Exhibit 2.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
EXIDE TECHNOLOGIES, et al.,/1/ )
) Case No. 02-11125 (KJC)
) (Jointly Administered)
Debtors. )
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SECOND AMENDED DISCLOSURE STATEMENT
FOR DEBTORS' THIRD AMENDED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
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IMPORTANT DATES
. Date by which Ballots must be received: October 7, 2003
. Date by which objections to Confirmation of the Plan must be filed and
served: October 7, 2003
. Hearing on Confirmation of the Plan: October 21, 2003
Matthew N. Kleiman Laura Davis Jones
Jason D. Horwitz James E. O'Neill
Ross M. Kwasteniet Kathleen Marshall DePhillips
KIRKLAND & ELLIS LLP PACHULSKI, STANG, ZIEHL,
200 East Randolph Drive YOUNG, JONES & WEINTRAUB
Chicago, Illinois 60601 919 North Market Street
(312) 861-2000 P.O. Box 8705
Wilmington, Delaware 19899
Counsel for the Debtors and (302) 652-4100
Debtors in Possession
Counsel for the Debtors and
Debtors in Possession
Dated: September 8, 2003
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/1/ The Debtors in these proceedings are: Exide Technologies f/k/a Exide
Corporation; Exide Delaware, L.L.C.; Exide Illinois, Inc.; RBD Liquidation,
L.L.C.; Dixie Metals Company; and Refined Metals Corporation.
THE SECURITIES DESCRIBED HEREIN WILL BE ISSUED WITHOUT REGISTRATION UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY SIMILAR FEDERAL, STATE OR LOCAL LAW, GENERALLY IN RELIANCE ON THE EXEMPTIONS
SET FORTH IN SECTION 1145 OF THE BANKRUPTCY CODE.
THIS DISCLOSURE STATEMENT HAS NOT BEEN APPROVED OR DISAPPROVED BY THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THE STATEMENTS CONTAINED HEREIN.
FOR NON U.S. HOLDERS ONLY: THE DISTRIBUTION OF THIS DISCLOSURE STATEMENT
AND THE ISSUE OR TAKING UP OF THE SECURITIES DESCRIBED IN THIS DISCLOSURE
STATEMENT MAY BE RESTRICTED BY LAW IN CERTAIN JURISDICTIONS OUTSIDE THE UNITED
STATES. IN AN EFFORT TO COMPLY WITH LOCAL JURISDICTIONAL REQUIREMENTS GOVERNING
THE OFFER AND ISSUANCE OF SECURITIES, DEBTORS HAVE MADE REASONABLE EFFORTS TO
ASCERTAIN THE JURISDICTIONS WHERE DEBTORS' SECURITIES AND OTHER CLAIMS ARE
CURRENTLY HELD AND IN WHICH THE SECURITIES OF REORGANIZED DEBTORS WILL BE HELD
AFTER THE EFFECTIVE DATE. DEBTORS BELIEVE THAT THE AUTOMATIC ISSUANCE OF NEW
EXIDE PREFERRED STOCK AND NEW EXIDE COMMON STOCK PURSUANT TO THE PLAN SHOULD
QUALIFY FOR A PRIVATE PLACEMENT EXEMPTION FROM APPLICABLE LOCAL OFFERING
REQUIREMENTS ON THE BASIS OF THE CHARACTERISTICS OF THE SECURITY HOLDERS, THE
NATURE AND AMOUNT OF THE SECURITIES HELD, OR OTHER SALIENT FACTS REGARDING THE
SECURITIES AND SECURITY HOLDERS IN EACH RELEVANT JURISDICTION. NO ACTION HAS
BEEN TAKEN BY DEBTORS THAT WOULD PERMIT AN OFFER OF ANY SECURITIES ISSUED UNDER
THE PLAN OR POSSESSION OR DISTRIBUTION OF THIS DISCLOSURE STATEMENT IN ANY
JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED. PERSONS INTO WHOSE
POSSESSION THIS DISCLOSURE STATEMENT COMES ARE REQUIRED BY DEBTORS TO INFORM
THEMSELVES ABOUT AND TO OBSERVE SUCH RESTRICTIONS. IN ADDITION, DEBTORS
RECOMMEND THAT HOLDERS OR POTENTIAL HOLDERS OF SECURITIES UNDER THE PLAN CONSULT
WITH THEIR OWN ADVISORS CONCERNING ANY LIMITATIONS ON THEIR RIGHT TO TRANSFER
SUCH SECURITIES, INCLUDING WITHOUT LIMITATION, LIMITATIONS CONTAINED IN THE
SHAREHOLDER AGREEMENT. THIS DISCLOSURE STATEMENT DOES NOT CONSTITUTE AN OFFER TO
SELL OR ISSUE, OR THE SOLICITATION OF ANY OFFER TO BUY OR SUBSCRIBE FOR ANY
SECURITIES BY ANY PERSON IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. TO THE EXTENT THAT DEBTORS ARE REQUIRED TO COMPLY WITH
CERTAIN REQUIREMENTS OF JURISDICTIONS IN WHICH HOLDERS OF SECURITIES OF DEBTORS
RESIDE DUE TO THE PARTICIPATION OF HOLDERS IN SUCH JURISDICTIONS IN ANY VOTE OR
ELECTION WITH RESPECT TO THE PLAN, DEBTORS SHALL NOT BE REQUIRED TO TAKE SUCH
PARTICIPATION INTO ACCOUNT.
THIS DISCLOSURE STATEMENT CONTAINS A SUMMARY OF CERTAIN PROVISIONS OF THE
PLAN AND CERTAIN OTHER DOCUMENTS AND FINANCIAL INFORMATION. DEBTORS BELIEVE THAT
THESE SUMMARIES ARE FAIR AND ACCURATE. THE SUMMARIES OF THE FINANCIAL
INFORMATION AND THE DOCUMENTS WHICH ARE ATTACHED HERETO ARE QUALIFIED IN THEIR
ENTIRETY BY REFERENCE TO THAT INFORMATION AND TO THOSE DOCUMENTS. IN THE EVENT
OF ANY INCONSISTENCY OR DISCREPANCY BETWEEN A DESCRIPTION IN THIS DISCLOSURE
STATEMENT AND THE TERMS AND PROVISIONS OF THE PLAN, OR THE OTHER DOCUMENTS AND
FINANCIAL INFORMATION INCORPORATED HEREIN BY REFERENCE, THE PLAN SHALL GOVERN
FOR ALL PURPOSES.
THE STATEMENTS AND FINANCIAL INFORMATION CONTAINED HEREIN HAVE BEEN MADE AS
OF THE DATE HEREOF UNLESS OTHERWISE SPECIFIED. HOLDERS OF CLAIMS AND EQUITY
INTERESTS REVIEWING THIS DISCLOSURE STATEMENT SHOULD NOT INFER AT THE TIME OF
SUCH REVIEW THAT THERE HAVE BEEN NO CHANGES IN THE FACTS SET FORTH HEREIN UNLESS
SO SPECIFIED. EACH HOLDER OF AN IMPAIRED CLAIM SHOULD CAREFULLY REVIEW THE PLAN,
THIS DISCLOSURE STATEMENT AND THE EXHIBITS TO BOTH DOCUMENTS IN THEIR ENTIRETY
BEFORE CASTING A BALLOT. THIS DISCLOSURE STATEMENT DOES NOT CONSTITUTE LEGAL,
BUSINESS, FINANCIAL OR TAX ADVICE. ANY PERSONS DESIRING ANY SUCH ADVICE OR OTHER
ADVICE SHOULD CONSULT WITH THEIR OWN ADVISORS.
NO PARTY IS AUTHORIZED TO GIVE ANY INFORMATION WITH RESPECT TO THE PLAN
OTHER THAN THAT WHICH IS CONTAINED IN THIS DISCLOSURE STATEMENT. NO
REPRESENTATIONS CONCERNING DEBTORS OR THE VALUE OF THEIR PROPERTY HAVE BEEN
AUTHORIZED BY DEBTORS OTHER THAN AS SET FORTH IN THIS DISCLOSURE STATEMENT OR,
SUBSEQUENT TO A FILING BY DEBTORS UNDER THE BANKRUPTCY CODE, BY THE BANKRUPTCY
COURT. ANY INFORMATION, REPRESENTATIONS OR INDUCEMENTS MADE TO OBTAIN YOUR
ACCEPTANCE OF THE PLAN WHICH ARE OTHER THAN OR INCONSISTENT WITH THE INFORMATION
CONTAINED HEREIN AND IN THE PLAN SHOULD NOT BE RELIED UPON BY YOU.
ALTHOUGH DEBTORS HAVE USED THEIR BEST EFFORTS TO ENSURE THE ACCURACY OF THE
FINANCIAL INFORMATION PROVIDED IN THIS DISCLOSURE STATEMENT, THE FINANCIAL
INFORMATION CONTAINED IN THIS DISCLOSURE STATEMENT HAS NOT BEEN AUDITED, EXCEPT
FOR THE FINANCIAL STATEMENTS INCLUDED IN THE COMPANY'S ANNUAL REPORT ON FORM
10-K INCLUDED AS EXHIBIT D HERETO.
THE PROJECTIONS PROVIDED IN THIS DISCLOSURE STATEMENT HAVE BEEN PREPARED BY
DEBTORS' MANAGEMENT WITH THE ASSISTANCE OF THE BLACKSTONE GROUP, L.P.
("BLACKSTONE"), FINANCIAL ADVISORS TO THE DEBTORS, AND ALIXPARTNERS LLC
("ALIXPARTNERS"), TURNAROUND ADVISORS TO THE DEBTORS. THESE PROJECTIONS, WHILE
PRESENTED WITH NUMERICAL SPECIFICITY, ARE NECESSARILY BASED ON A VARIETY OF
ESTIMATES AND ASSUMPTIONS WHICH, THOUGH CONSIDERED REASONABLE BY MANAGEMENT, MAY
NOT BE REALIZED AND ARE INHERENTLY SUBJECT TO SIGNIFICANT BUSINESS, ECONOMIC,
COMPETITIVE, INDUSTRY, REGULATORY, MARKET AND FINANCIAL UNCERTAINTIES AND
CONTINGENCIES, MANY OF WHICH ARE BEYOND REORGANIZED DEBTORS' CONTROL. DEBTORS
CAUTION THAT NO REPRESENTATIONS CAN BE MADE AS TO THE ACCURACY OF THESE
PROJECTIONS OR TO REORGANIZED DEBTORS' ABILITY TO ACHIEVE THE PROJECTED RESULTS.
SOME ASSUMPTIONS INEVITABLY WILL NOT MATERIALIZE. FURTHER, EVENTS AND
CIRCUMSTANCES OCCURRING SUBSEQUENT TO THE DATE ON WHICH THESE PROJECTIONS WERE
PREPARED MAY BE DIFFERENT FROM THOSE ASSUMED OR, ALTERNATIVELY, MAY HAVE BEEN
UNANTICIPATED, AND THUS THE OCCURRENCE OF THESE EVENTS MAY AFFECT FINANCIAL
RESULTS IN A MATERIALLY ADVERSE OR MATERIALLY BENEFICIAL MANNER. THE
PROJECTIONS, THEREFORE, SHOULD NOT BE RELIED UPON AS A GUARANTY OR OTHER
ASSURANCE OF THE ACTUAL RESULTS THAT WILL OCCUR.
SEE ARTICLE V OF THIS DISCLOSURE STATEMENT, "RISK FACTORS", FOR A
DISCUSSION OF CERTAIN RISK FACTORS WHICH SHOULD BE CONSIDERED IN CONNECTION WITH
A DECISION BY A HOLDER OF AN IMPAIRED CLAIM TO ACCEPT THE PLAN.
TABLE OF CONTENTS
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SUMMARY.................................................................................................1
I. GENERAL INFORMATION.................................................................................10
A. DESCRIPTION OF DEBTORS' BUSINESS............................................................10
1. General Discussion of Business........................................................10
2. Narrative Description of Business.....................................................10
B. SUMMARY OF CAPITAL STRUCTURE OF DEBTORS.....................................................15
1. DIP Credit Facility...................................................................15
2. Prepetition Credit Facility...........................................................16
3. 10% Senior Notes......................................................................16
4. Convertible Notes.....................................................................16
5. Common Stock..........................................................................17
C. EVENTS LEADING TO THE CHAPTER 11 CASES......................................................17
D. PURPOSE OF THE PLAN.........................................................................17
E. NEW EXIDE HOLDING COMPANY STRUCTURE.........................................................18
F. TERMS OF SECURITIES TO BE ISSUED AND CREDIT FACILITY TO BE MODIFIED PURSUANT
TO THE PLAN..............................................................................18
1. New Exide Preferred Stock.............................................................18
2. New Exide Common Stock................................................................18
3. Amended Prepetition Foreign Credit Agreement..........................................19
G. BOARD OF DIRECTORS OF NEW EXIDE.............................................................19
H. LIQUIDATION ANALYSIS........................................................................19
I. PROJECTIONS AND VALUATION...................................................................19
1. Projections...........................................................................19
2. Valuation.............................................................................23
J. REORGANIZED DEBTORS AND THE POST-CONFIRMATION ESTATE........................................26
II. THE CHAPTER 11 CASES...............................................................................26
A. DEBTOR-IN-POSSESSION FINANCING..............................................................26
B. APPOINTMENT OF THE OFFICIAL COMMITTEES......................................................26
C. SUMMARY OF KEY MOTIONS......................................................................27
1. Motion to Obtain Postpetition Financing and Authorizing Debtors to Utilize
Cash Collateral; Granting Adequate Protection to Prepetition
Secured Lenders....................................................................27
2. Motions for the Authority to Pay Prepetition Shipping Charges and Claims
of Essential Trade Creditors.......................................................27
3. Applications for Retention of Debtors' Professionals..................................27
4. Motion for Expedited Procedures for the Rejection of Executory Contracts
and Unexpired Leases...............................................................27
5. Motion for Continued Use of Cash Management System....................................27
6. Motions to Pay Prepetition Wages, Salaries and other Compensation and
Employee Medical, Pension and Similar Benefits.....................................28
7. Motion for Expedited Procedures in the Sale or Abandonment of
De Minimis Assets..................................................................28
8. Motion to Implement a Key Employee Restructuring Milestone Incentive and
Income Protection Program..........................................................28
9. Motion to Extend the Time to Assume or Reject Unexpired Leases of
Nonresidential Real Property.......................................................28
10. Motion to Extend Time to File a Plan and Solicit Acceptances..........................28
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11. Motion to Appoint an Equity Security Holders Committee................................28
12. Motion Directing that Certain Orders in the Chapter 11 Cases of Exide
Technologies, et al be Made Applicable to Dixie Metals Company and
Refined Metals Corporation.........................................................28
13. Claim of Bernd Schulte-Ladbeck........................................................28
14. Motion to Approve Stipulation and Agreed Order Authorizing Entry Into a
Bonding Facility Agreement............................................................29
D. ASSUMPTION/REJECTION OF CONTRACTS AND LEASES................................................29
E. BANKRUPTCY LITIGATION.......................................................................30
1. Exide v. Keystone Leasing Service, et al..............................................30
2. Exide v. Arthur M. Hawkins, Douglas N. Pearson and Alan E. Gauthier...................31
3. Creditors Committee and R/2/ Investments v. Credit Suisse First Boston
and Salomon Smith Barney, Inc......................................................31
4. EnerSys Litigation....................................................................31
F. CLAIMS PROCESS AND CLAIMS BAR DATES.........................................................31
1. Filing of Schedules of Liabilities....................................................32
2. Bar Dates.............................................................................32
3. Claims Objection Process..............................................................32
G. EXCLUSIVE PLAN PROPOSAL AND ACCEPTANCE RIGHTS...............................................32
III. SUMMARY OF THE PLAN OF REORGANIZATION.............................................................32
A. OVERVIEW OF CHAPTER 11......................................................................32
B. SUBSTANTIVE CONSOLIDATION...................................................................34
C. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS......................34
1. Summary...............................................................................34
2. Summary of Classification and Treatment of Claims and Equity Interests:
Exide.................................................................................34
3. Summary of Classification and Treatment of Claims and Equity Interests:
Subsidiary Debtors....................................................................34
D. CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS: EXIDE..........................35
1. Class P1--Other Priority Claims.......................................................35
2. Class P2--Other Secured Claims........................................................35
3. Class P3--Prepetition Credit Facility Claims..........................................35
4. Class P4--General Unsecured Claims....................................................36
5. Class P5--2.9% Convertible Note Claims................................................38
6. Class P6--Equity Interests............................................................38
E. CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS: SUBSIDIARY DEBTORS.............38
1. Class S1--Other Priority Claims.......................................................38
2. Class S2--Other Secured Claims........................................................38
3. Class S3--Prepetition Credit Facility Claims..........................................39
4. Class S4--General Unsecured Claims....................................................39
5. Class S5--Equity Interests............................................................39
F. SPECIAL PROVISION GOVERNING UNIMPAIRED CLAIMS...............................................39
G. ACCEPTANCE OR REJECTION OF THE PLAN.........................................................40
1. Voting Classes........................................................................40
2. Acceptance by Impaired Classes........................................................40
3. Presumed Acceptance of Plan...........................................................40
4. Presumed Rejection of Plan............................................................40
5. Non-Consensual Confirmation...........................................................40
H. MEANS FOR IMPLEMENTATION OF THE PLAN........................................................40
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1. Restructuring.........................................................................40
2. Continued Corporate Existence and Vesting of Assets in the Reorganized
Debtors............................................................................41
3. Cancellation of Old Notes and Equity Interests........................................41
4. Source and Timing for Effective Date Plan Distributions and Discharge.................42
5. Issuance of New Securities; Execution of Related Documents............................42
6. Issuance of Stock of Reorganized Subsidiary Debtors to Reorganized Exide..............44
7. Corporate Governance, Directors and Officers, and Corporate Action....................44
8. Dismissal of Creditors Committee Adversary Proceeding and Other
Plan Settlements...................................................................45
9. Sources of Cash for Plan Distribution.................................................46
10. Private Company Status and Stock Transfer Limitations.................................46
11. Payment of Agent Expenses.............................................................46
12. Adoption of Company Incentive Plan....................................................46
I. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.......................................46
1. Assumption of Executory Contracts and Unexpired Leases................................46
2. Claims Based on Rejection of Executory Contracts or Unexpired Leases..................47
3. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed.................47
4. Indemnification of Directors, Officers and Employees..................................47
5. Compensation and Benefit Programs.....................................................47
J. PROVISIONS GOVERNING DISTRIBUTIONS..........................................................48
1. Distributions for Claims Allowed as of the Effective Date.............................48
2. Delivery and Distributions and Undeliverable or Unclaimed Distributions...............48
3. Timing and Calculation of Amounts to be Distributed...................................49
4. Minimum Distribution..................................................................49
5. Setoffs...............................................................................49
6. Surrender of Cancelled Instruments or Securities......................................49
7. Failure to Surrender Cancelled Instruments............................................49
8. Lost, Stolen, Mutilated or Destroyed Debt Securities..................................49
K. PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS OR
EQUITY INTERESTS.........................................................................50
1. Resolution of Disputed Claims.........................................................50
2. Allowance of Claims...................................................................50
3. Controversy Concerning Impairment.....................................................51
4. Personal Injury Tort and Wrongful Death Claims........................................51
L. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN...........................51
1. Condition Precedent to Confirmation...................................................51
2. Conditions Precedent to Consummation..................................................51
3. Waiver of Conditions..................................................................52
4. Effect of Non-occurrence of Conditions to Consummation................................53
M. RELEASE, INJUNCTIVE AND RELATED PROVISIONS..................................................53
1. Subordination.........................................................................53
2. Releases by the Debtors...............................................................53
3. Releases by Holders of Claims.........................................................53
4. Release of Foreign Subsidiary Borrowers and the Domestic Non-Debtor...................54
5. Exculpation...........................................................................54
6. Preservation of Rights of Action......................................................54
7. Discharge of Claims and Termination of Equity Interests...............................56
8. Injunction............................................................................56
N. RETENTION OF JURISDICTION...................................................................56
O. MISCELLANEOUS PROVISIONS....................................................................57
1. Effectuating Documents, Further Transactions and Corporation Action...................57
2. Dissolution of Committees.............................................................57
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3. Payment of Statutory Fees.............................................................57
4. Letters of Credit.....................................................................58
5. Modification of Plan..................................................................58
6. Revocation of Plan....................................................................58
7. Successors and Assigns................................................................58
8. Reservation of Rights.................................................................58
9. Section 1146 Exemption................................................................58
10. Further Assurances....................................................................59
11. Filing of Additional Documents........................................................59
IV. VOTING AND CONFIRMATION PROCEDURE..................................................................59
A. VOTING INSTRUCTIONS.........................................................................59
B. VOTING TABULATION...........................................................................60
C. THE CONFIRMATION HEARING....................................................................63
D. STATUTORY REQUIREMENTS FOR CONFIRMATION OF THE PLAN.........................................64
1. Acceptance............................................................................64
2. Fair and Equitable Test...............................................................64
3. Feasibility...........................................................................65
4. "Best Interests" Test.................................................................65
V. RISK FACTORS........................................................................................66
A. CERTAIN BANKRUPTCY CONSIDERATIONS...........................................................66
B. FACTORS AFFECTING THE VALUE OF THE SECURITIES TO BE ISSUED UNDER THE PLAN...................68
C. RISKS RELATING TO THE OPERATIONS OF REORGANIZED DEBTORS.....................................69
VI. CERTAIN FEDERAL INCOME TAX CONSEQUENCES............................................................71
A. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES TO THE HOLDERS OF CLAIMS AND EQUITY
INTERESTS................................................................................72
1. Consequences to Holders of Prepetition Credit Facility Claims.........................72
2. Consequences to Holders of 10% Senior Notes...........................................74
3. Consequences to Holders of General Unsecured Claims Against the Company...............74
4. Consequences to Holders of General Unsecured Claims Against the Subsidiary
Debtors............................................................................75
5. Consequences to Holders of Convertible Notes..........................................75
6. Consequences to Holders of Equity Interests...........................................75
7. Accrued Interest, Market Discount and Original Issue Discount.........................75
B. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES TO REORGANIZED DEBTORS.........................76
1. Transfer of Business Assets...........................................................76
2. Cancellation of Indebtedness and Reduction of Tax Attributes..........................77
3. Limitation of Net Operating Loss Carryovers and Other Tax Attributes..................78
C. BACKUP WITHHOLDING..........................................................................78
VII. MISCELLANEOUS PROVISIONS..........................................................................79
A. PENDING LITIGATION..........................................................................79
1. Private Party Lawsuits................................................................80
2. Environmental Matters.................................................................81
3. Other.................................................................................84
B. PENSION PLANS...............................................................................84
C. SUCCESSORS AND ASSIGNS......................................................................85
D. RESERVATION OF RIGHTS.......................................................................85
E. SERVICE OF DOCUMENTS........................................................................85
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VIII. RECOMMENDATION...................................................................................86
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EXHIBITS
Exhibit A - Debtors' Second Amended Joint Plan of Reorganization
Exhibit B - Liquidation Analysis
Exhibit C - Projections
Exhibit D - Annual Report on Form 10-K for the fiscal year ended March 31, 2003
Exhibit E - Schedule of Environmental Sites
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SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements contained elsewhere in this Disclosure
Statement.
Exide Technologies (together with its subsidiaries unless the context
requires otherwise, the "Company" or "Exide") is a Delaware corporation
organized in 1966 to succeed to the business of a New Jersey corporation founded
in 1888. The Company is one of the largest manufacturers of lead acid batteries
in the world, with fiscal 2003 net sales of approximately $2.4 billion. The
Company manufactures and supplies lead acid batteries for transportation and
industrial applications worldwide.
On April 15, 2002 ("Petition Date"), Exide and three of its wholly-owned,
U.S. subsidiaries (RBD Liquidation, LLC ("RBD"), Exide Delaware, LLC ("Exide
Delaware") and Exide Illinois, Inc. ("Exide Illinois")) filed voluntary
petitions for reorganization under Chapter 11 of the federal bankruptcy laws
("Bankruptcy Code" or "Chapter 11") in the United States Bankruptcy Court for
the District of Delaware ("Bankruptcy Court") under case numbers 02-11125
through 02-11128. On November 21, 2002, Refined Metals Corporation ("Refined")
and Dixie Metals Corporation ("Dixie"), both wholly-owned, non-operating
subsidiaries of Exide, filed voluntary petitions for reorganization under
Chapter 11 of the Bankruptcy Code in the Bankruptcy Court under case numbers
02-13449 and 02-13450. Refined and Dixie have no employees and negligible, if
any, assets. RBD, Exide Delaware, Exide Illinois, Dixie and Refined, together
with Exide are hereinafter referred to as the "Debtors." All of the foregoing
cases are being jointly administered for procedural purposes before the
Bankruptcy Court under case number 02-11125.
As debtors-in-possession under Chapter 11, the Debtors are authorized to
continue to operate as an ongoing business, but may not engage in transactions
outside the ordinary course of business without the approval of the Bankruptcy
Court. The Company's operations outside of the U.S. are not included in the
Chapter 11 proceedings.
This Disclosure Statement is being furnished by Debtors as proponents of
the Debtors' Third Amended Joint Plan of Reorganization (the "Plan," a copy of
which is attached hereto as Exhibit A), pursuant to section 1125 of the United
States Bankruptcy Code (the "Bankruptcy Code") and in connection with the
solicitation of votes (the "Solicitation") for the acceptance or rejection of
the Plan, as it may be amended or supplemented from time to time in accordance
with the Bankruptcy Code and the Bankruptcy Rules. Capitalized terms used herein
but not otherwise defined herein shall have the meanings given to such terms in
the Plan.
This Disclosure Statement describes certain aspects of the Plan, the
Company's operations, the Company's projections and other related matters,
including the treatment of holders (each, a "Holder" and collectively, the
"Holders") of existing Claims and Equity Interests.
Events Leading to the Chapter 11 Cases
The Company and certain of its subsidiaries decided to file for
reorganization under Chapter 11 as it offered the most efficient alternative to
restructure its balance sheet and access new working capital while continuing to
operate in the ordinary course of business. The Company has a heavy debt burden,
caused largely by a debt-financed acquisition strategy and the significant costs
of integrating those acquisitions. Other factors leading to the reorganization
included the impact of adverse economic conditions on the Company's markets,
particularly telecommunications, ongoing competitive pressures and capital
market volatility. These factors contributed to a loss of revenues and resulted
in significant operating losses and negative cash flows, severely impacting the
Company's financial condition and its ability to maintain compliance with debt
covenants.
The Company's operations outside of the U.S. are not included in the
Chapter 11 proceedings. However, in connection with the Chapter 11 filing, the
Company entered into a Standstill Agreement and Fifth Amendment to the Credit
and Guarantee Agreement ("Standstill Agreement") with its Prepetition Credit
Facility (as defined in Section I.B.2 below) lenders, whereby those lenders have
agreed to forbear collection of principal payments on foreign borrowings under
the Prepetition Credit Facility from non-Debtor subsidiaries until December
2003, subject to earlier termination upon the occurrence of certain events. The
principal events which could result in an early termination of the Standstill
Agreement are: (1) non-payment of interest on the European tranche of the
Company's Prepetition Credit Facility as and when due; (2) if any significant
foreign subsidiaries commence any winding up or liquidation proceeding; (3)
breach of financial and other customary negative covenants (as described with
respect to the debtor-in-possession credit facility ("DIP Credit Facility"); and
(4) default with respect to the European securitization facility and 9.125%
Senior Notes (Deutsche mark denominated) agreement.
On May 10, 2002, the Debtors received final Bankruptcy Court approval of
its $250 million DIP Credit Facility. The DIP Credit Facility is being used to
supplement cash flows from operations during the reorganization process
including the payment of post-petition ordinary course trade and other payables,
the payment of certain permitted pre-petition claims, working capital needs,
letter of credit requirements and for other general corporate purposes.
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The purpose of the Plan is to restructure Debtors' debt to provide Debtors
with a capital structure that can be supported by the cash flow of their
operations. Assuming that all Holders of Allowed Class P3 and S3 Prepetition
Credit Facility Claims choose the Class P3 Election A, the Plan will reduce
Debtors' debt and accrued interest by more than $1.4 billion and their future
annual interest expense by approximately $61 million. Debtors believe that the
reorganization contemplated by the Plan is in the best interests of their
creditors and interested constituencies. If the Plan is not confirmed, Debtors
believe that they will be forced to either file an alternate plan of
reorganization or liquidate under Chapter 7 of the Bankruptcy Code ("Chapter
7"). In either event, Debtors believe that the Company's creditors would realize
a less favorable distribution of value, or, in certain cases, none at all, for
their Claims under an alternative plan or liquidation. The Debtors further
believe that the Company's equity holders, who are not entitled to receive a
distribution under the Plan, would not receive a distribution under an
alternative plan or liquidation. See the Liquidation Analysis set forth in
Exhibit B attached hereto.
Treatment of Claims and Equity Interests
The table set forth below summarizes the Classes of Claims and Equity
Interests under the Plan, projected aggregate amount of such Classes, the
treatment of such Classes, and the projected recoveries of such Classes both in
connection with the Plan and in a liquidation under Chapter 7 of the Bankruptcy
Code. The projected recoveries (if the Plan is approved) are based upon certain
assumptions contained in the Valuation Analysis developed by Blackstone set
forth in Section I.I hereof.
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Projected Projected Projected
Class/Type of Claims/ Recovery under Recovery Under
Claim or Interest Interests Plan Treatment of Class Plan Chapter 7
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Administrative
Claims $ 382,665.48 Paid in full 100% 100%
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DIP Facility Claims $181,074,000.00 Paid in full 100% 100%
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Priority Tax Claims $ 1,526,660.30 Paid in full 100% 0%
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Other Priority
Claims (Classes P1
& S1) $ 3,666,448.54 Paid in full 100% 0%
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Other Secured
Claims (Classes P2
& S2) $ 1,585,969.29 Paid in full 100% 4.3%
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Projected Projected Projected
Class/Type of Claims/ Recovery under Recovery Under
Claim or Interest Interests Plan Treatment of Class Plan Chapter 7
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Prepetition Credit $729,345,426.14 (i) Class P3 Election A: After the 70.2%-72.0%/2/ 4.3%/3/
Facility Claims Confirmation Date and prior to the
(Classes P3 & S3) Effective Date, Holders of Prepetition
Foreign Secured Claims who choose
the Class P3 Election A shall
receive, in exchange for and in
full and final satisfaction of
their Prepetition Foreign Secured
Claims, an Exchange Note with a
principal amount equal to the fair
market value of the product of (x)
such Holder's Prepetition Foreign
Secured Claims divided by the sum
of such Holder's Prepetition
Foreign Secured Claims plus such
Holder's Prepetition Domestic
Secured Claims and (y) such
Holder's Pro Rata share of the New
Exide Preferred Stock remaining
after distributions, if any,
pursuant to the Class P3 Election
B. On or as soon as practicable
after the Effective Date, Holders
of Allowed Class P3 and S3
Prepetition Credit Facility Claims
who choose the Class P3 Election A
shall receive, in full and final
satisfaction of their Prepetition
Domestic Secured Claims and
Exchange Notes, (A) a Pro Rata
share (based on the aggregate of
such Holder's Prepetition Domestic
Secured Claims and Prepetition
Foreign Secured Claims that were
exchanged for the Exchange Notes)
of 100% of the New Exide Preferred
Stock remaining after
distributions, if any, pursuant to
the Class P3 Election B, and (B) a
Pro Rata distribution in Cash, not
to exceed $25,000,000 in the
aggregate in any circumstances, of
$15,000,000 and the European
Contingent Asset Sale Proceeds. As
a condition to the receipt of a Pro
Rata share of the New Exide
Preferred Stock, each Option A
Elector shall (A) execute the
amendment to the Prepetition Credit
Facility summarized in the Amended
Prepetition Foreign Credit
Agreement Term Sheet and (B) become
a party to the New Exide
Shareholder Agreement.
- ----------------------------------------------------------------------------------------------------------------
- ----------
/2/ The projected recovery will vary depending upon the Allowed amount of
Prepetition Foreign Credit Facility Claims of Option B Electors. The projected
recovery is 70.2% if there are no Option B Electors and up to 72.0% if there are
the maximum Option B Electors allowed under the Plan.
/3/ Taking into consideration projected recoveries on account of Allowed
Prepetition Foreign Secured Claims of Option B Electors, if any, the aggregate
recovery will be 16.6%.
-3-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
Projected Projected Projected
Class/Type of Claims/ Recovery under Recovery Under
Claim or Interest Interests Plan Treatment of Class Plan Chapter 7
- ----------------------------------------------------------------------------------------------------------------
(ii) Class P3 Election B: On or as 42.1%/4/ 4.3%/5/
soon as practicable after the
Effective Date, Holders of Allowed
Class P3 and S3 Prepetition Credit
Facility Claims who choose the Class
P3 Election B shall receive, in full
and final satisfaction of their
Prepetition Domestic Secured Claims, a
Pro Rata share (based on the aggregate
of the Prepetition Domestic Secured
Claims) of the Class P3 Election B
Distribution. On the Effective Date,
the Prepetition Foreign Secured Claims
of Option B Electors shall be governed
by the Amended Prepetition Foreign
Credit Agreement.
- ----------------------------------------------------------------------------------------------------------------
Non-Noteholder $322,572,718.33 Holders of Allowed Class P4-A 1.4% 0%
General Unsecured Non-noteholder General Unsecured
Claims of Exide Claims will receive, in full and final
Technologies satisfaction of their Class P4-A
(Class P4-A ) Claims, (A) a Pro Rata distribution of
the Class P4-A Cash Pool, plus (B) if
the Class P4 Cash Pool Excess is
greater than zero, a Pro Rata
distribution of the Class P4 Cash Pool
Excess, as determined based on the
aggregate of all Allowed Class P4
Claims.
- ----------------------------------------------------------------------------------------------------------------
10% Senior Note $300,000,000.00 Holders of Allowed Class P4-B 10% 1.4%/6/ 0%
Claims (Class P4-B) Senior Note Claims will receive, in
full and final satisfaction of their
Class P4-B 10% Senior Note Claims,
(A) a Pro Rata distribution of the
New Exide Common Stock, plus (B) if
the Class P4 Cash Pool Excess is
greater than zero, a Pro Rata
distribution of the Class P4 Cash
Pool Excess, as determined based on
the aggregate of all Allowed Class
P4 Claims.
- ----------------------------------------------------------------------------------------------------------------
2.9% Convertible $322,162,758.00 Cancelled, and Holders thereof not 0% 0%
Note Claims entitled to receive any distribution
(Class P5) or retain any property under the
Plan.
- ----------------------------------------------------------------------------------------------------------------
Equity Interests 27.4 million Cancelled, and Holders thereof not 0% 0%
(Class P6) shares entitled to receive any distribution
or retain any property under the
Plan.
- ----------------------------------------------------------------------------------------------------------------
General Unsecured $ 36,524,694.50 Cancelled, and Holders thereof not 0% 0%
Claims of entitled to receive any distribution
Subsidiary Debtors or retain any property under the Plan.
(Class S4)
- ----------------------------------------------------------------------------------------------------------------
- ----------
/4/ Subject to dilution for the Company Incentive Plan. Assumes there are the
maximum amount of Option B Electors allowed under the Plan.
/5/ Taking into consideration projected recoveries on account of Allowed
Prepetition Foreign Secured Claims of Option B Electors, if any, the aggregate
recovery will be 16.6%.
/6/ Subject to dilution for the Company Incentive Plan.
-4-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
Projected Projected Projected
Class/Type of Claims/ Recovery under Recovery Under
Claim or Interest Interests Plan Treatment of Class Plan Chapter 7
- ------------------------------------------------------------------------------------------------------
Class S5 Equity NA Cancelled, and Holders thereof not 0% 0%
Interests entitled to receive any distribution
(Class S5) or retain any property under the
Plan.
- ------------------------------------------------------------------------------------------------------
All objections, settlements and litigation with respect to PITWD Claims and
the allowance of PITWD Claims shall be governed by the PITWD Claims Procedures
described in Section III.K.4 below.
Explanation of Distributions to Holders of Class P3
Prepetition Credit Facility Claims
Each of the Prepetition Lenders hold both Prepetition Domestic Secured
Claims and Prepetition Foreign Secured Claims, which are collectively classified
in Classes P3 and S3. The Prepetition Foreign Secured Claims are Claims against
the Foreign Subsidiary Borrowers, which are not debtors in the Chapter 11 Cases
or subject to the jurisdiction of the Bankruptcy Court. As such, although they
may elect to do so, the Prepetition Lenders cannot be compelled through the Plan
to compromise their Claims against the Foreign Subsidiary Borrowers.
Accordingly, each of the Prepetition Lenders must be given the option to
reinstate such Holder's Prepetition Foreign Secured Claims. This option is
reflected by the opportunity of each Prepetition Lender to elect either Option A
or Option B treatment on its Ballot. As described in the Plan, Prepetition
Lenders electing Option A agree to compromise all of their Claims against both
the Debtors and the Foreign Subsidiary Borrowers. As described in the Plan,
Prepetition Lenders electing Option B have their Prepetition Foreign Secured
Claims reinstated, but subject to an amended Prepetition Credit Facility.
The Debtors believe it is in the best interests of the Company and the
Prepetition Lenders as a whole that each Prepetition Lender elect Option A
treatment, and the Debtors believe that the economic recovery under Option A is
greater than the economic recovery under Option B. Moreover, it is a condition
to Consummation that Holders of no more than $17.5 million of Prepetition
Foreign Secured Claims have elected Option B treatment. Because the election of
Option A or Option B by each Prepetition Lender will have an effect on the
relative recovery of other Holders in the same Class, the estimated recoveries
for Classes P3 and S3 in this Disclosure Statement are stated as a range (70.2%
to 72.0%).
Explanation of Distributions to Holders of Class P4 General Unsecured Claims
The Non-Noteholder General Unsecured Claims and the 10% Senior Note Claims
against Exide have the same legal priority and are therefore provided the same
Pro Rata percentage recovery under the Plan. Based on the Claim estimates set
forth in this Disclosure Statement in "SUMMARY--Treatment of Claims and Equity
Interests," the Plan provides that Holders of Non-Noteholder General Unsecured
Claims (Class P4-A) and 10% Senior Note Claims (Class P4-B) will receive the
same Pro Rata percentage recovery (all dollar amounts in millions):
Value of
Class Estimated Claims Distribution % Recovery
- ----- ---------------- ------------ ----------
P4-A $322.6 $4.4 = 1.4%
P4-B $300.0 $4.1 = 1.4%
However, because the Non-Noteholder General Unsecured Claims include a
substantial number of disputed, unliquidated and contingent Claims, the final
Allowed amount of Class P4-A Claims may not be known until some time after
Consummation. The final Allowed amount of such Claims could be significantly
higher or lower than the estimate set forth herein.
If the final Allowed amount of Class P4-A Claims is greater than the
estimate set forth in this Disclosure Statement, then the Pro Rata percentage
recovery by Holders of Class P4-A Claims would decrease because more Claims
would be sharing the same distribution fund. This would result in the Holders of
Class P4-A Claims receiving a lower Pro Rata percentage recovery than the
holders of Class P4-B Claims. In order to avoid this inequity, the Plan provides
that in such circumstances, the value of the distribution otherwise available to
Holders of Class P4-B Claims will be reduced so that the Pro Rata percentage
recoveries of
-5-
- --------------------------------------------------------------------------------
both subclasses are equivalent. By way of example, if the final Allowed amount
of Class P4-A Claims is $100 million higher than the estimate set forth in this
Disclosure Statement, the recoveries would be adjusted as follows (all dollar
amounts in millions):
Value of
Class Actual Claims Distribution % Recovery
- ----- ------------- ------------ ----------
P4-A $422.6 $4.4 = 1.0%
P4-B $300.0 $3.1 = 1.0%
Similarly, if the final Allowed amount of Class P4-A Claims is less than
the estimate set forth in this Disclosure Statement, then the Pro Rata
percentage recovery by Holders of Class P4-A Claims would increase because fewer
Claims would be sharing the same distribution fund. This would result in the
Holders of Class P4-A Claims receiving a higher Pro Rata percentage recovery
than the holders of Class P4-B Claims. In order to avoid this inequity, the Plan
provides that in such circumstances, the value of the distribution otherwise
available to Holders of Class P4-A Claims will be reduced, and such reduced
amount shared by all Class P4 Claimants, so that the Pro Rata percentage
recoveries of both subclasses are equivalent. By way of example, if the final
Allowed amount of Class P4-A Claims is $100 million lower than the estimate set
forth in this Disclosure Statement, the recoveries would be adjusted as follows
(all dollar amounts in millions):
Value of Base
Class Actual Claims Distribution + Shared Pool % Recovery
- ----- ------------- ------------- ----------- ----------
P4-A $222.6 $3.0 + $0.6 = 1.6%
P4-B $300.0 $4.1 + $0.8 = 1.6%
The Claim estimates set forth in this Disclosure Statement in
"SUMMARY--Treatment of Claims and Equity Interests" reflect the reasonable
judgment of the Debtors based on information available to the Debtors as of the
date of this Disclosure Statement. Because the actual determination of the
disputed, unliquidated and contingent Class P4-A Claims is subject to
significant uncertainty, the Debtors cannot predict with certainty the final
Allowed amount of such Claims, and therefore the Debtors cannot predict with
certainty the actual percentage recovery that any Class P4 Claimant will receive
under the Plan.
Description of Distributions to Holders of Class P5 2.9% Convertible
Note Claims
The 2.9% Convertible Notes are subordinated to the 10% Senior Notes, and
are therefore classified separately in Class P5 and are not entitled to any
distribution unless the 10% Senior Notes are paid in full, which is not proposed
under the terms of the Plan. Section 510(a) of the Bankruptcy Code provides that
a subordination agreement is enforceable in bankruptcy to the same extent it is
enforceable under applicable non-bankruptcy law. Accordingly, the Plan
subordinates the 2.9% Convertible Note Claims to the 10% Senior Note Claims and
provides no distribution on account of the 2.9% Convertible Note Claims. The 10%
Senior Note Trustee asserts that the Plan fails to turn over the distribution
otherwise attributable to the 2.9% Convertible Note Claims to the Holders of the
10% Senior Note Claims.
Description of New Securities to be Issued Under the Plan
New Exide Preferred Stock. On the Effective Date, New Exide will issue for
distribution in accordance with the Plan a number of shares of New Exide
Preferred Stock, as determined in accordance with the Plan, to be authorized
pursuant to the New Exide Certificate of Incorporation and subject to the
Shareholder Agreement. Exide expects that the number of shares of New Exide
Preferred Stock issued on the Effective Date will be between 494,519 and
511,879, depending on the amount of Option B Electors, if any. The lenders under
the Prepetition Credit Facility will receive 100% of the New Exide Preferred
Stock, which, as of the Effective Date, represents 99.2% of New Exide Common
Stock, taking into consideration the New Exide Preferred Stock Conversion
Election on a fully-exercised basis, subject to dilution pursuant to the Company
Incentive Plan. Each share of New Exide Preferred Stock will have a $1,000 face
value. The principal terms of the New Exide Preferred Stock to be included in
the New Exide Certificate of Incorporation and the Shareholder Agreement are
summarized in Exhibit B and Exhibit C to the Plan.
Each holder of the New Exide Preferred Stock will have the right to convert
shares of the New Exide Preferred Stock, at the option of the holder at any
time, into shares of New Exide Common Stock. The total number of shares of New
Exide Common Stock into which the New Exide Preferred Stock may be converted
initially will be determined by dividing the face value per share through the
date of conversion by the Conversion Price. The initial Conversion Price will be
determined in accordance with the Plan and will be adjusted on a weighted
average basis upon the issuance, subject to customary exceptions, of equity
securities at a price lower than the Conversion Price then in effect (as
adjusted, the "Conversion Price"). Exide expects that the initial Conversion
Price will be between $19.94 and $20.64. The New Exide Preferred Stock will
automatically convert into New Exide Common Stock upon the occurrence of a
Qualified Public Offering (as defined in Exhibit B to the Plan), or sale of all
or substantially all of the assets of New Exide or the acquisition of New Exide
by another entity in certain circumstances.
-6-
The New Exide Preferred Stock will rank senior to all equity securities of
New Exide. In the event of a liquidation (or similar event) of New Exide, the
holders of New Exide Preferred Stock shall receive, before any payments to
holders of any other equity securities of New Exide, on a pro rata basis an
amount equal to the Implied Price through the consummation of such event. In
addition, the holders of New Exide Preferred Stock shall then participate on a
pro rata, as-converted basis with the holders of New Exide Common Stock with
respect to any remaining proceeds or assets of New Exide.
The New Exide Preferred Stock will have customary anti-dilution protections
for stock splits, dividends, reclassifications and similar events.
The holders of the New Exide Preferred Stock shall be entitled to vote on
an as-converted basis on any matters on which the holders of New Exide Common
Stock are entitled to vote. In addition, the holders of the New Exide Preferred
Stock shall have the right to vote as a single class on certain "Major Actions,"
which will be set forth in the New Exide Certificate of Incorporation.
New Exide Common Stock. On the Effective Date, New Exide will issue for
distribution in accordance with the Plan 200,000 shares of New Exide Common
Stock, which represents 0.8% of New Exide Common Stock, taking into
consideration the New Exide Preferred Stock Conversion Election on a
fully-exercised basis, subject to dilution pursuant to the Company Incentive
Plan. The New Exide Common Stock will be distributed to Holders of Allowed Class
P4-B 10% Senior Note Claims and authorized pursuant to the New Exide Certificate
of Incorporation.
