregate, 100% of
the shares of Reorganized Sunbeam Common Stock to be issued under the Plan,
Reorganized Sunbeam shall adopt the Reorganized Sunbeam Stock Option Plan.
Pursuant to the terms and subject to the conditions of the Reorganized Sunbeam
Stock Option Plan, Reorganized Sunbeam shall, on the Effective Date, issue to
certain of its employees options to purchase in the aggregate approximately 11%
of the outstanding shares of Reorganized Sunbeam Common Stock on a fully diluted
basis (the "Employee Options").
7.7 Performance/Retention Bonuses. Pursuant to an order entered on
February 6, 2001, the Bankruptcy Court authorized the payment of Cash
performance/retention bonuses to certain members of management and other
employees of the Debtor, to be paid during the Debtor's chapter 11 cases and
upon the Debtor's emergence from chapter 11 (the "Performance Bonus Order").
Pursuant to the Performance Bonus Order, and in recognition of the services
provided by such members of management and other employees of the Debtor prior
to and during the pendency of the Chapter 11 Case, on the Effective Date, the
members of management and other employees identified in the Performance Bonus
Order shall receive payment of the Cash performance bonuses in the amounts and
on the terms and subject to the conditions set forth in the Performance Bonus
Order.
ARTICLE VIII
EFFECT OF CONFIRMATION OF PLAN
8.1 Term of Bankruptcy Injunction or Stays. Unless otherwise provided,
all injunctions or stays provided for in the Chapter 11 Case under section 105
or 362 of the Bankruptcy Code, or otherwise, and in existence on the
Confirmation Date, shall remain in full force and effect until the Effective
Date.
8.2 Revesting of Assets.
(a) On the Effective Date, except as otherwise provided for in the
Plan, the property of the estate of the Debtor shall vest in Reorganized
Sunbeam.
(b) From and after the Effective Date, Reorganized Sunbeam may operate
its businesses, and may use, acquire and dispose of property free of any
restrictions imposed under the Bankruptcy Code.
(c) As of the Effective Date, all property of Reorganized Sunbeam shall
be free and clear of all liens, claims and interests of holders of Claims and
Equity Interests, except as otherwise provided in the Plan.
8.3 Claims Extinguished. As of the Effective Date, any and all
avoidance claims accruing to the Debtor and Debtor in Possession under sections
502(d), 544, 545, 547, 548, 549, 550 and 551 of the Bankruptcy Code and not then
pending, shall be extinguished.
8.4 Discharge of Debtor. The rights afforded herein and the treatment
of all Claims and Equity Interests herein shall be in exchange for and in
complete satisfaction, discharge and release of Claims and Equity Interests of
any nature whatsoever, including any interest accrued on such Claims from and
after the Commencement Date, against the Debtor and the Debtor in Possession, or
any of their assets or properties. Except as otherwise provided herein, (a) on
the Effective Date, all such Claims against and Equity Interests in the Debtor
shall be satisfied, discharged and released in full and (b) all Persons shall be
precluded from asserting against Reorganized Sunbeam, its successors, or its
assets or properties any other or further Claims or Equity Interests based upon
any act or omission, transaction or other activity of any kind or nature that
occurred prior to the Confirmation Date.
18
8.5 Injunction. Except as otherwise expressly provided in the Plan, the
Confirmation Order or a separate order of the Bankruptcy Court, all entities who
have held, hold or may hold Claims against or Equity Interests in the Debtor,
are permanently enjoined, on and after the Effective Date, from (a) commencing
or continuing in any manner any action or other proceeding of any kind with
respect to any such Claim or Equity Interest, (b) the enforcement, attachment,
collection or recovery by any manner or means of any judgment, award, decree or
order against the Debtor on account of any such Claim or Equity Interest, (c)
creating, perfecting or enforcing any encumbrance of any kind against the Debtor
or against the property or interests in property of the Debtor on account of any
such Claim or Equity Interest, (d) asserting any right of setoff, subrogation or
recoupment of any kind against any obligation due from the Debtor or against the
property or interests in property of the Debtor on account of any such Claim or
Equity Interest and (e) commencing or continuing in any manner any action or
other proceeding of any kind with respect to any claims and Causes of Action
which are extinguished, dismissed or released pursuant to the Plan. Such
injunction shall extend to successors of the Debtor, including, without
limitation, Reorganized Sunbeam and its properties and interests in property.
ARTICLE IX
CONFIRMATION AND EFFECTIVENESS OF THE PLAN
9.1 Conditions Precedent to Confirmation. The Plan shall not be
confirmed by the Bankruptcy Court unless and until the following conditions
shall have been satisfied or waived pursuant to Section 9.4 of the Plan:
(a) The Class of holders of Secured Bank Claims (Class 4) shall have
voted to accept the Plan by the requisite statutory majorities provided in
section 1126(c) of the Bankruptcy Code;
(b) The class of Bank claims in the Subsidiaries Plan shall have voted
to accept the Subsidiaries Plan by the requisite statutory majorities provided
in section 1126(c) of the Bankruptcy Code;
(c) All exhibits to the Plan and the Subsidiaries Plan, including those
contained in the Plan Supplement, shall be in form and substance acceptable to
the Banks;
(d) No default or event of default under the Postpetition Revolving
Credit and Guarantee Agreement shall have occurred and be continuing;
(e) No default or event of default under the postpetition receivables
program provided by GECC or the documents related thereto shall have occurred
and be continuing, the postpetition receivables program provided by GECC shall
be in full force and effect, and no reduction in the availability under the
postpetition receivables program provided by GECC shall have occurred;
(f) GECC shall have agreed to continue the postpetition receivables
program after the effectiveness of the Subsidiaries Plan on terms acceptable to
the Banks and the Debtor, or another receivables financing source, acceptable to
the Banks and the Debtor, shall have agreed to provide receivables financing to
the domestic Sunbeam Affiliates that have commenced chapter 11 cases after the
effectiveness of the Subsidiaries Plan, on terms acceptable to the Banks and the
Debtor;
(g) No material adverse effect on the business, assets, operations,
property, condition (financial or otherwise) of Sunbeam Corporation or any of
its subsidiaries (other than inactive subsidiaries) shall have occurred and be
continuing;
(h) No material unanticipated claims shall have been filed or asserted
in Sunbeam Corporation's Chapter 11 Cases or the chapter 11 cases of the
domestic Sunbeam Affiliates that have commenced chapter 11 cases in the
Bankruptcy Court; and
19
(i) One or more financial institutions acceptable to the Banks and the
Debtor shall have agreed to provide a working capital credit facility to Sunbeam
Corporation and the domestic Sunbeam Affiliates that have commenced chapter 11
cases after the effectiveness of the Plan and the Subsidiaries Plan, on terms
acceptable to the Banks and the Debtor.
9.2 Conditions Precedent to Effectiveness. The Plan shall not become
effective unless and until the following conditions shall have been satisfied or
waived pursuant to Section 9.4 of the Plan:
(a) The order confirming the Subsidiaries Plan, in form and substance
acceptable to the Debtor and the Banks, shall have been signed by the Bankruptcy
Court on or before June 15, 2001, and shall have become a Final Order;
(b) the Confirmation Order, in form and substance acceptable to the
Debtor and the Banks, shall have been signed by the Bankruptcy Court on or
before June 15, 2001, and shall have become a Final Order;
(c) the Effective Date shall have occurred on or before July 1, 2001;
(d) the Debtor shall have at least [$________] in Cash as of the
Effective Date, after giving effect to the distributions of Cash projected to be
made under the Plan;
(e) One or more financial institutions acceptable to the Banks and the
Debtor shall have agreed to provide a working capital credit facility to Sunbeam
Corporation and the domestic Sunbeam Affiliates that have commenced chapter 11
cases after the effectiveness of the Plan and the Subsidiaries Plan, on terms
acceptable to the Banks and the Debtor;
(f) all actions, documents and agreements necessary to implement the
Plan shall have been effected or executed;
(g) the Debtor shall have received all authorizations, consents,
regulatory approvals, rulings, letters, no-action letters, opinions or documents
that are determined by the Debtor to be necessary to implement the Plan; and
(h) each of the Reorganized Sunbeam Certificate of Incorporation, the
Reorganized Sunbeam By-laws, the Reorganized Sunbeam Stock Option Plan, the
Registration Rights Agreement and the Shareholders Agreement, in form and
substance acceptable to the Debtor and the Banks, shall have been effected or
executed.
9.3 Effect of Failure of Conditions. In the event that one or more of
the conditions specified in Section 9.1 of the Plan have not occurred on or
before 60 days after the Confirmation Date, (a) the Confirmation Order shall be
vacated, (b) no distributions under the Plan shall be made, (c) the Debtor and
all holders of Claims and Equity Interests shall be restored to the status quo
ante as of the day immediately preceding the Confirmation Date as though the
Confirmation Date never occurred and (d) the Debtor's obligations with respect
to Claims and Equity Interests shall remain unchanged and nothing contained
herein shall constitute or be deemed a waiver or release of any Claims or Equity
Interests by or against the Debtor or any other Person or Entity or to prejudice
in any manner the rights of the Debtor or any Person or Entity in any further
proceedings involving the Debtor.