Voting and Confirmation
Each Holder of a Claim in Classes P3, P4 and S3 will be entitled to vote
either to accept or reject the Plan. Classes P3, P4 and S3 shall have accepted
the Plan if: (i) the Holders of at least two-thirds in amount of the Allowed
Claims actually voting in each such Class have voted to accept the Plan and (ii)
the Holders of more than one-half in number of the Allowed Claims actually
voting in each such Class have voted to accept the Plan. Classes P5, S4 and S5
are deemed to reject the Plan and are not entitled to vote to accept or reject
the Plan. Assuming the requisite acceptances are obtained, the Debtors intend to
seek confirmation of the Plan at a hearing (the "Confirmation Hearing")
scheduled to commence on October 21, 2003, at _10:00 a.m. Prevailing Eastern
Time, before the Bankruptcy Court, at the Robert N.C. Nix Federal Courthouse,
900 Market Street, Philadelphia, PA 19107. Notwithstanding the foregoing,
provided that at least one impaired class accepts the Plan, the Debtors will
seek Confirmation of the Plan under section 1129(b) of the Bankruptcy Code with
respect to the Impaired Classes presumed to reject the Plan, and reserve the
right to do so with respect to any other rejecting Class or to modify the Plan
in accordance with Article XII.E of the Plan.
Section IV hereof specifies the deadlines, procedures and instructions for
voting to accept or reject the Plan and the applicable standards for tabulating
Ballots. The Bankruptcy Court has established August 11, 2003, (the "Voting
Record Date") as the date for determining which Holders of Claims are eligible
to vote on the Plan. Ballots will be mailed to all registered Holders of Claims
as of the Voting Record Date who are entitled to vote to accept or reject the
Plan. An appropriate return envelope will be included with your Ballot, if
necessary. Beneficial Holders of Claims who receive a return envelope addressed
to their bank, brokerage firm or other nominee, or any agent thereof, (each, a
"Nominee") should allow sufficient time for the Nominee to receive their votes
and process them on a Master Ballot before the Voting Deadline, as defined
below.
The Debtors have engaged a solicitation agent to assist in the voting
process. The solicitation agent will answer questions, provide additional copies
of all materials and oversee the voting tabulation. The solicitation agent will
also process and tabulate ballots for each Class entitled to vote to accept or
reject the Plan. The solicitation agent is Bankruptcy Management Corporation,
1330 E. Franklin Avenue, El Segundo, CA 90245, (888) 909-0100 (toll free).
TO BE COUNTED, THE SOLICITATION AGENT MUST RECEIVE YOUR BALLOT (OR MASTER
BALLOT OF YOUR NOMINEE HOLDER) INDICATING ACCEPTANCE OR REJECTION OF THE PLAN NO
LATER THAN 5:00 P.M., PREVAILING EASTERN TIME, ON OCTOBER 7, 2003 (THE "VOTING
DEADLINE"), UNLESS THE BANKRUPTCY COURT EXTENDS OR WAIVES THE PERIOD DURING
WHICH VOTES WILL BE ACCEPTED BY THE DEBTORS, IN WHICH CASE THE TERM "VOTING
DEADLINE" FOR SUCH SOLICITATION SHALL MEAN THE LAST TIME AND DATE TO WHICH SUCH
SOLICITATION IS EXTENDED. ANY EXECUTED BALLOT OR COMBINATION OF BALLOTS
REPRESENTING CLAIMS IN THE SAME CLASS OR SUBCLASS HELD BY THE SAME HOLDER THAT
DOES NOT INDICATE EITHER AN ACCEPTANCE OR REJECTION OF THE PLAN OR THAT
INDICATES BOTH AN ACCEPTANCE AND REJECTION OF THE PLAN SHALL BE DEEMED TO
CONSTITUTE AN ACCEPTANCE OF THE PLAN. ANY BALLOT RECEIVED AFTER THE VOTING
DEADLINE MAY OR MAY NOT BE COUNTED, AT THE DISCRETION OF THE DEBTORS.
THE DEBTORS BELIEVE THAT THE PLAN IS IN THE BEST INTEREST OF ALL OF THEIR
CREDITORS AS A WHOLE. THE DEBTORS THEREFORE RECOMMEND THAT ALL HOLDERS OF CLAIMS
SUBMIT BALLOTS TO ACCEPT THE PLAN.
-7-
Time and Place of the Confirmation Hearing. The Confirmation Hearing, which
is the hearing where the Bankruptcy Court will determine whether to confirm the
Plan, will commence on October 21, 2003, at _10:00 a.m. Prevailing Eastern Time,
before the Honorable Kevin J. Carey, United States Bankruptcy Judge, at the
Robert N.C. Nix Federal Courthouse, 900 Market Street, Philadelphia, PA 19107.
Deadline for Voting For or Against the Plan. If you are entitled to vote,
it is in your best interest to vote timely on the enclosed ballot (the "Ballot")
and return the Ballot in the enclosed envelope to the balloting agent, who is
Bankruptcy Management Corporation, 1330 E. Franklin Avenue, El Segundo,
California 90245, (888) 909-0100 (toll free).
Your vote must be received prior to the Voting Deadline, which is 5:00 p.m.
Prevailing Eastern Time on October 7, 2003, or it will not be counted. At the
Debtors' request, the Bankruptcy Court has established certain procedures for
the solicitation and tabulation of votes on the Plan. They are described in the
Order entitled "Order (A) Approving The Debtors' Disclosure Statement; (B)
Scheduling A Hearing To Confirm The Plan; (C) Establishing A Deadline For
Objecting To The Debtors' Plan; (D) Approving Form Of Ballots, Master Ballot,
Voting Deadline And Solicitation Procedures; and (E) Approving Form And Manner
Of Notices" (the "Solicitation Order") and the "Notice Of (I) Entry Of Order
Approving Disclosure Statement; (II) Hearing To Confirm Plan Of Reorganization
And (III) Related Important Dates" (the "Confirmation Hearing Notice") that
accompany this Disclosure Statement.
Deadline for Objecting to the Confirmation of the Plan. Objections to Plan
confirmation must be filed with the Bankruptcy Court and served upon the
following so that they are actually received on or before 5:00 p.m. Prevailing
Eastern Time on October 7, 2003.
Counsel to the Debtors Counsel to the Debtors
Kirkland & Ellis LLP Pachulski Stang Ziehl Young & Jones PC
200 East Randolph Drive 919 N. Market Street
Chicago, IL 60601 16th Floor
312-861-2000 Wilmington, DE 19899
Fax: 312-861-2200 Attn: Laura Davis Jones
Attn: Matthew N. Kleiman James E. O'Neill
Ross M. Kwasteniet
Office of the United States Trustee Counsel to the Creditors Committee
844 King Street, Room 2207 Pepper Hamilton LLP
Lockbox #35 Suite 1600
Wilmington, DE 19801 1201 Market Street
302-573-6491 P.O. Box 1709
Attn: Mark S. Kenney Wilmington, DE 19899-1709
Attn: David B. Stratton
David M. Fournier
Counsel to the Equity Committee Counsel to the Creditors Committee
Potter Anderson & Corroon LLP Akin, Gump, Strauss, Hauer & Feld LLP
1313 N. Market Street 590 Madison Avenue
6th Floor New York, NY 10122
Hercules Plaza Fax: 212-872-1002
Wilmington, DE 19899 Attn: Fred S. Hodera
Attn: William A. Hazeltine Mary R. Masella
-8-
Counsel to the Equity Committee Counsel to the Prepetition Lenders
Reinhart Boerner Van Deuren S.C. Richards Layton & Finger
1000 North Water Street, Suite 2100 One Rodney Square
Milwaukee, WI 53202 Wilmington, DE 19899
414-298-8191 302-651-7845
Attn: Mark L. Metz Fax: 302-651-7701
Attn: Mark Collins
Etta Rena Wolfe
Solicitation Agent Counsel to the Prepetition Lenders
Bankruptcy Management Corporation Shearman & Sterling LLP
1330 E. Franklin Avenue 599 Lexington Avenue
El Segundo, CA 90245 New York, NY 10022
Attn: Exide Solicitation Agent Attn: Douglas P. Bartner
(email service permitted at exide@bmccorp.net) Marc B. Hankin
Consummation of the Plan
Following Confirmation of the Plan, the Plan will be consummated on the
date selected by the Debtors, which will be a Business Day after the
Confirmation Date on which: (a) no stay of the Confirmation Order is in effect,
and (b) all conditions specified in Article IX.B of the Plan have been (x)
satisfied or (y) waived pursuant to Article IX.C therein. Distributions to be
made under the Plan will be made on or as soon after the Effective Date as
practicable or as otherwise provided for herein.
Risk Factors
Prior to deciding whether and how to vote on the Plan, each Holder of
Impaired Claims should consider carefully all of the information in this
Disclosure Statement, especially the Risk Factors described in Section V hereof.
-9-
I
GENERAL INFORMATION
A. DESCRIPTION OF DEBTORS' BUSINESS
1. General Discussion of Business
The Company is a Delaware corporation organized in 1966 to succeed to the
business of a New Jersey corporation founded in 1888. The Company's principal
executive offices are located at 210 Carnegie Center, Suite 500, Princeton, NJ
08540. The Company is one of the largest manufacturers of lead acid batteries in
the world, with fiscal 2003 net sales of approximately $2.4 billion. The
Company's European, North American and Asia Pacific operations represented
approximately 52%, 44% and 4%, respectively, of fiscal 2003 net sales. Exide
manufactures and supplies lead acid batteries for transportation and industrial
applications worldwide.
On September 29, 2000, the Company acquired GNB Technologies, Inc. ("GNB"),
a U.S. and Pacific Rim manufacturer of both industrial and transportation
batteries, from Pacific Dunlop Limited. The acquired GNB operations are located
in the U.S., Australia, New Zealand, Canada, Europe, Japan, South Asia, China,
India and the Middle East. The former GNB businesses manufacture industrial
batteries in North America, including those used in both motive and network
power applications under various brands such as Absolyte(R), Marathon(R),
Sprinter(R), Champion(R) and Pacific Chloride(R). The former GNB operations also
manufacture transportation batteries under the Champion(R), Stowaway(R) and
National(R) brands, among others, including private label brands, and is a
supplier to automotive original equipment manufacturers in North America and the
Pacific Rim.
The Company's operations outside of the U.S. are not included in the
Chapter 11 proceedings.
The Subsidiary Debtors are not actively engaged in business, have no or
immaterial assets, and in light of the senior Claims at each Subsidiary Debtor
that would need to be paid prior to a distribution to Class S4 General Unsecured
Creditors, there is no distribution available to Class S4 General Unsecured
Creditors.
2. Narrative Description of Business
The Company's strategic focus is the manufacture and supply of lead acid
batteries, associated equipment and services for transportation, industrial and
military applications globally. Exide has three primary business segments:
Transportation, Motive Power and Network Power.
Transportation Segment. Transportation batteries represented approximately
63% of the Company's net sales for fiscal 2003.
Transportation batteries include starting, lighting and ignition ("SLI")
batteries for cars, trucks, off-road vehicles, agricultural and construction
vehicles, motorcycles, recreational vehicles, boats, and other applications. The
market for transportation batteries is divided between sales to original
equipment manufacturers ("OEM"s) and aftermarket customers. In North America,
Exide is the second largest manufacturer of transportation batteries. In Europe,
Exide is the largest manufacturer of transportation batteries. The Company
markets its products under various trademarks.
The Company's primary North American transportation aftermarket battery
products include the following:
. Exide(R) enhanced power cold cranking amps and a 72
month warranty
. Exide NASCAR Select(R) Officially licensed by NASCAR
. Exide Select Orbital(R) can be recharged in less time than needed
for conventional batteries, and has high
power output and superior vibration
resistance compared with a conventional lead
acid battery
-10-
. Champion(R) enhanced power cold cranking amps and a 72
month warranty
. Champion Trailblazer(R) targeted at light trucks and sport utility
vehicles
In Europe, Exide has five major Company-owned brands: Exide(R) and
Tudor(R), promoted as pan-European brands, and Deta(R), Centra(TM) and
Fulmen(R), which have strong local awareness levels. The Company generally
offers transportation batteries in five basic categories:
. Basic Model marketed under private label brand names in
France, Germany and Spain, under the Basic
name in Italy and under various names in
other markets
. Upgrade Model marketed under the Classic mark, which
carries a 24 month warranty and marketed
under the Equipe(TM) name in France, the
Classic(R) name in Germany, the Leader(TM)
name in Italy, the Tudor(R)name in Spain and
under various other names in other markets
. Premium Model marketed under the Ultra(TM) brand in the
United Kingdom, the Formula(TM) name in
France, the Top Start Plus(TM) name in
Germany, the Ultra(TM) name in Italy, the
Millennium 3(TM) name in Spain and under
various other names in other markets
. STR/STE(TM) approved for use by BMW and was included in
some models beginning with the 2000 model
year
. Maxxima(TM) the equivalent of the Exide Select
Orbital(R)
Batteries used for marine and recreational vehicles include the following:
-11-
. Stowaway Nautilus(R) employ technology to satisfy the power
requirements of large engines, sophisticated
electronics and on-board accessories
. Exide Select brings all the advantages of Exide's
Orbital(R) Marine patented spiral wound technology to the
marine market, and maintains nearly a full
charge during the off-season, and can be
quickly recharged. This battery is also
sealed, making it ideal for closed
environments (such as inside a boat hull)
. Stowaway Powercycler(R) a completely sealed, VRLA battery with AGM
technology and prismatic plates that offers
features and benefits similar to the Exide
Select Orbital(R), and was the first sealed,
AGM battery introduced in the marine battery
market
. Nautilus(R) Gold Dual a combination battery, replacing separate
Purpose Stowaway(R) starting and deep cycle batteries in
Dual Purpose two-battery marine and recreational vehicle
systems
. Nautilus(R) a high performance, dual terminal battery
Mega Cycle(R)
Stowaway(R) Deep Cycle
Most of the Company's transportation batteries are vented, maintenance-free
lead acid batteries. However, the Company's Exide Select Orbital(R) and
Maxxima(TM) batteries have a patented spiral wound technology and
state-of-the-art recombinant design. Additionally, the Company's STR/STE(TM)
batteries use recombination technology to allow a lead acid battery to be
installed in the passenger compartment of an automobile with reduced fluid loss
and acid fumes under normal operating conditions.
Original Equipment Manufacturer (OEM) Market. The OEM market consists of
the sale of batteries to manufacturers of automobiles and light trucks,
commercial vehicles, heavy-duty trucks, buses and off-road agricultural and
construction vehicles.
The Company's major OEM customers include DaimlerChrysler, Ford Motor
Company, Toyota, Kenworth, Peterbilt, John Deere International, Case/New
Holland, Fiat, Volkswagen Group, the PSA group (Peugeot S.A./Citroen),
Renault/Nissan and BMW.
The factors affecting the OEM market include consumer demand for passenger
cars, light trucks and sport utility vehicles, consolidation in the automotive
industry, globalization of OEM procurement activities and competition.
Aftermarket. The Company sells aftermarket batteries in North America
through automotive parts and specialty retailers, OEM dealer networks, mass
merchandisers, car and truck dealers, and wholesale distributors who supply
service stations, repair shops, automotive and farm-equipment dealers, and small
retailers. The Company also provides transportation batteries for commercial
applications, such as trucks, farm equipment, tractors and off-road vehicles, as
well as batteries for marine, lawn and garden and motorcycle applications.
The Company's North American aftermarket operations include a Company-owned
branch network. This branch network, throughout the United States and Canada,
sells and distributes batteries and other products to local auto parts
retailers, service stations, repair shops, fleet operators, battery specialists
and installers. Exide's branches may also deliver batteries to the Company's
national account customers' retail stores and OEM dealers and collect used and
spent batteries for recycling.
The Company sells aftermarket batteries in Europe primarily through battery
wholesalers, OEM dealer networks, hypermarkets, service installers, European
purchasing groups and oil companies. Wholesalers and OEM dealers have
traditionally represented the majority of this market, but supermarket chains,
replacement-
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parts stores (represented by purchasing groups) and hypermarkets have become
increasingly important. Battery wholesalers now sell and distribute batteries to
a network of automotive parts retailers, service stations, independent retailers
and supermarkets throughout Europe.
The Company's major aftermarket customers include NAPA, Wal-Mart, Sam's
Club, Kmart, CSK Inc., ADI, Kwik Fit and many other leading aftermarket battery
distributors. Exide is also a supplier of authorized replacement batteries for
DaimlerChrysler, Mopar, Freightliner and John Deere International.
Demand for conventional automotive replacement batteries is influenced by
the following principal factors: (1) the number of vehicles in use; (2) average
battery life; (3) the average age of vehicles and their operating environment;
(4) weather conditions; and (5) population growth and overall economic
conditions. The replacement market is also larger in general than the original
equipment segment, since automotive batteries tend to require replacement every
three to five years.
Motive Power Segment. Sales of motive power batteries represented
approximately 20% of the Company's net sales for fiscal 2003. Exide is a market
leader in this segment of the worldwide industrial battery market.
Product reliability and responsive customer service are very important
attributes in the motive power market.
The largest application for motive power batteries is the materials
handling industry, including forklifts, electric counter balance trucks,
pedestrian pallet trucks, low level order pickers, turret trucks, tow tractors,
reach trucks and very narrow aisle ("VNA") trucks. Other market segments include
scrubber/dryer and sweeper machines in the floor cleaning market, scissor lifts,
access platforms and telescopic zooms in the access market, buggies and carts in
the golf market, mobility equipment in the wheelchair market, mining
locomotives, electric road vehicles, electric boats and non-military submersible
vehicles. Exide also offers a complete range of battery chargers and associated
equipment for the operation and maintenance of battery-powered vehicles.
Exide's motive power batteries are composed of two-volt cells assembled in
numerous configurations and sizes to provide capacities ranging from 30 Ah to
1500 Ah. The Company also manufactures and markets a range of 6 and 12 volt
monobloc batteries. Exide offers conventional vented lead acid technology
utilizing tubular positive-plate and flat plate cell design. Exide also offers a
range of lead acid battery technologies to meet a wide spectrum of customer
application requirements.
In North America, motive power products are sold primarily to independent
lift truck dealers or directly to national accounts or end users. The motive
power battery market in Europe is divided into the OEM market, comprised of the
manufacturers of electric vehicles, and the replacement market, which includes
large users of such electric vehicles as well as original equipment dealer
networks. The majority of the Company's sales in Europe are directly to OEMs.
Motive power products and services are distributed in North America by
Company-owned sales and service locations which are augmented by a network of
independent manufacturers' representatives who provide local service on their
own behalf. In Europe, the Company distributes motive power products and
services through Company-owned sales and service organizations in each country
and utilizes distributors and agents for export of products from Europe to the
rest of the world.
In North America, the Company's primary customers include Nacco, Crown,
Wal-Mart, Kroger and Target. In Europe, its major original equipment motive
power customers include the Linde Group, Junghreinrich Group, Atlet and BT
Rolatruc. Motive power products in Europe are also sold to a wide range of
customers in the aftermarket, ranging from large industrial concerns and retail
distributors to small warehouse and manufacturing operations.
The European and North American motive power markets are influenced by the
demand for materials handling equipment. Customer demand for materials handling
equipment has a strong historical correlation to general economic conditions.
The general economic environment in fiscal 2003 has reduced the overall demand
for materials handling equipment and replacement batteries.
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Network Power Segment. Sales of network power batteries represented
approximately 17% of the Company's net sales for fiscal 2003.
Network power (also known as standby or stationary) batteries are used for
back-up power applications to ensure continuous power supply in case of main
(primary) power failure or outage. Today's examples of where network power
batteries are used to provide backup power include telecommunications,
computers, hospitals, process control, air traffic control, security systems,
utility, railway and military applications. Network power batteries also serve
as uninterruptible power supplies ("UPS") used in computer installations for
banks, airlines and back-up servers for the internet. Other telecommunications
applications include central and local switching systems, satellite stations,
optical fiber repeating boxes, cable TV transmission boxes and radio
transmission stations. In these applications, the batteries are usually packaged
with a 48V DC power system.
There are two primary network power lead acid battery technologies:
valve-regulated (VRLA, or sealed) and vented (flooded). There are two types of
VRLA technologies--GEL and AGM. These technologies are described as follows:
. VRLA: GEL: This technology utilizes a gel electrolyte.
VRLA batteries have replaced other types of
network power batteries because they enhance
safety, reduce maintenance and can be used
in both vertical and horizontal positions.
The Sonnenschein(R) gel technology offers
the advantages of high reliability and long
life. The gel product range offers a wide
range of capabilities such as heat
resistance, deep discharge resistance, long
shelf life and high cyclic performance.
. VRLA: AGM: This technology utilizes an electrolyte
immobilized in an absorbent glass mat
separator. This technology is particularly
well adapted to high rate applications and
can offer up to a 20-year design life.
. Vented (Flooded): This technology is used in applications
requiring high reliability but with the
ability to allow for regular maintenance.
The basic construction involves positive
flat or tubular positive plates. Transparent
containers and accessible internal
construction are features of these batteries
that allow end users to check the battery's
physical condition.
Customers for network power batteries for telecommunications applications
include manufacturers of switches and other equipment and the system operators.
UPS battery customers consist of system manufacturers and end users. Performance
in this market is impacted by the demand for computer systems. Other customers
served by Exide include electrical generating companies, as well as government
and military users.
The Company offers a global product line which is being marketed under the
following five brands associated with product type and technology:
. Absolyte(R): Large 2-volt cells, incorporating AGM
technology, for long duration (e.g.
telecommunications) and short duration
applications
. Marathon(R): Multi-cell AGM monobloc batteries for long
duration applications
. Sprinter(R): Multi-cell AGM monobloc batteries for short
duration applications
. Sonnenschein(R): Multi-cell monoblocs and 2-volt cells,
incorporating primarily Gel technology
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. Classic(R): Primarily 2-volt and some multi-cell vented
(or flooded) products for a wide range of
applications
Exide's major network power battery customers for telecommunications
services include AT&T, China Unicom, Cingular, Nippon Telegraph and Telephone,
Singapore Telecom, Telecom Italia, Telefonica of Spain and Verizon. Major
telecommunications customers include Alcatel, Ericsson, Marconi, Emerson,
Nortel, Motorola and Nokia. UPS manufacturing and end user customers include MGE
and Siemens. Exide is also one of the leading suppliers of submarine batteries
to the navies of Denmark, France, Germany, Italy, Norway, Singapore, Spain,
Sweden and Turkey. Exide is the sole supplier to the U.S. Navy for submarine
batteries for the nuclear-powered fleet.
Given the importance of service and technical assistance, the Company
generally ships network power batteries directly to system suppliers and UPS
manufacturers who include the batteries in their original equipment and
distribute products to end users. Batteries are also shipped directly to end
users for both systems and replacement. The Company also promotes its products
through technical seminars, trade shows and technical literature.
Demand for telecommunications batteries is driven by the growth in
broadband and worldwide deployment of cellular and wireless mobile communication
systems and the need for safe and reliable back-up power. The dramatic
telecommunications industry downturn has resulted in weak demand for network
power batteries since September 2001.
For further information about the Company's business operations, refer to
the Company's Annual Report on Form 10-K for the fiscal year ended March 31,
2003 attached as Exhibit D hereto.
B. SUMMARY OF CAPITAL STRUCTURE OF DEBTORS
1. DIP Credit Facility
On May 10, 2002, the Company received final Bankruptcy Court approval of
its $250 million DIP Credit Facility. The DIP Credit Facility is being used to
supplement cash flows from operations during the reorganization process
including the payment of post-petition ordinary course trade and other payables,
the payment of certain permitted prepetition claims, working capital needs,
letter of credit requirements and other general corporate purposes.
The DIP Credit Facility is a secured revolving credit and term loan
facility under which Exide Technologies is the borrower with certain U.S.
subsidiaries acting as guarantors. The DIP Credit Facility is afforded super
priority claim status in the Chapter 11 Cases and is collateralized by first
liens on certain eligible U.S. assets of the Company, principally accounts
receivable, inventory and property.
The revolving credit tranche of the DIP Credit Facility provides for
borrowing up to $121 million, of which up to $65 million is available to Exide
Technologies for on-lending to its foreign subsidiaries. An additional $50
million sub-facility is also available to the foreign subsidiaries based on
certain collateral asset values in the United Kingdom and Canada. To the extent
funds are borrowed under the DIP and on-lent to foreign subsidiaries, additional
liens on certain assets of the borrowing foreign subsidiary and related
guarantees are required. Up to $40 million of the revolving credit tranche is
available for letters of credit.
Borrowings under the DIP Credit Facility bear interest at LIBOR plus 3.75%
per annum. Borrowings are limited to eligible collateral under the DIP Credit
Facility. Eligible collateral under the DIP Credit Facility includes certain
accounts receivable and inventory in the U.S. and certain property in the U.S.
and Europe. Availability to the Company is impacted by changes in both the
amounts of the collateral and qualitative factors (such as aging of accounts
receivable and inventory reserves) as well as cash requirements of the business
such as trade credit terms. The DIP Credit Facility contains certain financial
covenants requiring the Company to maintain monthly specified levels of earnings
before interest, taxes, depreciation, amortization, restructuring and certain
other defined charges, as well as limits on capital expenditures and cash
restructuring expenditures. The DIP Credit Facility also contains other
customary covenants, including certain reporting requirements and covenants that
restrict the Company's ability to incur indebtedness, create or incur liens or
guarantees, enter into
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leases, sell or dispose of assets, change the nature of the Company's business
or enter into related party transactions.
The DIP Credit Facility matures on the earlier of (1) February 15, 2004,
(2) 30 days before the final maturity of any principal obligations under the
Prepetition Credit Facility, which is currently scheduled to mature on December
18, 2003, or (3) the date the Company emerges from bankruptcy.
Total availability under the DIP Credit Facility as of March 31, 2003 was
$25.0 million.
2. Prepetition Credit Facility
The Company is also party to an Amended and Restated Credit and Guarantee
Agreement dated as of September 29, 2000 (the "Prepetition Credit Facility").
The borrowers under the Prepetition Credit Facility include the Company and
various of its foreign subsidiaries. The guarantors include, in addition to the
borrowers, GNB Battery Technologies Japan, Inc. and various other of its foreign
subsidiaries. The foreign subsidiaries, who are borrowers and guarantors, and
GNB Battery Technologies Japan, Inc. are not debtors in the bankruptcy
proceeding. The Prepetition Credit Facility is a secured revolving credit and
term loan facility.
The Company's Prepetition Credit Facility has three borrowing tranches: a
$150 million six year multi-currency term A loan, a $500 million seven and
one-quarter year U.S. dollar term B loan and a $250 million six year
multi-currency revolving credit line. This facility contains a number of
financial and other covenants customary for such agreements including
restrictions on new indebtedness, liens, leverage ratios, acquisitions and
capital expenditures. Under the original terms of the agreement, principal
payments on the revolving credit line and the term A loans are due and payable
in December 2003 while principal payments on the term B loans continue through
March 2005.
In connection with the Chapter 11 proceedings, the Company also entered
into a Standstill Agreement with its Prepetition Credit Facility lenders,
whereby the lenders have agreed to forbear collections of principal payments on
foreign borrowings under the Prepetition Credit Facility from non-Debtor
subsidiaries until December 18, 2003, subject to earlier termination upon the
occurrence of certain events. The principal events which could result in an
early termination of the Standstill Agreement are: (1) non-payment of interest
on the European tranche of the Company's Prepetition Credit Facility as and when
due; (2) if any significant foreign subsidiaries commence any winding up or
liquidation proceeding; (3) breach of financial and other customary negative
covenants (as described with respect to the DIP Credit Facility); and (4)
default with respect to the European securitization facility and 9.125% Senior
Notes (Deutsche Mark denominated) agreement. The Company continues to accrue
interest under the Prepetition Credit Facility, and makes adequate protection
payments subject to liquidity calculations prescribed in the DIP Credit
Facility. Borrowings under the Prepetition Credit Facility by Exide Technologies
are subject to compromise within the Chapter 11 Cases.
3. 10% Senior Notes
In 1995, Exide Technologies issued $300 million original principal amount
10% senior notes due April 15, 2005 (the "10% Senior Notes") pursuant to an
indenture dated April 28, 1995, as amended from time to time, between Exide
Technologies and The Bank of New York, as Trustee.
The 10% Senior Notes are unsecured obligations of Exide Technologies and
are redeemable at the option of Exide Technologies, in whole or in part, at any
time at 100% of the principal amount, plus accrued interest. The 10% Senior
Notes are not guaranteed by any subsidiary of Exide Technologies.
Amounts owing to holders of the 10% Senior Notes are subject to compromise
within the Chapter 11 Cases.
As of March 31, 2003, there were $300 million of 10% Senior Notes
outstanding.
4. Convertible Notes
In 1995, Exide Technologies issued convertible senior subordinated notes
due December 15, 2005 with a face amount of $397 million discounted to $287.8
million (the "Convertible Notes") pursuant to an indenture dated December 15,
1995, as amended from time to time, between Exide Technologies and The Bank of
New
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York, as Trustee. The Convertible Notes are subordinated to all senior debt of
Exide Technologies, including the Prepetition Credit Facility and the 10% Senior
Notes.
The Convertible Notes are unsecured obligations of Exide Technologies and
have a coupon rate of 2.9% with a yield to maturity of 6.75%. The Convertible
Notes are convertible into Exide Technologies' common stock at a conversion rate
of .0125473 shares per $1 principal amount at maturity, subject to adjustments
in certain events. The Convertible Notes are not guaranteed by any subsidiary of
Exide Technologies.
Amounts owing to holders of the Convertible Notes are subject to compromise
within the Chapter 11 Cases.
As of March 31, 2003, there were $320.7 million of Convertible Notes
outstanding.
5. Common Stock
As of March 31, 2003 the Company had 27,383,000 shares of its common stock,
par value $.01 per share (the "Old Common Stock"), outstanding. The Old Common
Stock is currently traded on the over-the-counter market and quoted on the OTC
Bulletin Board under the symbol "EXDTQ." Prior to delisting on February 15,
2002, the Company's common stock had been traded on the New York Stock Exchange.
The Company's Board of Directors suspended payment of dividends on the common
stock on November 8, 2001.
C. EVENTS LEADING TO THE CHAPTER 11 CASES
The Company and certain of its subsidiaries decided to file for
reorganization under Chapter 11 as it offered the most efficient alternative to
restructure the Company's balance sheet and access new working capital while
continuing to operate in the ordinary course of business. The Company has a
heavy debt burden, caused largely by a debt-financed acquisition strategy and
the significant costs of integrating those acquisitions. Other factors leading
to the reorganization included the impact of adverse economic conditions on the
Company's markets, particularly telecommunications and ongoing competitive
pressures. These factors contributed to a loss of revenues and resulted in
significant operating losses and negative cash flows, severely impacting the
Company's financial condition and its ability to maintain compliance with debt
covenants.
The Company's operations outside of the U.S. are not included in the
Chapter 11 proceedings. However, in connection with the Chapter 11 filing, the
Company entered into the Standstill Agreement with its Prepetition Credit
Facility lenders, whereby those lenders have agreed to forbear collection of
principal payments on foreign borrowings under the Prepetition Credit Facility
from non-Debtor subsidiaries until December 2003, subject to earlier termination
upon the occurrence of certain events. The principal events which could result
in an early termination of the Standstill Agreement are: (1) non-payment of
interest on the European tranche of the Company's Prepetition Credit Facility as
and when due; (2) if any significant foreign subsidiaries commence any winding
up or liquidation proceeding; (3) breach of financial and other customary
negative covenants (as described with respect to the DIP Credit Facility); and
(4) default with respect to the European securitization facility and 9.125%
Senior Notes (Deutsche mark denominated) agreement.
On May 10, 2002, the Debtors received final Bankruptcy Court approval of
its $250 million DIP Credit Facility. The DIP Credit Facility is being used to
supplement cash flows from operations during the reorganization process
including the payment of post-petition ordinary course trade and other payables,
the payment of certain permitted prepetition claims, working capital needs,
letter of credit requirements and for other general corporate purposes.
For further information about the matters discussed above, see the
Company's Annual Report on Form 10-K for the fiscal year ended March 31, 2003
attached as Exhibit D hereto. The exhibits to this report are available on the
Securities and Exchange Commission's internet website at http://www.sec.gov.
D. PURPOSE OF THE PLAN
The purpose of the Plan is to restructure Debtors' debt to provide Debtors
with a capital structure that can be supported by the cash flow of their
operations. Assuming that all Holders of Allowed Class P3 and S3 Prepetition
Credit Facility Claims choose the Class P3 Election A, the Plan will reduce
Debtors' and the non-Debtors' subsidiary debt and accrued interest by more than
$1.4 billion and their future annual
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interest expense by approximately $61 million. Debtors believe that the
reorganization contemplated by the Plan is in the best interests of their
creditors and other interested constituencies. If the Plan is not confirmed,
Debtors believe that they will be forced to either file an alternate plan of
reorganization or liquidate under Chapter 7 of the Bankruptcy Code. In either
event, Debtors believe that the Company's unsecured creditors and equity holders
would realize a less favorable distribution of value, or, in certain cases, none
at all, for their Claims or Equity Interests under an alternative plan or
liquidation. See the Liquidation Analysis set forth in Exhibit B attached
hereto.
E. NEW EXIDE HOLDING COMPANY STRUCTURE
As a result of the restructuring transactions described below in Section
III.H.1 hereof, Exide's corporate structure will change as of the Effective
Date. On the Effective Date, as a result of the merger of Exide with and into
Exide Operating, Reorganized Exide will be an indirect, wholly-owned subsidiary
of New Exide. Two new, wholly-owned subsidiaries of New Exide ("Exide Holding 1"
and "Exide Holding 2") will each own 50% of another new subsidiary ("Exide
Holding 3"). An organizational chart depicting the anticipated corporate
structure of the new holding companies of Reorganized Exide as of the Effective
Date is set forth below.
---------
New Exide
---------
---------------- ---------------
Exide Holding 1 Exide Holding 2
---------------- ---------------
---------------
Exide Holding 3
---------------
-----------------------------
Recognized Exide (survivor of
the merger of Exide
with and into Exide Operating)
-----------------------------
F. TERMS OF SECURITIES TO BE ISSUED AND CREDIT FACILITY TO BE MODIFIED
PURSUANT TO THE PLAN
1. New Exide Preferred Stock
On the Effective Date, New Exide will issue for distribution in accordance
with the Plan a number of shares of New Exide Preferred Stock, as determined in
accordance with the Plan, to be authorized pursuant to the New Exide Certificate
of Incorporation and subject to the Shareholder Agreement. Exide expects that
the number of shares of New Exide Preferred Stock issued on the Effective Date
will be between 494,519 and 511,879, depending on the amount of Option B
Electors, if any. Lenders under the Prepetition Credit Facility will receive
100% of the New Exide Preferred Stock, which, as of the Effective Date,
represents 99.2% of New Exide Common Stock, taking into consideration the New
Exide Preferred Stock Conversion Election on a fully-exercised basis, subject to
dilution pursuant to the Company Incentive Plan. The terms of the New Exide
Preferred Stock are more fully described in Section III.H.5 hereof.
2. New Exide Common Stock
On the Effective Date, New Exide will issue for distribution in accordance
with the Plan 200,000 shares of New Exide Common Stock, which represents 0.8% of
New Exide Common Stock, taking into consideration the New Exide Preferred Stock
Conversion Election on a fully-exercised basis, subject to dilution pursuant to
the Company Incentive Plan. The New Exide Common Stock will be distributed to
Holders of Allowed Class P4-B 10% Senior Note Claims and authorized pursuant to
the New Exide Certificate of Incorporation. The terms of the New Exide Common
Stock are more fully described in Section III.H.5 hereof.
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3. Amended Prepetition Foreign Credit Agreement
Holders of Allowed Class P3 and Class S3 Prepetition Credit Facility Claims
who choose the Class P3 Election B will, among other thing, have their
Prepetition Foreign Secured Claims as against the respective Foreign Subsidiary
Borrowers reinstated pursuant to the Amended Prepetition Foreign Credit
Agreement. Modifications to the Prepetition Foreign Credit Agreement are
described in Section III.H.5 hereof.
G. BOARD OF DIRECTORS OF NEW EXIDE
Subject to any requirement of Bankruptcy Court approval pursuant to section
1129(a)(5) of the Bankruptcy Code, as of the Effective Date, the principal
officers of Exide immediately prior to the Effective Date shall be the officers
of New Exide. New Exide will have a seven-member board of directors. Please see
Section III.H.7 for more information regarding the composition of the Board of
Directors of New Exide. Prior to confirmation of the Plan, Exide will disclose
the identities of the members of the board of directors of New Exide.
H. LIQUIDATION ANALYSIS
Pursuant to section 1129(a)(7) of the Bankruptcy Code (sometimes called the
"Best Interests Test," which is described in greater detail in Section IV.D.4
hereof), the Bankruptcy Code requires that each Holder of an Impaired Claim or
Impaired Equity Interest either (x) accept the Plan or (y) receive or retain
under the Plan property of a value, as of the Effective Date of the Plan, that
is not less than the value such holder would receive or retain if the debtor
were liquidated under Chapter 7 of the Bankruptcy Code.
The first step in meeting this test is to determine the proceeds that would
be generated from the hypothetical liquidation of Debtors' assets and properties
in the context of a Chapter 7 liquidation case. The gross amount of cash and
cash equivalents ("Cash") available would be the sum of the proceeds from the
disposition of Debtors' assets and the Cash held by Debtors at the time of the
commencement of the Chapter 7 case. Such amount is reduced by the amount of any
Claims secured by such assets, the costs and expenses of the liquidation and
such additional administrative expenses and priority claims that may result from
the termination of Debtors' business and the use of Chapter 7 for the purposes
of a hypothetical liquidation. Any remaining net Cash would be allocated to
creditors and stockholders in strict priority in accordance with section 726 of
the Bankruptcy Code.
Debtors believe that the Plan will produce a greater recovery for Holders
of Claims and Equity Interests than would be achieved in a Chapter 7
liquidation. The Debtors, with the assistance of AlixPartners, prepared a
liquidation analysis (the "Liquidation Analysis") with the assistance of
management on behalf of Debtors, set forth in Exhibit B attached hereto, to
assist Holders of Claims and Equity Interests to reach a determination as to
whether to accept or reject the Plan. This Liquidation Analysis estimates the
proceeds to be realized if Debtors were to be liquidated under Chapter 7 of the
Bankruptcy Code. The Liquidation Analysis is based upon assets and liabilities
of Debtors as of March 31, 2003 and incorporates estimates and assumptions
developed by Debtors which are subject to potentially material changes with
respect to economic and business conditions, as well as uncertainties not within
Debtors' control. The Liquidation Analysis does not assume a judgment in favor
of the plaintiffs in the Creditors Committee Adversary Proceeding. Also, from
time to time, the Debtors have received offers to purchase their smelter assets,
which offers, if capable of being consummated, could provide value in excess of
the value ascribed to such assets in the liquidation analysis. While the Debtors
have considered such offers, they are not currently entertaining the sale of any
such assets. For more information on the Debtors' assets, please see the
Schedules.
It has been assumed that creditor recoveries would not be affected by
proceeds from causes of action, if any, including fraudulent conveyance and
other avoidance claims, or any litigation that Debtors are or may be capable of
asserting. The Liquidation Analysis set forth in Exhibit B attached hereto does
not, therefore, include any estimate of the necessary expenses to litigate such
claims.
I. PROJECTIONS AND VALUATION
1. Projections
As a condition to confirmation of a plan, the Bankruptcy Code requires,
among other things, that the Bankruptcy Court determine that confirmation is not
likely to be followed by the liquidation or the need for
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further financial reorganization of the debtors. In connection with the
development of the Plan, and for purposes of determining whether the Plan
satisfies this feasibility standard, the Debtors' management has, through the
development of financial projections (the "Projections"), analyzed the ability
of Reorganized Exide to meet its obligations under the Plan while maintaining
sufficient liquidity and capital resources to conduct its business. The
Projections were also prepared to assist each holder of an Allowed Claims in
Voting Classes in determining whether to accept or reject the Plan.
The Projections should be read in conjunction with the assumptions,
qualifications and footnotes to tables containing the Projections set forth
herein, the historical consolidated financial information (including the notes
and schedules thereto) and the other information set forth in the Annual Report
on Form 10-K for the fiscal year ended March 31, 2003. The Projections were
prepared in good faith based upon assumptions believed to be reasonable and
applied in a manner consistent with past practice. Most of the assumptions about
the operations of the business after the assumed Effective Date that are
utilized in the Projections were based, in part, on economic, competitive, and
general business conditions prevailing at the time, as well as the assumption of
gradual economic recovery prospectively. While as of the date of the Disclosure
Statement such conditions have not materially changed, any future changes in
these conditions may materially impact the ability of Reorganized Exide to
achieve the Projections.
The Projections were prepared to show the estimated consolidated financial
position, results of operations, and cash flows at, and following, September 30,
2003. However, the Projections do not currently take into account all of the
projected accounting effects of the Plan. With the exception of valuation of the
shareholders' equity of New Exide, the Projections are not in accordance with
the American Institute of Certified Public Accountants Statement of Position
90-7, "Financial Reporting by Entities Under the Bankruptcy Code" ("SOP 90-7").
THE DEBTORS' INDEPENDENT ACCOUNTANT, HAS NEITHER COMPILED NOR EXAMINED THE
ACCOMPANYING PROSPECTIVE FINANCIAL INFORMATION TO DETERMINE THE REASONABLENESS
THEREOF AND, ACCORDINGLY, HAS NOT EXPRESSED AN OPINION OR ANY OTHER FORM OF
ASSURANCE WITH RESPECT THERETO.
THE DEBTORS DO NOT, AS A MATTER OF COURSE, PUBLISH PROJECTIONS OF THEIR
ANTICIPATED FINANCIAL POSITION, RESULTS OF OPERATIONS OR CASH FLOWS.
ACCORDINGLY, REORGANIZED EXIDE DOES NOT INTEND TO, AND DISCLAIMS ANY OBLIGATION
TO, (A) FURNISH UPDATED PROJECTIONS TO HOLDERS OF CLAIMS OR EQUITY INTERESTS
PRIOR TO THE EFFECTIVE DATE OR TO HOLDERS OF NEW EXIDE'S PREFERRED STOCK OR
COMMON STOCK OR ANY OTHER PARTY AFTER THE EFFECTIVE DATE, (B) INCLUDE SUCH
UPDATED INFORMATION IN ANY DOCUMENTS THAT MAY BE REQUIRED TO BE FILED WITH THE
SEC, OR (C) OTHERWISE MAKE SUCH UPDATED INFORMATION PUBLICLY AVAILABLE.
THE PROJECTIONS PROVIDED IN THE DISCLOSURE STATEMENT HAVE BEEN PREPARED
EXCLUSIVELY BY THE DEBTORS' MANAGEMENT. THESE PROJECTIONS, WHILE PRESENTED WITH
NUMERICAL SPECIFICITY, ARE NECESSARILY BASED ON A VARIETY OF ESTIMATES AND
ASSUMPTIONS (including the assumption that there will be no negative impact from
the chapter 11 caseS on REORGANIZED EXIDE'S relationships with ITS CUSTOMERS),
WHICH, THOUGH CONSIDERED REASONABLE BY MANAGEMENT, MAY NOT BE REALIZED, AND ARE
INHERENTLY SUBJECT TO SIGNIFICANT BUSINESS, ECONOMIC AND COMPETITIVE
UNCERTAINTIES AND CONTINGENCIES, MANY OF WHICH ARE BEYOND REORGANIZED EXIDE'S
CONTROL. THE DEBTORS CAUTION THAT NO REPRESENTATIONS CAN BE MADE AS TO THE
ACCURACY OF THESE FINANCIAL PROJECTIONS OR TO REORGANIZED EXIDE'S ABILITY TO
ACHIEVE THE PROJECTED RESULTS. SOME ASSUMPTIONS INEVITABLY WILL NOT MATERIALIZE.
FURTHER, EVENTS AND CIRCUMSTANCES OCCURRING SUBSEQUENT TO THE DATE ON WHICH
THESE PROJECTIONS WERE PREPARED MAY BE DIFFERENT FROM THOSE ASSUMED OR,
ALTERNATIVELY, MAY HAVE BEEN UNANTICIPATED, AND THUS THE OCCURRENCE OF THESE
EVENTS MAY AFFECT FINANCIAL RESULTS IN A MATERIAL AND POSSIBLY ADVERSE MANNER.
THE PROJECTIONS, THEREFORE, MAY NOT BE RELIED UPON AS A GUARANTY OR OTHER
ASSURANCE OF THE ACTUAL RESULTS THAT WILL OCCUR.
FINALLY, THE FOLLOWING PROJECTIONS INCLUDE ASSUMPTIONS AS TO THE ENTERPRISE
VALUE OF REORGANIZED EXIDE, THE FAIR VALUE OF ITS ASSETS AND ITS ACTUAL
LIABILITIES AS OF THE EFFECTIVE DATE. REORGANIZED EXIDE WILL BE REQUIRED
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TO MAKE SUCH ESTIMATIONS AS OF THE EFFECTIVE DATE. SUCH DETERMINATION WILL BE
BASED UPON THE FAIR VALUES AS OF THAT DATE, WHICH COULD BE MATERIALLY GREATER OR
LOWER THAN THE VALUES ASSUMED IN THE FOREGOING ESTIMATES.
(a) Summary of Significant Assumptions. The Debtors have developed the
Projections (summarized below) to assist both creditors and shareholders in
their evaluation of the Plan and to analyze its feasibility. THE
PROJECTIONS ARE BASED UPON A NUMBER OF SIGNIFICANT ASSUMPTIONS DESCRIBED
BELOW. ACTUAL OPERATING RESULTS AND VALUES MAY AND LIKELY WILL VARY FROM
THOSE PROJECTED.
(i) Fiscal Years. Reorganized Exide's fiscal year ends on
March 31 of each year.
(ii) Plan Terms and Consummation. The Projections assume an
Effective Date of September 30, 2003 with Allowed Claims and
Interests treated in accordance with the treatment provided in
the Plan with respect to such Allowed Claims and Interests. The
Projections also assume that no Holders of Allowed Class P3 and
S3 Prepetition Credit Facility Claims choose the Class P3
Election B. If consummation of the Plan does not occur on or
around September 30, 2003, there is no assurance that, among
other things, the trade creditors or customers will support
Reorganized Exide as projected. A material reduction in trade
credit and terms would materially impact Reorganized Exide's
ability to achieve the projected results. Further, if the
Effective Date does not occur by September 30, 2003, additional
bankruptcy expenses will be incurred until such time as a plan of
reorganization is confirmed and consummated. These expenses could
significantly impact Reorganized Exide's results of operations
and cash flows.