9.4 Waiver of Conditions. The Debtor may waive, with the consent of the
Banks, by a writing signed by an authorized representative of the Debtor and
subsequently filed with the Bankruptcy Court, one or more of the conditions
precedent set forth in Sections 9.1 and 9.2 of the Plan (other than the
conditions set forth in Section 9.1(a), 9.1(b), 9.2(a) (except as to timing and
finality) and 9.2(b) (except as to timing and finality)).
20
ARTICLE X
RETENTION OF JURISDICTION
The Bankruptcy Court shall have exclusive jurisdiction of all matters
arising out of, and related to, the Chapter 11 Case and the Plan pursuant to,
and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code and
for, among other things, the following purposes:
(a) To hear and determine pending applications for the assumption or
rejection of executory contracts or unexpired leases, if any are pending, and
the allowance of cure amounts and Claims resulting therefrom;
(b) To hear and determine any and all adversary proceedings,
applications and contested matters;
(c) To hear and determine any objection to Administrative Expense
Claims or Claims;
(d) To enter and implement such orders as may be appropriate in the
event the Confirmation Order is for any reason stayed, revoked, modified or
vacated;
(e) To issue such orders in aid of execution and consummation of the
Plan, to the extent authorized by section 1142 of the Bankruptcy Code;
(f) To consider any amendments to or modifications of the Plan, to cure
any defect or omission, or reconcile any inconsistency in any order of the
Bankruptcy Court, including, without limitation, the Confirmation Order;
(g) To hear and determine all applications for compensation and
reimbursement of expenses of professionals under sections 330, 331 and 503(b) of
the Bankruptcy Code;
(h) To hear and determine disputes arising in connection with the
interpretation, implementation or enforcement of the Plan;
(i) To recover all assets of the Debtor and property of the Debtor's
estate, wherever located;
(j) To hear and determine matters concerning state, local and federal
taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy Code;
(k) To hear any other matter not inconsistent with the Bankruptcy Code;
and
(l) To enter a final decree closing the Chapter 11 Case.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Effectuating Documents and Further Transactions. The Debtor and
Reorganized Sunbeam are authorized to execute, deliver, file or record such
contracts, instruments, releases, indentures and other agreements or documents
and take such actions as may be necessary or appropriate to effectuate and
further evidence the terms and conditions of the Plan and any securities issued
pursuant to the Plan.
21
11.2 Corporate Action. On the Effective Date, all matters provided for
under the Plan that would otherwise require approval of the stockholders or
directors of the Debtor or Reorganized Sunbeam, including, without limitation,
the authorization to issue or cause to be issued Reorganized Sunbeam Common
Stock, New Convertible Secured Notes and Employee Options, the effectiveness of
the Reorganized Sunbeam Certificate of Incorporation, the Reorganized Sunbeam
By-laws, the Registration Rights Agreement, the Shareholders Agreement, the New
Convertible Secured Notes Agreement, the election or appointment, as the case
may be, of directors and officers of Reorganized Sunbeam pursuant to the Plan
and the authorization and approval of the Reorganized Sunbeam Stock Option Plan,
shall be deemed to have occurred and shall be in effect from and after the
Effective Date pursuant to the applicable general corporation law of Delaware,
the state in which the Debtor and Reorganized Sunbeam are incorporated, without
any requirement of further action by the stockholders or directors of the Debtor
or Reorganized Sunbeam. On the Effective Date, or as soon thereafter as is
practicable, Reorganized Sunbeam shall, if required, file its amended
certificate of incorporation with the Secretary of State of Delaware, in
accordance with the applicable general corporation law of Delaware.
11.3 Exemption from Transfer Taxes. Pursuant to section 1146(c) of the
Bankruptcy Code, the issuance, transfer or exchange of notes or issuance of debt
or equity securities under the Plan, the creation of any mortgage, deed of trust
or other security interest, the making or assignment of any lease or sublease,
or the making or delivery of any deed or other instrument of transfer under, in
furtherance of, or in connection with the Plan, including, without limitation,
any merger agreements or agreements of consolidation, deeds, bills of sale or
assignments executed in connection with any of the transactions contemplated
under the Plan, shall not be subject to any stamp, real estate transfer,
mortgage recording or other similar tax. All sale transactions consummated by
the Debtor and approved by the Bankruptcy Court on and after the Commencement
Date through and including the Effective Date, including, without limitation,
the sales, if any, by the Debtor of owned property or assets pursuant to section
363(b) of the Bankruptcy Code and the assumptions, assignments and sales, if
any, by the Debtor of unexpired leases of non-residential real property pursuant
to section 365(a) of the Bankruptcy Code, shall be deemed to have been made
under, in furtherance of, or in connection with the Plan and, therefore, shall
not be subject to any stamp, real estate transfer, mortgage recording or other
similar tax.
11.4 Limited Releases of Releasees. As of the Effective Date, the
Debtor and the Debtor in Possession releases all of the Releasees from any and
all Causes of Action held by, assertable on behalf of or derivative from the
Debtor or the Debtor in Possession, in any way relating to the Debtor, the
Debtor in Possession, the Chapter 11 Case, the Plan, negotiations regarding or
concerning the Plan and the ownership, management and operation of the Debtor;
provided, however, that the foregoing shall not operate as a waiver of or
release from any Causes of Action arising out of any express contractual
obligation owing by any former director, officer or employee to the Debtor or
any reimbursement obligation of any former director, officer or employee with
respect to a loan or advance made by the Debtor to such former director, officer
or employee.
11.5 Limited Release by Releasees. Except as otherwise provided under
the Plan, as of the Effective Date, each of the Releasees, in any capacity,
generally releases the Debtor and the Debtor in Possession, in each case in any
capacity, from any and all Causes of Action held by, assertable on behalf of or
derivative from such Releasee, in any way relating to the Debtor, the Debtor in
Possession, the Chapter 11 Case, the Plan, negotiations regarding or concerning
the Plan and the ownership, management and operation of the Debtor.
11.6 Exculpation. None of the Debtor, Reorganized Sunbeam, the
Committee, the Banks, the Post-Petition Banks or GECC or any of their respective
members, officers, directors, employees, advisors, professionals or agents shall
have or incur any liability to any holder of a Claim or Equity Interest for any
act or omission in connection with, related to, or arising out of, the Chapter
11 Case, negotiations regarding or concerning the Plan, the pursuit of
confirmation of the Plan, the consummation of the Plan or the administration of
the Plan or the property to be distributed under the Plan, except for willful
misconduct or gross negligence, and, in all respects, the Debtor, Reorganized
Sunbeam, the Committee, the Banks, the Post-Petition Banks and GECC and each of
their respective members, officers, directors, employees, advisors,
professionals and agents shall be entitled to rely upon the advice of counsel
with respect to their duties and responsibilities under the Plan.
22
11.7 Termination of Committee. The appointment of the Committee shall
terminate on the Effective Date.
11.8 Post-Effective Date Fees and Expenses. From and after the
Effective Date, Reorganized Sunbeam shall, in the ordinary course of business
and without the necessity for any approval by the Bankruptcy Court, pay the
reasonable fees and expenses of professional persons thereafter incurred by
Reorganized Sunbeam, including, without limitation, those fees and expenses
incurred in connection with the implementation and consummation of the Plan.
11.9 Payment of Statutory Fees. All fees payable pursuant to section
1930 of title 28 of the United States Code, as determined by the Bankruptcy
Court at the Confirmation Hearing, shall be paid on the Effective Date.
11.10 Amendment or Modification of the Plan. Alterations, amendments or
modifications of or to the Plan may be proposed in writing by the Debtor at any
time prior to the Confirmation Date, provided that the Plan, as altered, amended
or modified, satisfies the conditions of sections 1122 and 1123 of the
Bankruptcy Code, and the Debtor shall have complied with section 1125 of the
Bankruptcy Code. Subject to obtaining the approval of the Banks, the Plan may be
altered, amended or modified by the Debtors at any time after the Confirmation
Date and before substantial consummation, provided that the Plan, as altered,
amended or modified, satisfies the requirements of sections 1122 and 1123 of the
Bankruptcy Code and the Bankruptcy Court, after notice and a hearing, confirms
the Plan, as altered, amended or modified, under section 1129 of the Bankruptcy
Code and the circumstances warrant such alterations, amendments or
modifications. A holder of a Claim that has accepted the Plan shall be deemed to
have accepted the Plan, as altered, amended or modified, if the proposed
alteration, amendment or modification does not materially and adversely change
the treatment of the Claim of such holder.