(iii) Assumptions Preceding the Effective Date. As a basis
for the Projections, management has estimated the operating
results for the period of time leading up to the Effective Date.
Specifically, it has been assumed that prior to and during the
Chapter 11 Cases, trade vendors will continue to provide the
Debtors with goods on customary terms and credit and there has
been no meaningful change in the Debtors' customer base.
(iv) General Economic Conditions. The Projections were
prepared assuming that economic conditions in the markets to be
served by Reorganized Exide will stabilize in fiscal year 2004,
with a general, but not material, economic recovery beginning in
the second half of fiscal year 2004. Pricing pressure is assumed
to continue in certain markets, while inflation in costs is
assumed to remain relatively low.
(v) Currency Exchange Rates and Lead Pricing. The
Projections assume a US dollar-to-Euro conversion rate of $0.94
and do not reflect costs to hedge exchange rate fluctuations. The
assumed cost of lead, the primary raw material required in
battery manufacturing, is assumed to be based on prevailing base
rates indicated on the London Metals Exchange of $485 per metric
ton. If unhedged, actual lead pricing and exchange rates that
materially differ from these assumptions could result in
significant positive or negative variances from the Projections.
(vi) Revenues. Total revenues are projected to decrease by
3.5% in fiscal year 2004, and then increase by 4.5%, 4.2%, 4.7%,
and 5.1% in fiscal years 2005, 2006, 2007, and 2008,
respectively. Excluding exchange rate impacts, revenues in fiscal
year 2004 are forecasted to be relatively flat versus those
achieved in fiscal year 2003. The achievement of projected
revenue growth is assumed to result primarily from (i) focus on
larger aftermarket accounts not currently served in the
Transportation business, (ii) increased focus on parts and
services business worldwide, and (iii) Reorganized Exide's
ability to source globally in a consolidating OE marketplace. The
Projections are based upon maintaining key relationships with
existing major clients. THE PROJECTIONS DO NOT PROJECT ANY
NEGATIVE IMPACT FROM THE CHAPTER 11 CASES ON REORGANIZED EXIDE
RELATIONSHIPS WITH ITS CUSTOMERS.
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(vii) Cost of Goods Sold. Cost of revenue consists primarily
of lead and other materials costs, wages & related costs
pertaining to manufacturing, procurement, and other overhead
costs.
(viii) Gross Margins (revenues less cost of goods sold,
excluding depreciation). Gross margins are projected to increase
as a percentage of revenues (from 25.1% to 26.6%) from fiscal
2003 to fiscal 2005 due to continued rationalization in the
Debtors' cost base through a reduced manufacturing footprint.
Combined with projected operating efficiencies, this
rationalization is projected to result in improved absorption of
fixed costs. Gross margins are then forecasted to decrease as a
percentage of revenues (from 26.6% to 25.6%) from fiscal 2005 to
fiscal 2008 due to inflationary cost increases for labor,
utilities, and other operating expenses at the Debtors'
manufacturing facilities.
(ix) Selling & Marketing and General & Administrative
Expenses. Selling & marketing and general & administrative
expenses as a percent of total revenues are expected to be 16.2%,
15.4%, 14.9%, 14.3%, and 13.9%, for fiscal years 2004, 2005,
2006, 2007, and 2008, respectively. The decline in selling,
general and administrative expenses as a percentage of revenue
results primarily from initiatives designed to achieve cost
savings.
(x) EBITDAR. EBITDAR is defined for purposes of the
Projections as earnings before interest expense, income tax
provision, depreciation and amortization, restructuring expenses,
and other unusual and non-recurring items.
(xi) Interest Expense. Interest expense reflects interest on
the Exit Facility at a rate of LIBOR plus 425 basis points
("bps") on the North American and European Term Loans and LIBOR
plus 350 bps on the Revolving Credit Facility. While the
three-month LIBOR is currently approximately 100 bps, the
Projections assume LIBOR of 225 bps, as the Debtors believe that
LIBOR will increase over the next five years.
(xii) Income Taxes. The Projections assume that, upon
consummation, Reorganized Exide will have the benefit of
approximately $499 million of net operating loss carryforwards
("NOLs"), net of NOLs used to shield cancellation of indebtedness
income ("COD Income") resulting from the restructuring
transaction. It is anticipated that substantially all of those
NOLs will reside with Foreign Subsidiary Borrowers, with
substantially all domestic NOLs used to shield COD Income. The
domestic combined federal, state and local income tax rate is
estimated at 38%. Taking into account the continued benefit of
NOLs, the foreign combined federal, state and local income tax
rate is estimated at 25%.
(xiii) Capital Expenditures. Capital expenditures consist of
maintenance costs, fixed asset purchases, environmental, health
and safety costs, initiative-related capital expenditures, and
other capital expenditures. The Projections assume a level of
capital expenditures that can be supported by the capital
structure and forecasted operating results of Reorganized Exide.
(xiv) "Fresh Start Accounting". Although the Projections
reflect certain adjustments as of the Effective Date, including
the impact of the valuation of Reorganized Exide's equity, they
do not fully reflect "fresh start" accounting. The Debtors are in
the process of evaluating further how the reorganization value
will be allocated to Reorganized Exide's various assets. It is
likely that the final allocation will differ from current
estimates, and therefore the amount of reorganization value in
excess of book, as well as depreciation, will differ from the
amounts presented herein. For purposes of the Projections, the
fair market value of Debtors' assets and liabilities is assumed
to be equivalent to their respective net book values.
(xv) Reorganization Value. For purposes of this Disclosure
Statement and in order to prepare the Projections, management has
estimated the reorganization value of Reorganized Exide as of
September 30, 2003 to be approximately $950 million. For purposes
of computing reorganization adjustments, the reorganization value
is assumed to be allocated between North America and Europe/ROW
based on a $500 million valuation of North
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America and a $450 million valuation of Europe/ROW. See Valuation
disclosure in Section I.I.2 hereof.
(xvi) Working Capital. Components of working capital are
projected primarily on the basis of historic patterns, adjusted
to reflect the benefit of management initiatives in areas such as
inventory reduction.
(xvii) New Loan Facilities. The Projections include an Exit
Facility consisting of a $200 million North American Term Loan, a
$250 million European Term Loan, and a $100 million North
American Revolving Credit Facility with on-lending capabilities.
The Term Loans include interest at LIBOR plus 425 bps. The
Revolving Credit Facility includes interest at LIBOR plus 350
bps. LIBOR is included in the projections at 225 bps.
(b) Special Note Regarding Forward-Looking Statements. Except for
historical information, statements contained in this Disclosure
Statement and incorporated by reference therein, including the
Projections, may be considered "forward-looking statements" within the
meaning of federal securities law. Such forward-looking statements are
subject to risks, uncertainties and other factors that could cause
actual results to differ materially from future results expressed or
implied by such forward-looking statements. Potential risks and
uncertainties include, but are not limited to, general economic and
business conditions, the competitive environment in which Reorganized
Exide operates and will operate, the success or failure of Reorganized
Exide in implementing its current business and operational strategies,
the level of vendor trade support, labor relations and labor costs,
the ability of Reorganized Exide to maintain and improve its revenues
and margins, and the liquidity of Reorganized Exide on a cash flow
basis (including the ability to comply with the financial covenants of
its credit arrangements and to fund Reorganized Exide's capital
expenditures).
(c) Financial Projections. The financial projections prepared by
management are summarized in the following tables. Specifically, the
attached tables include:
(i) Pro-forma Reorganized Exide balance sheet at September
30, 2003.
(ii) Projected balance sheets for fiscal years ending 2004,
2005, 2006, 2007 and 2008.
(iii) Projected income statements for fiscal years ending in
2004, 2005, 2006, 2007 and 2008.
(iv) Projected statements of cash flow for fiscal years
ending in 2004, 2005, 2006, 2007 and 2008.
All captions in the attached projections do not correspond exactly to
Reorganized Exide's historical external reporting; some captions have been
combined for presentation purposes.
2. Valuation
In conjunction with the Plan, the Debtors determined that it was necessary
to estimate post-Confirmation values for the enterprise of Reorganized Exide as
of the Effective Date and thus the New Common Stock. Accordingly, the Debtors
directed Blackstone to prepare a valuation analysis of Reorganized Exide for
purposes of this Disclosure Statement.
In preparing its analyses, Blackstone (i) reviewed certain recent financial
statements of the Debtors; (ii) reviewed certain financial projections prepared
by the Debtors for the operations of Reorganized Exide, including those
projections set forth herein (the "Projections"); (iii) discussed the current
operations and prospects of the operating business with the Debtors, including,
but not limited to, their effect, if any, on the Projections; (iv) reviewed the
Debtors' assumptions underlying such Projections; (v) considered the market
values of publicly traded companies that Blackstone and the Debtors believe are
in businesses reasonably comparable to the operating business of Reorganized
Exide; (vi) considered previous transactions, (vii) reviewed non-binding bids
from potential investors; and (viii) made such other examinations and performed
such other analyses as Blackstone deemed necessary and appropriate for the
purpose of the valuations.
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In preparing its analyses Blackstone assumed and relied upon the accuracy
and completeness of all of the financial and other information that was
available to it from public sources and that was provided to Blackstone by the
Debtors or their representatives and has not assumed any responsibility for
independent verification of any such information. With respect to the financial
projections supplied to Blackstone, Blackstone assumed the accuracy thereof and
assumed that such projections were prepared reasonably in good faith and on a
basis reflecting the best available estimates and judgments of the Debtors as to
the future operating and financial performance of Reorganized Exide. Such
projections assume Reorganized Exide will operate the businesses reflected in
its business plan and that such businesses perform as expected in the business
plan. To the extent that Reorganized Exide operates more or fewer businesses
during the projection period and to the extent that all or a portion of the
businesses perform at levels inconsistent with those expected in the business
plan, such adjustments may have a material impact on the operating projections
and valuation as presented herein.
Blackstone did not make or obtain any independent evaluation of Reorganized
Exide's assets, nor did Blackstone verify any of the information it reviewed.
With respect to the valuation of Reorganized Exide, in addition to the
foregoing, Blackstone relied upon the following assumptions:
. Reorganized Exide's enterprise consists of the aggregate enterprise of
Reorganized Exide and its direct and indirect Subsidiaries, including
numerous Non-Filing Subsidiaries of the Debtors' operating Affiliates
doing business worldwide.
. The enterprise valuation range indicated represents the enterprise
value of Reorganized Exide and assumes the pro forma debt levels (as
set forth in the Projections) to calculate a range of equity values.
. The Debtors will emerge from Chapter 11 on or about September 30,
2003.
. Blackstone also has assumed the general continuity of the present
senior management of the Debtors following consummation of the Plan
and has assumed that general financial and market conditions as of the
assumed Effective Date of the Plan will not differ materially from
those conditions as of the date of this Disclosure Statement.
. The total enterprise value for Reorganized Exide includes an
assumption for the value of its NOLs. For purposes of this valuation,
Blackstone relied upon management's estimates of approximately $499
million of foreign NOLs available to Reorganized Exide; it is assumed
that substantially all the Debtors' domestic NOLs are used to shield
cancellation of indebtedness.
Blackstone relied primarily on three valuation techniques to arrive at its
estimation of the theoretical enterprise value of Reorganized Exide: (a)
capitalization of 2003 earnings before interest, taxes, depreciation,
amortization and restructuring costs ("EBITDAR") using trailing market
multiples, (b) discounted cash flow analysis using an EBITDA multiple to
determine a terminal value and (c) capitalization of 2003 EBITDAR using trailing
market EBITDA multiples of prior mergers and acquisitions ("M&A") transactions.
In addition, Blackstone's theoretical valuation was supported by "market"
valuations as submitted by three potential private equity investors. The
valuation techniques used by Blackstone are methodologies that are widely
utilized and generally accepted in the valuation of Debtors in general and in
valuing restructured Debtors in particular.
(a) Capitalization of 2003 EBITDAR. This approach is based on the
premise that publicly traded Debtors in Reorganized Exide's industry trade
in the marketplace as a multiple of their latest twelve months ("LTM")
EBITDA. This approach holds that Reorganized Exide should trade in the
marketplace at a multiple that is similar to those of other Debtors with
businesses that are comparable to Reorganized Exide's. In determining the
degree of comparability between Reorganized Exide's business and other
competitor's businesses, Blackstone has considered a number of factors,
including but not limited to: size; historical profitability; growth
prospects in revenues and profitability; product mix; market share; and
degree of liquidity in the market for their securities. This resulted in
the use of EBITDAR multiples of 4.5x to 5.5x 2003 EBITDAR.
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(b) Discounted Cash Flow Analysis. Blackstone also determined a
potential range of enterprise values using a discounted cash flow approach
based on estimated unleveraged free cash flows and terminal enterprise
values. For this purpose, Blackstone relied primarily on the Projections.
Blackstone derived the present value of such cash flows and terminal values
by discounting them at a rate that reflects the riskiness of the cash
flows. A common technique, and the one employed by Blackstone, for
calculating this discount rate is to use a company's weighted average cost
of capital. For the cost of the debt, Blackstone calculated the average
after-tax cost of debt based on Reorganized Exide's expected capital
structure at emergence, taking into account all fees and expenses
associated with this debt capital. This resulted in pre-tax cost of debt of
7.4% and an after-tax cost of debt of 4.6%, assuming a 38% tax rate. For
the cost of equity, Blackstone reviewed the results of the capital asset
pricing model ("CAPM"), a method commonly used in the academic community.
Blackstone did not believe, however, that the results of CAPM accurately
reflected the types of returns that an equity investor would require to
commit capital to Reorganized Exide. Instead, Blackstone believes investors
would require a 20.0% to 30.0% return on equity to invest in Reorganized
Exide. This cost of equity capital reflects (i) the risk of investing in a
company just emerging from bankruptcy and the uncertainty as to the
long-term effects that bankruptcy will have on Reorganized Exide's
operations and profitability and (ii) the risk that, although Exide has
made significant progress over recent months, Reorganized Exide will be
unable to continue improving its operations and increasing its ability to
generate significant ongoing cash flow from operations. To estimate the
ratio of debt to total capital, Blackstone looked at Reorganized Exide's
expected ratio at emergence as well as the expected trend of this ratio
over the next several years. Taking all of these assumptions into account,
Blackstone concluded that the appropriate discount rate is 15% to 17%.
As discussed above, Blackstone relied on a market EBITDA multiple
approach to determine the appropriate terminal value. This approach
involved capitalizing 2003 EBITDAR using a range of EBITDAR multiples from
4.5x to 5.5x.
(c) M&A EBITDA Multiple Analysis. The M&A EBITDA multiple approach
estimates the value of a company by applying EBITDA multiples from recent
merger and acquisition transactions involving companies in similar
industries to the Debtors' EBITDAR. This approach holds that Reorganized
Exide should be valued at a multiple that is similar to those paid for
companies in the automotive and industrial battery industries in recent
transactions. Taking into account factors such as the comparability of
transactions, the limited number of potential strategic buyers, and
potential anti-trust issues, this approach resulted in the use of EBITDAR
multiples of 5.5x to 6.0x 2003 EBITDAR.
Summary. The following table summarizes the calculation of
Distributable Equity Value:
($ in millions) Enterprise Value
----------------------------
Low Midpoint High
------ -------- --------
Total Enterprise Value $900.0 $ 950.0 $1,000.0
Less Net Debt/(1)/ (434.0) (434.0) (434.0)
Total Equity Value
------ ------- --------
466.0 516.0 566.0
Less: Value Reserved for Company
Incentive Program TBD TBD TBD
------ ------- --------
Distributable Equity Value $466.0 $ 516.0 $ 566.0
====== ======= ========
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/(1)/ Equals total debt of $478.5 million less $12.5 million cash in escrow,
less $9.0 million cash expected from sale of land in Casalnuovo, Italy,
less $23.0 million of cash expected from sale of European smelters. Assumes
no Holders of Prepetition Credit Facility Claims elect Option B.
As a result of such analyses, reviews and assumptions, and giving equal
weighting to each of the above mentioned valuation techniques, Blackstone
estimated that the enterprise value of Reorganized Exide fell in a
-25-
range between $900.0 million and $1.0 billion, with a midpoint of $950.0 million
and Reorganized Exide's distributable equity value fell in a range between
$466.0 million and $566.0 million, with a midpoint of $516.0 million.
Distributable Equity Value is equal to total equity value less the value
reserved for the Company Incentive Plan. See the Plan for a description of this
program. Assuming that New Exide issued 25 million shares to the Class P3 and
Class P4 Holders (on an as-converted basis) and using the midpoint Distributable
Equity Value, this implies a $20.64 price per share.
This estimated range of values represents a hypothetical value that
reflects the estimated intrinsic value of Reorganized Exide derived through the
application of various valuation techniques. Such analysis does not purport to
represent valuation levels that would be achieved in, or assigned by, the public
markets for debt and equity securities or private markets for corporations.
Blackstone's estimate is necessarily based on economic, market, financial and
other conditions as they exist on, and on the information made available to it
as of, the date of this Disclosure Statement. It should be understood that,
although subsequent developments may affect Blackstone's conclusions, Blackstone
does not have any obligation and does not intend to update, revise or reaffirm
its estimate. Since March 31, 2003, the Debtors' business performance has
generally been consistent in all material respects with the business plan
underlying the valuation. Financial information for fiscal quarter ended June
30, 2003, can be found in Exide's Form 10-Q filed with the SEC on August 14,
2003.
J. REORGANIZED DEBTORS AND THE POST-CONFIRMATION ESTATE
Except as otherwise provided in the Plan, the Debtors shall, as Reorganized
Debtors, continue to exist after the Effective Date as separate corporate
entities, with all the powers of a corporation under the laws of their
respective states of incorporation and without prejudice to any right to alter
or terminate such existence (whether by merger or otherwise) under such
applicable state law. Except as otherwise provided in the Plan, on and after the
Effective Date, all property of the Debtors' Estates, and any property acquired
by the Debtors or Reorganized Debtors under the Plan, shall vest in the
respective Reorganized Debtors, free and clear of all Claims, liens, charges, or
other encumbrances. On and after the Effective Date, the Reorganized Debtors may
operate their business and may use, acquire or dispose of property and
compromise or settle any Claims or Equity Interests, without supervision or
approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy
Code or Bankruptcy Rules, other than those restrictions expressly imposed by the
Plan and the Confirmation Order. On or before the Effective Date, Exide may
contribute certain assets to several existing or newly formed, wholly-owned
subsidiaries organized along functional lines to hold Exide's various
businesses. Ownership of the transferred assets shall vest in such subsidiaries
and shall be, after the Effective Date, free and clear of all Claims, liens,
charges or other encumbrances. On and after the Effective Date, such
subsidiaries may operate their businesses and may use, acquire or dispose of
property without supervision or approval by the Bankruptcy Court and free of any
restrictions of the Bankruptcy Code or Bankruptcy Rules, other than those
restrictions expressly imposed by the Plan and the Confirmation Order.
II.
THE CHAPTER 11 CASES
On April 15, 2002, Exide along with the other Initial Debtors filed
voluntary petitions for relief under Chapter 11 of the Bankruptcy Code.
Subsequently, on November 21, 2002, the Subsequent Debtors filed voluntary
petitions for relief under Chapter 11 of the Bankruptcy Code. On the relevant
petition dates, all actions and proceedings against the Debtors and all acts to
obtain property from them were stayed under section 362 of the Bankruptcy Code.
The Debtors have continued to operate their businesses and manage their
properties as debtors and debtors-in-possession pursuant to sections 1107(a) and
1108 of the Bankruptcy Code.
A. DEBTOR-IN-POSSESSION FINANCING
On May 10, 2002, the Company received final approval of its $250 million
DIP Credit Facility. As described in greater detail in Section I.B.1 above, the
DIP Credit Facility is being used to supplement cash flows from operations
during the reorganization process including the payment of post-petition
ordinary course trade and other payables, the payment of certain permitted
prepetition claims, letter of credit requirements and other general corporate
purposes.
B. APPOINTMENT OF THE OFFICIAL COMMITTEES
On April 30, 2002, the office of the United States Trustee appointed the
Creditors Committee.
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The members of the Creditors Committee are Pension Benefit Guarantee
Corporation, HSBC Bank USA, as Trustee, The Bank of New York, as Trustee, Smith
Management LLC, Turnberry Capital Management, L.P., Tulip Corporation,
Transervice Logistics Inc., Carroll Todd Lolis, as Guardian ad Litem for Logan
T. Lollis and Aaron Wann.
After being ordered to appoint a committee of equity holders by an order of
the Bankruptcy Court, on September 24, 2002, the office of the United States
Trustee appointed the Equity Committee.
The members of the Equity Committee are State of Wisconsin Investment
Board, Thomas V. Kandathil and Amand P. Rendell.
C. SUMMARY OF KEY MOTIONS
1. Motion to Obtain Postpetition Financing and Authorizing Debtors to
Utilize Cash Collateral; Granting Adequate Protection to Prepetition
Secured Lenders
On April 17, 2002 the Bankruptcy Court entered an interim order granting
authority for the Debtors to enter into a Postpetition Credit Agreement to
obtain revolving credit and term loans in an interim aggregate principal amount
of up to $200 million, of which no more than $125 million in aggregate principal
amount may consist of revolving loans. The Debtors were also granted authority
to use cash collateral of the Prepetition Lenders and authority for the Debtors
who are parties to the Prepetition Credit Agreement (namely, Exide, Exide
Delaware, L.L.C. and RBD Liquidation, L.L.C. (collectively, the "Adequate
Protection Debtors") to provide adequate protection to the Agent and the
Prepetition Lenders, including making certain adequate protection payments to
the Prepetition Lenders subject to liquidity calculations prescribed in the DIP
Credit Facility. On May 10, 2002, the Bankruptcy Court gave final approval of
the Debtors' Postpetition Credit Facility, in an aggregate principal amount of
up to $250 million.
2. Motions for the Authority to Pay Prepetition Shipping Charges and
Claims of Essential Trade Creditors
On April 18, 2002, the Bankruptcy Court granted the Debtors' requests for
limited discretionary authority to pay certain prepetition trade claims of
critical vendors, not to exceed $30 million. The Bankruptcy Court also granted
the Debtors' request to pay certain prepetition shipping, warehouse, and customs
fees and costs for goods in transit, not to exceed approximately $10 million.
The relief granted in these motions allowed the Debtors to stabilize key vendor
and supply relationships, helping to ensure a smooth transition into Chapter 11.
3. Applications for Retention of Debtors' Professionals
The Debtors have received Bankruptcy Court authority to retain legal,
financial, turnaround and public relations professionals, among others, to
assist the Debtors in connection with these Chapter 11 Cases. These
professionals were intimately involved with the negotiation and development of
the Debtors' restructuring. These professionals include, among others, (a)
Kirkland & Ellis LLP, as counsel for the Debtors; (b) Pachulski, Stang, Ziehl,
Young, Jones & Weintraub, as co-counsel for the Debtors; (c) The Blackstone
Group, L.P., as financial advisors; (d) AlixPartners, as turnaround advisors;
and (e) Gavin Anderson, as public relations consultants.
4. Motion for Expedited Procedures for the Rejection of Executory
Contracts and Unexpired Leases
The Bankruptcy Court has authorized the use of expedited procedures in
which the Debtors may reject an agreement for an executory contract or an
unexpired lease where the remaining benefits under the agreement, if any, are of
no or negligible further value to the Debtors' reorganization efforts.
5. Motion for Continued Use of Cash Management System
On June 14, 2002, the Bankruptcy Court entered a final order authorizing
the Debtors to continue to operate their existing bank accounts, to continue to
use their existing business forms, to continue to use their centralized cash
management system and to grant superiority status to postpetition intercompany
claims.
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6. Motions to Pay Prepetition Wages, Salaries and other Compensation and
Employee Medical, Pension and Similar Benefits
On August 12, 2002, the Bankruptcy Court granted the Debtors' request to
pay all compensation and benefits owed to employees. The authority granted
allows the Debtors to compensate their employees for obligations payable as of
the Petition Date, as well as obligations that come due after the Petition Date.
7. Motion for Expedited Procedures in the Sale or Abandonment of De
Minimis Assets
On May 10, 2002, the Bankruptcy Court authorized the use of expedited
procedures in which the Debtors may (a) effectuate sales of certain obsolete,
excess, or burdensome assets free and clear of all liens, claims, interests and
encumbrances with any such liens attaching to the sale proceeds in the same
validity, extent and priority as immediately prior to the sale, and (b) abandon
de minimis assets to the extent a sale thereof cannot be consummated at value
greater than the liquidation expense of such assets. The maximum aggregate value
of de minimis asset sales authorized under this order cannot exceed $60 million
without further approval from the Bankruptcy Court.
8. Motion to Implement a Key Employee Restructuring Milestone Incentive
and Income Protection Program
On August 12, 2002, the Bankruptcy granted final approval of the Debtors'
Key Employee Restructuring Milestone Incentive and Income Protection Program.
The program addresses the Debtors' employment relationships with approximately
80 employees and provides a discretionary reserve fund for use in retaining the
services of other employees deemed critical to the performance of the Debtors'
businesses during the Chapter 11 Cases.
9. Motion to Extend the Time to Assume or Reject Unexpired Leases of
Nonresidential Real Property
The Debtors, requiring more than the statutory 60 day period to decide
whether to assume or reject executory contracts and unexpired leases, have been
granted several extensions of time within which to assume or reject such
contracts. The current deadline is set to expire on December 8, 2003.
10. Motion to Extend Time to File a Plan and Solicit Acceptances
The Bankruptcy Court has granted several extensions of the time period in
which the Debtors have the exclusive right to file a plan of reorganization and
solicit acceptances of a plan. The current exclusive period for filing a plan of
reorganization runs through August 7, 2003, and the current exclusive period for
soliciting acceptances on a plan of reorganization runs through October 7, 2003.
The Debtors reserve the right to seek further extensions of this deadline.
11. Motion to Appoint an Equity Security Holders Committee
On September 23, 2002 the Bankruptcy Court granted the State of Wisconsin
Investment Board authority to direct the United States Trustee to appoint an
Equity Security Holders' Committee for the Debtors' Chapter 11 Cases.
12. Motion Directing that Certain Orders in the Chapter 11 Cases of Exide
Technologies, et al be Made Applicable to Dixie Metals Company and
Refined Metals Corporation
On November 21, 2002, the Debtors Dixie Metals Company and Refined Metals
Corporation filed voluntary petitions for relief under Chapter 11. By order of
the Bankruptcy Court dated December 18, 2002, certain orders previously entered
in the Chapter 11 Cases were made applicable to Dixie Metals and Refined Metals,
as if Dixie Metals and Refined Metals were actually referred to in the
particular orders.
13. Claim of Bernd Schulte-Ladbeck
Bernd H. Schulte-Ladbeck ("Schulte") and Performance Plastics Products,
Inc. ("3PI") have filed proofs of claim in which they assert ownership or
co-ownership rights in certain patents. Specifically, Schulte and 3PI assert
that (i) Exide Technologies is the owner by assignment of United States Patent
Nos. 6,045,940
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("the `940 patent") and 6,110,617 ("the `617 patent") (collectively, the
"Patents"), (ii) the `940 patent entitled Flooded Lead Acid Battery with
Tilt-Over Capability issued to Exide Technologies on April 4, 2000, (iii) the
`617 patent entitled Flooded Lead Acid Battery with Roll-Over Capability issued
to Exide Technologies on August 29, 2000, (iv) both Patents name Fred F. Feres
("Feres") as the inventor, (vi) the Patents described and claimed batteries
employing polytetrafluoroethylene (PTFE) frits as flame arresters to provide
improved safety in tilt over and roll over circumstances, (vii) in the `617
patent, the frits are employed alone, while in the `940 patent they are used
with a labyrinth on the top of the battery to prevent fluid loss, and (viii)
these inventions are particularly suitable for use in automotive batteries.
Schulte asserts that he is an engineer employed by 3PI. Schulte and 3PI assert
that Schulte is the inventor of the invention disclosed and claimed in the `617
patent and is a co-inventor of the invention disclosed and claimed in the `940
patent. Schulte and 3PI assert in their proofs of claim that they intend to seek
a correction of the inventors named in the Patents which would result in their
acquisition of an ownership interest in the Patents. Further, they claim damages
as a result of (1) Exide Technology's alleged unauthorized disclosure of
Schulte's invention and 3PI's confidential and proprietary information by
application for and acquisition of those United States patents and (2) the
alleged loss of patent rights in foreign countries, notably Europe, Japan,
Brazil, Russia and other countries where automobiles are manufactured and used,
which Schulte and 3PI allege, over the twenty (20) year life of the average
patent, could exceed One Hundred Million Dollars ($100,000,000.00). The Debtors
dispute the assertions of Schulte and 3PI and reserve all of their rights with
respect thereto. The Debtors agree that Schulte or 3PI may file an action in the
Bankruptcy Court (or seek relief from the automatic stay to file an action in
another court) seeking a change of the inventors named in the Patents which
would result in their acquisition of an ownership interest in the Patents, and
that such action would not be barred by any injunction provisions or any other
provisions contained in any confirmed plan of reorganization in these Chapter 11
Cases.
14. Motion to Approve Stipulation and Agreed Order Authorizing Entry Into
a Bonding Facility Agreement
On August 19, 2003, the Bankruptcy Court approved a Stipulation and Agreed
Order ("Stipulation and Agreed Order") Authorizing Entry Into a Bonding Facility
Agreement by and between the Debtors and The St. Paul Companies, Inc., St. Paul
Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul
Mercury Insurance Company and Seaboard Surety Company (collectively, "St.
Paul"). Pursuant to the Stipulation and Agreed Order, St. Paul has agreed to
provide Exide with certain bonding availability during the remainder of the
Debtors' bankruptcy proceedings and for a substantial period following emergence
from bankruptcy, and Exide has agreed, inter alia, to collateralize outstanding
bonds, all pursuant to the terms and conditions of the Stipulation and Agreed
Order, which terms and conditions are more fully set forth therein.
D. ASSUMPTION/REJECTION OF CONTRACTS AND LEASES
Pursuant to section 365 of the Bankruptcy Code, and pursuant to the
rejection procedures order described above, the Debtors may either assume,
assume and assign, or reject executory contracts and unexpired leases of real
and personal property, subject to the approval of the Bankruptcy Court. As a
condition to assumption, or assumption and assignment, the Debtors must cure all
existing defaults under the contract or lease. If the contract or lease is
rejected, any resulting rejection damages are treated as prepetition unsecured
claims. Generally, and with certain exceptions, postpetition obligations arising
under a contract or lease must be paid in full in the ordinary course of
business.
Throughout these Chapter 11 Cases, the Debtors have filed several motions
to reject contracts, and have sought several extensions of time within which to
assume or reject contracts. The current deadline for assuming or rejecting
contracts is December 8, 2003. The Debtors are continuing to review their
executory contracts and unexpired leases and will continue to make
determinations with respect to such contracts on a rolling basis.
On March 24, 2003, the Debtors initiated adversary proceeding number
03-51952 (KJC) against certain of its purported equipment lessors (the
"Purported Lessors") seeking a declaration that certain purported leases (the
"Purported Leases") are actually financing agreements that create a security
interest and are not "true leases" (the "Recharacterization Adversary
Proceeding"). The Purported Lessors deny that the agreements are secured
transactions. At this time, no trial date has been scheduled; however, under the
current scheduling and discovery order, the Recharacterization Adversary
Proceeding will not be resolved or completed prior to confirmation of the Plan.
As a result, the Purported Leases and Purported Lessors shall be subject to the
following treatment under the Plan. Immediately prior to the Effective Date,
except as otherwise provided in this section, all Purported Leases shall be
deemed assumed on a conditional basis pending the entry of a final,
non-appealable
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order resolving the Recharacterization Adversary Proceeding in accordance with
the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code
except those Purported Leases that (1) have been rejected on a conditional basis
pending the entry of a final, non-appealable order resolving the
Recharacterization Adversary Proceeding by order of the Bankruptcy Court, (2)
are the subject of a motion to reject on a conditional basis pending the entry
of a final, non-appealable order resolving the Recharacterization Adversary
Proceeding pending on the Effective Date, or (3) are identified on a list to be
included in the Plan Supplement. To the extent that a final, non-appealable
order is entered in the Recharacterization Adversary Proceeding providing that a
Purported Lease is a "true lease," the conditional assumption or rejection of
such Purported Lease, whichever is applicable, shall become final and such
Purported Lessor shall be entitled to the treatment provided for other lessors
and non-debtor parties to executory contracts. To the extent that a final,
non-appealable order is entered in the Recharacterization Adversary Proceeding
providing that a Purported Lease is a secured financing transaction, such
Purported Lessor shall be entitled to a Class P2-Other Secured Claim to the
extent of the value of the equipment subject to the Purported Lease under
section 506 of the Bankruptcy Code if such Purported Lessor qualifies as a
secured creditor under applicable non-bankruptcy law and a P4-General Unsecured
Claim for any amounts owed by the Debtors greater than the value of the
equipment or for the entire amount of such allowed claim if the Purported Lessor
does not qualify as a secured creditor under applicable non-bankruptcy law. With
respect to any Purported Lease as to which the Debtors retain possession of the
underlying equipment or to which the Debtors have not returned the underlying
equipment, from the Confirmation Date through the date of entry of a dispositive
final, non-appealable order in the Recharacterization Adversary Proceeding with
respect to such Purported Lease or by other agreement between the parties, the
Debtors and the Purported Lessors shall continue to perform their obligations
under the Purported Leases in accordance with each such Purported Lease's terms;
provided however, that with respect to any Purported Lease that is conditionally
assumed as of the Confirmation Date, the Debtors shall not be required to make
any cure payment within the meaning of section 365 of the Bankruptcy Code until
the entry of a final, non-appealable order in the Recharacterization Adversary
Proceeding determining that such Purported Lease is a "true lease." Unless
otherwise agreed to by the parties, the Debtors shall continue to perform their
obligations under the holdover terms of any Purported Lease for which the
Debtors retain possession of the underlying equipment but which expires by its
own terms prior to the entry of a dispositive final, non-appealable order in the
Recharacterization Adversary Proceeding. In the event that the Debtors
conditionally assume a Purported Lease and a final, non-appealable order is
entered in the Recharacterization Adversary Proceeding determining that such
Purported Lease is a "true lease," the Debtors shall provide such Purported
Lessor with a notice setting forth the proposed cure amount within 30 days of
the entry of such order. If the Purported Lessor does not agree with the
Debtors' proposed cure amount, such Purported Lessor may submit an alternative
cure amount within 30 days of receipt of the Debtors' notice. If the parties are
unable to agree on a cure amount, a hearing shall be set before the Bankruptcy
Court to determine the cure amount. Any bar date relating to Administrative
Claims established in the Plan or otherwise shall not apply to Administrative
Claims alleged by the Purported Lessors relating to the Purported Leases.
Rather, upon the motion of the Debtors or the Purported Lessors, the Bankruptcy
Court shall establish a bar date and related notice and filing procedures, in
the Recharacterization Adversary Proceeding, for Administrative Claims alleged
by the Purported Lessors relating to the Purported Leases.
E. BANKRUPTCY LITIGATION
The following are substantial litigation issues currently pending by or
against or seriously impacting upon the Debtors:
1. Exide v. Keystone Leasing Service, et al.
On March 24, 2003, Exide Technologies filed adversary complaint number
03-51952 in the United States Bankruptcy Court for the District of Delaware
against Keystone Leasing Service, JDR Capital Corporation, Citicorp Vendor
Finance, Inc., f/k/a Copelco Capital, Inc., Finova Capital Corporation, Trimarc
Financial, New England Capital Corporation, Diamond Lease (U.S.A.), Inc.,
Sovereign Bank Network Capital Alliance Division, Fleet Credit Corporation,
n/k/a Fleet Capital Corporation, Transamerica Business Credit Corporation, n/k/a
M Credit, Inc., USL Capital Corporation, n/k/a Mellon US Leasing, General
Electric Capital Corporation, Associates Leasing, Inc., n/k/a CitiCapital
Commercial Leasing Corporation, Sanwa Business Credit Corporation n/k/a Fleet
Business Credit Corporation, Fleet Business Credit Funding Corporation,
FleetBoston Financial Corporation, Senstar Finance Company, n/k/a Deere Credit,
Inc., Fifth Third Leasing Company and National City Leasing Company. The
complaint relates to agreements pertaining to certain of Exide's industrial and
manufacturing machinery, and seeks a determination that such agreements are
secured financing transactions and not true leases. Currently, the parties are
in the discovery phase of the litigation.
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2. Exide v. Arthur M. Hawkins, Douglas N. Pearson and Alan E. Gauthier
On May 8, 2002, Exide filed an adversary proceeding against former officers
Arthur Hawkins and Douglas Pearson, seeking the recovery of preferential
transfers made within 90 days prior to the Petition Date. On or about April 24,
2003, Exide filed an additional adversary proceeding, naming Arthur Hawkins,
Douglas Pearson and Alan Gauthier as defendants, seeking recovery of certain
preferential transfers, fraudulent conveyances, and seeking the turnover of
certain property of Exide's estate. These adversary proceedings have been
consolidated under case number 02-03274, and all told Exide is seeking the
recovery of approximately $3.2 million dollars, including approximately $735,000
from Arthur Hawkins, $1.787 million from Douglas Pearson and $661,298 from Alan
Gauthier. This adversary proceeding is currently in the discovery phase.
3. Creditors Committee and R/2/ Investments v. Credit Suisse First Boston
and Salomon Smith Barney, Inc.
On January 16, 2003 the Committee and R/2/ Investments filed an adversary
proceeding against Credit Suisse First Boston, individually as lender and as
administrative agent, joint lead arranger, sole book manager and class
representative for a syndicate of banks and other institutions, and Salomon
Smith Barney, Inc., as syndication agent, joint lead arranger and class
representative for Prepetition Lenders, alleging impropriety with respect to the
Prepetition Credit Facility. This adversary proceeding seeks, among other
things, to recharacterize part of the Prepetition Credit Facility Claims as
having been an equity contribution, and seeks to subordinate all of the
Prepetition Credit Facility Claims to the payment of general unsecured claims.
Pursuant to section 1123(b) of the Bankruptcy Code, the Debtors are settling
this litigation in consideration for the classification, distribution, releases
and other benefits provided under the Plan, including without limitation the
distributions to be made to Holders of General Unsecured Claims pursuant to
Article III.B.4 of the Plan. See Section III.H.8 below for a more detailed
description of the litigation and proposed settlement.
4. EnerSys Litigation
On or about March 14, 2003, the Debtors gave notice of their intention to
reject certain contracts (the "EnerSys Contracts") with predecessors in interest
to EnerSys Inc. ("EnerSys"), including but not limited to a trademark licensing
agreement regarding the use of the "Exide" name on industrial battery products.
EnerSys objected to the Debtors' rejection of the EnerSys Contracts, arguing,
among other things, that the contracts at issue are not executory, that any
benefit to the Debtors' estates from such rejections would be exceeded by the
costs to the estates arising out of the rejection, and that it would be
inequitable under the circumstances to permit rejection of the contracts.
The financial projections contained in this Disclosure Statement do not
assume that the Debtors will obtain an order authorizing the rejection of the
EnerSys Contracts. If the Debtors are authorized to reject the EnerSys
Contracts, including the trademark licensing agreement, the Debtors assert that
they will be able to use the "Exide" trademark in marketing industrial
batteries, and believe that they would enjoy significant economic benefits from
being able to market all of their products under a single brand. However, the
Debtors have not quantified the amount of such benefits. In the event the
Debtors prevail in their efforts to reject the EnerSys Contracts, no additional
consideration would flow to unsecured creditors under the Plan. Rather, any
benefit from the rejection would inure to the benefit of Reorganized Exide.
Further, in the event the Debtors are able to reject the EnerSys Contracts,
EnerSys has asserted that it will have a rejection damage claim which will
exceed $50.0 million. The Debtors may contest the EnerSys rejection damage
claim. To the extent the EnerSys rejection claim is allowed, it will be a Class
P4-A Claim and the existence of such Claim will cause a reduction in the
distributions to other Holders of Class P4-A Claims; although, depending on the
total amount of the Allowed class P4-A Claims, such distributions may not be
less than the 1.4% projected herein.
F. CLAIMS PROCESS AND CLAIMS BAR DATES
In Chapter 11, claims against a debtor are established either as a result
of being listed in a debtor's schedules of liabilities (the "Schedules") or
through assertion by the creditor in a timely filed proof of claim (each, a
"Claim"). Claims asserted by creditors are either allowed or disallowed. If
allowed, the Claim will be recognized and treated pursuant to the plan of
reorganization. If disallowed, the creditor will have no right to obtain any
recovery on or otherwise enforce the Claim against the debtor.
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1. Filing of Schedules of Liabilities
On June 13, 2002, the Initial Debtors filed their Schedules with the
Bankruptcy Court. Schedules for the Subsequent Debtors were filed on November
27, 2002. The Debtors have, from time to time, amended their Schedules and
reserve the right to continue to amend them during the pendency of the Chapter
11 Cases.
2. Bar Dates
By motion of the Debtors, the Bankruptcy Court set April 23, 2003, as the
bar date for all entities to file Claims against the Debtors, subject to certain
exceptions. Those creditors who were required to, but failed to file Claims by
April 23 are barred from asserting any claims against the Debtors or receiving
any distributions under the Plan. By further motion of the Debtors, the
Bankruptcy Court set August 15, 2003, as the date by which all "contaminant"
Claims, including personal injury and property damage claims based on
contamination theories, must be filed. Those creditors whose Claims are subject
to the August 15 deadline must file Claims before that date, or they will be
barred from asserting any claims against the Debtors or receiving any
distributions under the Plan on account of such claims.
3. Claims Objection Process
The Debtors anticipate that, when the various bar dates expire, the Debtors
will begin evaluating the proofs of claim to determine whether to file
objections seeking to disallow asserted Claims. The Debtors anticipate that they
will also reconcile the Claims listed in our Schedules with the Claims asserted
in proofs of claim and will eliminate duplicative or erroneous Claims to ensure
that the Bankruptcy Court allows only valid Claims. If the Debtors object to a
proof of claim, the Bankruptcy Court will determine whether to allow any such
Claim. To the extent that the Debtors are successful in claims objections, the
total amount of our liabilities to be treated under the Plan will decrease. If
the Debtors do not object to a proof of claim, the Claim will be deemed allowed
and will be treated pursuant to the Plan. As appropriate, the Debtors may seek
to negotiate and settle proofs of claim disputes as an alternative to filing
objections thereto.
G. EXCLUSIVE PLAN PROPOSAL AND ACCEPTANCE RIGHTS
Section 1121(b) of the Bankruptcy Code provides a debtor with an initial
period of 120 days after the commencement of a Chapter 11 case during which it
has the exclusive right to file a plan or reorganization and an initial period
of 180 days to obtain acceptances to any such plan (the "Exclusive Periods"). In
addition, pursuant to section 1121(d) of the Bankruptcy Code, the Bankruptcy
Court may, upon a showing of cause, extend or increase a debtor's Exclusive
Periods. As described above, the current exclusive period for filing a plan of
reorganization runs through August 7, 2003, and the current exclusive period for
soliciting acceptances on a plan of reorganization runs through October 7, 2003.
III.
SUMMARY OF THE PLAN OF REORGANIZATION
A. OVERVIEW OF CHAPTER 11
Chapter 11 is the principal business reorganization chapter of the
Bankruptcy Code. It authorizes a debtor to reorganize its business for the
benefit of itself, its creditors and its interest holders. Another Chapter 11
goal is to promote equality of treatment for similarly situated creditors and
similarly situated interest holders with respect to the distribution of a
debtor's assets.
The commencement of a Chapter 11 case creates an estate that comprises all
of a debtor's legal and equitable interests as of the filing date. The
Bankruptcy Code provides that the debtor may continue to operate its business
and remain in possession of its property as a "debtor-in-possession."
The principal objective of a Chapter 11 case is to consummate a plan of
reorganization. The Chapter 11 plan of reorganization sets forth the means for
satisfying claims against, and interests in, a debtor. Confirmation of a plan of
reorganization by the Bankruptcy Court makes the plan binding upon the debtor,
any issuer of securities under the plan, any person or entity acquiring property
under the plan and any creditor of or equity holder in the debtor, whether or
not such creditor or equity holder (a) is impaired under or has accepted the
plan or (b) receives or retains any property under the plan. Subject to certain
limited exceptions and other than as provided in the plan itself or the
confirmation order, the confirmation order discharges the debtor from any debt
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that arose prior to the date of confirmation of the plan and substitutes
therefore the obligations specified under the confirmed plan.
A Chapter 11 plan may specify that the legal, contractual and equitable
right of the holders of claims or interests in classes are to remain unaltered
by the reorganization effectuated by the plan. Such classes are referred to as
"unimpaired" and, because of such favorable treatment, are deemed to accept the
plan. Accordingly, it is not necessary to solicit votes from the holders of
claims or equity interests in such classes. A Chapter 11 plan also may specify
that certain classes will not receive any distribution of property or retain any
claim against a debtor. Such classes are deemed not to accept the plan and,
therefore, need not be solicited to vote to accept or reject the plan. Any
classes that are receiving a distribution of property under the plan but are not
"unimpaired" will be solicited to vote to accept or reject the plan.
Section 1123 of the Bankruptcy Code provides that a plan of reorganization
shall classify the claims of a debtor's creditors and equity interest holders.
In compliance therewith, the Plan divides Claims and Equity Interests into
various Classes and sets forth the treatment for each Class. The Debtors also
are required, as discussed above, under section 1122 of the Bankruptcy Code, to
classify Claims and Equity Interests into Classes that contain Claims and Equity
Interests that are substantially similar to the other Claims and Equity
Interests in such Classes. The Debtors believe that the Plan has classified all
Claims and Equity Interests in compliance with the provisions of section 1122 of
the Bankruptcy Code, but it is possible that a Holder of a Claim or Equity
Interest may challenge the classification of Claims and Equity Interests and
that the Bankruptcy Court may find that a different classification is required
for the Plan to be confirmed. In such event, the Debtors intend, to the extent
permitted by the Bankruptcy Court and the Plan, to make such reasonable
modifications of the classifications under the Plan to permit confirmation and
to use the Plan acceptances received in this solicitation for the purpose of
obtaining the approval of the reconstituted Class or Classes of which the
accepting Holder is ultimately deemed to be a member. Any such reclassification
could adversely affect the Class in which such Holder was initially a member, or
any other Class under the Plan, by changing the composition of such Class and
the vote required of that Class for approval of the Plan.
The Debtors and their Affiliates, the Reorganized Debtors and each of their
Affiliates, the Creditors Committee, the Equity Committee, the Agent, the Option
A Electors and all officers, directors, members, employees, attorneys, financial
advisors, accountants, investment bankers, agents and representatives of each of
the foregoing whether current or former, in each case in their capacity as such,
and only if serving in such capacity on the Initial Petition Date or thereafter,
have, and upon confirmation of the Plan will be deemed to have, participated in
good faith and in compliance with the applicable provisions of the Bankruptcy
Code with regard to the distributions of the securities under the Plan, and
therefore are not, and on account of such distributions will not be, liable at
any time for the violation of any applicable law, rule, or regulation governing
the solicitation of acceptances or rejections of the Plan or such distributions
made pursuant to the Plan.
THE REMAINDER OF THIS SECTION SUMMARIZES THE STRUCTURE AND MEANS FOR
IMPLEMENTING THE PLAN AND HOW THE PLAN CLASSIFIES AND TREATS CLAIMS AND EQUITY
INTERESTS, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE PLAN (AS WELL AS
THE EXHIBITS THERETO AND DEFINITIONS THEREIN).
THE STATEMENTS CONTAINED IN THIS DISCLOSURE STATEMENT INCLUDE SUMMARIES OF THE
PROVISIONS CONTAINED IN THE PLAN AND IN THE DOCUMENTS REFERRED TO THEREIN. THE
STATEMENTS CONTAINED IN THIS DISCLOSURE STATEMENT DO NOT PURPORT TO BE PRECISE
OR COMPLETE STATEMENTS OF ALL THE TERMS AND PROVISIONS OF THE PLAN OR DOCUMENTS
REFERRED THEREIN, AND REFERENCE IS MADE TO THE PLAN AND TO SUCH DOCUMENTS FOR
THE FULL AND COMPLETE STATEMENT OF THE TERMS AND PROVISIONS OF THE PLAN AND
DOCUMENTS REFERRED TO THEREIN.
THE PLAN ITSELF AND THE DOCUMENTS THEREIN CONTROL THE ACTUAL TREATMENT OF CLAIMS
AGAINST, AND EQUITY INTERESTS IN, THE DEBTORS UNDER THE PLAN AND WILL, UPON THE
OCCURRENCE OF THE EFFECTIVE DATE, BE BINDING UPON ALL HOLDERS OF CLAIMS AGAINST
AND EQUITY INTERESTS IN THE DEBTORS, THE DEBTORS' ESTATES, ALL PARTIES RECEIVING
PROPERTY UNDER THE PLAN, AND OTHER PARTIES IN INTEREST. IN THE EVENT OF ANY
CONFLICT BETWEEN THIS DISCLOSURE STATEMENT, ON THE ONE HAND, AND THE PLAN OR ANY
OTHER OPERATIVE DOCUMENT, ON THE
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OTHER HAND, THE TERMS OF THE PLAN AND/OR SUCH OTHER OPERATIVE DOCUMENT SHALL
CONTROL.
THE DISCUSSION OF THE PLAN SET FORTH BELOW IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE MORE DETAILED PROVISIONS SET FORTH IN THE PLAN AND ITS
EXHIBITS, THE TERMS OF WHICH ARE CONTROLLING. HOLDERS OF CLAIMS OR INTERESTS AND
OTHER INTERESTED PARTIES ARE URGED TO READ THE PLAN AND THE EXHIBITS THERETO IN
THEIR ENTIRETY SO THAT THEY MAY MAKE AN INFORMED JUDGMENT CONCERNING THE PLAN.
B. SUBSTANTIVE CONSOLIDATION
THE ESTATES OF THE DEBTORS HAVE NOT BEEN CONSOLIDATED, SUBSTANTIVELY OR
OTHERWISE. ANY CLAIMS HELD AGAINST ONE OF THE DEBTORS WILL BE SATISFIED SOLELY
FROM THE CASH AND ASSETS OF SUCH DEBTOR. EXCEPT AS SPECIFICALLY SET FORTH IN THE
PLAN, NOTHING IN THE PLAN OR THIS DISCLOSURE STATEMENT SHALL CONSTITUTE OR BE
DEEMED TO CONSTITUTE AN ADMISSION THAT ONE OF THE DEBTORS IS SUBJECT TO OR
LIABLE FOR ANY CLAIM AGAINST THE OTHER DEBTORS. THE CLAIMS OF CREDITORS THAT
HOLD CLAIMS AGAINST MULTIPLE DEBTORS WILL BE TREATED AS SEPARATE CLAIMS WITH
RESPECT TO EACH DEBTOR'S ESTATE FOR ALL PURPOSES (INCLUDING, BUT NOT LIMITED TO,
DISTRIBUTIONS AND VOTING), AND SUCH CLAIMS WILL BE ADMINISTERED AS PROVIDED IN
THE PLAN.
C. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS
1. Summary
The categories of Claims and Equity Interests listed below classify Claims
and Equity Interests for all purposes, including voting, confirmation and
distribution pursuant to the Plan and pursuant to sections 1122 and 1123(a)(1)
of the Bankruptcy Code. A Claim or Equity Interest shall be deemed classified in
a particular Class only to the extent that the Claim or Equity Interest
qualifies within the description of that Class and shall be deemed classified in
a different Class to the extent that any remainder of such Claim or Equity
Interest qualifies within the description of such different Class. A Claim or
Equity Interest is in a particular Class only to the extent that such Claim or
Equity Interest is Allowed in that Class and has not been paid or otherwise
settled prior to the Effective Date.
2. Summary of Classification and Treatment of Claims and Equity
Interests: Exide
--------------------------------------------------------------------------
Class Claim Status Voting Right
--------------------------------------------------------------------------
P1 Other Priority Claims Unimpaired Deemed to Accept
--------------------------------------------------------------------------
P2 Other Secured Claims Unimpaired Deemed to Accept
--------------------------------------------------------------------------
P3 Prepetition Credit Facility Claims Impaired Entitled to vote
--------------------------------------------------------------------------
P4 General Unsecured Claims Impaired Entitled to vote
--------------------------------------------------------------------------
P5 2.9% Convertible Note Claims Impaired Deemed to reject
--------------------------------------------------------------------------
P6 Equity Interests Impaired Deemed to reject
--------------------------------------------------------------------------
3. Summary of Classification and Treatment of Claims and Equity
Interests: Subsidiary Debtors
--------------------------------------------------------------------------
Class Claim Status Voting Right
--------------------------------------------------------------------------
S1 Other Priority Claims Unimpaired Deemed to accept
--------------------------------------------------------------------------
S2 Other Secured Claims Unimpaired Deemed to accept
--------------------------------------------------------------------------
S3 Prepetition Credit Facility Claims Impaired Entitled to vote
--------------------------------------------------------------------------
S4 General Unsecured Claims Impaired Deemed to Reject
--------------------------------------------------------------------------
S5 Equity Interests Impaired Deemed to Reject
--------------------------------------------------------------------------
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D. CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS: EXIDE
1. Class P1--Other Priority Claims
(a) Classification. Class P1 consists of all Other Priority Claims
against Exide.
(b) Treatment. The legal, equitable and contractual rights of the
Holders of Allowed Class P1 Claims are unaltered by the Plan. Unless
otherwise agreed to by the Holders of the Allowed Other Priority Claim and
Exide, each Holder of an Allowed Class P1 Claim shall receive, in full and
final satisfaction of such Allowed Class P1 Claim, one of the following
treatments, in the sole discretion of Exide:
(i) Reorganized Exide will pay the Allowed Class P1 Claim in full
in Cash on the Effective Date or as soon thereafter as is practicable;
provided that, Class P1 Claims representing obligations incurred in
the ordinary course of business will be paid in full in Cash when such
Class P1 Claims become due and owing in the ordinary course of
business; or
(ii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting. Class P1 is Unimpaired and the Holders of Class P1 Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
P1 are not entitled to vote to accept or reject the Plan.
2. Class P2--Other Secured Claims
(a) Classification. Class P2 consists of all Other Secured Claims
against Exide.
(b) Treatment. The legal, equitable and contractual rights of the
Holders of Class P2 Claims are unaltered by the Plan. Unless otherwise
agreed to by the Holder of the Allowed Class P2 Claim and Exide, each
Holder of an Allowed Class P2 Claim shall receive, in full and final
satisfaction of such Allowed Class P2 Claim, one of the following
treatments, in the sole discretion of Exide:
(i) the legal, equitable and contractual rights to which such
Claim entitles the Holder thereof shall be unaltered by the Plan;
(ii) Reorganized Exide shall surrender all collateral securing
such Claim to the Holder thereof, without representation or warranty
by or further recourse against Exide or Reorganized Exide; or
(iii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting. Class P2 is Unimpaired and the Holders of Class P2 Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
P2 are not entitled to vote to accept or reject the Plan.
3. Class P3--Prepetition Credit Facility Claims
(a) Classification. Class P3 consists of the Prepetition Credit
Facility Claims against Exide.
(b) Treatment. Class P3 Claims shall be Allowed Claims in the
aggregate amount of $729,345,426.14. Holders of Allowed Class P3 and S3
Prepetition Credit Facility Claims may elect on their respective Ballots
either (i) Class P3 Election A or (ii) Class P3 Election B, provided that
Holders must elect the same treatment for both their Class P3 and S3
Claims. Any Class P3 Holder that does not make an election on its Ballot is
deemed to be an Option B Elector. The Holder of the Prepetition Credit
Facility Swap Claim is deemed to be an Option A Elector with respect to
such Claim.
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(i) Class P3 Election A: After the Confirmation Date and prior to
the Effective Date, Holders of Prepetition Foreign Secured Claims who
choose the Class P3 Election A shall receive, in exchange for and in
full and final satisfaction of their Prepetition Foreign Secured
Claims, an Exchange Note with a principal amount equal to the fair
market value of the product of (x) such Holder's Prepetition Foreign
Secured Claims divided by the sum of such Holder's Prepetition Foreign
Secured Claims plus such Holder's Prepetition Domestic Secured Claims
and (y) such Holder's Pro Rata share of the New Exide Preferred Stock
remaining after distributions, if any, pursuant to the Class P3
Election B. On or as soon as practicable after the Effective Date,
Holders of Allowed Class P3 and S3 Prepetition Credit Facility Claims
who choose the Class P3 Election A shall receive, in full and final
satisfaction of their Prepetition Domestic Secured Claims and Exchange
Notes, (A) a Pro Rata share (based on the aggregate of such Holder's
Prepetition Domestic Secured Claims and Prepetition Foreign Secured
Claims that were exchanged for the Exchange Notes) of 100% of the New
Exide Preferred Stock remaining after distributions, if any, pursuant
to the Class P3 Election B, and (B) a Pro Rata distribution in Cash,
not to exceed $25,000,000 in the aggregate in any circumstances, of
$15,000,000 and the European Contingent Asset Sale Proceeds. As a
condition to the receipt of a Pro Rata share of the New Exide
Preferred Stock, each Option A Elector shall (A) execute the amendment
to the Prepetition Credit Facility summarized in the Amended
Prepetition Foreign Credit Agreement Term Sheet and (B) become a party
to the New Exide Shareholder Agreement.
(ii) Class P3 Election B: On or as soon as practicable after the
Effective Date, Holders of Allowed Class P3 and S3 Prepetition Credit
Facility Claims who choose the Class P3 Election B shall receive, in
full and final satisfaction of their Prepetition Domestic Secured
Claims, a Pro Rata share (based on the aggregate of the Prepetition
Domestic Secured Claims) of the Class P3 Election B Distribution. On
the Effective Date, the Prepetition Foreign Secured Claims of Option B
Electors shall be governed by the Amended Prepetition Foreign Credit
Agreement.
(c) Voting. Class P3 is Impaired and Holders of Class P3 Claims are
entitled to vote to accept or reject the Plan.
4. Class P4--General Unsecured Claims
(a) Classification. For purposes of voting, Class P4 consists of all
General Unsecured Claims against Exide. For purposes of distributions,
Class P4 consists of two subclasses: Non-Noteholder General Unsecured
Claims (Class P4-A) and 10% Senior Note Claims (Class P4-B).
(b) Treatment.
(i) Class P4-A: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class P4-A Non-Noteholder General
Unsecured Claim will receive, in full and final satisfaction of their
Class P4-A Non-Noteholder General Unsecured Claims:
(A) a Pro Rata distribution of the Class P4-A Cash Pool,
plus,
(B) if the Class P4 Cash Pool Excess is greater than zero,
a Pro Rata distribution of the Class P4 Cash Pool
Excess, as determined based on the aggregate of all
Allowed Class P4 Claims.
(ii) Class P4-B: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class P4-B 10% Senior Note Claim will
receive, in full and final satisfaction of their Class P4-B 10% Senior
Note Claims:
(A) a Pro Rata distribution of the New Exide Common Stock,
plus
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(B) if the Class P4 Cash Pool Excess is greater than zero,
a Pro Rata distribution of the Class P4 Cash Pool
Excess, as determined based on the aggregate of all
Allowed Class P4 Claims.
(c) Voting. Class P4 is Impaired and Holders of Class P4 Claims are
entitled to vote to accept or reject the Plan.
The Non-Noteholder General Unsecured Claims and the 10% Senior Note Claims
against Exide have the same legal priority and are therefore provided the same
Pro Rata percentage recovery under the Plan. Based on the Claim estimates set
forth in this Disclosure Statement in "SUMMARY--Treatment of Claims and Equity
Interests," the Plan provides that Holders of Non-Noteholder General Unsecured
Claims (Class P4-A) and 10% Senior Note Claims (Class P4-B) will receive the
same Pro Rata percentage recovery (all dollar amounts in millions):
Value of
Class Estimated Claims Distribution % Recovery
- ----- ---------------- ------------ ----------
P4-A $322.6 $4.4 = 1.4%
P4-B $300.0 $4.1 = 1.4%
However, because the Non-Noteholder General Unsecured Claims include a
substantial number of disputed, unliquidated and contingent Claims, the final
Allowed amount of Class P4-A Claims may not be known until some time after
Consummation. The final Allowed amount of such Claims could be significantly
higher or lower than the estimate set forth herein.
If the final Allowed amount of Class P4-A Claims is greater than the
estimate set forth in this Disclosure Statement, then the Pro Rata percentage
recovery by Holders of Class P4-A Claims would decrease because more Claims
would be sharing the same distribution fund. This would result in the Holders of
Class P4-A Claims receiving a lower Pro Rata percentage recovery than the
holders of Class P4-B Claims. In order to avoid this inequity, the Plan provides
that in such circumstances, the value of the distribution otherwise available to
Holders of Class P4-B Claims will be reduced so that the Pro Rata percentage
recoveries of both subclasses are equivalent. By way of example, if the final
Allowed amount of Class P4-A Claims is $100 million higher than the estimate set
forth in this Disclosure Statement, the recoveries would be adjusted as follows
(all dollar amounts in millions):
Value of
Class Actual Claims Distribution % Recovery
- ----- ------------- ------------ ----------
P4-A $422.6 $4.4 = 1.0%
P4-B $300.0 $3.1 = 1.0%
Similarly, if the final Allowed amount of Class P4-A Claims is less than
the estimate set forth in this Disclosure Statement, then the Pro Rata
percentage recovery by Holders of Class P4-A Claims would increase because fewer
Claims would be sharing the same distribution fund. This would result in the
Holders of Class P4-A Claims receiving a higher Pro Rata percentage recovery
than the holders of Class P4-B Claims. In order to avoid this inequity, the Plan
provides that in such circumstances, the value of the distribution otherwise
available to Holders of Class P4-A Claims will be reduced, and such reduced
amount shared by all Class P4 Claimants, so that the Pro Rata percentage
recoveries of both subclasses are equivalent. By way of example, if the final
Allowed amount of Class P4-A Claims is $100 million lower than the estimate set
forth in this Disclosure Statement, the recoveries would be adjusted as follows
(all dollar amounts in millions):
Value of Base
Class Actual Claims Distribution + Shared Pool % Recovery
- ----- ------------- ------------- ----------- ----------
P4-A $222.6 $3.0 + $0.6 = 1.6%
P4-B $300.0 $4.1 + $0.8 = 1.6%
The Claim estimates set forth in this Disclosure Statement in
"SUMMARY--Treatment of Claims and Equity Interests" reflect the reasonable
judgment of the Debtors based on information available to the Debtors as of the
date of this Disclosure Statement. Because the actual determination of the
disputed, unliquidated and contingent Class P4-A Claims is subject to
significant uncertainty, the Debtors cannot predict with certainty the
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final Allowed amount of such Claims, and therefore the Debtors cannot predict
with certainty the actual percentage recovery that any Class P4 Claimant will
receive under the Plan.
5. Class P5--2.9% Convertible Note Claims
(a) Classification. Class P5 consists of all 2.9% Convertible Note
Claims against Exide.
(b) Treatment. On the Effective Date the 2.9% Convertible Notes will
be cancelled and Holders thereof will not receive a distribution under the
Plan in respect of such Claims.
(c) Voting. Class P5 is Impaired and is conclusively deemed to reject
the Plan. Holders of Class P5 Claims are not entitled to vote to accept or
reject the Plan.
6. Class P6--Equity Interests
(a) Classification. Class P6 consists of the Equity Interests in
Exide.
(b) Treatment. On the Effective Date Class P6 Equity Interests will be
cancelled and Holders thereof will not receive a distribution under the
Plan in respect of such Interests.
(c) Voting. Class P6 is Impaired and is conclusively deemed to reject
the Plan. Holders of Class P6 Equity Interests are not entitled to vote to
accept or reject the Plan.
E. CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS: SUBSIDIARY
DEBTORS
1. Class S1--Other Priority Claims
(a) Classification. Class S1 consists of all Other Priority Claims
against the respective Subsidiary Debtors.
(b) Treatment. The legal, equitable and contractual rights of the
Holders of Allowed Class S1 Claims are unaltered by the Plan. Unless
otherwise agreed to by the Holders of the Allowed Other Priority Claim and
the respective Subsidiary Debtor, each Holder of an Allowed Class S1 Claim
shall receive, in full and final satisfaction of such Allowed Class S1
Claim, one of the following treatments, in the sole discretion of the
applicable Subsidiary Debtor:
(i) The applicable Reorganized Debtor will pay the Allowed Class
S1 Claim in full in Cash on the Effective Date or as soon thereafter
as is practicable; provided that, Class S1 Claims representing
obligations incurred in the ordinary course of business will be paid
in full in Cash when such Class S1 Claims become due and owing in the
ordinary course of business; or
(ii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting. Class S1 is Unimpaired and the Holders of Class S1 Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
S1 are not entitled to vote to accept or reject the Plan.
2. Class S2--Other Secured Claims
(a) Classification. Class S2 consists of all Other Secured Claims
against the respective Subsidiary Debtors.
(b) Treatment. The legal, equitable and contractual rights of the
Holders of Class S2 Claims are unaltered by the Plan. Unless otherwise
agreed to by the Holder of the Allowed Class S2 Claim and the applicable
Subsidiary Debtor, each Holder of an Allowed Class 2B Claim shall receive,
in full and final satisfaction of such Allowed Class 2B Claim, one of the
following treatments, in the sole discretion of the applicable Subsidiary
Debtor:
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(i) the legal, equitable and contractual rights to which such
Claim entitles the Holder thereof shall be unaltered by the Plan;
(ii) the applicable Reorganized Debtor shall surrender all
collateral securing such Claim to the Holder thereof, without
representation or warranty by or further recourse against the
applicable Debtor or Reorganized Debtor; or
(iii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting. Class S2 is Unimpaired and the Holders of Class S2 Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
S2 are not entitled to vote to accept or reject the Plan.
3. Class S3--Prepetition Credit Facility Claims.
(a) Classification. Class S3 consists of all Prepetition Credit
Facility Claims against the respective Subsidiary Debtors.
(b) Treatment. Class S3 Claims shall be Allowed Claims in the
aggregate amount of $729,345,426.14. On account of their Class S3 Claims,
the Holders thereof will receive the treatment set forth for Class P3 in
Section III.D.3 above.
(c) Voting. Class S3 is Impaired and Holders of Class S3 Claims are
entitled to vote to accept or reject the Plan.
4. Class S4--General Unsecured Claims
(a) Classification. Class S4 consists of all General Unsecured Claims
against the respective Subsidiary Debtors.
(b) Treatment. On or as soon as practicable after the Effective Date,
each Allowed Class S4 Claim will be cancelled and Holders of Allowed Class
S4 Claims will receive no distribution on account thereof.
(c) Voting. Class S4 is Impaired and is conclusively deemed to reject
the Plan. Holders of Class S4 Claims are not entitled to vote to accept or
reject the Plan.
5. Class S5--Equity Interests
(a) Classification. Class S5 consists of all Equity Interest in the
respective Subsidiary Debtors.
(b) Treatment. On or as soon as practicable after the Effective Date,
each Allowed Class S5 Equity Interest will be cancelled.
(c) Voting. Class S5 is Impaired and is conclusively deemed to reject
the Plan. Holders of Class S5 Interests are not entitled to vote to accept
or reject the Plan.
F. SPECIAL PROVISION GOVERNING UNIMPAIRED CLAIMS
Except as otherwise provided in the Plan, nothing under the Plan shall
affect the Debtors' or the Reorganized Debtors' rights in respect of any
Unimpaired Claims, including, but not limited to, all rights in respect of legal
and equitable defenses to or setoffs or recoupments against such Unimpaired
Claims.
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G. ACCEPTANCE OR REJECTION OF THE PLAN
1. Voting Classes
Each Holder of an Allowed Claim in Classes P3, P4 and S3 shall be entitled
to vote to accept or reject the Plan.
2. Acceptance by Impaired Classes
An Impaired Class of Claims shall have accepted the Plan if (a) the Holders
(other than any Holder designated under section 1126(e) of the Bankruptcy Code)
of at least two-thirds in amount of the Allowed Claims actually voting in such
Class have voted to accept the Plan and (b) the Holders (other than any Holder
designated under section 1126(e) of the Bankruptcy Code) of more than one-half
in number of the Allowed Claims actually voting in such Class have voted to
accept the Plan.
3. Presumed Acceptance of Plan
Classes P1, P2, S1 and S2 are Unimpaired under the Plan, and, therefore,
are presumed to have accepted the Plan pursuant to section 1126(f) of the
Bankruptcy Code.
4. Presumed Rejection of Plan
Classes P5, P6, S4 and S5 are impaired and shall receive no distributions,
and, therefore, are presumed to have rejected the Plan pursuant to section
1126(g) of the Bankruptcy Code.
5. Non-Consensual Confirmation
The Debtors reserve the right to seek Confirmation of the Plan under
section 1129(b) of the Bankruptcy Code, to the extent applicable, in view of the
deemed rejection by Classes P5, P6, S4 and S5. In the event that Class P3, P4
and/or S3 fails to accept the Plan in accordance with section 1129(a)(8) of the
Bankruptcy Code, the Debtors reserve the right (a) to request that the
Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code and/or (b) to modify the Plan in accordance with Article XII.D
of the Plan.
H. MEANS FOR IMPLEMENTATION OF THE PLAN
1. Restructuring
Prior to and/or in connection with the confirmation of the Plan, the
Company will enter into various restructuring transactions as described below.
Prior to the Confirmation Date, (i) Exide will form a new Dutch company
("Exide CV"), owned approximately 99% by Exide and approximately 1% by a new
wholly-owned domestic subsidiary of Exide, (ii) Exide will then transfer the
shares of two existing foreign subsidiaries, Exide Holding Asia PTE Limited
("Exide Holding Asia") and Exide Holding Europe S.A. ("Exide Holding Europe"),
to Exide CV, (iii) Exide CV will then form another new Dutch company ("Exide
BV") and transfer its newly-acquired shares of Exide Holding Asia and 94% of its
newly acquired shares of Exide Holding Europe to Exide BV in exchange for equity
and (iv) Exide Holding Europe will be converted from a French S.A. to a French
S.A.R.L.
After the Confirmation Date and prior to the Effective Date, (i) Holders of
Prepetition Foreign Secured Claims who choose the Class P3 Election A shall
receive, in exchange for and in full and final satisfaction of their Prepetition
Foreign Secured Claims, an Exchange Note with a principal amount equal to the
fair market value of the product of (x) such Holder's Prepetition Foreign
Secured Claims divided by the sum of such Holder's Prepetition Foreign Secured
Claims plus such Holder's Prepetition Domestic Secured Claims and (y) such
Holder's Pro Rata share of the New Exide Preferred Stock remaining after
distributions, if any, pursuant to the Class P3 Election B and (ii) Exide may
transfer such Prepetition Foreign Secured Claims to one or more subsidiaries,
including Exide Holding Europe.
Prior to Consummation, (i) the Holders of Prepetition Credit Facility
Claims, or a nominee on behalf of them, will form New Exide with nominal
capitalization, (ii) New Exide will form two wholly-owned
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subsidiaries, both Delaware corporations, (iii) such new subsidiaries together
will form another new Delaware corporation that will be owned 50% by each of
them ("Exide Holding III") and (iv) such new Delaware corporation will form
another new Delaware corporation ("Exide Operating").
On the Effective Date, (i) New Exide will make a capital contribution of
shares of New Exide Preferred Stock and New Exide Common Stock to the two
wholly-owned subsidiaries described in the preceding paragraph, which shares
will then be contributed to the other newly-formed Delaware corporations until
such shares are held in part by Exide Holding III and by Exide Operating, (ii)
Exide Holding III and Exide Operating will transfer the New Exide Preferred
Stock and New Exide Common Stock to Exide, (iii)the New Exide Preferred Stock
and New Exide Common Stock shall be distributed by Exide to Creditors in
accordance with Article III hereof, (iv) Exide will transfer substantially all
of its owned real property to Exide Holding III, and (v) Exide will merge with
and into Exide Operating (the "Merger").
2. Continued Corporate Existence and Vesting of Assets in the Reorganized
Debtors
The Reorganized Debtors shall continue to exist after the Effective Date as
separate corporate entities, with all the powers of a corporation under the laws
of their respective states of incorporation and without prejudice to any right
to alter or terminate such existence (whether by merger or otherwise) under such
applicable state law. Except as otherwise provided in the Plan, on and after the
Effective Date, all property of the Debtors' Estates, and any property acquired
by the Debtors or Reorganized Debtors under the Plan, shall vest in the
respective Reorganized Debtors, free and clear of all Claims, liens, charges, or
other encumbrances. On and after the Effective Date, the Reorganized Debtors may
operate their business and may use, acquire or dispose of property and
compromise or settle any Claims or Equity Interests, without supervision or
approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy
Code or Bankruptcy Rules, other than those restrictions expressly imposed by the
Plan and the Confirmation Order. In consideration of the undertakings of
Reorganized Exide under the Plan, Reorganized Exide shall continue to own 100%
of the Subsidiary Debtors as of the Effective Date.
3. Cancellation of Old Notes and Equity Interests
On the Effective Date and prior to the Merger, except to the extent
otherwise provided in the Plan, all notes, instruments, certificates, and other
documents evidencing (a) the Old Notes, (b) Equity Interests, and (c) any stock
options, warrants or other rights to purchase Equity Interests shall be
cancelled and the obligations of the Debtors thereunder or in any way related
thereto shall be discharged. On the Effective Date and prior to the Merger,
except to the extent otherwise provided in the Plan, any indenture relating to
any of the foregoing shall be deemed to be cancelled, as permitted by section
1123(a)(5)(F) of the Bankruptcy Code, and the obligations of the Debtors
thereunder shall be discharged.
On the Effective Date, except as otherwise provided for herein, the 10%
Senior Notes shall be deemed extinguished, cancelled and of no further force or
effect, and the obligations of the Debtors thereunder shall be discharged, in
each case without any further act or action under any applicable agreement, law,
regulation, order or rule and without any further action on the part of the
Bankruptcy Court or any Person; provided, however, that the 10% Senior Note
Indenture shall continue in effect for the purposes of (i) allowing the
Indenture Trustee to receive and make the Distributions to be made to the
holders of 10% Senior Note Claims in accordance with Article III.B.4(b)(ii) of
the Plan, (ii) preserving any rights of the 10% Senior Note Indenture Trustee,
including indemnification rights, it may have with respect to the holders of the
10% Senior Notes under the Indenture, and (iii) exercising the 10% Senior Note
Indenture Trustee Charging Lien.
Notwithstanding any provision contained in the Plan to the contrary, the
distribution provisions contained in the 10 % Senior Notes Indenture shall
continue in effect to the extent necessary to authorize the 10% Senior Notes
Indenture Trustee to receive and distribute all distributions to be made
pursuant to this Plan to the holders of 10 % Senior Note Claims. Such
distribution provisions shall terminate in their entirety upon completion of all
such distributions under the Plan. The Distributions to be made under the Plan
to holders of the 10% Senior Note Claims shall be made to the 10% Senior Note
Indenture Trustee, which, pursuant to the right of the 10% Senior Note Indenture
Trustee to assert its 10% Senior Note Indenture Trustee Charging Lien against
such distributions to the extent of the 10% Senior Note Indenture Trustee Fees,
shall be applied first to the payment of the 10% Senior Note Indenture Trustee
Fees and thereafter promptly distributed to the holders of the 10% Senior Note
Claims in accordance with the 10% Senior Note Indenture. The 10% Senior Note
Indenture Trustee Fees are not being reviewed by the Debtors or the Bankruptcy
Court. The rights of affected parties with
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respect to such fees are governed by the terms of the 10% Senior Note Indenture.
Any party wishing to review or contest the 10% Senior Note Indenture Trustee
fees must do so pursuant to the terms of the 10% Senior Note Indenture. Parties
may make application to the Bankruptcy Court, however, the 10% Senior Note
Indenture Trustee does not conceed that the Bankruptcy Court has jurisdiction to
review its fees.
Distributions to holders of the 10% Senior Note Claims shall be made in
accordance with the 10% Senior Note Indenture first to the 10% Senior Note
Indenture Trustee, which, subject to the terms of the 10% Senior Note Indenture
(including its rights pursuant to the 10% Senior Note Indenture Trustee Charging
Lien), will make distributions to the holders of the 10% Senior Note Claims.
4. Source and Timing for Effective Date Plan Distributions and Discharge
All distributions under the Plan which are to be made by the Debtors as of
the Effective Date shall be deemed to have been made by the Debtors immediately
prior to the Merger. All Claims that are discharged as of the Effective Date
shall be deemed to have been discharged immediately prior to the Merger, and
Exide Operating shall not succeed to any liability with respect to any such
Claims or the distributions (if any) provided for such Claims under the Plan.
5. Issuance of New Securities; Execution of Related Documents
New Exide shall issue all securities, notes, instruments, certificates, and
other documents required to be issued pursuant to the Plan, including, without
limitation, the New Exide Preferred Stock and New Exide Common Stock, each of
which shall be distributed as provided in the Plan. New Exide and its
subsidiaries shall execute and deliver such other agreements, documents and
instruments, including the Shareholder Agreement and the Amended Prepetition
Foreign Credit Agreement, as are required to be executed pursuant to the terms
of the Plan. The principal terms of the New Exide Preferred Stock, New Exide
Common Stock, Amended Prepetition Foreign Credit Agreement and Shareholder
Agreement are as follows:
New Exide Preferred Stock
General. On the Effective Date, New Exide will issue for distribution in
accordance with the Plan a number of shares of New Exide Preferred Stock, as
determined in accordance with the Plan, which, as of the Effective Date,
represents 99.2% of New Exide Common Stock, taking into consideration the New
Exide Preferred Stock Conversion Election on a fully-exercised basis, subject to
dilution pursuant to the Company Incentive Plan, to be authorized pursuant to
the New Exide Certificate of Incorporation and subject to the Shareholder
Agreement. Exide expects that the number of shares of New Exide Preferred Stock
issued on the Effective Date will be between 494,519 and 511,879, depending on
the amount of Option B Electors, if any. Each share of New Exide Preferred Stock
will have a $1,000 face value. The principal terms of the New Exide Preferred
Stock to be included in the New Exide Certificate of Incorporation and the
Shareholder Agreement are summarized in Exhibit B and C to the Plan.
Conversion. Each holder of the New Exide Preferred Stock will have the
right to convert shares of the New Exide Preferred Stock, at the option of the
holder at any time, into shares of New Exide Common Stock. The total number of
shares of New Exide Common Stock into which the New Exide Preferred Stock may be
converted initially will be determined by dividing the face value per share
through the date of conversion by the Conversion Price. The initial Conversion
Price will be determined in accordance with the Plan and will be subject to
adjustment as set forth under "--Anti-dilution" below. Exide expects that the
initial Conversion Price will be between $19.94 and $20.64. The New Exide
Preferred Stock will automatically convert into New Exide Common Stock upon the
occurrence of a Qualified Public Offering (as defined in Exhibit B to the Plan),
or sale of all or substantially all of the assets of New Exide or the
acquisition of New Exide by another entity in certain circumstances.
Anti-dilution. The New Exide Preferred Stock will have customary
anti-dilution protections for stock splits, dividends, reclassifications and
similar events. In addition, the Conversion Price will be adjusted on a weighted
average basis upon the issuance, subject to customary exceptions, of equity
securities at a price lower than the Conversion Price then in effect.
Voting Rights. The holders of the New Exide Preferred Stock shall be
entitled to vote on an as-converted basis on any matters on which the holders of
New Exide Common Stock are entitled to vote. In
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addition, the holders of the New Exide Preferred Stock shall have the right to
vote as a single class on certain "Major Actions," which will be set forth in
the New Exide Certificate of Incorporation.
Liquidation Preference. The New Exide Preferred Stock will rank senior to
all equity securities of New Exide. In the event of a liquidation (or similar
event) of New Exide, the holders of New Exide Preferred Stock shall receive,
before any payments to holders of any other equity securities of New Exide, on a
pro rata basis an amount equal to the Implied Price through the consummation of
such event. In addition, the holders of New Exide Preferred Stock shall then
participate on a pro rata, as-converted basis, with the holders of New Exide
Common Stock with respect to any remaining proceeds or assets of New Exide.
Transfer Restrictions. The New Exide Preferred Stock will be subject to
certain transfer restrictions in order to maintain New Exide's status as a
non-reporting company under the Securities and Exchange Act.
New Exide Common Stock
On the Effective Date, New Exide will issue for distribution in accordance
with the Plan 200,000 shares of New Exide Common Stock, which represents 0.8% of
New Exide Common Stock, taking into consideration the New Exide Preferred Stock
Conversion Election on a fully-exercised basis, subject to dilution pursuant to
the Company Incentive Plan. The New Exide Common Stock will be authorized
pursuant to the New Exide Certificate of Incorporation.
Transfer Restrictions. The New Exide Common Stock will be subject to
certain transfer restrictions in order to maintain New Exide's status as a
non-reporting company under the Securities and Exchange Act.
Additional Considerations
To the extent that New Exide realizes any benefits, including any
improvement in enterprise value or cash payments, from pending restructuring
efforts, pending litigations (as described in Section II,E) or any transactions
that may be contemplated but not yet consumated, such benefits will inure to the
benefit of New Exide. It is possible that such benefits would have a positive
impact on the value of New Exide's preferred and common stock. These benefits,
if any, will not be distributed, or otherwise shared with, the Debtors'
creditors who do not receive shares of New Exide's stock, nor will the costs of
pursuing such benefits be borne by such creditors.
Company Incentive Plan
On or shortly after the Effective Date, in order to provide appropriate
incentives to certain employees, New Exide will adopt the Company Incentive
Plan. Such employees will receive or have the right to receive securities
representing from 5% to 10% of the fully-diluted shares of New Exide Common
Stock.
Approval of the Plan by the Bankruptcy Court shall constitute approval of
the Company Incentive Plan.
Amended Prepetition Foreign Credit Agreement
As described in Section III.D.3 hereof, Holders of Allowed Class P3 and
Class S3 Prepetition Credit Facility Claims who choose the Class P3 Election B
will, among other thing, have their Prepetition Foreign Secured Claims as
against the respective Foreign Subsidiary Borrowers reinstated pursuant to the
Amended Prepetition Foreign Credit Agreement, as more fully described in Exhibit
A to the Plan. All affirmative and negative covenants contained in the
Prepetition Credit Facility and the Standstill Agreement will be deleted and
will not be included in such Amended Prepetition Foreign Credit Agreement.
Furthermore, the administrative agent under the Prepetition Credit Facility,
Credit Suisse First Boston, will be authorized to release all obligations of GNB
Battery Technologies Japan, Inc., a domestic non-Debtor, pursuant to the Loan
Documents (as defined in the Standstill Agreement). Credit Suisse First Boston
will also be authorized to release all collateral securing the Prepetition
Foreign Secured Claims, effective as of the Effective Date.
Shareholder Agreement
As part of the Plan and as set forth in Exhibit C thereto, the holders of
New Exide Preferred Stock will, by acceptance of such shares, be bound by the
terms of a shareholder agreement (the "Shareholder Agreement")
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to the maximum extent permitted by applicable law, including the Bankruptcy
Code. A copy of the Shareholder Agreement will be set forth in the Plan
Supplement.
The Shareholder Agreement will contain provisions regarding, among other
topics, (i) composition of and voting by the Board of Directors of New Exide,
(ii) voting rights with respect to "Major Actions," (iii) co-sale rights, (iv)
drag-along rights, (v) registration rights (vi) preemptive rights, (vii) rights
of first refusal and (viii) reporting requirements.
The terms of the Shareholder Agreement are summarized in Exhibit C to the
Plan.
Registration Rights Agreement
As part of the Plan, New Exide and Reorganized Exide will enter into a
Registration Rights Agreement for the benefit of the holders of New Exide
Preferred Stock.
6. Issuance of Stock of Reorganized Subsidiary Debtors to Reorganized
Exide
On or immediately after the Effective Date, the common stock of the
Reorganized Subsidiary Debtors shall be issued to Reorganized Exide.
7. Corporate Governance, Directors and Officers, and Corporate Action
(a) New Certificate of Incorporation and By-laws. On the Effective
Date, the Reorganized Debtors will file the New Organizational Documents
with the Secretary of State for the relevant state of incorporation or
formation. The New By-laws will prohibit the issuance of non-voting
securities pursuant to section 1123(a)(6) of the bankruptcy code. After the
Confirmation Date and on or before the Effective Date, the Holders of
Prepetition Credit Facility Claims, or a nominee on behalf of them, will
file the New Exide Certificate of Incorporation with the Secretary of State
of Delaware. The New Exide Certificate of Incorporation will, among other
things, (a) authorize the issuance and terms of the New Exide Preferred
Stock, and (b) authorize the issuance and terms of the New Exide Common
Stock.
(b) Directors and Officers of New Exide. Subject to any requirement of
Bankruptcy Court approval pursuant to section 1129(a)(5) of the Bankruptcy
Code, as of the Effective Date, the officers of Exide immediately prior to
the Effective Date will be the officers of New Exide. Pursuant to section
1129(a)(5), Exide will disclose, on or prior to the Confirmation Date, the
identity and affiliations of any Person proposed to serve on the initial
board of directors of New Exide. To the extent any such Person is an
"Insider" under the Bankruptcy Code, the nature of any compensation for
such Person will also be disclosed. Each such director and officer shall
serve from and after the Effective Date pursuant to the terms of the New
Exide Certificate of Incorporation, the New By-laws and the Delaware
General Corporation Law. New Exide will initially have a newly-appointed
seven person board of directors, as described in the Shareholder Agreement
Term Sheet.
(c) Corporate Action. On the Effective Date, the adoption and filing
of the New Exide Certificate of Incorporation and New Organizational
Documents, the approval of the New Exide By-laws and the New By-laws, the
appointment of directors and officers for New Exide, the adoption of the
Company Incentive Plan, the restructuring transactions contemplated by
Section III.H.1 hereof, and all actions contemplated hereby shall be
authorized and approved by the Bankruptcy Court in all respects (subject to
the provisions of the Plan). All matters provided for in the Plan involving
the corporate structure of the Debtors or Reorganized Debtors, and any
corporate action required by the Debtors or Reorganized Debtors in
connection with the Plan, shall be deemed to have occurred and shall be in
effect, without any requirement of further action by the security holders
or directors of the Debtors or Reorganized Debtors. On the Effective Date,
the appropriate officers of the Reorganized Debtors and members of the
board of directors of the Reorganized Debtors are authorized and directed
to issue, execute and deliver the agreements, documents, securities and
instruments contemplated by the Plan in the name of and on behalf of the
Reorganized Debtors.
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8. Dismissal of Creditors Committee Adversary Proceeding and Other Plan
Settlements
As described in Section II.E.3 above, on January 16, 2003, the Committee
and R2 Investments filed an adversary proceeding against Credit Suisse First
Boston and Salomon Smith Barney, Inc., as representatives of the Debtors'
prepetition bank lenders (the "Prepetition Lenders")/7/. The Creditors Committee
alleges that the Prepetition Lenders aided and abetted certain of Exide's
directors in making investment decisions that were tantamount to a breach of the
directors' fiduciary duties. As a result of this alleged bad conduct, the seek
to subordinate some or all of the claims of the Prepetition Lenders to the
claims of general unsecured creditors. Moreover, the Creditors Committee allege
that the Prepetition Lenders effectively exercised control over Exide for the
year preceding the Petition Date, that the Lenders were therefore "insiders"
within the meaning of section 547(b) of the Bankruptcy Code, and that all
payments made to the Lenders within the last year are subject to disgorgement.
The Committee also alleges that postpetition interest, fees to professionals,
and other expenses, currently payable by the Debtors' estates, are due to be
disgorged because it was not necessary for the Debtors to make these payments
during the bankruptcy to provide adequate protection to the Prepetition Lenders.
A significant portion of the claims raised in the Creditors Committee Adversary
Proceeding have survived a motion by the Prepetition Lenders to dismiss the
Creditors Committee Adversary Proceeding, and all parties are in the process of
conducting extensive and detailed discovery. Accordingly, following the Court's
ruling, all of the challenged prepetition transfers between the Debtors and the
Prepetition Lenders remain subject to claims for avoidance and/or subordination,
and all payments, professional fees and other expenses made in connection with
those transactions remain subject to disgorgement. In ruling on the motion to
dismiss, the Court is required to treat all well-pled factual allegations as
true; as such, the Court's ruling is not necessarily an indication of the
ultimate outcome of the litigation. Although the Debtors are not a named party
to the Creditors Committee Adversary Proceeding, the Debtors deny all
allegations relating to alleged misconduct of the Debtors or their directors and
officers.
The Debtors maintain that the Creditors Committee Adversary Proceeding
represents a claim that properly belongs to the Exide estates, and which is
therefore subject to settlement pursuant to section 1123(b) of the Bankruptcy
Code. The Plan provides that in exchange for the distribution to be given to
general unsecured creditors, the Creditors Committee Adversary Proceeding will
be dismissed with prejudice. The Debtors believe that in order to approve a
settlement under section 1123(b), the Bankruptcy Court does not need to conduct
a full trial, or even a mini-trial, on the merits of the claim being settled,
but only needs to determine that the proposed settlement falls within the range
of possible outcomes that could be expected were the claim to be fully
litigated. The Committee disputes the Debtors' authority to settle the Creditors
Committee Adversary Proceeding and disputes the terms of the proposed
settlement.
Exide is familiar with the facts and circumstances underlying the Creditors
Committee Adversary Proceeding and has actively participated in the Creditors
Committee Adversary Proceeding. Based on all the known facts and circumstances,
Exide negotiated with the Prepetition Lenders an arms-length settlement of the
Creditors Committee Adversary Proceeding, and believes that the proposed
settlement of the Creditors Committee Adversary Proceeding is appropriate, and
entirely within the reasonable range of possible litigation outcomes. The
Creditors Committee disagrees, contending that the proposed settlement was not
negotiated at arms-length. As support, the Creditors Committee contends that it
was not consulted or included in settlement negotiations between the Debtors and
the Prepetition Lenders and that, since necessary discovery had been stayed
during the pendency of the Prepetition Lenders' motion to dismiss, the Debtors'
ability to fairly and independently evaluate whether the proposed settlement
falls within the reasonable range of possible litigation outcomes can be
questioned. Exide further believes that there are important business reasons for
settling the Creditors Committee Adversary Proceeding in this manner, as opposed
to the alternative of the Creditors Committee Adversary Proceeding to a full
trial on the merits. First, it is important that the Creditors Committee
Adversary Proceeding be resolved prior to confirmation, because the Creditors
Committee Adversary Proceeding purports to challenge the validity of Exide's
most senior prepetition creditors. Second, it is important that the Creditors
Committee Adversary Proceeding be resolved expeditiously, in order to not delay
the confirmation process. Exide is ready to emerge from bankruptcy, and any
further delay will harm their business. The Debtors suffer from a competitive
disadvantage operating their businesses in Chapter 11, and need to emerge from
bankruptcy as quickly as possible. Further, there are external reasons which
compel an exit from bankruptcy before a full trial could be conducted on the
Creditors Committee Adversary Proceeding. First, the Debtors' debtor in
possession financing - a vital source of cash needed to conduct business
operations - expires on
- ----------
/7/ The Court has since dismissed R2 as a plaintiff; the action is now
proceeding with the Creditors' Committee as the sole plaintiff.
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November 18, 2003. Further, the standstill agreement, which prevents the
Prepetition Lenders from seizing domestic and foreign collateral, expires on
December 18, 2003. The Debtors need to emerge from bankruptcy before either of
these expiration dates in order to avoid unacceptable risks to the viability of
their business operations, the effect of which would decrease the value
available for distribution to creditors.