11.11 Severability. In the event that the Bankruptcy Court determines
that any provision in the Plan is invalid, void or unenforceable, such provision
shall be invalid, void or unenforceable with respect to the holder or holders of
such Claims or Equity Interests as to which the provision is determined to be
invalid, void or unenforceable. The invalidity, voidness or unenforceability of
any such provision shall in no way limit or affect the enforceability and
operative effect of any other provision of the Plan.
11.12 Revocation or Withdrawal of the Plan. Subject to obtaining the
approval of the Banks, the Debtor reserves the right to revoke or withdraw the
Plan prior to the Confirmation Date. If the Debtor revokes or withdraws the Plan
prior to the Confirmation Date, then the Plan shall be deemed null and void. In
such event, nothing contained herein shall constitute or be deemed a waiver or
release of any claims by or against the Debtor or any other Person or Entity or
to prejudice in any manner the rights of the Debtor or any Person or Entity in
any further proceedings involving the Debtor.
11.13 Binding Effect. The Plan shall be binding upon and inure to the
benefit of the Debtor, the holders of Claims and Equity Interests and their
respective successors and assigns, including, without limitation, Reorganized
Sunbeam.
23
11.14 Notices. All notices, requests and demands to or upon the Debtor
or, on and after the Effective Date, Reorganized Sunbeam, to be effective shall
be in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when actually delivered or, in the case of
notice by facsimile transmission, when received and telephonically confirmed,
addressed as follows:
If to the Debtor or Reorganized Sunbeam:
Sunbeam Corporation
2381 Executive Center Road
Boca Raton, Florida 33431
Attn: General Counsel
Telephone: (561) 912-4438
Facsimile: (561) 912-4612
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: Lori R. Fife, Esq.
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
If to the Banks:
Wachtell, Lipton, Rosen & Katz
51 West 52d Street
New York, New York 10019
Attn: Chaim J. Fortgang
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attn: Steven M. Fuhrman, Esq.
If to the Committee:
[---------------------------
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11.15 Governing Law. Except to the extent the Bankruptcy Code,
Bankruptcy Rules or other federal law is applicable, or to the extent an exhibit
to the Plan provides otherwise, the rights and obligations arising under this
Plan shall be governed by, and construed and enforced in accordance with, the
laws of the State of New York, without giving effect to the principles of
conflicts of law of such jurisdiction.
11.16 Withholding and Reporting Requirements. In connection with the
consummation of the Plan, the Debtor or Reorganized Sunbeam, as the case may be,
shall comply with all withholding and reporting requirements imposed by any
federal, state, local or foreign taxing authority and all distributions
hereunder shall be subject to any such withholding and reporting requirements.
24
11.17 Plan Supplement. The Reorganized Sunbeam Certificate of
Incorporation, the Reorganized Sunbeam By-laws, the agreement governing the New
Term Debt, the New Convertible Secured Notes, the New Convertible Secured Notes
Agreement, Schedules 6.1(a)(x) and 6.1(a)(y) referred to in Section 6.1 of the
Plan, the Registration Rights Agreement, the Shareholders Agreement and the
Reorganized Sunbeam Stock Option Plan, shall be contained in the Plan Supplement
and filed with the Clerk of the Bankruptcy Court at least 10 days prior to the
last day upon which holders of Claims may vote to accept or reject the Plan.
Upon its filing with the Bankruptcy Court, the Plan Supplement may be inspected
in the office of the Clerk of the Bankruptcy Court during normal court hours.
Holders of Claims or Equity Interests may obtain a copy of the Plan Supplement
upon written request to the Debtor in accordance with Section 11.14 of the Plan.
11.18 Allocation of Plan Distributions. All distributions in respect of
Allowed Claims will be allocated first to the original principal amount of such
Claims (as determined for federal income tax purposes), with any excess
allocated to the remaining portion of such Claims.
11.19 Headings. Headings are used in the Plan for convenience and
reference only, and shall not constitute a part of the Plan for any other
purpose.
11.20 Exhibits/Schedules. All exhibits and schedules to the Plan,
including the Plan Supplement, are incorporated into and are a part of the Plan
as if set forth in full herein.
11.21 Filing of Additional Documents. On or before substantial
consummation of the Plan, the Debtor shall file with the Bankruptcy Court such
agreements and other documents as may be necessary or appropriate to effectuate
and further evidence the terms and conditions of the Plan.
Dated: New York, New York
February 6, 2001
SUNBEAM CORPORATION
By: /s/ Jerry W. Levin
______________________________________
Name: Jerry W. Levin
Title: Chairman and Chief Executive Officer
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