The Plan provides that pursuant to Bankruptcy Rule 9019, and in
consideration for the classification, distribution, releases and other benefits
provided under the Plan, including without limitation the distributions to be
made to Holders of General Unsecured Claims pursuant to Article III.B.4 of the
Plan, the provisions of the Plan shall constitute a good faith compromise and
settlement of all Claims and controversies resolved pursuant to the Plan
including, without limitation (a) the releases set forth in Articles X.B, X.C
and X.D of the Plan, and (b) the Creditors Committee Adversary Proceeding which
shall be deemed settled pursuant to section 1123(b)(3)(A) of the Bankruptcy
Code. The entry of the Confirmation Order shall constitute the Bankruptcy
Court's approval of each of the foregoing compromises or settlements, and all
other compromises and settlements provided for in the Plan, including the
releases, and the Bankruptcy Court's findings shall constitute its determination
that such compromises, settlements and releases are in the best interests of the
Debtors, the estates, the creditors and other parties in interest, and are fair,
equitable and within the range of reasonableness. In addition to the general
injunction set forth in Article X.H of the Plan, from and after the Effective
Date, the Creditors Committee, R2 Investments, LDC and each Holder of General
Unsecured Claims and 2.9% Convertible Note Claims shall be permanently enjoined
from continuing in any manner the Creditors Committee Adversary Proceeding.
9. Sources of Cash for Plan Distribution
All Cash necessary for Reorganized Debtors to make payments pursuant to the
Plan shall be obtained from existing Cash balances, if any, and proceeds of the
Exit Facility.
10. Private Company Status and Stock Transfer Limitations
Neither New Exide nor Reorganized Exide, upon the Effective Date, shall be
a reporting company under the Securities and Exchange Act.
During the first 24 months following the Effective Date, no transfer of New
Exide Preferred Stock or New Exide Common Stock shall be permitted where the
effect of such transfer would be to require New Exide to become a reporting
company under the Securities and Exchange Act.
11. Payment of Agent Expenses
On the Effective Date or as soon as practicable thereafter, the Debtors
shall pay all unpaid Agent Expenses for the period up to and including the
Effective Date. Thereafter, Reorganized Exide shall timely pay all reasonable
Agent Expenses incurred after the Effective Date.
12. Adoption of Company Incentive Plan
On or shortly after the Effective Date, New Exide will adopt the Company
Incentive Plan. The Company Incentive Plan will provide that covered employees
will receive or have the right to receive securities representing from 5% to 10%
of the fully-diluted shares of New Exide Common Stock. The terms and details of
the Company Incentive Plan have not been determined, nor have the individuals
entitled to participate in the Company Incentive Plan been identified. The
Debtors expect that such determinations will be made by the New Exide Board of
Directors.
I. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
1. Assumption of Executory Contracts and Unexpired Leases
Immediately prior to the Effective Date, except as otherwise provided in
the Plan, all executory contracts or unexpired leases of the Debtors, including,
without limitation, customer program agreements, vendor agreements and warranty
obligations, will be deemed assumed in accordance with the provisions and
requirements of sections 365 and 1123 of the Bankruptcy Code except those
executory contracts and unexpired
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leases that (1) have been rejected by order of the Bankruptcy Court, (2) are the
subject of a motion to reject pending on the Effective Date, (3) are identified
on a list to be included in the Plan Supplement, (4) that relate to the purchase
or other acquisition of Equity Interests, or (5) are rejected pursuant to the
terms of the Plan.
The Debtors are still analyzing whether to assume or reject various
executory contracts, including but not limited to a settlement agreement with
William T. Martin, and others similarly situated. Those contracts not rejected
pursuant to the procedures described in the preceding paragraph will be assumed
under the Plan.
2. Claims Based on Rejection of Executory Contracts or Unexpired Leases
All proofs of Claims with respect to Claims arising from the rejection of
executory contracts or unexpired leases, if any, must be Filed with the
Bankruptcy Court according to the deadlines established by the Bankruptcy Court
in the Chapter 11 Cases. Any Claims arising from the rejection of an executory
contract or unexpired lease not Filed within such time will be forever barred
from assertion against the Debtors or Reorganized Debtors, their Estates and
property unless otherwise ordered by the Bankruptcy Court or provided in the
Plan.
3. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed
Any monetary amounts by which each executory contract and unexpired lease
to be assumed pursuant to the Plan is in default shall be satisfied, pursuant to
section 365(b)(1) of the Bankruptcy Code, by payment of the default amount in
Cash on the Effective Date or on such other terms as the parties to such
executory contracts or unexpired leases may otherwise agree. In the event of a
dispute regarding: (1) the amount of any cure payments, (2) the ability of a
Reorganized Debtor or any assignee to provide "adequate assurance of future
performance" (within the meaning of section 365 of the Bankruptcy Code) under
the contract or lease to be assumed, or (3) any other matter pertaining to
assumption, the cure payments required by section 365(b)(1) of the Bankruptcy
Code shall be made following the entry of a Final Order resolving the dispute
and approving the assumption.
4. Indemnification of Directors, Officers and Employees
The obligations of the Debtors to indemnify any Person serving at any time
after the Initial Petition Date as one of their directors, officers or employees
by reason of such Person's service in such capacity, or as a director, officer
or employee of any other corporation or legal entity, to the extent provided in
the Debtors' constituent documents, by a written agreement with a Debtor or
under applicable state corporate law, shall be deemed and treated as executory
contracts that are assumed by the Reorganized Debtors pursuant to the Plan and
pursuant to section 365 of the Bankruptcy Code as of the Effective Date.
Accordingly, such indemnification obligations shall be treated as Administrative
Claims, and shall survive unimpaired and unaffected by entry of the Confirmation
Order, irrespective of whether such indemnification is owed for an act or event
occurring before or after the Petition Date. Notwithstanding anything to the
contrary contained in the Plan, such assumed indemnity obligations shall not be
discharged, Impaired, or otherwise modified by confirmation of this Plan and
shall be deemed and treated as executory contracts that have been assumed by the
relevant Debtors pursuant to this Plan as to which no proofs of claim need be
Filed.
5. Compensation and Benefit Programs
Except as otherwise expressly provided in the Plan, all employment and
severance agreements and policies, and all compensation and benefit plans,
policies, and programs of the Debtors applicable to their employees, former
employees, retirees and non-employee directors and the employees, former
employees and retirees of its subsidiaries, including, without limitation, all
savings plans, retirement plans, health care plans, disability plans, severance
benefit agreements and plans, incentive plans, deferred compensation plans and
life, accidental death and dismemberment insurance plans shall be treated as
executory contracts under the Plan and on the Effective Date shall be deemed
assumed pursuant to the provisions of sections 365 and 1123 of the Bankruptcy
Code; and the Debtors' obligations under such programs to such Persons shall
survive confirmation of this Plan, except for (1) executory contracts or
employee benefit plans specifically rejected pursuant to this Plan (to the
extent such rejection does not violate sections 1114 and 1129(a)(13) of the
Bankruptcy Code), (2) all employee equity or equity-based incentive plans, and
(3) such executory contracts or employee benefit plans as have previously been
rejected, are the subject of a motion to reject as of the Effective Date, or
have been specifically waived by the beneficiaries of any employee benefit plan
or contract; provided however, that the
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Debtors' obligations, if any, to pay all "retiree benefits" as defined in
section 1114(a) of the Bankruptcy Code shall continue.
J. PROVISIONS GOVERNING DISTRIBUTIONS
1. Distributions for Claims Allowed as of the Effective Date
Except as otherwise provided in the Plan or as may be ordered by the
Bankruptcy Court, distributions to be made on account of Claims that are allowed
as of the Effective Date and are entitled to receive distributions under the
Plan shall be made on the Effective Date, or as soon as practicable thereafter.
For purposes of determining the accrual of interest or rights in respect of
any other payment from and after the Effective Date, the New Exide Preferred
Stock and New Exide Common Stock to be issued under the Plan shall be deemed
issued as of the Effective Date regardless of the date on which the certificates
evidencing such shares are actually dated or distributed; provided that
Reorganized Exide shall withhold any actual payment until such distribution is
made and no interest shall accrue or otherwise be payable on any such withheld
amounts.
2. Delivery and Distributions and Undeliverable or Unclaimed
Distributions
(a) Delivery of Distributions in General. Distributions to Holders of
Allowed Claims shall be made to the Holders of such allowed Claims as of
the Distribution Record Date. Except as otherwise provided in the Plan,
distributions to Holders of Allowed Claims shall be made at the address of
the Holder of such Claim as indicated on the records of the Reorganized
Debtors as of the date that such distribution is made.
(b) Undeliverable Distributions:
(i) Holding of Undeliverable Distributions. If any distribution
to a Holder of an Allowed Claim is returned to a Reorganized Debtor as
undeliverable, no further distributions shall be made to such Holder
unless and until such Reorganized Debtor is notified in writing of
such Holder's then-current address. Undeliverable distributions shall
remain in the possession of the relevant Reorganized Debtor subject to
section (ii) below until such time as a distribution becomes
deliverable. Undeliverable Cash shall not be entitled to any interest,
dividends or other accruals of any kind. As soon as reasonably
practicable, the Reorganized Debtors shall make all distributions that
become deliverable.
(ii) Failure to Claim Undeliverable Distributions. In an effort
to ensure that all Holders of valid Allowed Claims receive their
allocated distributions, sixty (60) days after the Effective Date, the
Reorganized Debtors will File with the Bankruptcy Court a listing of
unclaimed distribution holders. This list will be maintained for as
long as the Chapter 11 Cases are pending. Any Holder of an Allowed
Claim, irrespective of when a Claim became an Allowed Claim, that does
not assert a Claim pursuant to the Plan for an undeliverable
distribution (regardless of when not deliverable) within one year
after the Effective Date shall have its Claim for such undeliverable
distribution discharged and shall be forever barred from asserting any
such Claim against any Reorganized Debtor or its property. In such
cases: (i) any Cash held for distribution on account of such Claims
shall be property of the relevant Reorganized Debtor, free of any
restrictions thereon; and (ii) any New Exide Preferred Stock or New
Exide Common Stock held for distribution on account of such Claims
shall be cancelled and of no further force or effect. Nothing
contained in the Plan shall require the Reorganized Debtors to attempt
to locate any Holder of an Allowed Claim.
(c) Compliance with Tax Requirements/Allocations. In connection with
the Plan, to the extent applicable, the Reorganized Debtors shall comply
with all tax withholding and reporting requirements imposed on them by any
governmental unit, and all distributions pursuant to the Plan shall be
subject to such withholding and reporting requirements. For tax purposes,
distributions received in respect of Allowed Claims will be allocated first
to unpaid interest that accrued on such Claims with any excess allocated to
the principal amount of Allowed Claims.
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3. Timing and Calculation of Amounts to be Distributed
On the Effective Date or as soon as practicable thereafter, each Holder of
an Allowed Claim against a Reorganized Debtor shall receive the full amount of
the distributions that the Plan provides for Allowed Claims in the applicable
Class. If and to the extent that there are Disputed Claims, beginning on the
date that is 20 calendar days after the end of the calendar quarter following
the Effective Date and 20 calendar days after the end of each calendar quarter
thereafter, distributions shall also be made, pursuant to the Plan, to Holders
of Disputed Claims in any Class whose Claims were allowed during the previous
calendar quarter. Such quarterly distributions shall also be in the full amount
that the Plan provides for Allowed Claims in the applicable Class.
4. Minimum Distribution
Any other provision of the Plan notwithstanding, payments of fractions of
shares of New Exide Preferred Stock or fractions of shares of New Exide Common
Stock will not be made and will be deemed to be zero. Any other provision of the
Plan notwithstanding, the Reorganized Debtors will not be required to make
distributions or payments of fractions of dollars. Whenever any payment of a
fraction of a dollar under the Plan would otherwise be called for, the actual
payment will reflect a rounding of such fraction to the nearest whole dollar (up
or down), with half dollars or less being rounded down.
5. Setoffs
The Reorganized Debtors may, pursuant to section 553 of the Bankruptcy Code
or applicable non-bankruptcy law, set off against any Allowed Claim and the
distributions to be made pursuant to the Plan on account of such Claim (before
any distribution is made on account of such Claim), the Claims, Equity
Interests, rights and causes of action of any nature that Exide or Reorganized
Exide may hold against the Holder of such Allowed Claim; provided that neither
the failure to effect such a setoff nor the allowance of any Claim hereunder
shall constitute a waiver or release by the Debtors or Reorganized Debtors of
any such Claims, Equity Interests, rights and causes of action that the Debtors
or Reorganized Debtors may possess against such Holder, except as specifically
provided in the Plan.
6. Surrender of Cancelled Instruments or Securities
Subject to Subsection 8 below, each record Holder of a Claim based on or
derived from the 10% Senior Notes, as a condition precedent to receiving any
distribution on account of such Claims, shall surrender the certificates or
other documentation underlying such Claim, and all such surrendered certificates
and other documentations shall be marked as cancelled.
7. Failure to Surrender Cancelled Instruments
Any Holder of Allowed Claims relating to the 10% Senior Notes that fails to
surrender or is deemed to have failed to surrender its security shall have its
claim for a distribution pursuant to the Plan on account of such Allowed Claim
discharged and shall be forever barred from asserting any such Claim against
Reorganized Exide or its properties. In such cases, any New Exide Common Stock
held for distribution on account of such Claim shall be disposed of pursuant to
the provisions set forth in Subsection 2 above.
8. Lost, Stolen, Mutilated or Destroyed Debt Securities
Any Holder of a Claim relating to the 10% Senior Notes that is evidenced by
a note or by a certificate that has been lost, stolen, mutilated or destroyed
shall, in lieu of surrendering such note or underlying documentation, deliver to
Reorganized Exide: (1) an affidavit of loss reasonably satisfactory to
Reorganized Exide setting forth the unavailability of the note; and (2) such
additional indemnity as may reasonably be required by Reorganized Exide to hold
the Reorganized Debtors harmless from any damages, liabilities or costs incurred
in treating such individual as a Holder of an Allowed Claim. Upon compliance
with this procedure by a Holder of an Allowed Claim evidenced by such a lost,
stolen, mutilated or destroyed note or underlying documentation, such Holder
shall, for all purposes under the Plan, be deemed to have surrendered such note.
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K. PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS
OR EQUITY INTERESTS
1. Resolution of Disputed Claims
(a) Prosecution of Objections to Claims. After the Effective Date the
Reorganized Debtors shall have the authority on or before the Claims
Objection Bar Date to File objections, settle, compromise, withdraw or
litigate to judgment objections to Claims. From and after the Effective
Date, the Reorganized Debtors may settle or compromise any Disputed Claim
without approval of the Bankruptcy Court. The Debtors also reserve the
right to resolve any Disputed Claim outside the Bankruptcy Court under
applicable governing law. The Debtors reserve the right to seek an
extension of the Claims Objection Bar Date.
(b) Estimation of Claims. The Debtors or Reorganized Debtors may, at
any time, request that the Bankruptcy Court estimate any contingent or
unliquidated Claim pursuant to section 502(c) of the Bankruptcy Code
regardless of whether a Debtor or Reorganized Debtor has previously
objected to such Claim or whether the Bankruptcy Court has ruled on any
such objection, and the Bankruptcy Court will retain jurisdiction to
estimate any Claim at any time during litigation concerning any objection
to any Claim, including during the pendency of any appeal relating to any
such objection. In the event that the Bankruptcy Court estimates any
contingent or unliquidated Claim, that estimated amount will constitute
either the Allowed amount of such Claim or a maximum limitation on such
Claim, as determined by the Bankruptcy Court. If the estimated amount
constitutes a maximum limitation on such Claim, the Debtors or Reorganized
Debtors may elect to pursue any supplemental proceedings to object to any
ultimate payment on such Claim. All of the aforementioned Claims and
objection, estimation and resolution procedures are cumulative and not
necessarily exclusive of one another. Claims may be estimated and
subsequently compromised, settled, withdrawn or resolved by any mechanism
approved by the Bankruptcy Court.
(c) PITWD Claims. Notwithstanding anything in the Plan to the
contrary, all objections, settlements and litigation with respect to PITWD
Claims, and the allowance and payment of PITWD Claims shall be governed by
the PITWD Claims Procedures, to be attached as Exhibit D to the Plan.
(d) Payments and Distributions on Disputed Claims. Notwithstanding any
provision in the Plan to the contrary, except as otherwise agreed by
Reorganized Exide in its sole discretion, no partial payments and no
partial distributions will be made with respect to a Disputed Claim until
the resolution of such disputes by settlement or Final Order. On the date
or, if such date is not a business day, on the next successive business day
that is 20 calendar days after the calendar quarter in which a Disputed
Claim becomes an Allowed Claim, the Holder of such Allowed Claim will
receive all payments and distributions to which such Holder is then
entitled under the Plan. Notwithstanding the foregoing, any Person or
Entity who holds both an Allowed Claim(s) and a Disputed Claim(s) will not
receive payment or distribution on the Allowed Claim(s) (or Allowed Equity
Interest(s)), except as otherwise agreed by Reorganized Exide in its sole
discretion, until the Disputed Claim(s) is resolved by settlement or Final
Order. In the event there are Disputed Claims requiring adjudication and
resolution, Exide reserves the right, or upon order of the Court, to
establish appropriate reserves for potential payment of such Claims.
2. Allowance of Claims
Except as expressly provided in the Plan or in any order entered in the
Chapter 11 Cases prior to the Effective Date (including the Confirmation Order),
no Claim shall be deemed Allowed, unless and until such Claim is deemed Allowed
under the Bankruptcy Code or the Bankruptcy Court enters a Final Order in the
Chapter 11 Cases allowing such Claim. Except as expressly provided in the Plan
or any order entered in the Chapter 11 Cases prior to the Effective Date
(including the Confirmation Order), Reorganized Exide after Confirmation will
have and retain any and all rights and defenses Exide had with respect to any
Claim as of the Initial Petition Date. All Claims of any Person or Entity that
owes money to a Debtor shall be disallowed unless and until such Person or
Entity pays in full the amount it owes such Debtor, or Reorganized Debtor, as
the case may be.
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3. Controversy Concerning Impairment
If a controversy arises as to whether any Claims or any Class of Claims are
Impaired under the Plan, the Bankruptcy Court shall, after notice and a hearing,
determine such controversy before the Confirmation Date.
4. Personal Injury Tort and Wrongful Death Claims
Pursuant to 28 U.S.C. (S) 157(b)(5), personal injury tort and wrongful
death claims are entitled to a trial in a district court and, therefore, cannot
be judicially resolved within the context of the Debtors' ordinary claims
resolution process. As a result, the Debtors have established the Personal
Injury Tort and Wrongful Death Claims Resolution and Distribution Procedures
(the "PITWD Claims Procedures") as a means to efficiently and economically
adjudicate and/or resolve all timely-filed personal injury tort and wrongful
death claims caused by the alleged conduct of, omissions by and/or exposure to
products and/or substances for which the Debtors and/or their predecessors,
successors and assigns allegedly have legal responsibility (collectively, the
"PITWD Claims"). The PITWD Claims Procedures are fully described in Article
VIII.A.3 of the Plan and Exhibit D attached thereto. Generally, under the PITWD
Claims Procedures, claimants alleging PITWD Claims (the "PITWD Claimants") may
initially select one of two options: either Quick Payment or Individual Review
(each as defined in the PITWD Claims Procedures). If a PITWD Claimant selects
the Quick Payment option, such claimant will receive a lump sum award without
being required to provide any additional documentation supporting the PITWD
Claim. If a PITWD Claimant believes that he, she or it is entitled to more than
the amounts provided under the Quick Payment and such claimant can support such
entitlement to additional compensation, the PITWD Claimant may decline the Quick
Payment and select Individual Review. Under Individual Review, the Debtors may
provide the PITWD Claimant with an individualized settlement offer, which such
claimant may accept or reject or make a counter-offer. If the parties in good
faith cannot agree on a settlement amount and have reached an impasse in their
settlement negotiations, the PITWD Claimant may then select to proceed to either
binding alternative dispute resolution or a trial on the merits. In either case,
the amount of discovery required by the PITWD Claimant will increase and if the
Debtors win the alternative dispute resolution or at trial, the PITWD Claimant
will not be entitled to any claim or distribution in the chapter 11 cases.
Further, notwithstanding their availability under applicable non-bankruptcy law,
punitive damages will not be allowed for any PITWD Claimant.
L. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN
1. Condition Precedent to Confirmation
It shall be a condition to Confirmation of the Plan that the following
conditions have been satisfied or waived pursuant to the provisions of Article
IX.C of the Plan:
(a) All provisions, terms and conditions of the Plan shall have been
approved in the Confirmation Order.
(b) The Confirmation Order shall approve the dismissal of the
Creditors Committee Adversary Proceeding and other plan settlements,
including releases, as described in Article V.H and Article X of the Plan.
(c) The identities of the individuals proposed to serve on the New
Exide Board of Directors shall have been designated according to the
Shareholder Agreement, and disclosed to the Bankruptcy Court.
2. Conditions Precedent to Consummation
It shall be a condition to Consummation of the Plan that the following
conditions shall have been satisfied or waived pursuant to the provisions of
Article IX.C of the Plan:
(a) The Confirmation Order confirming the Plan, as the Plan may have
been modified, shall have been entered and become a Final Order in form and
substance reasonably satisfactory to the Debtors and shall provide that:
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(i) the Debtors and Reorganized Debtors are authorized and
directed to take all actions necessary or appropriate to enter into,
implement and consummate the contracts, instruments, releases, leases,
indentures and other agreements or documents created in connection
with the Plan;
(ii) the provisions of the Confirmation Order are nonseverable
and mutually dependent;
(iii) New Exide is authorized to issue the New Exide Preferred
Stock and New Exide Common Stock;
(iv) the New Exide Preferred Stock and New Exide Common Stock
issued under the Plan in exchange for Claims against Exide are exempt
from registration under the Securities Act pursuant to section 1145 of
the Bankruptcy Code, except to the extent that Holders of the New
Exide Preferred Stock and/or New Exide Common Stock are
"underwriters," as that term is defined in section 1145 of the
Bankruptcy Code; and
(v) the Adequate Protection Superpriority Claims shall have been
Allowed, if at all, pursuant to a Final Order in an amount not to
exceed $25 million.
(b) The following agreements and documents, in form and substance
satisfactory to the Debtors and the Agent shall have been tendered for
delivery and all conditions precedent thereto, if any, shall have been
satisfied:
(i) the New Organizational Documents and New By-laws;
(ii) the agreement for the Exit Facility and all documents
provide for therein or contemplated thereby;
(iii) the Amended Prepetition Foreign Credit Agreement;
(iv) the Shareholder Agreement; and
(v) the Registration Rights Agreement, if any.
(c) All actions, documents and agreements necessary to implement the
Plan shall have been effected or executed.
(d) The New Exide Board of Directors shall have been appointed.
(e) Neither New Exide nor Reorganized Exide, upon the Effective Date
and the occurrence of the transactions contemplated by the Plan, shall be
subject to the reporting requirements under the Securities and Exchange
Act, and Reorganized Exide shall have filed a certification on Form 15
certifying that Reorganized Exide has less than 300 record holders of any
class of security and is not otherwise subject to the reporting
requirements of section 15(d) of the Securities and Exchange Act.
(f) Holders of no more than $17.5 million of Prepetition Foreign
Secured Claims shall have elected the Class P3 Election B, pursuant to
Article III.B.3 of the Plan.
3. Waiver of Conditions
The Debtors, in their sole discretion may waive any of the conditions to
Confirmation of the Plan and/or to Consummation of the Plan set forth in Article
IX of the Plan at any time, without notice, without leave or order of the
Bankruptcy Court, and without any formal action other than proceeding to confirm
and/or consummate the Plan, provided that the Debtors may only waive the
conditions in Article IX with the written consent of the Agent, which consent
shall not be unreasonably withheld, delayed or denied.
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4. Effect of Non-occurrence of Conditions to Consummation
If the Consummation of the Plan does not occur, the Plan shall be null and
void in all respects and nothing contained in the Plan or the Disclosure
Statement shall: (1) constitute a waiver or release of any Claims by or against,
or any Equity Interests in, the Debtors; (2) prejudice in any manner the rights
of the Debtors; or (3) constitute an admission, acknowledgment, offer or
undertaking by the Debtors in any respect.
M. RELEASE, INJUNCTIVE AND RELATED PROVISIONS
1. Subordination
The classification and manner of satisfying all Claims and Equity Interests
and the respective distributions and treatments hereunder take into account
and/or conform to the relative priority and rights of the Claims and Equity
Interests in each Class in connection with any contractual, legal and equitable
subordination rights relating thereto whether arising under general principles
of equitable subordination, section 510(b) of the Bankruptcy Code or otherwise,
and any and all such rights are settled, compromised and released pursuant to
the Plan. The Confirmation Order shall permanently enjoin, effective as of the
Effective Date, all Persons and Entities from enforcing or attempting to enforce
any such contractual, legal and equitable subordination rights satisfied,
compromised and settled in this manner.
2. Releases by the Debtors
Except as otherwise specifically provided herein, for good and valuable
consideration, including the service of the Releasees to facilitate the
expeditious reorganization of Exide, the implementation of the restructuring
contemplated by the Plan, and the obligations and undertakings of the Option A
Electors set forth in the Plan, the Releasees, on and after the Effective Date,
shall be deemed released by the Debtors and Reorganized Debtors from any and all
Claims, obligations, rights, suits, damages, causes of action, remedies and
liabilities whatsoever, whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, that a Debtor or its
Affiliates would have been legally entitled to assert in their own right
(whether individually or collectively) or on behalf of the Holder of any Claim
or Equity Interest or other Person or Entity, based in whole or in part upon any
act or omission, transaction, agreement, event or other occurrence taking place
on or before the Effective Date, including, without limitation, claims related
to or arising from (a) the Prepetition Credit Facility, including but not
limited to the negotiation, formulation, preparation, administration, execution,
and enforcement thereof, and any payments received by the lenders thereunder,
(b) any guaranty arising under the Prepetition Credit Facility, (c) any liens,
pledges, or collateral of any kind, and (d) any of the other loan documents
referred to in the Prepetition Credit Facility or any other documents
contemplated thereby or therein or the transactions contemplated thereby or
therein or any action taken or omitted to be taken by the Agent under or in
connection with any of the foregoing; provided, however, the foregoing shall not
release any Claims or liabilities in respect of ordinary commercial
relationships between a Debtor and any such Person, including as between a
Debtor and one of its Affiliates, it being understood that the matters listed in
clauses (a) through (d) above do not relate to an ordinary commercial
relationship between the Debtors and the Prepetition Lenders. The Debtors are
not generally aware of any specific potential cause or causes of action,
including avoidance actions, against the Releasees that would be extinguished by
the releases provided in the Plan. The Debtors believe that the release and
exculpation provisions of the Plan are permissible under the Bankruptcy Code.
Parties with standing may object to such provisions at the Confirmation Hearing.
3. Releases by Holders of Claims
On and after the Effective Date, each Holder of a Claim who has accepted
the Plan shall be deemed to have unconditionally released each Releasee from any
and all Claims, obligations, rights, suits, damages, causes of action, remedies
and liabilities whatsoever, including any derivative claims asserted on behalf
of Exide, whether known or unknown, foreseen or unforeseen, existing or
hereafter arising, in law, equity or otherwise, that such Person or Entity would
have been legally entitled to assert (whether individually or collectively),
based in whole or in part upon any act or omission, transaction, agreement,
event or other occurrence taking place on or before the Effective Date in any
way relating or pertaining to (s) the Debtors or Reorganized Debtors, (t) the
purchase or sale, or the rescission of a purchase or sale, of any security of
any Debtor, (u) the Chapter 11 Cases, (v) the negotiation, formulation and
preparation of the Plan or any related agreements, instruments or other
documents, (w) the Prepetition Credit Facility, including, but not limited to
the negotiation, formulation, preparation, administration, execution, and
enforcement thereof, and any payments received by the lenders
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thereunder, (x) any guaranty arising under the Prepetition Credit Facility, (y)
any liens, pledges, or collateral of any kind, and (z) any of the other loan
documents referred to in the Prepetition Credit Facility or any other documents
contemplated thereby or therein or the transactions contemplated thereby or
therein or any action taken or omitted by the Agent under or in connection with
any of the foregoing. The Debtors are not generally aware of any specific
potential cause or causes of action, including avoidance actions, against the
Releasees that would be extinguished by the releases provided in the Plan. The
Debtors believe that the release and exculpation provisions of the Plan are
permissible under the Bankruptcy Code. Parties with standing may object to such
provisions at the Confirmation Hearing.
4. Release of Foreign Subsidiary Borrowers and the Domestic Non-Debtor
On and after the Effective Date, each Option A Elector shall be deemed to
have unconditionally released the Foreign Subsidiary Borrowers and the Domestic
Non-Debtor from any and all Claims, obligations, rights, suits, damages, causes
of action, remedies and liabilities whatsoever, including any derivative claims
asserted on behalf of Exide, whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, that such Person or
Entity would have been legally entitled to assert (whether individually or
collectively), based in whole or in part upon any act or omission, transaction,
agreement, event or other occurrence taking place on or before the Effective
Date in any way relating or pertaining to (1) the Debtors, Reorganized Debtors,
Foreign Subsidiary Borrowers or the Domestic Non-Debtor; (2) the purchase or
sale, or the rescission of a purchase or sale, of any security of any Debtor,
(3) the Chapter 11 Cases, (4) the negotiation, formulation and preparation of
the Plan or any related agreements, instruments or other documents, (5) the
Prepetition Credit Facility, (6) any guaranty arising under the Prepetition
Credit Facility, (7) any liens, pledges, or collateral of any kind, and (8) any
of the other loan documents referred to in the Prepetition Credit Facility or
any other documents contemplated thereby or therein or the transactions
contemplated thereby or therein. In addition, each Option A Elector shall be
deemed to have submitted to the jurisdiction of the Bankruptcy Court with
respect to the treatment, discharge and release of such Holder's Prepetition
Credit Facility Claims.
5. Exculpation
The Releasees shall neither have nor incur any liability to any Person or
Entity for any pre or post-petition act taken or omitted to be taken in
connection with, or related to the formulation, negotiation, preparation,
dissemination, implementation, administration, Confirmation or Consummation of
the Plan, the Disclosure Statement or any contract, instrument, release or other
agreement or document created or entered into in connection with the Plan or any
other pre or post-petition act taken or omitted to be taken in connection with
or in contemplation of the restructuring of the Debtors. The Debtors believe
that the release and exculpation provisions of the Plan are permissible under
the Bankruptcy Code. Parties with standing may object to such provisions at the
Confirmation Hearing.
6. Preservation of Rights of Action
(a) Preservation of Rights of Action. The Debtors are currently
investigating whether to pursue potential Causes of Action against other
parties or entities. The investigation has not been completed to date, and
under the Plan, the Reorganized Debtors retain all rights on behalf of the
Debtors and the post-confirmation Estates to commence and pursue any and
all Causes of Action (under any theory of law, including, without
limitation, the Bankruptcy Code, and in any court or other tribunal
including, without limitation, in an adversary proceeding filed in the
Debtors' Chapter 11 Cases) discovered in the investigation to the extent
the Reorganized Debtors deem appropriate. Potential Causes of Action
currently being investigated by the Debtors, which may be pursued by the
Debtors prior to the Effective Date and by the Reorganized Debtors after
the Effective Date to the extent warranted, include without limitation,
Claims and Causes of Action to be set forth in more detail in the list of
retained Causes of Action, which will be contained in the Plan Supplement
to be filed with the Bankruptcy Court and available from the Information
Agent upon specific request in writing.
In addition, potential Causes of Action which may be pursued by the
Debtors prior to the Effective Date and by the Reorganized Debtors after
the Effective Date, also include, without limitation the following:
(i) any other Causes of Action, whether legal, equitable or
statutory in nature, arising out of, or in connection with the
Debtors' businesses or operations, including, without
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limitation, the following: possible claims against vendors, landlords,
sublessees, assignees, customers or suppliers for warranty, indemnity,
back charge/set-off issues, overpayment or duplicate payment issues
and collections/accounts receivables matters; deposits or other
amounts owed by any creditor, lessor, utility, supplier, vendor,
landlord, sublessee, assignee, or other entity; employee, management
or operational matters; claims against landlords, sublessees and
assignees arising from the various leases, subleases and assignment
agreements relating thereto, including, without limitation, claims for
overcharges relating to taxes, common area maintenance and other
similar charges; financial reporting; environmental, and product
liability matters; actions against insurance carriers relating to
coverage, indemnity or other matters; counterclaims and defenses
relating to notes or other obligations; contract or tort claims which
may exist or subsequently arise; and
(ii) except for Debtors which have expressly waived such claims,
any and all avoidance claims pursuant to any applicable section of the
Bankruptcy Code, including, without limitation sections 544, 545, 547,
548, 549, 550, 551, 553(b) and/or 724(a) of the Bankruptcy Code
arising from any transaction involving or concerning the Debtors.
In addition, there may be numerous other Causes of Action which
currently exist or may subsequently arise that are not set forth herein or
in the list of retained Causes of Action, because the facts upon which such
Causes of Action are based are not currently or fully known by the Debtors
and, as a result, can not be raised during the pendency of the Chapter 11
Cases (collectively, the "Unknown Causes of Action"). The failure to list
any such Unknown Cause of Action herein or in the list of retained Causes
of Action is not intended to limit the rights of the Reorganized Debtors to
pursue any Unknown Cause of Action to the extent the facts underlying such
Unknown Cause of Action subsequently become fully known to the Debtors.
Except as otherwise provided in the Plan or in any contract,
instrument, release, indenture or other agreement entered into in
connection with the Plan, in accordance with Section 1123(b)(3) of the
Bankruptcy Code, any Claims, rights, and Causes of Action that the
respective Debtors, Estates, or post-confirmation Estates may hold against
any Person or Entity shall vest in the applicable Reorganized Debtor, and
the Debtors and Reorganized Debtors shall retain and may exclusively
enforce, as the authorized representatives of the respective Estates and
post-confirmation Estates, any and all such Claims, rights, or Causes of
Action. The Debtors and Reorganized Debtors may pursue any and all such
Claims, rights, or Causes of Action, as appropriate, in accordance with
their respective best interests. The Debtors and Reorganized Debtors shall
have the exclusive right, authority, and discretion to institute,
prosecute, abandon, settle, or compromise any and all such Claims, rights,
and Causes of Action without the consent or approval of any third party and
without any further order of court.
The potential net proceeds from the Causes of Action identified
herein, in the list of retained Causes of Action or which may subsequently
arise or be pursued are speculative and uncertain and, therefore, no value
has been assigned to such recoveries. The Debtors and the Reorganized
Debtors do not intend, and it should not be assumed that because any
existing or potential Causes of Action have not yet been pursued by the
Debtors or are not set forth herein or in the list of retained Causes of
Action, that any such Causes of Action have been waived.
(b) Preservation of All Causes of Action Not Expressly Settled or
Released. Unless a claim or Cause of Action against a Creditor or other
Entity is expressly waived, relinquished, released, compromised or settled
in the Plan or any Final Order, the Debtors expressly reserve such claim or
Cause of Action for later adjudication by the Debtors or Reorganized
Debtors (including, without limitation, claims and Causes of Action not
specifically identified or which the Debtors may presently be unaware or
which may arise or exist by reason of additional facts or circumstances
unknown to the Debtors at this time or facts or circumstances which may
change or be different from those which the Debtors now believe to exist)
and, therefore, no preclusion doctrine, including, without limitation, the
doctrines of res judicata, collateral estoppel, issue preclusion, claim
preclusion, waiver, estoppel (judicial, equitable or otherwise) or laches
shall apply to such claims or Causes of Action upon or after the
confirmation or consummation of the Plan based on the Disclosure Statement,
the Plan or the Confirmation Order, except where such claims or Causes of
Action have been released in the Plan or other Final Order. In addition,
the Debtors and Reorganized Debtors expressly reserve the right to pursue
or adopt any claims alleged in any lawsuit in which a Debtor is a defendant
or an interested
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party, against any person or entity, including, without limitation, the
plaintiffs or co-defendants in such lawsuits.
Any Entity to whom the Debtors have incurred an obligation (whether on
account of services, purchase or sale of goods or otherwise), or who has
received services from the Debtors or a transfer of money or property of
the Debtors, or who has transacted business with the Debtors, or leased
equipment or property from the Debtors should assume that such obligation,
transfer, or transaction may be reviewed by the Reorganized Debtors
subsequent to the Effective Date and may, if appropriate, be the subject of
an action after the Effective Date, whether or not (a) such Entity has
Filed a proof of claim against the Debtors in the Chapter 11 Cases; (b)
such Entity's proof of claim has been objected to; (c) such Entity's Claim
was included in the Debtors' Schedules; or (d) such Entity's scheduled
claim has been objected to by the a Debtor or has been identified by a
Debtor as disputed, contingent, or unliquidated.
The Debtors have not yet analyzed potential recoveries from avoidance
actions, but do not believe any such recoveries could have a material
impact on recoveries available to creditors. Further, any claims and
recoveries under sections 544, 545, 547 and 548 of the Bankruptcy Code are
pledged to the lenders under the DIP Facility and to the Prepetition
Lenders pursuant to the Final DIP Order.
7. Discharge of Claims and Termination of Equity Interests
Except as otherwise provided in the Plan: (1) the rights afforded in the
Plan and the treatment of all Claims and Equity Interests in the Plan, 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
Claims from and after the Petition Date, against any Debtor or any of its assets
or properties, (2) on the Effective Date, all such Claims against, and Equity
Interests in any Debtor shall be satisfied, discharged and released in full and
(3) all Persons and Entities shall be precluded from asserting against the
Debtors, the Reorganized Debtors, their successors, 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.
8. Injunction
Except as otherwise provided in the Plan, from and after the Effective
Date, all Holders of Claims or Equity Interests shall be permanently enjoined
from commencing or continuing in any manner, any suit, action or other
proceeding, on account of or respecting any Claim, Equity Interest, obligation,
debt, right, Cause of Action, remedy or liability or any other claim or cause of
action released or to be released pursuant hereto.
N. RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of
the Effective Date, the Bankruptcy Court shall retain such jurisdiction over the
Chapter 11 Cases after the Effective Date as legally permissible, including
jurisdiction to:
. allow, disallow, determine, liquidate, classify, estimate or establish
the priority or secured or unsecured status of any Claim or Equity
Interest, including the resolution of any request for payment of any
Administrative Claim and the resolution of any and all objections to
the allowance or priority of Claims or Equity Interests;
. grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code
or the Plan, for periods ending on or before the Effective Date;
. resolve any matters related to the assumption, assumption and
assignment or rejection of any executory contract or unexpired lease
to which any Debtor is party or with respect to which any Debtor may
be liable and to hear, determine and, if necessary, liquidate, any
Claims arising therefrom, including those matters related to the
amendment after the Effective Date to add any executory contracts or
unexpired leases to the list of executory contracts and unexpired
leases to be rejected;
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. ensure that distributions to Holders of Allowed Claims are
accomplished pursuant to the provisions of the Plan;
. decide or resolve any motions, adversary proceedings, contested or
litigated matters and any other matters and grant or deny any
applications involving any Debtor that may be pending on the Effective
Date;
. enter such orders as may be necessary or appropriate to implement or
consummate the provisions of the Plan and all contracts, instruments,
releases, indentures and other agreements or documents created in
connection with the Plan, Plan Supplement or the Disclosure Statement;
. resolve any cases, controversies, suits or disputes that may arise in
connection with the Consummation, interpretation or enforcement of the
Plan or any Person's or Entity's obligations incurred in connection
with the Plan;
. issue injunctions, enter and implement other orders or take such other
actions as may be necessary or appropriate to restrain interference by
any Person or Entity with Consummation or enforcement of the Plan,
except as otherwise provided in the Plan;
. resolve any cases, controversies, suits or disputes with respect to
the releases, injunction and other provisions contained in Article X
of the Plan and enter such orders as may be necessary or appropriate
to implement such releases, injunction and other provisions;
. enter and implement such orders as are necessary or appropriate if the
Confirmation Order is for any reason modified, stayed, reversed,
revoked or vacated;
. determine any other matters that may arise in connection with or
relate to this Plan, the Disclosure Statement, the Confirmation Order
or any contract, instrument, release, indenture or other agreement or
document created in connection with the Plan or the Disclosure
Statement; and
. enter an order and/or final decree concluding the Chapter 11 Cases.
O. MISCELLANEOUS PROVISIONS
1. Effectuating Documents, Further Transactions and Corporation Action
The Debtors and Reorganized Debtors are authorized to execute, deliver,
File or record such contracts, instruments, releases and other agreements or
documents and take such actions as may be necessary or appropriate to
effectuate, implement and further evidence the terms and conditions of the Plan
and the securities issued pursuant to the Plan.
Prior to, on or after the Effective Date (as appropriate), all matters
provided for hereunder that would otherwise require approval of the shareholders
or directors of the Debtors or Reorganized Debtors shall be deemed to have
occurred and shall be in effect prior to, on or after the Effective Date (as
appropriate) pursuant to applicable state general corporation law without any
requirement of further action by the shareholders or directors of the Debtors or
Reorganized Debtors.
2. Dissolution of Committees
Upon the entry of the Confirmation Order, the Creditors Committee and
Equity Committee shall dissolve and members shall be released and discharged
from all rights and duties arising from, or related to, the Chapter 11 Cases.
3. Payment of Statutory Fees
All fees payable pursuant to section 1930 of Title 28 of the United States
Code, as determined by the Bankruptcy Court at the hearing pursuant to section
1128 of the Bankruptcy Code, shall be paid on the earlier of
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when due or the Effective Date, or as soon thereafter as practicable, but prior
to the closing of the Chapter 11 Cases, with respect to any such fees payable
after the Effective Date.
4. Letters of Credit
The Debtors will cause each letter of credit issued pursuant to the
Prepetition Credit Facility that has not expired, been terminated, been replaced
and terminated, or fully drawn on or before the Effective Date, to be replaced
and terminated on the Effective Date, provided, however, that in the event any
such letter of credit shall not have been so replaced and terminated on the
Effective Date, the Debtors may at their option provide to the agent under the
Prepetition Credit Facility cash collateral for each such letter of credit in an
amount equal to 105% of the undrawn balance of such letter of credit as of the
Effective Date.
5. Modification of Plan
Subject to the limitations contained in the Plan, (1) the Debtors reserve
the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to
amend or modify the Plan prior to the entry of the Confirmation Order and (2)
after the entry of the Confirmation Order, the Debtors or Reorganized Debtors,
as the case may be, may, upon order of the Bankruptcy Court, amend or modify the
Plan, in accordance with section 1127(b) of the Bankruptcy Code, or remedy any
defect or omission or reconcile any inconsistency in the Plan in such manner as
may be necessary to carry out the purpose and intent of the Plan.
6. Revocation of Plan
The Debtors reserve the right to revoke or withdraw the Plan prior to the
Confirmation Date and to File subsequent plans of reorganization. If the Debtors
revoke or withdraw the Plan, or if Confirmation or Consummation does not occur,
then (a) the Plan shall be null and void in all respects, (b) any settlement or
compromise embodied in the Plan (including the fixing or limiting to an amount
certain any Claim or Equity Interest or Class of Claims or Equity Interests),
assumption or rejection of executory contracts or leases affected by the Plan,
and any document or agreement executed pursuant to the Plan, shall be deemed
null and void, and (c) nothing contained in the Plan shall (i) constitute a
waiver or release of any Claims by or against, or any Equity Interests in, such
Debtor or any other Person, (ii) prejudice in any manner the rights of such
Debtor or any other Person, or (iii) constitute an admission of any sort by
Debtor or any other Person.
7. Successors and Assigns
The rights, benefits and obligations of any Person or Entity named or
referred to in the Plan shall be binding on, and shall inure to the benefit of
any heir, executor, administrator, successor or assign of such Person or Entity.
8. Reservation of Rights
Except as expressly set forth in the Plan, the Plan shall have no force or
effect unless the Bankruptcy Court shall enter the Confirmation Order. None of
the filing of this Plan, any statement or provision contained in the Plan, or
the taking of any action by a Debtor with respect to this Plan shall be or shall
be deemed to be an admission or waiver of any rights of a Debtor with respect to
the Holders of Claims or Equity Interests prior to the Effective Date.
9. Section 1146 Exemption
Pursuant to section 1146(c) of the Bankruptcy Code, any transfers of
property pursuant to the Plan shall not be subject to any document recording
tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, stamp
act, real estate transfer tax, mortgage recording tax or other similar tax or
governmental assessment in the United States, and the Confirmation Order shall
direct the appropriate state or local governmental officials or agents to forgo
the collection of any such tax or governmental assessment and to accept for
filing and recordation any of the foregoing instruments or other documents
without the payment of any such tax or governmental assessment.
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10. Further Assurances
The Debtors, Reorganized Debtors, Releasees and all Holders of Claims
receiving distributions hereunder and all other parties in interest shall, from
time to time, prepare, execute and deliver any agreements or documents and take
any other actions as may be necessary or advisable to effectuate the provisions
and intent of this Plan.
11. Filing of Additional Documents
On or before the Effective Date, the Debtors may File with the Bankruptcy
Court such agreements and other documents as may be necessary or appropriate to
effectuate and further evidence the terms and conditions of the Plan.
IV.
VOTING AND CONFIRMATION PROCEDURE
The following is a brief summary regarding the acceptance and confirmation
of the Plan. Holders of Claims are encouraged to review the relevant provisions
of the Bankruptcy Code and/or to consult their own attorneys. Additional
information regarding voting procedures is set forth in the Notices accompanying
this Disclosure Statement.
A. VOTING INSTRUCTIONS
This Disclosure Statement, accompanied by a Ballot to be used for voting on
the Plan, is being distributed to Holders of Claims in Classes P3, P4 and S3.
Ballots and Master Ballots are being distributed to Holders of Class P4-B
Claims. Only Holders in these Classes are entitled to vote to accept or reject
the Plan and may do so by completing the Ballot and returning it in the envelope
provided. Beneficial owners who receive a return envelope addressed to their
Nominee should allow enough time for their vote to be received by the Nominee
and processed on a Master Ballot. In light of the benefits of the Plan for each
Class of Claims, the Debtors recommend that Holders of Claims in each of the
Impaired Classes vote to accept the Plan and return the Ballot.
BALLOTS AND MASTER BALLOTS CAST BY HOLDERS IN CLASSES ENTITLED TO VOTE MUST
BE RECEIVED BY THE SOLICITATION AGENT BY THE VOTING DEADLINE AT THE FOLLOWING
ADDRESSES:
If by U.S. Mail: If by courier/hand delivery:
- --------------- ---------------------------
Bankruptcy Management Corporation Bankruptcy Management Corporation
Attention: Exide Solicitation Agent Attention: Exide Solicitation Agent
PO Box 1098 1330 E. Franklin Avenue
El Segundo, CA 90245-1098 El Segundo, CA 90245
IF YOU HAVE ANY QUESTIONS ON VOTING PROCEDURES, PLEASE CALL BANKRUPTCY
MANAGEMENT CORPORATION TOLL FREE AT (888) 909-0100.
BALLOTS ARE ACCOMPANIED BY RETURN ENVELOPES WHENEVER POSSIBLE. IF YOUR
RETURN ENVELOPE IS ADDRESSED TO YOUR NOMINEE (I.E., AN INTERMEDIARY), PLEASE
ALLOW ADDITIONAL TIME FOR YOUR VOTE TO BE PROCESSED BY THE NOMINEE AND VOTED ON
A MASTER BALLOT. IF YOU HAVE A QUESTION CONCERNING THE VOTING PROCEDURES,
CONTACT THE APPLICABLE INTERMEDIARY OR THE SOLICITATION AGENT. ANY BALLOT, OR
MASTER BALLOT VOTED BY YOUR NOMINEE ON YOUR BEHALF, RECEIVED AFTER THE VOTING
DEADLINE MAY NOT BE COUNTED.
ANY BALLOT WHICH IS EXECUTED BY THE HOLDER OF AN ALLOWED CLAIM OR ANY
COMBINATION OF BALLOTS REPRESENTING CLAIMS OR EQUITY INTERESTS IN THE SAME CLASS
HELD BY THE SAME HOLDER BUT WHICH DOES NOT INDICATE AN ACCEPTANCE OR REJECTION
OF THE PLAN OR WHICH INDICATES BOTH AN ACCEPTANCE AND A REJECTION OF THE PLAN
SHALL BE DEEMED AN ACCEPTANCE OF THE PLAN.
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The Debtors will publish the Confirmation Hearing Notice in the national
edition of The Wall Street Journal, which will contain the Plan Objection
Deadline and Confirmation Hearing, in order to provide notification to persons
who may not otherwise receive notice by mail.
For all Holders:
By signing and returning a Ballot, each Holder of Claims in Classes P3, P4
and S3 will also be certifying to the Bankruptcy Court and the Debtors that,
among other things:
. such Holder has received and reviewed a copy of the Disclosure
Statement and related Ballot and/or Master Ballot and acknowledges
that the solicitation is being made pursuant to the terms and
conditions set forth in the Plan;
. such Holder has cast the same vote on every Ballot completed by such
Holder with respect to holdings of such Class of Claims;
. no other Ballots with respect to such Class of Claims have been cast
or, if any other Ballots have been cast with respect to such Class of
Claims, such earlier Ballots are thereby revoked;
. the Debtors have made available to such Holder or its agents all
documents and information relating to the Plan and related matters
reasonably requested by or on behalf of such Holder; and
. except for information provided by the Debtors in writing, and by its
own agents, such Holder has not relied on any statements made or other
information received from any person with respect to the Plan.
By signing and returning a Ballot, each Holder of Claims also acknowledges
that the securities being distributed pursuant to the Plan are not being
distributed pursuant to a registration statement filed with the United States
Securities and Exchange Commission or with any securities authority outside of
the United States and represents that any such securities will be acquired for
its own account and not with a view to any distribution of such securities in
violation of the United States Securities Act of 1933. It is expected that when
issued pursuant to the Plan, except with respect to entities deemed to be
underwriters, such securities will be exempt from the registration requirements
of the Securities Act by virtue of section 1145 of the Bankruptcy Code and may
be resold by the Holders thereof subject to the provisions of section 1145.
B. VOTING TABULATION
The Voting Record Date for purposes of determining which Holders of Claims
are entitled to vote on the Plan is August 11, 2003.
In tabulating votes, the following rules shall be used to determine the
claim amount associated with a Creditor's vote:
(i) If the Debtors have not filed a written objection to the Claim, the
Claim amount for voting purposes shall be the Claim amount contained
on a timely filed proof of claim or, if no proof of claim was filed,
the non-contingent, liquidated and undisputed Claim amount listed in
the Debtors' schedules of liabilities.
(ii) If the Debtors have filed a written objection to the Claim, such
Creditor's Ballot shall not be counted in accordance with Fed. R.
Bankr. P. 3018(a), unless temporarily allowed by the Court for voting
purposes, after notice and a hearing, pursuant to instruction (iv)
below. The deadline for the Debtors to file written objections to
claims for purposes of this instruction (ii) shall be 5:00 p.m.
Prevailing Eastern Time, October 14, 2003. If the Debtors serve any
written objections to Claims after the Voting Deadline, such service
shall be made by overnight delivery.
(iii) If a Creditor casts a Ballot and is listed on the Debtors' schedules
of liabilities as holding a Claim that is contingent, unliquidated or
disputed and such creditor has not filed a proof
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of claim as to which the Debtors have not filed a written objection,
such Creditor's Ballot shall not be counted in accordance with Fed. R.
Bankr. P. 3018(a), unless temporarily allowed by the Court for voting
purposes, after notice and a hearing pursuant to instruction (iv)
below.
(iv) If a Creditor is not entitled to vote pursuant to instructions (ii) or
(iii) above and believes that it should be entitled to vote on the
Plan, then such Creditor must serve on the Debtors and file with the
Court a motion for an order pursuant to Fed. R. Bankr. P. 3018(a) (a
"Rule 3018(a) Motion") seeking temporary allowance for voting
purposes. Such Rule 3018(a) Motion, with evidence in support thereof,
must be filed by 5:00 p.m. Prevailing Eastern Time, October 17, 2003.
With regard to any timely filed Rule 3018(a) Motions, the Debtors
respectfully request that the Debtors may file a response no later
than the commencement of the Confirmation Hearing. The Debtors further
request that the Court consider timely filed Rule 3018(a) Motions, if
any, at the Confirmation Hearing;
(v) Ballots cast by Creditors whose Claims are not listed on the Debtors'
schedules of liabilities, but who timely file proofs of Claim in
unliquidated or unknown amounts that are not the subject of a written
objection, will count for satisfying the numerosity requirement of
section 1126(c) of the Bankruptcy Code and will count as Ballots for
Claims in the amount of $1.00 solely for the purpose of satisfying the
dollar amount provisions of section 1126(c) of the Bankruptcy Code.
(vi) In the case of publicly traded securities, the principal amount or
number of shares according to the records of the transfer agent for
the particular series of securities, including a further breakdown, in
the case of The Depository Trust Company ("DTC"), of the individual
Nominee Holders which are DTC participants, as of the Voting Record
Date, shall be the Claim or interest amount, except that in no event
shall a Nominee Holder be permitted to vote in excess of its position
in DTC as of the Voting Record Date.
The Claim amount established through the above process controls for voting
purposes only and does not constitute the Allowed amount of any Claim or Equity
Interest for distribution purposes.
To ensure that its vote is counted, each Holder of a Claim must (a)
complete a Ballot; (b) indicate the Holder's decision either to accept or reject
the Plan in the boxes provided in the respective Ballot; and (c) sign and return
the Ballot, by the Voting Deadline, to the address set forth on the envelope
enclosed therewith.
The Ballot or Master Ballot does not constitute, and shall not be deemed to
be, a proof of claim or an assertion or admission of a Claim.
The following general voting procedures and standard assumptions be used to
tabulate ballots:
. Except to the extent determined by the Debtors in their reasonable
discretion, or otherwise permitted by the Court, the Debtors will not
accept or count any Ballots and Master Ballots received after the
Voting Deadline.
. Creditors shall not split their vote within a Claim; thus, each
Creditor shall be deemed to have voted the full amount of its Claims
either to accept or reject the Plan.
. The method of delivery of Ballots and Master Ballots to be sent to the
Solicitation Agent is at the election and risk of each Holder,
provided that, except as otherwise provided in the Plan, such delivery
will be deemed made only when the original executed Ballot or Master
Ballot is actually received by the Solicitation Agent.
. The Solicitation Agent must receive an original executed Ballot or
Master Ballot; delivery of a Ballot or Master Ballot by facsimile,
email or any other electronic means will not be accepted.
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. No Ballot or Master Ballot sent to (i) the Debtors, (ii) any indenture
trustee or agent, or (iii) the Debtors' financial or legal advisors
shall be accepted or counted.
. The Debtors expressly reserve the right to amend Plan terms at any
time, and from time to time (subject to compliance with section 1127
of the Bankruptcy Code and the terms of the Plan regarding
modification). If the Debtors materially change any Plan terms or
waive a material condition, the Debtors will disseminate additional
solicitation materials and will extend the solicitation period, in
each case, to the extent directed by the Court.
. If multiple Ballots or Master Ballots are received from, or on behalf
of, an individual Holder for the same Claims prior to the Voting
Deadline, the last Ballot or Master Ballot timely received will be
deemed to reflect the voter's intent and to supersede and revoke any
prior Ballot or Master Ballot.
. Any trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation, or other person acting in a fiduciary or
representative capacity, who signs a Ballot or Master Ballot must (i)
indicate his or her capacity as such when signing and, (ii) unless
otherwise determined by the Debtors, submit proper evidence of such
authority to act on behalf of a beneficial interest Holder in form and
content satisfactory to the Debtors.
. The Debtors, in their sole discretion, and without notice, subject to
contrary order of the Court, may waive any defect in any Ballot or
Master Ballot at any time, either before or after the close of voting,
and without notice. Except as otherwise provided herein, the Debtors
may, in their sole discretion, reject any Ballot or Master Ballot not
timely submitted on or prior to the Voting Deadline as invalid and,
therefore, not count such Ballot or Master Ballot in connection with
confirmation of the Plan.
. If the Debtors file a motion to designate any Claim on or before the
date that is seven days prior to the Confirmation Hearing, any vote to
accept or reject the Plan cast with respect to any such Claim will not
be counted for purposes of determining whether the Plan has been
accepted or rejected, unless the Court orders otherwise.
. Any Holder of Impaired Claims who has delivered a valid Ballot voting
on the Plan may withdraw such vote solely in accordance with Fed. R.
Bankr. P. 3018(a).
. The Debtors' interpretation of the terms and conditions of the Plan
pertaining to solicitation procedures shall be final and binding on
all parties, unless otherwise directed by the Court.
. Subject to any contrary order of the Court, the Debtors reserve the
absolute right to reject any and all Ballots and Master Ballots not
proper in form, the acceptance of which would, in the opinion of the
Debtors or their counsel, not be in accordance with the provisions of
the Bankruptcy Code; and
. Neither the Debtors, nor any other person or entity, will be under any
duty to provide notification of defects or irregularities with respect
to deliveries of Ballots or Master Ballots nor will any of them incur
any liabilities for failure to provide such notification. Unless
otherwise directed by the Court, delivery of such Ballots or Master
Ballots will not be deemed to have been made until such irregularities
have been cured or waived. Ballots and Master Ballots previously
furnished (as to which any irregularities have not theretofor been
cured or waived) will not be counted.
The following procedures, as well as the procedures set forth above, apply
to Holders of Claims derived from or based on publicly traded securities
(collectively, the "Beneficial Holder Claims"):
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. The Debtors shall distribute a Ballot to each record Holder of the
Beneficial Holder Claims as of the Voting Record Date.
. The Debtors shall also distribute an appropriate number of copies of
Ballots to each bank or brokerage firm (or the agent or other Nominee
therefor) identified by the Solicitation Agent as an entity through
which beneficial owners hold the Beneficial Holder Claims. Each
Nominee will be requested to immediately distribute the Ballots to all
beneficial Holders for which it holds the Beneficial Holder Claims.
. Each Nominee must summarize the individual votes of its respective
individual beneficial Holders from their individual beneficial
Holders' Ballots on a Master Ballot and return such Master Ballot to
the Solicitation Agent.
. Any beneficial Holder of the Beneficial Holder Claims holding as a
record Holder in its own name, shall vote on the Plan by completing
and signing the Ballot and returning it to the Solicitation Agent;
. Any beneficial Holder of the Beneficial Holder Claims who holds in
"street name" through a Nominee shall vote on the Plan either (i) if
the Nominee has provided a Ballot, by completing and signing the
Ballot and returning it directly to the Solicitation Agent or, (ii) by
promptly completing and signing the Ballot and returning it to the
Nominee in sufficient time to allow the Nominee to process the Ballot
and return a Master Ballot to the Solicitation Agent by the Voting
Deadline;
. Any Ballot returned to a Nominee by a beneficial Holder will not be
counted for purposes of accepting or rejecting the Plan until such
Nominee properly completes and timely delivers to the Solicitation
Agent a Master Ballot that reflects the vote of such beneficial
Holder;
. If a beneficial Holder holds the Beneficial Holder Claims or any
combination thereof through more than one Nominee, such beneficial
Holder should execute a separate Ballot for each block of the
Beneficial Holder Claims that it holds through any Nominee and return
the Ballot to the respective Nominee that holds the Beneficial Holder
Claims; and
. If a beneficial Holder holds a portion of its Beneficial Holder Claims
through a Nominee and another portion directly or in its own name as a
record Holder, such beneficial Holder should follow the procedures
described herein with respect to voting each such portion separately.
C. THE CONFIRMATION HEARING
Section 1128(a) of the Bankruptcy Code requires the Bankruptcy Court, after
notice, to hold a hearing on confirmation of the Plan (the "Confirmation
Hearing"). Section 1128(b) of the Bankruptcy Code provides that any
party-in-interest may object to confirmation of the Plan.
The Bankruptcy Court has scheduled the Confirmation Hearing for October 21
and 22, 2003, before the Honorable Kevin J. Carey, United States Bankruptcy
Judge, at the Robert N.C. Nix Federal Courthouse, 900 Market Street,
Philadelphia, PA 19107. The Confirmation Hearing may be adjourned from time to
time by the Bankruptcy Court without further notice except for an announcement
of the adjourned date made at the Confirmation Hearing or any adjournment
thereof.
Objections to confirmation of the Plan must be filed and served on or
before 5:00 p.m. Prevailing Eastern Time, October 7, 2003 in accordance with the
Confirmation Hearing Notice accompanying this Disclosure Statement. UNLESS
OBJECTIONS TO CONFIRMATION ARE TIMELY SERVED AND FILED IN COMPLIANCE WITH THE
APPROVAL ORDER, THEY WILL NOT BE CONSIDERED BY THE BANKRUPTCY COURT.
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D. STATUTORY REQUIREMENTS FOR CONFIRMATION OF THE PLAN
At the Confirmation Hearing, the Bankruptcy Court will confirm the Plan
only if all of the requirements of section 1129 of the Bankruptcy Code are met.
Among the requirements for confirmation are that the Plan (i) is accepted by all
impaired Classes of Claims and Interests or, if rejected by an impaired Class,
that the Plan "does not discriminate unfairly" and is "fair and equitable" as to
such Class, (ii) is feasible, and (iii) is in the "best interests" of holders of
Claims and Interests impaired under the Plan. A Class is impaired if the Claims
in that Class will not be paid in full under the Plan.
1. Acceptance
The Claims and Interests in Classes P1, P2, S1 and S2 are not impaired
under the Plan, and as a result the Holders of such Claims are deemed to have
accepted the Plan.
Claims in Classes P3, P4, and S3 are impaired under the Plan, and as a
result, the holders of such Claims are entitled to vote thereon. Pursuant to
section 1129 of the Bankruptcy code, the Claims in Classes P3, P4 and S3 must
accept the Plan in order for it to be confirmed without application of the "fair
and equitable test," described below, to such Classes. As stated above, Classes
of Claims will have accepted the Plan if the Plan is accepted by at least
two-thirds in dollar amount and a majority in number of the Claims of each such
Class (other than any Claims of creditors designated under section 1126(e) of
the Bankruptcy Code) that have voted to accept or reject the Plan.
2. Fair and Equitable Test
The Debtors will seek to confirm the Plan notwithstanding the nonacceptance
or deemed nonacceptance of the Plan by any impaired Class of Claims or Equity
Interests. To obtain such confirmation, it must be demonstrated to the
Bankruptcy Court that the Plan "does not discriminate unfairly" and is "fair and
equitable" with respect to such dissenting impaired Class. A plan does not
discriminate unfairly if the legal rights of a dissenting class are treated in a
manner consistent with the treatment of other classes whose legal rights are
substantially similar to those of the dissenting class and if no class receives
more than it is entitled to for its claims or interests. The Debtors believe
that the Plan satisfies this requirement.
The Bankruptcy Code establishes different "fair and equitable" tests for
secured claims, unsecured claims and interests, as follows:
(a) Secured Claims. Either the plan must provide (i) that the Holders
of such Claims retain the liens securing such Claims, whether the property
subject to such liens is retained by the Debtors or transferred to another
entity, to the extent of the allowed amount of such Claims, and each Holder
of a Claim receives deferred cash payments totaling at least the allowed
amount of such Claim, of a value, as of the effective date of the plan, of
at least the value of such Holder's interest in the estate's interest in
such property; (ii) for the sale of any property that is subject to the
liens securing such Claims, free and clear of such liens, with such liens
to attach to the proceeds of such sale; or (iii) for the realization by
such Holders of the indubitable equivalent of such Claims.
(b) Unsecured Claims. Either (i) each Holder of an Impaired unsecured
Claim receives or retains under the plan property of a value equal to the
amount of its Allowed Claim or (ii) the Holders of Claims and Equity
Interests that are junior to the Claims of the dissenting class will not
receive any property under the plan.
(c) Equity Interests. No Equity Interest Holder will receive any
distributions under the Plan.
THE DEBTORS BELIEVE THAT THE PLAN MAY BE CONFIRMED ON A NONCONSENSUAL BASIS
(PROVIDED AT LEAST ONE IMPAIRED CLASS OF CLAIMS VOTES TO ACCEPT THE PLAN).
ACCORDINGLY, THE DEBTORS WILL DEMONSTRATE AT THE CONFIRMATION HEARING THAT THE
PLAN SATISFIES THE REQUIREMENTS OF SECTION 1129(b) OF THE BANKRUPTCY CODE AS TO
ANY NON-ACCEPTING CLASS.
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3. Feasibility
The Bankruptcy Code requires that confirmation of a plan is not likely to
be followed by the liquidation or the need for further financial reorganization,
unless such liquidation is contemplated by the Plan. For purposes of showing
that the Plan meets this feasibility standard, the Debtors, together with
Blackstone, have analyzed the ability of the Reorganized Debtors to meet their
obligations under the Plan and to retain sufficient liquidity and capital
resources to conduct their businesses.
The Debtors believe that with a significantly deleveraged capital
structure, the Company's businesses will be able to return to viability. The
decrease in the amount of debt on the Company's balance sheet will substantially
reduce its interest expense, improving cash flow. Based on the terms of the
Plan, at emergence the Company will have $1.4 billion less in debt and accrued
interest on its balance sheet than it had prior to the restructuring.
The Projections indicate that the Reorganized Debtors should have
sufficient cash flow to pay and service their obligations and to fund their
operations. Accordingly, the Debtors believe that the Plan complies with the
financial feasibility standard of section 1129(a)(11) of the Bankruptcy Code.
4. "Best Interests" Test
With respect to each impaired Class of Claims and Equity Interests,
confirmation of the Plan requires that each such holder either (x) accepts the
Plan or (y) receives or retains under the Plan property of a value, as of the
Effective Date of the Plan, that is not less than the value such holder would
receive or retain if the Debtors were liquidated under Chapter 7 of the
Bankruptcy Code.
This analysis requires the Bankruptcy Court to determine what the Holders
of Allowed Claims and Allowed Equity Interests in each impaired class would
receive from the liquidation of the Debtors' assets and properties in the
context of Chapter 7 liquidation cases. The cash amount which would be available
for the satisfaction of Unsecured Claims and Equity Interests of the Debtors
would consist of the proceeds resulting from the disposition of the unencumbered
assets of the Debtors, augmented by the unencumbered Cash held by the Debtors at
the time of the commencement of the liquidation cases. Such cash amount would be
reduced by the costs and expenses of the liquidation and by such additional
administrative and priority claims that may result from the termination of the
Debtors' businesses and the use of Chapter 7 for the purposes of liquidation.
The Debtors' costs of liquidation under Chapter 7 would include the fees
payable to a trustee in bankruptcy, as well as those payable to attorneys,
investment bankers and other professionals that such trustee may engage, plus
any unpaid expenses incurred by the Debtors during the Chapter 11 Cases, such as
compensation for attorneys, Advisors, accountants and costs and expenses of
members of any official committees that are allowed in the Chapter 7 cases. In
addition, claims could arise by reason of the breach or rejection of obligations
incurred and executory contracts entered into or assumed by the Debtors during
the pendency of the Chapter 11 Cases.
The foregoing types of Claims and such other claims which may arise in the
liquidation cases or result from the pending Chapter 11 Cases would be paid in
full from the liquidation proceeds before the balance of those proceeds would be
made available to pay prepetition Claims.
To determine if the Plan is in the best interests of each impaired class,
the value of the distributions from the proceeds of the liquidation of the
Debtors' assets and properties (after subtracting the amounts attributable to
the aforesaid claims) is then compared with the value offered to such classes of
Claims and Equity Interests under the Plan.
In applying the "best interests" test, it is possible that Claims and
Equity Interests in the Chapter 7 cases may not be classified according to the
seniority of such Claims and Equity Interests. In the absence of a contrary
determination by the Bankruptcy Court, all pre-Chapter 11 Unsecured Claims which
have the same rights upon liquidation would be treated as one class for the
purposes of determining the potential distribution of the liquidation proceeds
resulting from the Chapter 7 cases of the Debtors. The distributions from the
liquidation proceeds would be calculated on a Pro Rata basis according to the
amount of the Claim held by each Creditor. Therefore, Creditors who claim to be
third-party beneficiaries of any contractual subordination provisions might have
to seek to enforce such contractual subordination provisions in the Bankruptcy
Court or otherwise. The Debtors believe that the most likely outcome of
liquidation proceedings under Chapter 7 would be the
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application of the rule of absolute priority of distributions. Under that rule,
no junior creditor receives any distribution until all senior creditors are paid
in full with interest and no stockholder receives any distribution until all
Creditors are paid in full with postpetition interest.
In addition, under a Chapter 7 liquidation, the Debtors would face
significant challenges in retaining its key management to execute the wind down
plan. The Debtors further believe that a Chapter 7 liquidation is not the
optimal environment for disposing of assets and businesses, and projects that a
forced liquidation of their assets in Chapter 7 would allow them to recover less
than the "going concern" value of the Company -- the value on which the Plan is
premised. Finally, the Debtors would likely require working capital to finance
the liquidation of its assets; raising such financing would be difficult in a
Chapter 7 environment.
After consideration of the effects that a Chapter 7 liquidation would have
on the ultimate proceeds available for distribution to creditors in the Chapter
11 Cases, including: (a) the increased costs and expenses of a liquidation under
Chapter 7 arising from fees payable to a trustee in bankruptcy and professional
advisors to such trustee; and (b) the substantial increases in claims which
would be satisfied on a priority basis or on parity with creditors in the
Chapter 11 Cases and (c) the significantly lower proceeds likely to be realized
from a liquidation of the Debtors' assets under a Chapter 7 liquidation, the
Debtors believe that Confirmation of the Plan will provide each holder of an
Allowed Claim or Equity Interest with no less than, and in many cases more than
the amount it would receive pursuant to liquidation of the Debtors under Chapter
7 of the Bankruptcy Code. See Exhibit B and Exhibit C hereto.
The Debtors also believe that the value of any distributions from the
liquidation proceeds to each class of Allowed Claims in a Chapter 7 case would
be less than the value of distributions under the Plan because such
distributions in a Chapter 7 case would not occur for a substantial period of
time. It is likely that distribution of the proceeds of the liquidation could be
delayed for at least a year or more after the completion of such liquidation in
order to resolve claims and prepare for distributions. In the likely event
litigation were necessary to resolve claims asserted in the Chapter 7 cases, the
delay could be prolonged.
Underlying the Liquidation Analysis are a number of estimates and
assumptions that, although developed and considered reasonable by management,
are inherently subject to significant economic and competitive uncertainties and
contingencies beyond the control of the Debtors and management. The Liquidation
Analysis is also based upon assumptions with regard to liquidation decisions
that are subject to change. Accordingly, the values reflected may not be
realized if the Debtors were, in fact, to undergo such a liquidation.
V.
RISK FACTORS
ALL IMPAIRED HOLDERS SHOULD READ AND CAREFULLY CONSIDER THE FACTORS SET
FORTH BELOW, AS WELL AS THE OTHER INFORMATION SET FORTH OR OTHERWISE REFERENCED
IN THIS DISCLOSURE STATEMENT, PRIOR TO VOTING TO ACCEPT OR REJECT THE PLAN.
A. CERTAIN BANKRUPTCY CONSIDERATIONS
Parties in interest may object to Debtors' classification of Claims.
Section 1122 of the Bankruptcy Code provides that a plan of reorganization may
place a class or an interest in a particular class only if such claim or
interest is substantially similar to the other claims or interests in such
class. Debtors believe that the classification of claims and interests under the
Plan complies with the requirements set forth in the Bankruptcy Code. However,
there can be no assurance that the Bankruptcy Court will reach the same
conclusion.
The bankruptcy filing may disrupt the Company's operations. The impact, if
any, that the Chapter 11 Cases may have on the operations of Reorganized Debtors
cannot be accurately predicted or quantified. Since Debtors' announcement of
their intention to seek a restructuring of its capital structure in April, 2002
and their filing of the Chapter 11 Cases, the Company has not suffered
significant disruptions in or an adverse impact on its operations. Nonetheless,
the continuation of the Chapter 11 Cases, particularly if the Plan is not
approved or confirmed in the time frame currently contemplated, could adversely
affect the Company's relationship with its customers, suppliers and employees.
If confirmation and consummation of the Plan do not occur expeditiously,
the Chapter 11 Cases could adversely affect the Company's relationships with its
customers, employees and suppliers and could result in,
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among other things, increased costs for professional fees and similar expenses.
In addition, prolonged Chapter 11 Cases may make it more difficult for the
Company to retain and attract management and other key personnel and would
require senior management to spend an excessive amount of time and effort
dealing with Debtors' financial problems instead of focusing on the operation of
their businesses.
Debtors may not be able to secure confirmation of the Plan. There can be no
assurance that the requisite acceptances to confirm the Plan will be received.
Even if the requisite acceptances are received, there can be no assurance that
the Bankruptcy Court will confirm the Plan. A non-accepting creditor or equity
holder of Debtors might challenge the adequacy of this Disclosure Statement or
the balloting procedures and results as not being in compliance with the
Bankruptcy Code or Bankruptcy Rules. Even if the Bankruptcy Court determined
that the Disclosure Statement and the balloting procedures and results were
appropriate, the Bankruptcy Court could still decline to confirm the Plan if it
found that any of the statutory requirements for confirmation had not been met,
including that the terms of the Plan are fair and equitable to non-accepting
Classes. Section 1129 of the Bankruptcy Code sets forth the requirements for
confirmation and requires, among other things, a finding by the Bankruptcy Court
that the Plan "does not unfairly discriminate" and is "fair and equitable" with
respect to any non-accepting Classes, confirmation of the Plan is not likely to
be followed by a liquidation or a need for further financial reorganization and
the value of distributions to non-accepting Holders of claims and interests
within a particular class under the Plan will not be less than the value of
distributions such Holders would receive if Debtors were liquidated under
Chapter 7 of the Bankruptcy Code. While there can be no assurance that these
requirements will be met, Debtors believe that the Plan will not be followed by
a need for further financial reorganization and that non-accepting Holders
within each Class under the Plan will receive distributions at least as great as
would be received following a liquidation under Chapter 7 of the Bankruptcy Code
when taking into consideration all administrative claims and costs associated
with any such Chapter 7 case. Debtors believe that Holders of Equity Interests
in Debtors would receive no distribution under either a liquidation pursuant to
Chapter 7 or Chapter 11.
The confirmation of the Plan is also subject to certain conditions as
described in Section III.L hereof. If the Plan is not confirmed, it is unclear
whether a restructuring of Debtors could be implemented and what distributions
Holders of Claims or Equity Interests ultimately would receive with respect to
their Claims or Equity Interests. If an alternative reorganization could not be
agreed to, it is possible that Debtors would have to liquidate their assets, in
which case it is likely that Holders of Claims and Equity Interests would
receive substantially less favorable treatment than they would receive under the
Plan.
Debtors may not be able to consummate the Plan. Consummation of the Plan is
conditioned upon, among other things, entry of the Confirmation Order and the
negotiation and execution of certain definitive agreements, documents and plans.
As of the date of this Disclosure Statement, there can be no assurance that any
or all of the foregoing conditions will be met (or waived) or that the other
conditions to consummation, if any, will be satisfied. Accordingly, even if the
Bankruptcy Court confirms the Plan, there can be no assurance that the Plan will
be consummated. If a liquidation or protracted reorganization were to occur,
there is a risk that the value of the Debtors' enterprise would be eroded to the
detriment of all stakeholders.
Debtors may object to the amount or classification of a Claim. Debtors
reserve the right to object to the amount or classification of any Claim or
Equity Interest. The estimates set forth in this Disclosure Statement cannot be
relied on by any creditor or equity holder whose Claim or Equity Interest is
subject to an objection. Any such Holder of a Claim or Equity Interest may not
receive its specified share of the estimated distributions described in this
Disclosure Statement.
Bankruptcy Court may not approve the settlement of Creditors Committee
Adversary Proceeding. If the Bankruptcy Court does not approve the settlement of
the Creditors Committee Adversary Proceeding, as contemplated by Article V.H of
the Plan, there is a substantial and material risk that distributions called for
under the Plan will be significantly delayed. There is the additional
possibility that the full litigation of the Creditors Committee Adversary
Proceeding would result in allocations to Creditors that are materially
different from the allocations called for under the Plan.
Conditions precedent to the Effective Date may not be satisfied on time. If
the conditions precedent to the Effective Date have not been satisfied or waived
by November 17, 2003, the lenders party to the Standstill Agreement will be able
to exercise their rights and remedies against the non-Debtor subsidiaries of the
Company under the Prepetition Credit Facility. In addition, the lenders under
the DIP Credit Facility will be able to exercise their rights and remedies
against the Debtors and non-Debtor subsidiaries. As of March 31, 2003, the
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assets of the non-Debtor subsidiaries represented 59% of the Company's
consolidated assets. The Debtors cannot assure you as to the timing of the
satisfaction or waiver of the conditions precedent to the Effective Date.
B. FACTORS AFFECTING THE VALUE OF THE SECURITIES TO BE ISSUED UNDER THE PLAN
Reorganized Debtors may not be able to achieve their projected financial
results. Reorganized Debtors may not be able to meet their projected financial
results or achieve the revenue or cash flow that they have assumed in projecting
their future business prospects. If Reorganized Debtors do not achieve these
projected revenue or cash flow levels, they may lack sufficient liquidity to
continue operating as planned after the Effective Date. Debtors' financial
projections represent management's view based on current known facts and
hypothetical assumptions about Reorganized Debtors' future operations. However,
the Projections set forth on Exhibit C attached hereto do not guarantee
Reorganized Debtors' future financial performance.
Reorganized Debtors may not be able to meet their post-reorganization debt
obligations, and finance all of their operating expenses, working capital needs
and capital expenditures. Debtors are currently highly leveraged. Even after the
reorganization, the Reorganized Debtors and the non-Debtor subsidiaries will
have a significant amount of debt which will continue to require significant
interest and principal payments. The Company may not generate sufficient
positive cash flow to support the debt. The Company's level of debt and the
limitations imposed on it by the Company's debt agreements could adversely
affect the Company's operating flexibility and put the Company at a competitive
disadvantage. The Company's significant level of debt may adversely affect the
Company's future performance, because, among other things:
. the Company may not be able to obtain further debt financing and may
have to pay more for the financing or sell equity securities which
could dilute the ownership interest of a holder of New Exide Preferred
Stock or New Exide Common Stock;
. the Company may not be able to take advantage of business
opportunities;
. the Company may be disadvantaged compared to competitors with less
leverage; and
. the Company will be more vulnerable to adverse economic conditions.
The Company's debt agreements will likely contain a number of significant
financial and other restrictive covenants. These covenants could adversely
affect the Company by limiting the Company's financial and operating flexibility
as well as its ability to plan for and react to market conditions and to meet
its capital needs. The Company's failure to comply with these covenants could
result in events of default which, if not cured or waived, could result in the
Company's being required to repay that indebtedness before its due date, and the
Company cannot assure that it would have the financial resources or be able to
arrange alternative financing to do so.
The New Exide Preferred Stock and the New Exide Common Stock will be
subject to restrictions on transferability. The New Exide Preferred Stock and
New Exide Common Stock will be subject to restrictions on transfer contained in
the New Exide Certificate of Incorporation, the form of which will be contained
in the Plan Supplement, and in the Shareholder Agreement. Consequently, any
holder of New Exide Preferred Stock or New Exide Common Stock may have to bear
the economic risk of its investment for an indefinite period of time.
In addition, even if the New Exide Certificate of Incorporation and the
Shareholder Agreement permit the transfer of New Exide Preferred Stock and New
Exide Common Stock, the Company cannot provide any assurance that stockholders
will be able to sell the New Exide Preferred Stock or the New Exide Common Stock
at a particular time or that the prices that stockholders receive when they sell
will be favorable. The New Exide Preferred Stock and New Exide Common Stock are
new issuances of securities, and there is no established trading market for such
securities. New Exide will not be subject to the reporting requirements under
the Securities and Exchange Act, and does not intend to register any such
securities under the Securities Act or list shares of New Exide Preferred Stock
or New Exide Common Stock on any national securities exchange or on the Nasdaq
National Market. Holders of these securities will not receive reports from New
Exide except to the extent required by the Shareholder Agreement.
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The estimated valuation of Reorganized Debtors and New Exide Preferred
Stock and New Exide Common Stock, and the estimated recoveries to Holders of
Claims and Equity Interests, is not intended to represent the trading values of
the New Exide Preferred Stock and New Exide Common Stock. The estimated
valuation of Reorganized Debtors set forth in Section I.I hereof, prepared by
Blackstone and based on the Projections developed by management of Debtors, is
based on commonly accepted valuation analysis and is not intended to represent
the trading values of Debtors' securities in public or private markets. The
estimated recoveries to each of the Impaired Classes are based on this
theoretical valuation analysis. This valuation analysis is based on numerous
assumptions (the realization of many of which is beyond the control of Debtors),
including, among other things, the successful reorganization of Debtors, an
assumed Effective Date of September 30, 2003, Reorganized Debtors' ability to
achieve the operating and financial results included in the Projections,
Reorganized Debtors' ability to maintain adequate liquidity to fund operations
and the assumption that capital and equity markets remain consistent with
current conditions. Even if Reorganized Debtors achieve the Projections, the
trading market values for the New Exide Preferred Stock and New Exide Common
Stock could be adversely impacted by the lack of trading liquidity for such
securities, the lack of institutional research coverage and concentrated selling
by recipients of such securities.
New Exide does not expect to pay any dividends on New Exide Preferred Stock
or New Exide Common Stock for the foreseeable future. It is not anticipated that
any cash dividends will be paid on New Exide Preferred Stock or New Exide Common
Stock for the foreseeable future.
Certain tax implications of Debtors' bankruptcy and reorganization may
increase the tax liability of Reorganized Debtors. The U.S. federal income tax
consequences of consummation of the Plan to Holders of Claims or Equity
Interests are complex and subject to uncertainty. Certain U.S. tax attributes of
Debtors, including net operating loss carryovers, may be reduced or eliminated
as a consequence of the Plan. The elimination or reduction of net operating loss
carryovers and such other tax attributes may increase the amount of tax payable
by Reorganized Debtors following the consummation of the Plan as compared with
the amount of tax payable had no such reduction been required. See Section VI
hereof, "Certain Federal Income Tax Consequences" below for discussion of the
U.S. federal income tax consequences for creditors, equity holders and Debtors
resulting from the consummation of the Plan.
C. RISKS RELATING TO THE OPERATIONS OF REORGANIZED DEBTORS
The Company operates in a competitive environment and the pricing of its
products is substantially dependent on market forces. The global transportation,
motive power and network power battery markets are highly competitive. In recent
years, competition has continued to intensify and the Company continues to come
under increasing pressure for price reductions. This competition has been
exacerbated by excess capacity and fluctuating lead prices as well as low-priced
Asian imports impacting the Company's markets.
The Company's financial results may be adversely affected by fluctuations
in certain foreign currency exchange rates. The Company is exposed to foreign
currency risk in most European countries, principally from fluctuations in the
Euro and British Pound. The Company is also exposed, although to a lesser
extent, to foreign currency risk in Australia and the Pacific Rim. Movements of
exchange rates against the U.S. dollar can result in variations in the U.S.
dollar value of non-U.S. sales. In some instances, gains in one currency may be
offset by losses in another. Movements in European currencies impacted the
Company's results (both favorably and unfavorably) for the periods presented in
the Annual Report on Form 10-K for the fiscal year ended March 31, 2003 attached
as Exhibit D hereto.
The Company's customers and sales are concentrated in a few geographic
locations. The Company is subject to concentrations of customers and sales in a
few geographic locations and is dependent on customers in certain industries,
including the automotive, telecommunications and material handling markets.
Economic difficulties experienced in these markets and geographic locations have
and may continue to impact the Company's financial results.
The Company's business may be adversely affected by unfavorable weather
conditions. The automotive aftermarket battery industry is significantly
affected by weather conditions. Unusually cold winters or hot summers accelerate
battery failure and increase demand for automotive replacement batteries. Mild
winters and cool summers have the opposite effect. As a result, if the Company's
sales are reduced by an unusually warm winter or cool summer, it is not possible
for the Company to recover these sales in later periods. Further, if the
Company's sales are adversely affected by the weather, the Company cannot make
offsetting cost
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reductions to protect its gross margins in the short-term because a large
portion of the Company's manufacturing and distribution costs are fixed.
Fluctuations in the cost of lead may adversely affect the Company. Lead is
the primary material by weight used in the manufacture of batteries,
representing approximately one-fourth of the Company's cost of goods sold. The
market price of lead fluctuates. Generally, when lead prices decrease, customers
may seek disproportionate price reductions from the Company, and when lead
prices increase, customers may resist price increases, thus decreasing the
Company's gross margins.
Environmental and occupational safety and health laws and regulations
impose substantial costs on the Company's operations. As a result of its
multinational manufacturing, distribution and recycling operations, the Company
is subject to numerous federal, state and local environmental, occupational
safety and health laws and regulations, as well as similar laws and regulations
in other countries in which the Company operates (collectively "EH&S laws"). The
Company is exposed to liabilities under such EH&S laws arising from its past
handling, release, storage and disposal of hazardous substances and hazardous
wastes. The Company previously has been advised by the U.S. Environmental
Protection Agency or state agencies that it is a "Potentially Responsible Party"
("PRP") under the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA") or similar state laws at 91 federally defined Superfund
or state equivalent sites.
The Company expects that its operations will continue to incur capital and
operating expenses in order to maintain compliance with evolving environmental,
health and safety requirements or more stringent enforcement of existing
requirements. The Company has established reserves for on-site and off-site
environmental remediation costs and believes that such reserves are adequate. As
of March 31, 2003, the amount of such reserves on the Company's consolidated
balance sheet was $78.3 million. For more information on environmental matters,
see Section VII.A.2 below.
The Company depends heavily on its senior management, and it may be unable
to replace key executives if they leave. The Company is dependent on the
continued service of its management team. Although the Company believes it could
replace key employees in an orderly fashion should the need arise, the loss of
such personnel could have an adverse effect on the Company.
EXCEPT FOR HISTORICAL INFORMATION, THIS DISCLOSURE STATEMENT AND THE RISK
FACTORS CONTAINED HEREIN MAY BE DEEMED TO CONTAIN "FORWARD-LOOKING" STATEMENTS
WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 (THE
"ACT"). THE DEBTORS DESIRE TO AVAIL THEMSELVES OF THE SAFE HARBOR PROVISIONS OF
THE ACT AND ARE INCLUDING THIS CAUTIONARY STATEMENT FOR THE EXPRESS PURPOSE OF
AVAILING THEMSELVES OF THE PROTECTION AFFORDED BY THE ACT.
FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THESE
FORWARD LOOKING STATEMENTS INCLUDE, BUT ARE NOT LIMITED TO, THE FOLLOWING
GENERAL FACTORS SUCH AS: (I) THE DEBTORS' ABILITY TO IMPLEMENT BUSINESS
STRATEGIES AND FINANCIAL REORGANIZATION AND RESTRUCTURING PLANS, (II)
UNSEASONABLE WEATHER (WARM WINTERS AND COOL SUMMERS) WHICH ADVERSELY AFFECTS
DEMAND FOR AUTOMOTIVE AND SOME INDUSTRIAL BATTERIES, (III) THE DEBTORS'
SUBSTANTIAL DEBT AND DEBT SERVICE REQUIREMENTS WHICH RESTRICT THE DEBTORS'
OPERATIONAL AND FINANCIAL FLEXIBILITY, AS WELL AS IMPOSING SIGNIFICANT INTEREST
AND FINANCING COSTS, (IV) THE DEBTORS ARE SUBJECT TO A NUMBER OF LITIGATION
PROCEEDINGS, THE RESULTS OF WHICH COULD HAVE A MATERIAL ADVERSE EFFECT ON THE
DEBTORS AND THEIR BUSINESS, (V) THE DEBTORS' ASSETS INCLUDE THE TAX BENEFITS OF
NET OPERATING LOSS CARRY FORWARDS, REALIZATION OF WHICH ARE DEPENDENT UPON
FUTURE TAXABLE INCOME, (VI) LEAD, WHICH EXPERIENCES SIGNIFICANT FLUCTUATIONS IN
MARKET PRICE AND WHICH, AS A HAZARDOUS MATERIAL, MAY GIVE RISE TO COSTLY
ENVIRONMENTAL AND SAFETY CLAIMS, CAN AFFECT THE DEBTORS' RESULTS BECAUSE IT IS A
MAJOR CONSTITUENT IN MOST OF THE DEBTORS' PRODUCTS, (VII) THE BATTERY MARKETS IN
NORTH AMERICA AND EUROPE ARE VERY COMPETITIVE AND, AS A RESULT, IT IS OFTEN
DIFFICULT TO MAINTAIN MARGINS, (VIII) THE DEBTORS' CONSOLIDATION AND
RATIONALIZATION OF ACQUIRED ENTITIES REQUIRES SUBSTANTIAL MANAGEMENT TIME AND
FINANCIAL AND OTHER RESOURCES AND IS NOT WITHOUT RISK, (IX) FOREIGN OPERATIONS
INVOLVE RISKS SUCH AS DISRUPTION OF MARKETS, CHANGES IN IMPORT AND
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EXPORT LAWS, CURRENCY RESTRICTIONS AND CURRENCY EXCHANGE RATE FLUCTUATIONS, (X)
THE DEBTORS ARE EXPOSED TO FLUCTUATIONS IN INTEREST RATES ON THEIR VARIABLE DEBT
WHICH CAN AFFECT THE DEBTORS' RESULTS, (XI) GENERAL ECONOMIC CONDITIONS, (XII)
THE ABILITY TO ACQUIRE GOODS AND SERVICES AND/OR FULFILL LABOR NEEDS AT BUDGETED
COSTS AND BANKRUPTCY CONSIDERATIONS SUCH AS: (A) THE DEBTORS' ABILITY TO
CONTINUE AS A GOING CONCERN, (B) THE DEBTORS' ABILITY TO OPERATE IN ACCORDANCE
WITH THE TERMS OF AND MAINTAIN COMPLIANCE WITH COVENANTS OF THE DIP CREDIT
FACILITY AND OTHER FINANCING ARRANGEMENTS, (C) THE DEBTORS' ABILITY TO OBTAIN
BANKRUPTCY COURT APPROVAL WITH RESPECT TO MOTIONS IN THE CHAPTER 11 CASES FROM
TIME TO TIME, (D) THE DEBTORS' ABILITY TO DEVELOP, CONFIRM AND CONSUMMATE THE
PLAN ON A TIMELY BASIS, (E) THE DEBTORS' ABILITY TO ATTRACT, MOTIVATE AND RETAIN
KEY PERSONNEL, (F) THE DEBTORS' ABILITY TO OBTAIN AND MAINTAIN NORMAL TERMS WITH
VENDORS AND SERVICE PROVIDERS, (G) THE DEBTORS' ABILITY TO MAINTAIN CONTRACTS
THAT ARE CRITICAL TO THEIR BUSINESS, AND (H) THE DEBTORS' ABILITY TO ATTRACT AND
RETAIN CUSTOMERS.
THEREFORE, THE DEBTORS CAUTION EACH READER OF THIS DISCLOSURE STATEMENT AND
THE RISK FACTORS CONTAINED HEREIN TO CONSIDER CAREFULLY THOSE GENERAL FACTORS
HEREINABOVE SET FORTH, BECAUSE SUCH FACTORS HAVE, IN SOME INSTANCES, AFFECTED
AND IN THE FUTURE COULD AFFECT, THE ABILITY OF THE DEBTORS TO ACHIEVE THEIR
PROJECTED RESULTS AND MAY CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE
EXPRESSED HEREIN.
VI.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of certain U.S. federal income tax consequences
of the Plan to Debtors and Holders of Prepetition Credit Facility Claims, 10%
Senior Notes, Convertible Notes, General Unsecured Claims and Equity Interests.
Unless otherwise indicated, this discussion addresses the treatment of Claims
and Equity Interests against both the Company and the Subsidiary Debtors. This
summary is based on the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury Regulations thereunder, and administrative and judicial interpretations
and practice, all as in effect on the date hereof and all of which are subject
to change, with possible retroactive effect. Due to the lack of definitive
judicial and administrative authority in a number of areas, substantial
uncertainty may exist with respect to some of the tax consequences described
below. No opinion of counsel has been obtained, and Debtors do not intend to
seek a ruling from the Internal Revenue Service (the "IRS") as to any of such
tax consequences, and there can be no assurance that the IRS will not challenge
one or more of the tax consequences of the Plan described below.
This summary does not apply to Holders of Prepetition Credit Facility
Claims, 10% Senior Notes, Convertible Notes, General Unsecured Claims and Equity
Interests that are not United States persons (as defined in the Code) or that
are otherwise subject to special treatment under U.S. federal income tax law
(including, for example, banks, governmental authorities or agencies, financial
institutions, insurance companies, pass-through entities, tax-exempt
organizations, brokers and dealers in securities, mutual funds, small business
investment companies, regulated investment companies, investors that hold the
instruments as part of a straddle or hedging, constructive sale, integrated or
conversion transactions for U.S. federal income tax purposes or investors whose
functional currency is not the U.S. dollar). The following discussion assumes
that Holders of Prepetition Credit Facility Claims, 10% Senior Notes,
Convertible Notes, General Unsecured Claims and Equity Interests hold their
instruments as "capital assets" within the meaning of Code Section 1221.
Moreover, this summary does not purport to cover all aspects of U.S. federal
income taxation that may apply to Debtors and Holders of Prepetition Credit
Facility Claims, 10% Senior Notes, Convertible Notes, General Unsecured Claims
and Equity Interests based upon their particular circumstances. Additionally,
this summary does not discuss any tax consequences that may arise under state,
local, or foreign tax law.
If a partnership holds Prepetition Credit Facility Claims, 10% Senior
Notes, Convertible Notes, General Unsecured Claims or Equity Interests, the tax
treatment of a partner will generally depend upon the status of the partner and
the activities of the partnership. Partners in partnerships that hold
Prepetition Credit Facility Claims, 10% Senior Notes, Convertible Notes, General
Unsecured Claims or Equity Interests should consult their tax advisors.
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The following summary is not a substitute for careful tax planning and
advice based on the particular circumstances of each Holder of Prepetition
Credit Facility Claims, 10% Senior Notes, Convertible Notes, General Unsecured
Claims and Equity Interests. All Holders are urged to consult their own tax
advisors as to the U.S. federal income tax consequences, as well as any
applicable state, local, and foreign tax consequences of the Plan.
A. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES TO THE HOLDERS OF CLAIMS AND
EQUITY INTERESTS
Debtor intends to take the position that the reorganization undertaken
pursuant to the Plan constitutes a taxable sale of Exide's assets to Exide
Operating and Exide Holding III. As a consequence, Holders of Claims (including
Holders of Prepetition Credit Facility Claims and 10% Senior Notes) will be
treated as exchanging such claims for Exchange Notes, New Exide Preferred Stock
and/or New Exide common Stock in a taxable exchange.
However, there is no assurance that the exchange pursuant to the plan will
be treated as a taxable sale by the IRS. Instead, the IRS may take a position
that the exchange qualifies as a tax-free reorganization. If the IRS succeeded
in asserting that the exchange qualified as a tax-free reorganization, the tax
consequences to Holders of Claims may differ from the consequences described
below.
1. Consequences to Holders of Prepetition Credit Facility Claims
The consequences of the exchange under the Plan to the Holders of
Prepetition Credit Facility Claims and the amount of gain or loss realized
depend on whether such Holders choose Election A or Election B, as provided in
the Plan.
(a) Consequences to Holders of Prepetition Credit Facility Claims
Choosing Election A. After the Confirmation Date and prior to the Effective
Date, Holders of Prepetition Foreign Secured Claims who choose the Election
A will receive, in exchange for and in full and final satisfaction of their
Prepetition Foreign Secured Claims, Exchange Notes with a principal amount
equal to the fair market value of the product of (x) such Holder's
Prepetition Foreign Secured Claims divided by the sum of such Holder's
Prepetition Foreign Secured Claims plus such Holder's Prepetition Domestic
Secured Claims and (y) such Holder's Pro Rata share of the New Exide
Preferred Stock remaining after distributions, if any, pursuant to Election
B.
Holders of Prepetition Foreign Secured Claims will be treated as
exchanging their Prepetition Foreign Secured Claims for Exchange Notes in a
taxable exchange under Section 1001 of the Code. In such case, a Holder of
Prepetition Foreign Secured Claims should recognize gain (or loss) equal to
the amount by which (i) the "issue price" of Exchange Notes (to the extent
not allocable to accrued but unpaid interest), exceeds (or, in the case of
loss, is less than) (ii) such Holder's tax basis in the existing
Prepetition Foreign Secured Claims. Any gain or loss recognized in a
taxable exchange by a Holder of Prepetition Foreign Secured Claims that
constitute capital assets in the hands of the Holder should be capital in
nature (subject to the market discount rules discussed below), and should
be long term capital gain or loss if Prepetition Foreign Secured Claims
were held for more than one year. To the extent that Exchange Notes
received in exchange for Prepetition Foreign Secured Claims are treated as
received in satisfaction of accrued but untaxed interest on Prepetition
Foreign Secured Claims, a Holder should recognize ordinary income. See
"Accrued But Untaxed Interest" below. A Holder's tax basis in Exchange
Notes should equal the issue price of such Holder's Exchange Notes. In such
case, a Holder's holding period for Exchange Notes should begin on the day
following receipt thereof.
Holders of the Prepetition Domestic Secured Claims and Exchange Notes
will be treated as exchanging their Prepetition Domestic Secured Claims and
Exchange Notes for New Exide Preferred Stock in a taxable exchange under
Section 1001 of the Code. Accordingly, the Holders of Prepetition Domestic
Secured Claims and Exchange Notes should recognize gain or loss equal to
the difference between (i) the fair market value of the New Exide Preferred
Stock received (provided such New Exide Preferred Stock is not allocable to
accrued but untaxed interest) and (ii) such Holder's tax basis in
Prepetition Domestic Secured Claims and Exchange Notes. To the extent such
Holders hold their Prepetition Domestic Secured Claims and/or Exchange
Notes as capital assets, such gain or loss should be capital in nature and
should be long-term capital gain or loss in the case of Prepetition
Domestic
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Secured Claims if Prepetition Domestic Secured Claims were held for more
than one year (subject to the "market discount" rules discussed below). In
the case of Exchange Notes such gain or loss should generally be short-term
gain or loss. To the extent that a portion of the New Exide Preferred Stock
received in exchange for Prepetition Domestic Secured Claims and Exchange
Notes is allocable to accrued but untaxed interest, the Holder should
recognize ordinary income. See "Accrued But Untaxed Interest" below. A
Holder's tax basis in New Exide Preferred Stock received should equal the
fair market value of the New Exide Preferred Stock as of the Effective
Date. A Holder's holding period for the New Exide Preferred Stock should
begin on the day following the Effective Date.
(b) Consequences to Holders of Prepetition Credit Facility Claims
Choosing Election B. Holders of Prepetition Credit Facility Claims choosing
Election B under the Plan will have their Prepetition Foreign Secured
Claims reinstated and will receive New Exide Preferred Stock in exchange
for their Prepetition Domestic Secured Claims.
The reinstatement of Prepetition Foreign Secured Claims involves
making certain amendments and modifications to such claims, as described in
the Plan (collectively, the "Modifications"). If the Modifications are
considered to constitute a "significant modification" of existing
Prepetition Foreign Secured Claims under Treasury Regulations promulgated
under Code Section 1001 (the "Exchange Regulations"), then the
Modifications will result in a deemed exchange of the existing Prepetition
Foreign Secured Claims for the modified Prepetition Foreign Secured Claims.
If the Modifications are not considered to be a significant modification
under the Exchange Regulations, the reinstatement of Prepetition Foreign
Secured Claims pursuant to the Plan should not be a taxable event for U.S.
federal income tax purposes, and a Holder of Prepetition Foreign Secured
Claims should have the same tax basis and holding period in the reinstated
Prepetition Foreign Secured Claims that such holder had in the original
Prepetition Foreign Secured Claims.
If the Modifications constitute a significant modification, the U.S.
federal income tax consequences to a Holder of Prepetition Foreign Secured
Claims depend in part on whether the deemed exchange qualifies as a
tax-free reorganization. This determination, in turn, depends in part on
whether both the existing Prepetition Foreign Secured Claims and modified
Prepetition Foreign Secured Claims constitute "securities" for purposes of
the reorganization provisions of the Tax Code.
Whether an instrument constitutes a "security" is determined based on
all the facts and circumstances, but most authorities have held that the
length of the term of a debt instrument is an important factor in
determining whether such instrument is a security for federal income tax
purposes. These authorities have indicated that a term of less than five
years is evidence that the instrument is not a security, whereas a term of
ten years or more is evidence that it is a security. There are numerous
other factors that could be taken into account in determining whether a
debt instrument is a security, including among others, the security for
payment, the creditworthiness of the obligor, the subordination or lack
thereof to other creditors, the right to vote or otherwise participate in
the management of the obligor, convertibility of the instrument into an
equity interest of the obligor, whether payments of interest are fixed,
variable or contingent, and whether such payments are made on a current
basis or accrued.
If the Modifications constitute a significant modification and either
(i) the existing Prepetition Foreign Secured Claims or the modified
Prepetition Foreign Secured Claims are not treated as securities or (ii)
the deemed exchange is not treated as a tax-free reorganization, a Holder
of Prepetition Foreign Secured Claims will be deemed to exchange its
existing Prepetition Foreign Secured Claims for modified Prepetition
Foreign Secured Claims in a taxable exchange under Code Section 1001. In
such case, a Holder of Prepetition Foreign Secured Claims should recognize
gain (or loss) equal to the amount by which (i) the "issue price" of such
Holder's modified Prepetition Foreign Secured Claims (to the extent not
allocable to accrued but unpaid interest), exceeds (or, in the case of
loss, is less than) (ii) such Holder's tax basis in the existing
Prepetition Foreign Secured Claims. Any gain or loss recognized in a
taxable exchange by a Holder of Prepetition Foreign Secured Claims that
constitute capital assets in the hands of the Holder should be capital in
nature (subject to the market discount rules discussed below), and should
be long term capital gain or loss if Prepetition Foreign Secured Claims
deemed exchanged were held for more than one year. To the extent that
modified Prepetition Foreign Secured Claims received in the deemed exchange
are treated as received in satisfaction of accrued but
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untaxed interest on the existing Prepetition Foreign Secured Claims, a
Holder should recognize ordinary income. See "Accrued But Untaxed Interest"
below. A Holder's tax basis in modified Prepetition Foreign Secured Claims
received in a taxable exchange should equal the issue price of such
Holder's modified Prepetition Secured Claims. In such case, a Holder's
holding period for such modified Prepetition Foreign Secured Claims should
begin on the day following receipt thereof.
If the Modifications constitute a significant modification and (i) the
existing Prepetition Foreign Secured Claims and the modified Prepetition
Foreign Secured Claims are each treated as securities and (ii) the deemed
exchange is treated as a tax-free reorganization, a Holder of Prepetition
Foreign Secured Claims should not recognize any gain or loss as a result of
such exchange, except to the extent that modified Prepetition Foreign
Secured Claims are treated as received in satisfaction of accrued but
untaxed interest on the existing Prepetition Foreign Secured Claims. See
"Accrued But Untaxed Interest," below. In such case, a Holder should obtain
a tax basis in the modified Prepetition Foreign Secured Claims equal to the
tax basis of the existing Prepetition Foreign Secured Claims surrendered in
exchange therefor, provided that the tax basis of any modified Prepetition
Foreign Secured Claims treated as received in satisfaction of accrued
interest should equal the amount of such accrued interest. A Holder's
holding period for the modified Prepetition Foreign Secured Claims should
include the holding period of the existing Prepetition Foreign Secured
Claims surrendered in exchange therefor; provided that the holding period
for any portion of the modified Prepetition Foreign Secured Claims treated
as received in satisfaction of accrued but untaxed interest should begin on
the day following the receipt thereof.
The exchange of Prepetition Domestic Secured Claims for New Exide
Preferred Stock under Election B should result in the tax consequences to
the Holders of such claims similar to the tax consequences under Election A
described above, except that Holders choosing Election B will received a
smaller amount of New Exide Preferred Stock.
2. Consequences to Holders of 10 % Senior Notes
Holders of 10% Senior Notes will receive New Exide Common Stock in full and
final satisfaction of their claims. As a consequence, Holders of 10% Senior
Notes will be treated as exchanging their 10% Senior Notes for New Exide Common
Stock in a taxable exchange under Section 1001 of the Code. Accordingly, a
Holder of 10% Senior Notes should recognize gain or loss equal to the difference
between (i) the fair market value of the New Exide Common Stock (as of the
Effective Date) received in exchange for 10% Senior Notes and (ii) the Holder's
adjusted basis in 10% Senior Notes. Such gain or loss should be capital in
nature so long as 10% Senior Notes are held as capital assets (subject to the
"market discount" rules described below) and should be long-term capital gain or
loss if 10% Senior Notes were held for more than one year. To the extent that a
portion of the New Exide Common Stock received in exchange for 10% Senior Notes
is allocable to accrued but untaxed interest, the Holder should recognize
ordinary income. See "Accrued But Untaxed Interest" below. A Holder's tax basis
in the New Exide Common Stock received in exchange for 10% Senior Notes should
equal the fair market value of the New Exide Common Stock as of the Effective
Date. A Holder's holding period for the New Exide Common Stock should begin on
the day following the Effective Date.
3. Consequences to Holders of General Unsecured Claims Against the
Company
Holders of General Unsecured Claims against the Company will receive a
distribution of cash on account of such claims. Accordingly, a Holder of General
Unsecured Claims against the Company should recognize gain or loss equal to the
difference between (i) an amount of cash received in exchange for such claims
and (ii) the Holder's adjusted basis in the General Unsecured Claims. If Holders
of General Unsecured Claims against the Company have no tax basis in their
claims because such claim represents a potential income item that was not
previously included by such Holder in taxable income, such Holders may recognize
ordinary income as a result of the receipt of cash. Such gain or loss should be
capital in nature if such General Unsecured Claims are held as capital assets
(subject to the "market discount" rules described below) and should be long-term
capital gain or loss if General Unsecured Claims were held for more than one
year. To the extent that a portion of cash received in exchange for General
Unsecured Claims is allocable to accrued but untaxed interest, the Holder should
recognize ordinary income. See "Accrued But Untaxed Interest" below.
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4. Consequences to Holders of General Unsecured Claims Against the
Subsidiary Debtors
Holders of General Unsecured Claims against the Subsidiary Debtors will
receive no distribution on account of such claims. Holders of General Unsecured
Claims against the Subsidiary Debtors should be entitled to a loss deduction in
the tax year in which such General Unsecured Claims become worthless (which
could be a tax year prior to the year the Plan becomes effective) and provided
that (i) such deduction was not previously claimed by such Holders and (ii) such
Holders have a tax basis in their General Unsecured Claims. The loss realized on
the cancellation of General Unsecured Claims against the Subsidiary Debtors
should be a capital loss under Code Section 165 if such claims are treated as
"securities" under Code Section 165(g)(2). If General Unsecured Claims against
the Subsidiary Debtors are not treated as "securities" under Code Section
165(g)(2), the loss realized on the cancellation of General Unsecured Claims
against the Subsidiary Debtors may be a capital loss or an ordinary loss under
Code Section 166, depending on the facts and circumstances of the holder, the
obligor and the instrument with respect to which a deduction is claimed.
5. Consequences to Holders of Convertible Notes
Holders of Convertible Notes that are cancelled should be entitled to a
loss deduction in the tax year in which such Convertible Notes become worthless
(which could be a tax year prior to the year the Plan becomes effective),
provided that such deduction was not previously claimed by such Holders. The
loss realized on the cancellation of Convertible Notes should be a capital loss
under Code Section 165 because the Convertible Notes are treated as "securities"
under Code Section 165(g)(2).
6. Consequences to Holders of Equity Interests
Holders of Equity Interests that are cancelled in the exchange under the
Plan will be allowed a "worthless stock deduction" (unless such Holder had
previously claimed a worthless stock deduction with respect to any Equity
Interest) in the tax year in which such Equity Interest becomes worthless (which
could be a tax year prior to the year the Plan becomes effective) in an amount
equal to the Holder's adjusted basis in its Equity Interest. If the Holder held
an Equity Interest as a capital asset, the loss will be treated as a loss from
the sale or exchange of such capital asset.
7. Accrued Interest, Market Discount and Original Issue Discount
(a) Accrued But Untaxed Interest. To the extent that any amount
received by a Holder of Prepetition Credit Facility Claims, 10% Senior
Notes and General Unsecured Claims under the Plan is attributable to
accrued but untaxed interest, such amount should be taxable to the Holder
as interest income, if such accrued interest has not been previously
included in the Holder's gross income for U.S. federal income tax purposes.
Conversely, a Holder of Prepetition Credit Facility Claims, 10% Senior
Notes, or General Unsecured Claims may be able to recognize a deductible
loss (or, possibly, a write-off against a reserve for bad debts) for such
purposes to the extent that any accrued interest was previously included in
the Holder's gross income but was not paid in full by the Debtors.
The extent to which New Exide Preferred Stock, New Exide Common Stock
and/or New Exchange Notes received by a Holder of a Prepetition Credit
Facility Claims, 10% Senior Notes or General Unsecured Claims will be
attributable to accrued but untaxed interest is unclear. Under the Plan,
the aggregate consideration to be distributed to Holders of Allowed Claims
in each Class will be treated as first satisfying accrued, but unpaid,
interest, if any, with any excess allocated to the stated principal amount
of the Claims. Certain legislative history indicates that an allocation of
consideration as between principal and interest provided in a bankruptcy
plan is binding for federal income tax purposes. However, the IRS could
take the position that the consideration received by a Holder should be
allocated in some way other than as provided in the Plan. Holders of
Prepetition Credit Facility Claims, 10% Senior Notes and General Unsecured
Claims should consult their own tax advisors regarding the proper
allocation of the consideration received by them under the Plan.
(b) Market Discount. Holders of Prepetition Credit Facility Claims,
10% Senior Notes or General Unsecured Claims who exchange Prepetition
Credit Facility Claims, 10% Senior Notes or General Unsecured Claims for
New Exide Preferred Stock, New Exide Common Stock and/or New Exchange Notes
may be affected by the "market discount" provisions of Code Sections 1276
through
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1278. Under these rules, some or all of the gain realized by Holders of
Prepetition Credit Facility Claims, 10% Senior Notes and General Unsecured
Claims may be treated as ordinary income (instead of capital gain), to the
extent of the amount of "market discount" on such Prepetition Credit
Facility Claims, 10% Senior Notes and General Unsecured Claims.
In general, a debt obligation with a fixed maturity of more than one
year that is acquired by a holder on the secondary market (or, in certain
circumstances, upon original issuance) is considered to be a acquired with
"market discount" as to that holder if the debt obligation's stated
redemption price at maturity (or revised issue price, in the case of a debt
obligation issued with original issue discount) exceeds the tax basis of
the debt obligation in the holder's hands immediately after its
acquisition. However, a debt obligation will not be a "market discount
bond" if such excess is less than a statutory de minimis amount (equal to
0.25 percent of the debt obligation's stated redemption price at maturity
or revised issue price, in the case of a debt obligation issued with
original issue discount, multiplied by the number of remaining whole years
to maturity).
Any gain recognized by a Holder on the taxable disposition of
Prepetition Credit Facility Claims, 10% Senior Notes and General Unsecured
Claims (determined as described above) that had been acquired with market
discount should be treated as ordinary income to the extent of the market
discount that accrued thereon while the Prepetition Credit Facility Claims,
10% Senior Notes and General Unsecured Claims were considered to be held by
a Holder (unless the Holder elected to include market discount in income as
it accrued). To the extent that the Prepetition Credit Facility Claims, 10%
Senior Notes and General Unsecured Claims that had been acquired with
market discount are exchanged in a tax-free transaction for other property,
any market discount that accrued on the Prepetition Credit Facility Claims,
10% Senior Notes and General Unsecured Claims but was not recognized by the
Holder is carried over to the property received therefor and any gain
recognized on the subsequent sale, exchange, redemption or other
disposition of such property is treated as ordinary income to the extent of
such accrued market discount.
(c) Limitation on Use of Capital Losses. Holders of Claims and Equity
Interests who recognize capital losses as a result of the exchange under
the Plan will be subject to limits on their use of capital losses. For
noncorporate Holders, capital losses may be used to offset any capital
gains (without regard to holding periods) plus the lesser of (1) $3,000
($1,500 for married individuals filing separate returns) or (2) the excess
of the capital losses over the capital gains. For corporate Holders, losses
from the sale or exchange of capital assets may only be used to offset
capital gains. Holders who have more capital losses than can be used in a
tax year may be allowed to carry over the excess capital losses for use in
succeeding tax years. Noncorporate Holders may carry over unused capital
losses and apply them to capital gains and a portion of their ordinary
income (see described immediately above) for an unlimited number of years.
Corporate Holders may only carry over unused capital losses for the five
years following the capital loss year, but are allowed to carry back unused
capital losses to the three years preceding the capital loss year.
B. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES TO REORGANIZED DEBTORS
1. Transfer of Business Assets
Debtor intends to take the position that the reorganization undertaken
pursuant to the Plan constitutes a taxable transfer of Exide's assets to Exide
Operating and Exide Holding III. As a consequence, Exide Operating and Exide
Holding III should obtain a tax basis in assets received from Exide equal to
their cost to Exide Operating and Exide Holding III, which generally should
equal the fair market value of stock transferred to Exide plus the amount of
liabilities assumed by Exide Operating and/or Exide Holding III.
Provided the reorganization undertaken pursuant to the Plan constitutes a
taxable transfer, Exide would recognize gain or loss upon the transfer of assets
to Exide Operating and Exide Holding III in an amount equal to the difference
between the fair market value of its assets and its tax basis in such assets.
The Debtor believes that no significant federal, state, or local tax liability,
if any, should be incurred upon the transfer.
However, there is no assurance that the exchange pursuant to the plan will
be treated by the IRS as a taxable sale of assets by Exide to Exide Operating
and Exide Holding III. Instead, the IRS may take a position
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that the exchange qualifies as a tax-free reorganization. If the IRS succeeded
in asserting that the exchange qualified as a tax-free reorganization, Exide
would not recognize any gain or loss on the transfer of assets to Exide
Operating and Exide Holding III. Instead, Exide Operating and Exide Holding III
would succeed to certain tax attributes of Exide, including Exide's tax basis in
the assets transferred to Exide Operating and Exide Holding III, but only after
taking into account the reduction in such tax attributes and tax basis on
account of the discharge of indebtedness pursuant to the Plan. Thus, Exide
Operating and Exide Holding III would generally have no NOL carryforwards and
would have a significantly diminished tax basis in the assets received from
Exide, with the result that future tax depreciation and amortization with
respect to Exide Operating's and Exide Holding III's real and personal property
would be substantially reduced.
2. Cancellation of Indebtedness and Reduction of Tax Attributes
As a result of the anticipated exchange of Prepetition Credit Facility
Claims, 10% Senior Notes for New Exide Preferred Stock, New Exchange Notes and
New Exide Common Stock and the cancellation of the Convertible Notes, the amount
of Debtors' aggregate outstanding indebtedness will be substantially reduced. In
general, absent an exception, a debtor will realize and recognize cancellation
of indebtedness income ("COD Income") upon satisfaction of its outstanding
indebtedness for an amount less than its adjusted issue price. The amount of COD
Income, in general, is the excess of (a) the adjusted issue price of the
indebtedness satisfied, over (b) the sum of the issue price of any new
indebtedness of the taxpayer issued, the amount of cash paid and the fair market
value of any new consideration (including stock of debtor) given in satisfaction
of such indebtedness at the time of the exchange.
A debtor will not, however, be required to include any amount of COD Income
in gross income if debtor is under the jurisdiction of a court in a Title 11
bankruptcy proceeding and the discharge of debt occurs pursuant to that
proceeding. Instead, a debtor must (as of the first day of the next taxable
year) reduce its tax attributes by the amount of COD Income which it excluded
from gross income. In general, tax attributes will be reduced in the following
order: (a) net operating losses ("NOLs"), (b) tax credits and capital loss
carryovers, and (c) tax basis in assets.
Because, under the Plan, Holders of Prepetition Credit Facility Claims, 10%
Senior Notes and General Unsecured Claims will receive the New Exide Preferred
Stock, New Exchange Notes and New Exide Common Stock, the amount of COD Income,
and accordingly the amount of tax attributes required to be reduced, will depend
on the fair market value of the New Exide Preferred Stock and New Exide Common
Stock. This value cannot be known with certainty until after the Effective Date.
Thus, although it is expected that a reduction of tax attributes will be
required, the exact amount of such reduction cannot be predicted.
Because (i) any COD Income should occur at Exide prior to the transfer of
assets to Exide Operating and Exide Holding III and (ii) Debtor intends to take
the position that the reorganization undertaken pursuant to the Plan constitutes
a taxable transfer of Exide's assets to Exide Operating and Exide Holding III,
Exide Operating and Exide Holding III should not recognize any COD Income as a
result of the reorganization and should not have any attribute reduction.
Certain subsidiaries of Exide transferred to Exide Operating may recognize
COD Income as a result of the reorganization undertaken pursuant to the Plan. To
the extent that a reduction of tax attributes is required, Debtor anticipates
that such subsidiaries will reduce the amount of their NOL carryforward and then
reduce their other tax attributes, primarily the tax basis of their assets. In
addition, legislative proposals have also been introduced into Congress that
would require the attribute reduction rules to be applied on a "consolidated
entity" basis. Under these proposals, any COD Income recognized by Exide may
apply to reduce tax attributes of other members of Exide's consolidated group
(including subsidiaries transferred to Exide Operating.) Whether any such
proposals will be enacted (and, if enacted, will be effective with respect to
the tax consequences of the Plan) cannot be determined at this time. Moreover,
the IRS recently adopted temporary regulations which require consolidated
attribute reduction in certain circumstances.
The exchange of the Prepetition Foreign Secured Claims for Exchange Notes
and/or New Exide Preferred Stock and related foreign debt restructuring may also
result in recognition of COD Income by foreign subsidiaries of the Debtor under
U.S. tax principles. Such COD Income, if recognized, may give rise to receipt of
deemed dividends by Exide prior to the transfer of assets, which is expected to
be offset in whole or in part by current year NOLs and NOL carryforwards. NOL
carryforwards will generally be available to Exide subject to the limitation on
utilization under the alternative minimum tax rules, resulting in an effective
2% U.S. federal tax
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cost and potential state tax costs with respect to such COD Income to the extent
it exceeds current year NOLs. If the IRS were to assert that such income were
recognized by Exide Operating after the reorganization, Exide Operating may have
no NOLs to offset such income.
3. Limitation of Net Operating Loss Carryovers and Other Tax Attributes
Code Section 382 generally limits a corporation's use of its NOLs (and may
limit a corporation's use of certain built-in losses if such built-in losses are
recognized within a five-year period following an ownership change) if a
corporation undergoes an "ownership change." This discussion describes the
limitation determined under Code Section 382 in the case of an "ownership
change" as the "Section 382 Limitation". The Section 382 Limitation on the use
of pre-change losses (the NOLs and built-in losses recognized within the five
year post-ownership change period) in any "post change year" is generally equal
to the product of the fair market value of the loss corporation's outstanding
stock immediately before the ownership change and the long term tax-exempt rate
(which is published monthly by the Treasury Department and most recently was
approximately 4.05% for ownership changes occurring in July 2003) in effect for
the month in which the ownership change occurs. Code Section 383 applies a
similar limitation to capital loss carryforward and tax credits.
In general, an ownership change occurs when the percentage of the
corporation's stock owned by certain "5 percent shareholders" increases by more
than 50 percentage points over the lowest percentage owned at any time during
the applicable "testing period" (generally, the shorter of (a) the three-year
period proceeding the testing date or (b) the period of time since the most
recent ownership change of the corporation). A "5 percent shareholder" for these
purposes includes, generally, an individual or entity that directly or
indirectly owns 5 percent or more of a corporation's stock during the relevant
period, and may include one or more groups of shareholders that in the aggregate
own less than 5 percent of the value of the corporation's stock. Under
applicable Treasury Regulations, an ownership change with respect to an
affiliated group of corporations filing a consolidated return that have
consolidated NOLs is generally measured by changes in stock ownership of the
parent corporation of the group.
Because Debtor intends to take the position that the reorganization
undertaken pursuant to the Plan constitutes a taxable transfer of Exide's assets
to Exide Operating and Exide Holding III, Exide Operating and Exide Holding III
should not succeed to any of the NOLs of Exide and hence Section 382 Limitation
will not be relevant to the NOLs of Exide.
The restructuring pursuant to the Plan will cause an ownership change to
occur with respect to subsidiaries of Exide transferred to Exide Operating. As a
result, such subsidiaries may be affected by the Section 382 Limitation with
respect to their NOLs and built-in losses (if any) following the Effective Date.
This limitation is independent of, and in addition to, the reduction of tax
attributes described in the preceding section resulting from the exclusion of
COD Income. Similarly, the ability to use any remaining capital loss
carryforwards and tax credits by such subsidiaries will also be limited. Special
rules may apply in determining the Section 382 Limitation with respect to a
corporation which experiences an ownership change as the result of a bankruptcy
proceeding. However, the Debtor believes that such subsidiaries have a limited
amount of NOLs and built-in losses, which may be eliminated in whole or in part
in attribute reduction described above and thus the Section 382 Limitation will
not materially affect the business of Exide Operating going forward.
C. BACKUP WITHHOLDING
Under the backup withholding rules, a Holder of Prepetition Credit Facility
Claims and General Unsecured Claims may be subject to backup withholding with
respect to distributions or payments made pursuant to the Plan unless that
holder (a) comes within certain exempt categories (which generally include
corporations) and, when required, demonstrates that fact or (b) provides a
correct taxpayer identification number and certifies under penalty of perjury
that the taxpayer identification number is correct and that the holder is not
subject to backup withholding because of a failure to report all dividend and
interest income. Backup withholding is not an additional tax, but merely an
advance payment that may be refunded to the extent it results in an overpayment
of tax.
Debtors will withhold all amounts required by law to be withheld from
payments of interest and dividends. Debtors will comply with all applicable
reporting requirements of the Code.
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THE FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN ARE COMPLEX. THE FOREGOING
SUMMARY DOES NOT DISCUSS ALL ASPECTS OF FEDERAL INCOME TAXATION THAT MAY BE
RELEVANT TO A PARTICULAR HOLDER IN LIGHT OF SUCH HOLDER'S CIRCUMSTANCES AND
INCOME TAX SITUATION. ALL HOLDERS OF THE PREPETITION CREDIT FACILITY CLAIMS,
SENIOR NOTES, CONVERTIBLE NOTES AND EQUITY INTERESTS SHOULD CONSULT WITH THEIR
TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE TRANSACTION
CONTEMPLATED BY THE RESTRUCTURING, INCLUDING THE APPLICABILITY AND EFFECT OF ANY
STATE, LOCAL OR FOREIGN TAX LAWS, AND OF ANY CHANGE IN APPLICABLE TAX LAWS.
VII.
MISCELLANEOUS PROVISIONS
Certain additional miscellaneous information regarding the Plan and the
Chapter 11 Cases is set forth below.
A. PENDING LITIGATION
As of the Petition Date, substantially all pending litigation against the
Debtors was stayed. To the extent any of the Debtors are ultimately found liable
with respect to such litigation, the Debtors believe the claim resulting
therefrom would constitute a general unsecured claim against the Debtors, the
treatment of which would be governed by any plan of reorganization confirmed by
the Bankruptcy Court. Litigation against the Company's non-Debtor subsidiaries
has not been stayed and will not be affected by the bankruptcy proceedings.
Former Senior Executives and Battery Quality Matters. On March 23, 2001,
the Company reached a plea agreement with the U.S. Attorney for the Southern
District of Illinois, resolving an investigation into a scheme by former
officers and certain corporate entities involving fraudulent representations and
promises in connection with the distribution, sale and marketing of automotive
batteries between 1994 and 1997. Under the terms of that settlement, the Company
agreed to pay a fine of $27.5 million over five years, to five-years' probation
and to cooperate with the U.S. Attorney in her prosecution of Arthur M. Hawkins,
Douglas N. Pearson and Alan E. Gauthier, former senior executives of the
Company. The payment terms of the plea agreement are dependent upon the
Company's compliance with the plea agreement during the five-year probation
period. Generally, the terms of the probation would permit the U.S. Government
to reopen the case against the Company if the Company violates the terms of the
plea agreement or other provisions of law. The plea agreement was lodged with
the U.S. District Court for the Southern District of Illinois, and accepted on
February 27, 2002. As a result of the imposition of the automatic stay arising
upon the Company's Chapter 11 Cases, the Company has not made installment
payments of its $27.5 million fine. The Company is uncertain as to the effect of
these non-payments and the bankruptcy filing with respect to the plea agreement.
On June 10, 2002, the United States Attorney's Office for the Southern District
of Illinois filed a claim as a general unsecured creditor for $27.9 million.
The Company is currently involved in litigation with the former senior
executives referenced above. The former senior executives made claims to enforce
separation agreements, reimbursements of legal fees and other contracts, and the
Company has filed claims and counterclaims asserting fraud, breach of fiduciary
duties, misappropriation of corporate assets and civil conspiracy. In addition,
the Company has filed actions in the Bankruptcy Court against the former senior
executives to recover certain payments of legal fees that the Company was
required to advance to such individuals prior to the Petition Date.
The Company has filed two claims with its insurers for reimbursement of the
amounts paid to the former executives, and believes it is entitled to obtain
substantial reimbursement for those amounts.
The Company has completed an investigation and determined that due to a
deviation from manufacturing procedures approximately 950,000 automotive
aftermarket batteries sold during 2001 and 2002 in North America did not contain
one minor feature of several advertised for the batteries. In all cases the
batteries performed in accordance with their labeled specifications. The feature
was reinstated and the Company has discussed the situation with certain
customers. The Company cannot predict at this time the effects of this matter on
its business, but the remediation that has been offered is not material to its
financial condition, cash flows or results of operations.
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1. Private Party Lawsuits
Active Lawsuits. In June 2002, the following lawsuit was filed in Louisiana
state court: Hardy et. al. v. Ducote Wrecking, et. al. The case was filed as a
putative class action for damages brought by two employees of Ducote Wrecking &
Demolition, an independent contractor performing multiple maintenance projects
at the Company's Baton Rouge, Louisiana facility. The plaintiffs allege that
while they were engaged in work at the Company's facility, they were
intentionally exposed to and poisoned by lead, acid, and other heavy metals.
Plaintiffs named the Company's insurance carriers and supervisory employee as
defendants, along with Ducote. The case was removed to the U.S. District Court
for the Western District of Louisiana. Plaintiffs filed a motion to remand,
which was denied by the Court in a January 2003 decision. In the same January
2003 decision, the Court dismissed the Company's supervisory employee and the
independent contractor defendant from the litigation. The Court also has denied
plaintiffs' motion for class certification. The Company's insurer has issued a
reservation of rights as to the Company's coverage for the alleged claims.
On April 11, 2003, the following lawsuit was filed in the Delaware Court of
Chancery by the official committee of equity holders and its members: Kandathil
et. al. v. Exide. The complaint seeks to compel the Company to convene a meeting
of stockholders. On April 21, 2003, the Debtors filed a complaint against the
official committee of equity holders and its members in the Bankruptcy Court
seeking to enjoin their attempts to compel the Company to convene a meeting of
stockholders.
On June 6, 2002, McKinsey & Company International filed suit against Exide
Holding Europe, S.A., Compagnie Europeene D'accumulateurs, S.A., Euro Exide
Corporation Ltd., Exide Italia S.r.l, Deutsche Exide GmbH and Exide
Transportation Holding Europe, S.L. in the U.S. District Court for the Southern
District of New York, seeking to compel arbitration of McKinsey's request for
payment of approximately $5 million for consulting services allegedly incurred
by Exide. This matter was subsequently resolved through a confidential
settlement which did not have a material effect on the Company's results of
operations.
Exide is a defendant in an arbitration proceeding initiated in October of
2001 by Margulead Limited ("Margulead"). In June of 1997, GNB, now an operating
division of Exide, entered into an agreement with Margulead, which Margulead
contended obligated the Company to build a facility to test and develop certain
lead acid battery recycling technology allegedly developed by Margulead. Exide
terminated the contract in 1998. Exide contended, in part, that the Margulead
process was not ready for pilot plant implementation and also failed to meet
success criteria. Margulead claimed approximately $13 million in damages. The
Company denied that it was liable and defended the matter in the arbitration. An
arbitration decision was rendered on May 7, 2003, determining that the contract
was unenforceable and that neither party was entitled to damages or costs.
Margulead asked the arbitrator to reconsider the decision. Margulead now has
advised the Company that it intends to challenge the arbitrator's award in the
English commercial court. On or about July 23, 2003, Margulead filed an
Application Notice advising of its intent to apply for an extension of time in
which to make an application under certain sections of the Arbitration Act 1996.
The Company does not believe it is likely that Margulead will succeed in any
challenge of the arbitrator's decision.
In November 2002, the following lawsuit was filed in the Ontario Court of
Justice: Exide Canada, Inc., v. Lorne Hilts et. al. This lawsuit was initiated
by Exide Canada, Inc. against former officers, employees and a former logistics
services vendor seeking in excess of $2 million Canadian in damages on multiple
grounds including breach of trust, breach of contract and fraud. Defendant Hilts
filed a counterclaim against Exide Canada for severance and other benefits and
seeks damages in an amount exceeding $840 thousand Canadian. Defendant Ryad
counterclaimed against Exide Canada alleging breach of contract and against
Exide Technologies alleging it induced Exide Canada to breach its contract with
Ryad for certain logistics services. Ryad seeks damages against each defendant
in an amount exceeding $8.5 million Canadian. The Company believes that the
counterclaims are without merit and is vigorously defending itself.
The Company's preliminary review of these active claims suggest they are
without merit, and, to the extent the Company is a party to these active
lawsuits, it plans to vigorously defend itself.
Stayed Prepetition Lawsuits. The following lawsuits allege that Exide and
its predecessors allowed hazardous materials used in the battery manufacturing
process to be released from certain of its facilities, allegedly resulting in
personal injury and/or property damage. On August 25, 1999 several cases were
filed in the Circuit Court for Greenville County, South Carolina and are
currently pending: Joshua Lollis v. Exide; Buchanan v. Exide; Agnew v. Exide;
Patrick Miller v. Exide; Kelly v. Exide; Amanda Thompson v. Exide; Jonathan
Talley
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v. Exide; Smith v. Exide; Lakeisha Talley v. Exide; Brandon Dodd v. Exide;
Prince v. Exide; Andriae Dodd v. Exide; Dominic Thompson v. Exide; Snoddy v.
Exide; Antoine Dodd v. Exide; Roshanda Talley v. Exide; Fielder v. Exide; Rice
v. Exide; Logan Lollis v. Exide; and Dallis Miller v. Exide. In January 2002,
counsel that brought the South Carolina actions filed additional claims in the
Circuit Court for Greenville County, South Carolina. The following lawsuits of
this type are currently pending in the Court of Common Pleas for Berks County,
Pennsylvania: Grillo v. Exide, filed on May 24, 1995; Blume v. Exide, filed on
March 4, 1996; Esterly v. Exide, filed on May 30, 1995; and Saylor v. Exide,
filed on October 18, 1996. The following lawsuit of this type is currently
pending in the United States District Court for the Southern District of
Indiana: Strange v. Exide. Finally, the following lawsuit of this type is
pending in the Circuit Court of Shelby County, Tennessee: Cawthon v. Exide, et
al. All these cases have been stayed.
In July 2001, Pacific Dunlop Holdings (US), Inc. ("PDH") and several of its
foreign affiliates under the various agreements through which Exide and its
affiliates acquired GNB, filed a complaint in the Circuit Court for Cook County,
Illinois alleging breach of contract, unjust enrichment and conversion against
Exide and three of its foreign affiliates. The plaintiffs maintain they are
entitled to approximately $17.0 million in cash assets acquired by the
defendants through their acquisition of GNB. In December 2001, the Court denied
the defendants' motion to dismiss the complaint, without prejudice to re-filing
the same motion after discovery proceeds. The defendants have filed an answer
and counterclaim. On July 8, 2002, the Court authorized discovery to proceed as
to all parties except Exide. In August 2002, the case was removed to the U.S.
Bankruptcy Court for the Northern District of Illinois and in October 2002, the
parties presented oral arguments, in the case of PDH, to remand the case to
Illinois state court and, in the case of Exide, to transfer the case to the U.S.
Bankruptcy Court for the District of Delaware. On February 4, 2003, the U.S.
Bankruptcy Court for the Northern District of Illinois transferred the case to
the U.S. Bankruptcy Court in Delaware, where plaintiffs' motion to abstain or
remand will be heard. To the extent this action implicates Exide's interests,
the Company plans to vigorously defend the action and pursue the counterclaim.
In December 2001, PDH filed a separate action in the Circuit Court for Cook
County, Illinois seeking recovery of approximately $3.1 million for amounts
allegedly owed by Exide under various agreements between the parties. The claim
arises from letters of credit and other security allegedly provided by PDH for
GNB's performance of certain of GNB's obligations to third parties that PDH
claims Exide was obligated to replace. Exide's answer contested the amounts
claimed by PDH and Exide filed a counterclaim. Although this action has been
consolidated with the Cook County suit concerning GNB's cash assets, the claims
relating to this action are currently subject to the automatic bankruptcy stay,
and have been transferred to the U.S. Bankruptcy Court for the District of
Delaware.
Between March and September 2002, the following cases were filed in the
U.S. District Court for the Middle District of Louisiana: Joseph et. al. v.
Exide; Andrews et. al. v. Exide; and Armstead v. Exide. These actions seek
monetary damages and injunctive relief for alleged racial discrimination in the
Company's Shreveport and Baton Rouge, Louisiana plants. The Joseph and Andrews
cases have been consolidated and all three lawsuits have been stayed.
In February 2001, the following lawsuit was filed in the U.S. District
Court for the Northern District of California: Flaherty v. Exide, et. al.
Plaintiff contends the Company is responsible, in part, for contamination
resulting from alleged disposal of hazardous substances at plaintiff's property.
The suit contains claims predicated on CERCLA, private nuisance, public
nuisance, trespass, negligence, equitable indemnity, contribution, injunctive
relief under RCRA and declaratory relief under state law. The Company has filed
counterclaims against plaintiff and other potentially responsible parties.
The Company's preliminary review of these claims suggests they are without
merit and the Company plans to vigorously defend itself with regard to the
stayed prepetition lawsuits. The Company expects that all of these lawsuits will
be compromised upon confirmation of the Plan by the Bankruptcy Court.
2. Environmental Matters.
As a result of its multinational manufacturing, distribution and recycling
operations, the Company is subject to numerous federal, state and local EH&S
laws. The Company is exposed to liabilities under such EH&S laws arising from
its past handling, release, storage and disposal of hazardous substances and
hazardous wastes. The Company previously has been advised by the U.S.
Environmental Protection Agency or state agencies that it is a PRP under the
CERCLA or similar state laws at 91 federally defined Superfund or state
equivalent sites. At
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44 of these sites, the Company has paid its share of liability. The Company is
currently paying its share of liability at one site. The Company expects that
its liability at certain Superfund and other sites will be treated as
prepetition Claims under the Plan. In most instances, the Company's remaining
obligations are not expected to be significant because its portion of any
potential liability appears to be minor or insignificant in relation to the
total liability of all identified PRPs that are financially viable. The
Company's share of the anticipated remediation costs associated with all of the
superfund sites where it has been named a PRP, based on the Company's estimated
volumetric contribution of waste to each site, is included in the environmental
remediation reserves discussed below.
Of those sites for which the Company has not completed payment of its share
of liability, it currently has greater than 50% liability at three Superfund
sites, and allocated liability that exceeds five percent at an additional seven
sites that averages approximately 22%. Because the Company's liability under
such statutes may be imposed on a joint and several basis, the Company's
liability may not necessarily be based on volumetric allocations and could be
greater than the Company's estimates. The Company believes, however, that its
PRP status at these Superfund sites will not have a material adverse effect on
the Company's business or financial condition because, based on the Company's
experience, it is reasonable to expect that the liability will be roughly
proportionate to its volumetric contribution of waste to the sites, although
waste toxicity may also be a factor.
The Company is also involved in the assessment and remediation of various
other properties, including certain Company owned or operated facilities. Such
assessment and remedial work is being conducted pursuant to applicable EH&S laws
with varying degrees of involvement by appropriate legal authorities. In
addition, certain environmental matters concerning the Company are pending in
various courts or with certain environmental regulatory agencies.
While the ultimate outcome of the foregoing environmental matters is
uncertain, after consultation with legal counsel, the Company does not believe
the resolution of these matters, individually or in the aggregate, will have a
material adverse effect on the Company's financial condition, cash flows or
results of operations.
The Company has established reserves for on-site and off-site environmental
remediation costs and believes that such reserves are adequate. As of March 31,
2003, the amount of such reserves on the Company's consolidated balance sheet
was $78.3 million. These reserves were not intended to cover future
environmental remediation costs at the Debtors' operating facilities, such as
the Vernon, California facility. The California Department of Toxic Substances
Control (the "DTSC") and other state and local environmental agencies are
expected to contend that remediation of such operating facilities is an ongoing
obligation of the Debtors and cannot be discharged. The Debtors reserve the
right to dispute those contentions. The Company expects a significant, but as
yet undetermined, portion of this liability will be treated as prepetition
Claims under the Plan. Because environmental liabilities are not accrued until a
liability is determined to be probable and reasonably estimable, not all
potential future environmental liabilities have been included in the Company's
environmental reserves and, therefore, additional earnings charges are possible.
Also, future findings or changes in estimates could have a material effect on
the recorded reserves and cash flows.
Prior to 2000, the Debtors comprehensively reviewed potential insurance
coverage for environmental liabilities and pursued claims against insurers.
These efforts resulted in settlements with key insurers and others in which the
Debtors received payments in return for releases from further claims under the
policies. The Debtors are not aware of any other insurance coverage for
environmental liabilities and believe that further pursuit to identify insurance
coverage for environmental claims would be prohibitively expensive and is not in
the best interests of the estates. The amount received in the settlements with
insurers was less than the amount the Debtors have expended on the environmental
liabilities for which coverage was pursued.
In the U.S., the Company has advised each state and federal authority with
whom it has negotiated plans for environmental investigations or remediation of
the Debtors' Chapter 11 Cases as required by those agreements or applicable
rules. In some cases these authorities may require the Company to undertake
certain agreed remedial activities under a modified schedule, or may seek to
negotiate or require modified remedial activities. Such requests have been
received at several sites and are the subject of ongoing discussions. Among the
sites at which there are alleged remediation issues are the following:
Tampa, Florida. The Tampa site is a former secondary lead smelter, lead
oxide production facility, and sheet lead-rolling mill that operated from 1943
to 1989. Under a RCRA Part B Closure Permit and a Consent Decree with the State
of Florida, Exide is required to investigate and remediate certain historic
environmental
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impacts to the site. Cost estimates for remediation (closure and post-closure)
range from $12.5 million to $20.5 million depending on final State of Florida
requirements. The remediation activities are expected to occur over the course
of several years.
Columbus, Georgia. The Columbus site is a former secondary lead smelter
that was decommissioned in 1999, which is part of a larger facility that
includes an operating lead acid battery manufacturing facility. Groundwater
remediation activities began in 1988. Costs for supplemental investigations,
remediation and site closure are currently estimated at $13.5 million.
Sonalur, Portugal. The Sonalur facility is an active secondary lead
smelter. Materials from past operations present at the site are stored in
aboveground concrete containment vessels and in underground storage deposits.
The Company is in the process of obtaining additional site characterization data
to evaluate remediation alternatives agreeable to local authorities. Costs for
remediation are currently estimated at $3.5 to $7.0 million.
Trenton, New Jersey. The State of New Jersey, Department of Environmental
Protection ("NJDEP"), has designated Exide a responsible party and has initiated
an enforcement action against Exide for the seven acre site located at 467
Calhoun Street, Trenton, Mercer County, New Jersey. The NJDEP has directed Exide
to perform both investigatory and remedial activities as described in the
directive and notice to insurers issued to Exide on June 5, 2003, pursuant to
the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to
- -23.14. Exide had been performing such remedial activities under a memorandum of
agreement with the NJDEP but did not submit a required revised remedial
investigative report to the NJDEP that was due on or before July 23, 2002. The
estimate for the cost of the remediation is not exact because the investigation
is not complete, but the NJDEP asserts that it will probably be in the vicinity
of $2,000,000. The NJDEP contends that this environmental obligation is not a
"claim" but an ongoing environmental obligation of the Debtors that is not
subject to discharge. The Debtors reserve their rights to dispute liability
thereto.
Vernon, California. Exide operates a battery recycling facility in Vernon,
California. The DTSC contends that there is a release of hazardous waste or
hazardous waste constituents into the environment at that site. On February 25,
2002, the DTSC and Exide entered into a consent order to implement a corrective
action program at the Vernon site. DTSC asserts that it is entitled to recover
its costs of complying with the California Environmental Quality Act (the
"CEQA"). In addition, the DTSC asserts that its law and regulations require the
owner and operator of a hazardous waste facility to provide financial assurances
to cover responses to damage and injury claims arising out of the operation of
the facility and to provide for the closure and post-closure maintenance of the
site. The DTSC asserts that it is entitled to reimbursement for past and future
oversight costs, for hazardous waste fees, and for the CEQA and financial
assurances as described above. As set forth in the claims filed by DTSC in this
proceeding, the DTSC asserts that the estimated costs for the Vernon site are
$11,632,088.52. The DTSC contends that this remediation obligation is not a
"claim" but is an ongoing environmental obligation of the Company that is not
subject to discharge. The Debtors reserve the right to dispute all such alleged
liability.
Visalia, California. Exide operated a battery manufacturing plant and
hazardous waste management facility in Visalia, California. In October of 1998,
Exide and DTSC entered into a consent agreement, which superceded a previous
agreement dated June 1995, requiring Exide to undertake corrective action to
address releases of hazardous waste at this site as required by law. The DTSC
asserts that it has unpaid prepetition and postpetition oversight costs of
approximately $8,000, but estimates that future costs for site investigation,
cleanup, and its oversight costs will amount to approximately $2,160,000. The
DTSC contends that this remediation obligation is not a "claim" but is an
ongoing environmental obligation of the Company that is not subject to
discharge. The Debtors reserve the right to dispute all such alleged liability.
Carson, California. The DTSC asserts that Exide is a responsible party as
the successor to GNB Technologies and GNB Industrial Battery, which the DTSC
asserts arranged for the treatment or disposal of hazardous substances at the
Alco Pacific site, including lead dross and slag. There is pending litigation,
State of California, Department of Toxic Substances Control v. Alco Pacific
Inc., et al. United States District Court, Central District of California, Civ.
No. 01-09294 SJO (FMOx). The DTSC asserts that its unpaid prepetition costs
include $976,761.13. The DTSC also asserts that its unpaid postpetition costs
include $457,542.21. The DTSC has not estimated any future site investigation
costs at this time. The DTSC estimates its future oversight costs to be $200,000
and its future cleanup costs to be $1,300,000. The DTSC estimates its total
future costs to be $1,957,542.21. Accordingly, the DTSC asserts that its total
claim for the Alco Site is $2,934,303.34. The DTSC asserts that the alleged
responsible parties at the site are jointly and severally liable with each
other, some
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of whom are named in the existing litigation, so the amount of liability to
which the DTSC asserts that Exide is likely to be exposed is currently unknown.
The DTSC contends that this remediation obligation is not a "claim" but is an
ongoing environmental obligation of the Company that is not subject to
discharge. The Debtors reserve the right to dispute all such alleged liability.
San Gabriel Basin Groundwater Site, Puente Valley Operable Unit, San
Gabriel, California. The DTSC asserts that San Gabriel Basin Groundwater
Superfund Site includes four (4) areas of contamination in the San Gabriel
Valley, Los Angeles County, including the Puente Valley Operable Unit. Exide
(formerly GNB Batteries, Inc.) has been notified by the U.S. Environmental
Protection Agency (the "USEPA") that it is one of 74 responsible parties for
this site. The DTSC asserts that the required remedy includes extraction and
treatment of contaminated groundwater and design is expected to be completed by
mid to late 2003. The USEPA estimated the total clean up costs will cost roughly
$47,200,000. The DTSC asserts that it has incurred prepetition oversight costs
associated with this site in the amount of $61,687. The DTSC asserts that the
alleged responsible parties at the site are jointly and severally liable for
this site so the amount of liability to which the DTSC alleges that Exide is
likely to be exposed is currently unknown. DTSC contends that this remediation
obligation is not a "claim" but is an ongoing environmental obligation of the
Company that is not subject to discharge. The Debtors reserve the right to
dispute all such alleged liability.
3. Other
In February 2002, the Company's principal French subsidiary was notified by
local competition authorities that in connection with certain sales of batteries
by several French manufacturers in 1996 and 1997, the subsidiary is alleged to
have violated local competition laws. The civil investigative agency in the case
has recommended a fine be imposed on the Company for 5.9 million Euros, but the
Company does not believe that the subsidiary acted improperly and intends to
defend this matter vigorously. A judicial decision with respect to this matter
is expected within the next 90 days.
From 1957 to 1982, the Company's French subsidiary, CEAC, operated a plant
using crocidolite asbestos fibers in the formation of battery cases, which, once
formed, encapsulated the fibers. Approximately 1,500 employees worked in the
plant over the period. Since 1982, the French governmental agency responsible
for worker illness claims has received 34 employee claims alleging
asbestos-related illnesses, and no such claims have been filed since August
2001. For some of those claims, CEAC is obligated to and has indemnified the
agency in accordance with French law for approximately $132 thousand, $169
thousand and $260 thousand in calendar years 2001, 2002 and 2003, respectively.
In addition, CEAC has been adjudged liable to indemnify the agency for
approximately $45 thousand, $78 thousand, and $200 thousand during the same
periods to date for the dependents of four such claimants. Although the Company
cannot predict the number or size of any future claims, after consultation with
legal counsel the Company does not believe resolution of the current or any
future claims, individually or in the aggregate, will have a material adverse
effect on the Company's financial condition, cash flows or results of
operations.
The Company is involved in various other claims and litigation incidental
to the conduct of its business. Based on consultation with legal counsel, the
Company does not believe that any such claims or litigation to which the Company
is a party, either individually or in the aggregate, will have a material
adverse effect on the Company's financial condition, cash flows or results of
operations.
B. PENSION PLANS
Exide Technologies has established and maintained the following pension
plans for certain of its employees: The Exide Technologies Retirement Plan; The
Exide Corporation (GBC) Pension Plan; The Exide Hourly Employees Pension Plan;
The Exide Hourly Employees Pension Plan (UAW); The Exide Indiana Employees
Pension Plan; The Exide Hamburg Pennsylvania Employees Pension Plan; The Exide
Retirement Plan for the Benefit of Employees of Schuylkill Metals, Corp.; The
Exide Hourly Employees Retirement Income Security Plan; and The Exide IBT-Salina
Employees Pension Plan (collectively, the "Pension Plans"). The Pension Plans
are covered by Title IV of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") (29 U.S.C. Section 1301 et seq)
The Debtors and all members of their controlled group, within the meaning
of 29 U.S.C. ss. 1301(a)(14), are obligated to contribute to the Pension Plans
at lease the amounts necessary to satisfy ERISA's minimum funding standards,
found in ERISA Section 302 and Internal Revenue Code Section 412. The Debtors
have made
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all of their required contributions to the Pension Plans to date. In the event
of a termination of the Pension Plans, the Debtors may be jointly and severally
liable for the unfunded benefit liabilities of the Pension Plans. See ERISA
Section 4062, 29 U.S.C. (S) 1362. The Pension Plans may be terminated only if
the statutory requirements of either ERISA Section 4041 or 4042 are met.
Exide Technologies has no present intention to terminate any of its Pension
Plans.
Unless the Pension Plans have been terminated prior to the effective date
of the Plan of Reorganization, the liability of the Debtors and their controlled
group under ERISA to the Pension Plans, or to The Pension Benefit Guaranty
Corporation ("PBGC"), a United States Government corporation which guarantees
the payment of certain pension benefits upon termination of a pension plan,
shall not be affected in any way by this reorganization proceeding, including
discharge or release.
C. SUCCESSORS AND ASSIGNS
The rights, benefits and obligations of any Person or Entity named or
referred to in the Plan shall be binding on, and shall inure to the benefit of
any heir, executor, administrator, successor or assign of such Person or Entity.
D. RESERVATION OF RIGHTS
Except as expressly set forth in the Plan, the Plan shall have no force
or effect unless the Bankruptcy Court shall enter the Confirmation Order. None
of the filing of the Plan, any statement or provision contained herein, or the
taking of any action by Debtors with respect to the Plan shall be or shall be
deemed to be an admission or waiver of any rights of Debtors with respect to the
Holders of Claims or Equity Interests prior to the Effective Date.
E. SERVICE OF DOCUMENTS
Except as otherwise provided by order of the Bankruptcy Court, any
pleading, notice or other document required by the Plan to be served on or
delivered to Reorganized Debtors shall be sent by first class U.S. mail, postage
prepaid to:
Exide Technologies
210 Carnegie Center, Suite 500
Princeton, New Jersey 08540
Attn: Stuart H. Kupinsky, Executive Vice President,
General Counsel and Secretary
with copies to:
Kirkland & Ellis LLP
200 E. Randolph Drive
Chicago, Illinois 60601
Attn: Matthew N. Kleiman
And
Pachulski, Stang, Ziehl, Young, Jones & Weintraub
919 North Market Street
P.O. Box 8705
Wilmington, Delaware 19899-8705
Attn: Laura Davis Jones
James E. O'Neill
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VIII.
RECOMMENDATION
In the opinion of Debtors, the Plan is preferable to the alternatives
described herein because it provides for a larger distribution to the Holders
than would otherwise result in a liquidation under Chapter 7 of the Bankruptcy
Code. In addition, any alternative other than confirmation of the Plan could
result in extensive delays and increased administrative expenses resulting in
smaller distributions to the Holders of Claims. Accordingly, Debtors recommend
that Holders of Claims entitled to vote on the Plan support confirmation of the
Plan and vote to accept the Plan.
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Prepared by:
Matthew N. Kleiman
Jason D. Horwitz
Ross M. Kwasteniet
KIRKLAND & ELLIS LLP
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
COUNSEL FOR THE DEBTORS AND DEBTORS IN POSSESSION
and
Laura Davis Jones
James E. O'Neill
Kathleen Marshall DePhillips
PACHULSKI, STANG, ZIEHL, YOUNG, JONES & WEINTRAUB
919 North Market Street
P.O. Box 8705
Wilmington, Delaware 19899-8705
COUNSEL FOR THE DEBTORS AND DEBTORS IN POSSESSION
-87-
EXHIBIT A
DEBTORS' THIRD AMENDED JOINT PLAN OF REORGANIZATION
EXHIBIT B
LIQUIDATION ANALYSIS
EXHIBIT C
PROJECTIONS
EXHIBIT D
ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED MARCH 31, 2003
EXHIBIT E
SCHEDULE OF ENVIRONMENTAL SITES
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: )
) Chapter 11
EXIDE TECHNOLOGIES, et al.,/1/ )
)
Debtors. ) Case No. 02-11125 (KJC)
) (Jointly Administered)
- --------------------------------------------------------------------------------
DEBTORS' SECOND AMENDED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
THIS PLAN OF REORGANIZATION IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR
SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN. SUCH OFFER OR SOLICITATION
WILL ONLY BE MADE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS AND/OR
PROVISIONS OF THE BANKRUPTCY CODE.
- --------------------------------------------------------------------------------
Matthew N. Kleiman Laura Davis Jones
Jason D. Horwitz James E. O'Neill
Ross M. Kwasteniet Kathleen Marshall DePhillips
KIRKLAND & ELLIS LLP PACHULSKI, STANG, ZIEHL,
200 East Randolph Drive YOUNG, JONES & WEINTRAUB
Chicago, Illinois 60601 919 North Market Street
(312) 861-2000 P.O. Box 8705
Wilmington, DE 19899
Counsel for the Debtors and (302) 652-4100
Debtors in Possession
Counsel for the Debtors and
Debtors in Possession
Dated: August 24, 2003
- ----------
/1/ The Debtors in these proceedings are: Exide Technologies f/k/a Exide
Corporation; Exide Delaware, L.L.C.; Exide Illinois, Inc.; RBD Liquidation,
L.L.C.; Dixie Metals Company; and Refined Metals Corporation.
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME AND GOVERNING LAW.....1
A. Rules of Interpretation, Computation of Time and Governing Law.......................1
B. Defined Terms........................................................................1
ARTICLE II. ADMINISTRATIVE AND PRIORITY TAX CLAIMS..........................................11
A. Administrative Claims...............................................................11
B. DIP Facility Claims.................................................................11
C. Priority Tax Claims.................................................................11
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS.........11
A. Summary.............................................................................11
B. Classification and Treatment of Claims and Equity Interests: Exide..................13
C. Classification and Treatment of Claims and Equity Interests: Subsidiary Debtors.....15
D. Special Provision Governing Unimpaired Claims.......................................17
ARTICLE IV. ACCEPTANCE OR REJECTION OF THE PLAN.............................................17
A. Voting Classes......................................................................17
B. Acceptance by Impaired Classes......................................................17
C. Presumed Acceptance of Plan.........................................................17
D. Presumed Rejection of Plan..........................................................17
E. Non-Consensual Confirmation.........................................................17
ARTICLE V. MEANS FOR IMPLEMENTATION OF THE PLAN.............................................18
A. Restructuring.......................................................................18
B. Continued Corporate Existence and Vesting of Assets in the Reorganized Debtors......18
C. Cancellation of Old Notes and Equity Interests......................................18
D. Source and Timing for Effective Date Plan Distributions and Discharge...............19
E. Issuance of New Securities; Execution of Related Documents..........................19
F. Issuance of Stock of Reorganized Subsidiary Debtors to Reorganized Exide............19
G. Corporate Governance, Directors and Officers, and Corporate Action..................19
H. Dismissal of Creditors Committee Adversary Proceeding and other Plan Settlements....20
I. Sources of Cash for Plan Distribution...............................................20
J. Private Company Status..............................................................20
K. Payment of Agent Expenses...........................................................20
L. Adoption of Company Incentive Plan..................................................20
ARTICLE VI. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES...........................20
A. Assumption of Executory Contracts and Unexpired Leases..............................20
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases................21
C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed...............21
D. Indemnification of Directors, Officers and Employees................................22
E. Compensation and Benefit Programs...................................................22
ARTICLE VII. PROVISIONS GOVERNING DISTRIBUTIONS.............................................22
A. Distributions for Claims Allowed as of the Effective Date...........................22
B. Delivery and Distributions and Undeliverable or Unclaimed Distributions.............22
C. Timing and Calculation of Amounts to be Distributed.................................23
D. Minimum Distribution................................................................23
E. Setoffs.............................................................................23
F. Surrender of Canceled Instruments or Securities.....................................24
G. Failure to Surrender Canceled Instruments...........................................24
H. Lost, Stolen, Mutilated or Destroyed Debt Securities................................24
ARTICLE VIII. PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT AND
UNLIQUIDATED CLAIMS OR EQUITY INTERESTS.................................................24
A. Resolution of Disputed Claims.......................................................24
B. Allowance of Claims.................................................................25
C. Controversy Concerning Impairment...................................................25
ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN...............25
A. Condition Precedent to Confirmation.................................................25
B. Conditions Precedent to Consummation................................................26
C. Waiver of Conditions................................................................26
D. Effect of Non-occurrence of Conditions to Consummation..............................27
ARTICLE X. RELEASE, INJUNCTIVE AND RELATED PROVISIONS.......................................27
A. Subordination.......................................................................27
B. Releases by the Debtors.............................................................27
C. Releases by Holders of Claims.......................................................27
D. Release of Foreign Subsidiary Borrowers and the Domestic Non-Debtor.................28
E. Exculpation.........................................................................28
F. Preservation of Rights of Action....................................................28
G. Discharge of Claims and Termination of Equity Interests.............................29
H. Injunction..........................................................................29
ARTICLE XI. RETENTION OF JURISDICTION.......................................................29
ARTICLE XII. MISCELLANEOUS PROVISIONS.......................................................30
A. Effectuating Documents, Further Transactions and Corporation Action.................30
B. Dissolution of Committees...........................................................31
C. Payment of Statutory Fees...........................................................31
D. Letters of Credit...................................................................31
E. Modification of Plan................................................................31
F. Revocation of Plan..................................................................31
G. Successors and Assigns..............................................................31
H. Reservation of Rights...............................................................31
I. Section 1146 Exemption..............................................................31
J. Further Assurances..................................................................32
K. Service of Documents................................................................32
L. Filing of Additional Documents......................................................32
-ii-
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DEBTORS' SECOND AMENDED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
- --------------------------------------------------------------------------------
Pursuant to Title 11 of the United States Code, 11 U.S.C. (S)(S) 101 et
seq., the Debtors and Debtors-in-Possession in the above-captioned and numbered
cases, hereby respectfully propose the following Joint Plan of Reorganization
under Chapter 11 of the Bankruptcy Code:
ARTICLE I.
DEFINED TERMS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW
A. Rules of Interpretation, Computation of Time and Governing Law
1. For purposes herein: (a) whenever from the context it is appropriate,
each term, whether stated in the singular or the plural, shall include both the
singular and the plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, feminine and the neuter gender; (b)
any reference herein to a contract, instrument, release, indenture or other
agreement or document being in a particular form or on particular terms and
conditions means that such document shall be substantially in such form or
substantially on such terms and conditions; (c) any reference herein to an
existing document or exhibit Filed, or to be Filed, shall mean such document or
exhibit, as it may have been or may be amended, modified or supplemented; (d)
unless otherwise specified, all references herein to Sections, Articles and
Exhibits are references to Sections, Articles and Exhibits hereof or hereto; (e)
the words "herein," "hereof" and "hereto" refer to the Plan in its entirety
rather than to a particular portion of this Plan; (f) captions and headings to
Articles and Sections are inserted for convenience of reference only and are not
intended to be a part of or to affect the interpretation hereof; (g) the rules
of construction set forth in section 102 of the Bankruptcy Code shall apply; and
(h) any term used in capitalized form herein that is not otherwise defined but
that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the
meaning assigned to such term in the Bankruptcy Code or the Bankruptcy Rules, as
the case may be.
2. In computing any period of time prescribed or allowed hereby, the
provisions of Bankruptcy Rule 9006(a) shall apply.
3. Except to the extent that the Bankruptcy Code or Bankruptcy Rules are
applicable, and subject to the provisions of any contract, instrument, release,
indenture or other agreement or document entered into in connection herewith,
the rights and obligations arising hereunder shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
giving effect to the principles of conflict of laws thereof.
B. Defined Terms
Unless the context otherwise requires, the following terms shall have the
following meanings when used in capitalized form herein:
1. "10% Senior Notes" means the $300 million original principal amount 10%
senior notes due April 15, 2005, issued pursuant to that certain indenture dated
April 28, 1995, as amended from time to time, as between Exide and The Bank of
New York as Trustee.
2. "10% Senior Note Claims" means all Claims derived from or based upon the
10% Senior Notes.
3. "2.9% Convertible Notes" means the $367.9 million original principal
amount 2.9% senior convertible subordinated notes due December 15, 2005, issued
pursuant to that certain indenture dated December 15, 1995, as amended from time
to time, as between Exide, as issuer, and The Bank of New York, as trustee.
4. "2.9% Convertible Note Claims" means all Claims derived from or based
upon the 2.9% Convertible Notes.
5. "Administrative Claim" means a Claim for costs and expenses of
administration under section 503(b), 507(a)(1), 507(b) or 1114(e)(2) of the
Bankruptcy Code, including, but not limited to: (a) the actual and necessary
costs and expenses incurred after the Petition Date of preserving the Estate and
operating the businesses of Debtors (such as wages, salaries or commissions for
services and payments for goods and other services and lease obligations); (b)
compensation for legal, financial advisory, accounting and other services and
reimbursement of expenses awarded or allowed under sections 328, 330(a) or 331
of the Bankruptcy Code or otherwise; (c) all fees and charges assessed against
the Estates under chapter 123 of title 28 United States Code, 28 U.S.C. (S)(S)
1911-1930; and (d) any Claim afforded priority status under section 503(b),
507(a)(1), 507(b), or 1114(e)(2) of the Bankruptcy Code pursuant to Final Order
of the Bankruptcy Court.
6. "Affiliate" means any Entity that is an affiliate of the Debtors or
Reorganized Debtors within the meaning of section 101(2) of the Bankruptcy Code.
7. "Agent" means Credit Suisse First Boston in its capacity as
administrative agent under the Prepetition Credit Facility.
8. "Agent Expenses" means the reasonable fees and expenses incurred after
the Petition Date by the legal, accounting, financial, and other advisors to the
Agent and Citigroup Global Markets Inc. (formerly known as Salomon Smith Barney
Inc.), in its capacity as syndication agent under the Prepetition Credit
Facility, including Alvarez & Marsal, Shearman & Sterling LLP, Richards Layton &
Finger and other foreign counsel and advisors to the Agent.
9. "Allowed" means, with respect to any Claim or Equity Interest, except as
otherwise provided herein: (a) a Claim or Equity Interest that has been
scheduled by Debtors in their schedules of liabilities as other than disputed,
contingent or unliquidated and as to which Debtors or other party in interest
has not Filed an objection by the Claims Objection Bar Date; (b) a Claim or
Equity Interest that either is not a Disputed Claim or Equity Interest or has
been allowed by a Final Order; (c) a Claim or Equity Interest that is allowed:
(i) in any stipulation of amount and nature of Claim executed prior to the
Confirmation Date and approved by the Bankruptcy Court; (ii) in any stipulation
with Debtors of amount and nature of Claim or Equity Interest executed on or
after the Confirmation Date; or (iii) in or pursuant to any contract,
instrument, indenture or other agreement entered into or assumed in connection
herewith; (d) a Claim or Equity Interest relating to a rejected executory
contract or unexpired lease that either (i) is not a Disputed Claim or Equity
Interest or (ii) has been allowed by a Final Order, in either case only if a
proof of Claim or Equity Interest has been Filed by the Claims Objection Bar
Date or has otherwise been deemed timely Filed under applicable law; or (e) a
Claim or Equity Interest that is allowed pursuant to the terms hereof.
10. "Allowed ... Claim" means an Allowed Claim in the particular Class
described.
11. "Allowed Equity Interest" means an Allowed Equity Interest in the
particular Class described.
12. "Amended Prepetition Foreign Credit Agreement" means that certain
credit agreement which shall govern the Prepetition Foreign Secured Claims of
Option B Electors (if any), effective as of the Effective Date, substantially in
the form contained in the Plan Supplement, and containing terms materially
consistent with the Amended Prepetition Foreign Credit Agreement Term Sheet.
13. "Amended Prepetition Foreign Credit Agreement Term Sheet" means that
certain term sheet attached hereto as Exhibit A.
14. "Ballots" mean the ballots accompanying the Disclosure Statement upon
which Holders of Impaired Claims entitled to vote shall indicate their
acceptance or rejection of the Plan in accordance with the Plan and the Voting
Instructions.
-2-
15. "Bankruptcy Code" means Title I of the Bankruptcy Reform Act of 1978,
as amended from time to time, as set forth in sections 101 et seq. of Title 11
of the United States Code, and applicable portions of Titles 18 and 28 of the
United States Code.
16. "Bankruptcy Court" means the United States District Court for the
District of Delaware, having jurisdiction over the Chapter 11 Cases and, to the
extent of any reference made pursuant to section 157 of Title 28 of the United
States Code and/or the General Order of such District Court pursuant to section
151 of title 28 of the United States Code, the bankruptcy unit of such District
Court.
17. "Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure, as
amended from time to time, as applicable to the Chapter 11 Cases, promulgated
under 28 U.S.C. (s) 2075 and the General, Local and Chambers Rules of the
Bankruptcy Court.
18. "Beneficial Holder" means the Person or Entity holding the beneficial
interest in a Claim or Equity Interest.
19. "Business Day" means any day, other than a Saturday, Sunday or "legal
holiday" (as defined in Bankruptcy Rule 9006(a)).
20. "Cash" means legal tender of the United States of America or the
equivalent thereof, including bank deposits, checks and Cash Equivalents.
21. "Cash Equivalents" means equivalents of Cash in the form of readily
marketable securities or instruments issued by a Person, including, without
limitation, readily marketable direct obligations of, or obligations guaranteed
by, the United States of America, commercial paper of domestic corporations
carrying a Moody's rating of "A" or better, or equivalent rating of any other
nationally recognized rating service, or interest bearing certificates of
deposit or other similar obligations of domestic banks or other financial
institutions having a shareholders' equity or capital of not less than one
hundred million dollars ($100,000,000) having maturities of not more than one
(1) year, at the then best generally available rates of interest for like
amounts and like periods.
22. "Causes of Action" mean all Claims, actions, causes of action, choses
in action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialities, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, third-party claims, counterclaims,
and crossclaims (including, but not limited to, all claims and any avoidance,
recovery, subordination or other actions against insiders and/or any other
entities under the Bankruptcy Code, including sections 510, 542, 543, 544, 545,
547, 548, 549, 550, 551, and 553 of the Bankruptcy Code or otherwise) of the
Debtors, the Debtors in Possession, and/or the Estates (including, but not
limited to, those actions listed in the Plan Supplement) that are or may be
pending on the Effective Date or instituted by the Reorganized Debtors after the
Effective Date against any entity, based in law or equity, including, but not
limited to, under the Bankruptcy Code, whether direct, indirect, derivative, or
otherwise and whether asserted or unasserted as of the date of entry of the
Confirmation Order.
23. "Chapter 11 Cases" means the above-captioned chapter 11 proceedings
filed by the Debtors with case numbers 02-11125 through 02-11128, 02-13449 and
02-13450, and jointly administered under case number 02-11125.
24. "Claim" means a claim (as defined in section 101(a)(5) of the
Bankruptcy Code) against a Debtor, including, but not limited to: (a) any right
to payment from a Debtor whether or not such right is reduced to judgment,
liquidated, unliquidated, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured; or (b) any right to an equitable remedy
for breach of performance if such performance gives rise to a right of payment
from a Debtor, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
25. "Claim Holder" or "Claimant" means the Holder of a Claim.
26. "Claims Objection Bar Date" means the bar date, to the extent set, for
Filing of proofs of claim with respect to executory contracts and unexpired
leases which are rejected pursuant to this Plan or otherwise pursuant to section
365 of the Bankruptcy Code which shall be 120 days after the Effective Date.
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27. "Class" means a category of Holders of Claims or Equity Interests as
set forth in Article III hereof.
28. "Class P3 Election B Distribution" means New Exide Preferred Stock
having a value equal to the Prepetition Domestic Secured Claims Liquidation
Value plus $1.00.
29. "Class P4-A Cash Pool" means Cash in the amount of $4,400,000.00;
provided, however, that such amount shall be decreased in the event the
aggregate amount of Allowed Class P4-A Non-Noteholder General Unsecured Claims,
after final determination by the Bankruptcy Court, is less than the estimate of
Class P4-A Non-Noteholder General Unsecured Claims as set forth in the section
of the Disclosure Statement entitled "SUMMARY--Treatment of Claims and Equity
Interests" such that the Pro Rata percentage recovery by Holders of Class P4-A
Non-Noteholder General Unsecured Claims is equivalent to the Pro Rata percentage
recovery of Holders of Class P4-B 10% Senior Note Claims.
30. "Class P4 Cash Pool Excess" means that amount of Cash, if any, that the
Class P4 Cash Pool is decreased so that the Pro Rata percentage recovery by
Holders of Class P4-A Non-Noteholder General Unsecured Claims is equivalent to
the Pro Rata percentage recovery of Holders of Class P4-B 10% Senior Note
Claims.
31. "Committees" means, collectively, the Creditors Committee and the
Equity Committee.
32. "Company Incentive Plan" means the post-Effective Date incentive
compensation plan to be adopted on or shortly after the Effective Date, as such
plan may be modified or supplemented in accordance with its terms.
33. "Confirmation" means the entry of the Confirmation Order, subject to
all conditions specified in Article IX.A hereof having been (a) satisfied or (b)
waived pursuant to Article IX.C hereof.
34. "Confirmation Hearing" means the hearing at which the Confirmation
Order is considered by the Bankruptcy Court.
35. "Confirmation Date" means the date upon which the Confirmation Order is
entered by the Bankruptcy Court in its docket, within the meaning of Bankruptcy
Rules 5003 and 9021.
36. "Confirmation Order" means the order of the Bankruptcy Court confirming
the Plan pursuant to section 1129 of the Bankruptcy Code.
37. "Consummation" means the occurrence of the Effective Date.
38. "Creditor" means any Holder of a Claim.
39. "Creditors Committee" means the official committee of unsecured
creditors appointed in these Chapter 11 Cases.
40. "Creditors Committee/R2 Adversary Proceeding" means that certain
adversary proceeding filed in the Bankruptcy Court by the Creditors Committee
and R2 Investments, LDC against Credit Suisse First Boston and Salomon Smith
Barney, Inc., designated as Adversary Proceeding Number 03-50134 (KJC).
41. "Debt at Emergence" means, as of the Effective Date: (a) the borrowings
under the Exit Facility, plus (b) the amount of "Other" debt as described in
Exide's publicly filed financial statements, plus (c) the Allowed value of the
Prepetition Foreign Secured Claims of Option B Electors, less (d) $44.5 million.
42. "Debtor" means one of the Debtors, in its individual capacity, as a
debtor in these Chapter 11 Cases.
43. "Debtors" means, collectively, the Initial Debtors and the Subsequent
Debtors.
44. "Debtor in Possession" means one of the Debtors in Possession, in its
individual capacity, as debtor in possession in these Chapter 11 Cases.
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45. "Debtors in Possession" means the Debtors, as debtors in possession in
these Chapter 11 Cases.
46. "DIP Facility" means that $250 million secured super priority debtor in
possession credit agreement dated as of April 15, 2002, as amended from time to
time, among Exide and certain of its subsidiaries as debtors in possession, as
borrowers, certain subsidiaries of the borrowers as guarantors, Citicorp USA,
Inc. as administrative agent, and the lenders and issuers from time to time
party thereto.
47. "DIP Facility Claims" means Claims derived from or based upon the DIP
Facility.
48. "Disclosure Statement" means the Disclosure Statement for Debtors'
Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code dated July
24, 2003, together with all exhibits, schedules and supplements thereto, as
amended, supplemented, or modified from time to time, describing the Plan, that
is prepared and distributed in accordance with sections 1125, 1126(b) and/or
1145 of the Bankruptcy Code and Bankruptcy Rule 3018 and/or other applicable
law.
49. "Disputed" means, with respect to any Claim or Equity Interest, any
Claim or Equity Interest: (a) listed on the Schedules as unliquidated, disputed
or contingent; (b) as to which a Debtor or any other party in interest has
interposed a timely objection or request for estimation in accordance with the
Bankruptcy Code and the Bankruptcy Rules or (c) is otherwise disputed by a
Debtor in accordance with applicable law, which objection, request for
estimation or dispute has not been withdrawn or determined by a Final Order.
50. "Distributable Equity Value" means $950 million less the sum of (a)
Debt at Emergence plus (b) the value of the consideration reserved for the
Company Incentive Plan.
51. "Distribution Record Date" means the date for determining, in the case
of registered securities, which Holders of Claims are eligible to receive
distributions hereunder, and shall be the Confirmation Date.
52. "Dixie Metals" means Dixie Metals Company, a Delaware corporation.
53. "Domestic Non-Debtor" means GNB Battery Technologies Japan, Inc., a
Delaware corporation.
54. "Effective Date" means the date selected by the Debtors which is a
Business Day after the Confirmation Date on which: (a) no stay of the
Confirmation Order is in effect, and (b) all conditions specified in Article IV
hereof have been (i) satisfied or (ii) waived pursuant to Article IX.C. hereof.
55. "Entity" means an entity as defined in section 101(15) of the
Bankruptcy Code.
56. "Equity Committee" means the official committee of equity security
holders appointed in these Chapter 11 Cases.
57. "Equity Interest" means any equity interest in a Debtor, including, but
not limited to, all issued, unissued, authorized or outstanding shares or stock,
together with any warrants, options or contract rights to purchase or acquire
such interests at any time.
58. "Estate" means the estate of a Debtor created by section 541 of the
Bankruptcy Code upon the commencement of its respective Chapter 11 Case.
59. "European Asset Sales Escrow Account" means that certain escrow account
established and maintained by the Debtors to hold the proceeds of certain asset
sales from certain Foreign Subsidiary Borrowers, which, as of the date of this
Plan, held approximately (euro)12,000,000.
60. "European Contingent Asset Sales Proceeds" means an amount in Cash, if
any, not to exceed (euro)10,000,000 in any circumstances, from either or both of
(a) the net sales proceeds from the sale of the Caslnuovo property, but only if
such sale is consummated prior to the Effective Date and only if the net
proceeds of such sale are at least (euro)8,000,000, and (b) the net sales
proceeds from the sale of the European smelters, but only if such sale is
consummated prior to the Effective Date and only if the net proceeds of such
sale are at least (euro)20,000,000.
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61. "Exchange Notes" mean the notes issued by Exide substantially in the
form contained in the Plan Supplement, which shall be Allowed Administrative
Claims secured by a pledge of the Prepetition Foreign Secured Claims that are
exchanged for the notes.
62. "Exide" means Exide Technologies, f/k/a Exide Corporation, a Delaware
corporation.
63. "Exide BV" has the meaning set forth in Article V.A hereof.
64. "Exide CV" has the meaning set forth in Article V.A. hereof.
65. "Exide Delaware" means Exide Delaware, L.L.C., a Delaware limited
liability company.
66. "Exide Holding III" has the meaning set forth in Article V.A hereof.
67. "Exide Holding Asia" has the meaning set forth in Article V.A hereof.
68. "Exide Holding Europe" has the meaning set forth in Article V.A hereof.
69. "Exide Illinois" means Exide Illinois, Inc., a Pennsylvania
corporation.
70. "Exide Operating" has the meaning set forth in Article V.A. hereof.
71. "Exit Facility" means a post-Consummation credit facility,
substantially in the form contained in the Plan Supplement, in an amount
sufficient to (a) fund the Debtors' Cash payment obligations under the Plan and
(b) provide for the Debtors' projected minimum Cash reserve requirements on and
after the Effective Date.
72. "File" or "Filed" means file or filed with the Bankruptcy Court in the
Chapter 11 Cases.
73. "Final Decree" means the decree contemplated under Bankruptcy Rule
3022.
74. "Final DIP Order" means the "Final Order Authorizing the Debtors In
Possession to Enter into Post-Petition Credit Agreement and Obtain Post-Petition
Financing Pursuant to Section 363 and 364 of the Bankruptcy Code, Providing
Adequate Protection, and Granting Liens, Security Interests and Super-Priority
Claims" entered by the Bankruptcy Court on May 10, 2002.
75. "Final Order" means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction with respect to the subject matter, which
has not been reversed, stayed, modified or amended, and as to which the time to
appeal or seek certiorari has expired and no appeal or petition for certiorari
has been timely taken, or as to which any appeal that has been taken or any
petition for certiorari that has been or may be filed has been resolved by the
highest court to which the order or judgment was appealed or from which
certiorari was sought.
76. "Foreign Asset Sales" has the meaning set forth in the Intercreditor
and Subordination Agreement.
77. "Foreign Subsidiary Borrowers" means Exide Holding Europe S.A.,
Compagnie Europeenne D'Accumulateurs S.A., Euro Exide Corporation Limited,
Sociedad Espanola del Acumulador Tudor S.A., Tudor A.B., CMP Batterijen B.V.,
CMP Batteries Limited, Deutsche Exide Standby GMBH, Deutsche Exide GMBH and
Mercolec Tudor B.V., Exide Italia S.R.L., Industria Composizioni Stampate, SpA,
Fulmen Iberica S.L., CMP Batterijen N.V., Exide Automotive Batterie GMBH, Hagen
Batterie AG, Hagen Batterijen B.V., Electro Mercantil Industrial S.L., Exide
(Dagenham) Limited, Exide France S.A.S., Fulmen UK Limited, Exide Automotive
S.A., Sociedade Portuguesa do Acumulador Tudor S.A., Exide Danmark A/S, Exide
Batterier AB, Centra S.A., Exide S0nnak A/S, Exide Automotive B.V., Exide
Batteries Limited, B.I.G. Batteries Limited, Exide Lending Limited, Exide
Holdings Limited, Exide Technologies Holding BV, Exide Holding Asia PTE Limited,
GNB Technologies (China) Limited, Exide Singapore PTE Limited, Exide Australia
PTY Limited, Exide Technologies Limited, Exide Canada Inc., and 1036058 Ontario
Inc.
78. "General Unsecured Claim" means any Claim against a Debtor that is not
an Administrative Claim, DIP Facility Claim, Priority Tax Claim, Other Priority
Claim, Other Secured Claim, Prepetition Credit Facility Claim or 2.9%
Convertible Note Claim.
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79. "Holder" and collectively, "Holders" mean a Person or Entity holding an
Equity Interest or Claim, including a holder.
80. "Impaired" means with respect to any Class of Claims or Equity
Interests, which Claims or Equity Interests will not be paid in full upon the
effectiveness of this Plan or will be changed by the reorganization effectuated
hereby.
81. "Impaired Claim" means a Claim classified in an Impaired Class.
82. "Impaired Class" means each of Classes P3, P4, P5, P6, S3, S4 and S5 as
set forth in Article III hereof.
83. "Initial Debtors" means, collectively, Exide; Exide Delaware; Exide
Illinois, and RBD Liquidation, having Filed voluntary chapter 11 petitions on
the Initial Petition Date.
84. "Initial Petition Date" means April 15, 2002.
85. "Intercreditor and Subordination Agreement" means that certain
intercreditor and subordination agreement dated April 15, 2002, among Citicorp
USA, Inc. as agent for the DIP Facility, the Agent, certain affiliates of Exide
and certain other signatories thereto.
86. "Letter of Credit" means a letter of credit issued pursuant to the
Prepetition Credit Facility.
87. "Master Ballots" mean the master ballots accompanying the Disclosure
Statement upon which Holders of Impaired Claims or Impaired Equity Interests
shall indicate their acceptance or rejection of the Plan in accordance with the
Voting Instructions.
88. "New By-laws" means the by-laws of the Reorganized Debtors,
substantially in the forms contained in the Plan Supplement.
89. "New Exide" means a corporation to be incorporated under the laws of
the State of Delaware.
90. "New Exide Board of Directors" means the board of directors of New
Exide, determined according to the New Exide Shareholder Agreement.
91. "New Exide By-laws" means the by-laws of New Exide, substantially in
the form contained in the Plan Supplement.
92. "New Exide Certificate of Incorporation" means the certificate of
incorporation of New Exide, substantially in the form contained in the Plan
Supplement.
93. "New Exide Common Stock" means the shares of New Exide's common stock,
par value $.01 per share, to be authorized pursuant to the New Exide Certificate
of Incorporation of which 200,000 shares shall be initially issued, which
initially issued shares represent, as of the Effective Date, 0.8% of New Exide's
common stock taking into consideration the New Exide Preferred Stock Conversion
Election on a fully-exercised basis, subject to dilution pursuant to the Company
Incentive Plan; provided, however, that the percentage which the New Exide
Common Stock represents on a fully-exercised basis, prior to dilution pursuant
to the Company Incentive Plan, shall be decreased in the event the aggregate
amount of Allowed Class P4-A Non-Noteholder General Unsecured Claims, after
final determination by the Bankruptcy Court, is greater than the estimate of
Class P4-A Non-Noteholder General Unsecured Claims as set forth in the section
of the Disclosure Statement entitled "SUMMARY--Treatment of Claims and Equity
Interests" such that the Pro Rata percentage recovery by Holders of Class P4-B
10% Senior Note Claims is equivalent to the Pro Rata percentage recovery of
Holders of Class P4-A Non-Noteholder General Unsecured Claims. The New Exide
Common Stock will be subject to certain transfer restrictions in order to
maintain New Exide's status as a non-reporting company under the Securities
Exchange Act.
94. "New Exide Preferred Stock" means the shares of series A convertible
preferred stock in New Exide (the number of which shall be equal to 99.2% of the
Distributable Equity Value divided by 1,000, rounded to
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the nearest whole number) to be authorized by the New Exide Certificate of
Incorporation and governed by the New Exide Shareholder Agreement, which may be
subject to dilution pursuant to the Company Incentive Plan.
95. "New Exide Preferred Stock Conversion Election" means the right
pursuant to the terms and conditions set forth in the New Exide Certificate of
Incorporation of Holders of New Exide Preferred Stock to convert their shares of
New Exide Preferred Stock into shares of New Exide Common Stock representing
99.2% of New Exide's common stock, as of the Effective Date, which may be
subject to dilution pursuant to the Company Incentive Plan; provided, however,
that that the percentage which the New Exide Preferred Stock represents on a
fully-exercised basis, prior to dilution pursuant to the Company Incentive Plan,
shall be increased in the event the aggregate amount of Allowed Class P4-A
Non-Noteholder General Unsecured Claims, after final determination by the
Bankruptcy Court, is greater than the estimate of Class P4-A Non-Noteholder
General Unsecured Claims as set forth in the section of the Disclosure Statement
entitled "SUMMARY--Treatment of Claims and Equity Interests" such that the Pro
Rata percentage recovery by Holders of Class P4-B 10% Senior Note Claims is
equivalent to the Pro Rata percentage recovery of Holders of Class P4-A
Non-Noteholder General Unsecured Claims.
96. "New Exide Preferred Stock Term Sheet" means that certain term sheet
governing the New Exide Preferred Stock, attached hereto as Exhibit B.
97. "New Exide Shareholder Agreement" means that certain shareholder
agreement governing the New Exide Preferred, substantially in the form contained
in the Plan Supplement, containing terms materially consistent with the New
Exide Shareholder Agreement Term Sheet.
98. "New Exide Shareholder Agreement Term Sheet" means that certain term
sheet describing governance and related provisions for the New Exide Preferred
Stock, attached hereto as Exhibit C.
99. "New Organizational Documents" means (a) those certificates of
incorporation to be filed with the Secretary of State for the State of Delaware
by Reorganized Exide, Reorganized Dixie Metals, and Reorganized Refined Metals,
(b) the certificate of incorporation to be filed with the Secretary of State for
the State of Pennsylvania by Reorganized Exide Illinois, and (c) the
certificates of formation to be filed with the Secretary of State for the State
of Delaware by Exide Delaware and RBD Liquidation, along with the operating
agreements or limited liability company agreements for Exide Delaware and RBD
Liquidation, whether or not filed.
100. "Nominee" means any Beneficial Holder whose securities were registered
or held of record in the name of his broker, dealer, commercial bank, trust
company, savings and loan or other nominee.
101. "Non-Noteholder General Unsecured Claims" means all General Unsecured
Claims that are not 10% Senior Note Claims.
102. "Old Notes" means, collectively, the 10% Senior Notes and the 2.9%
Convertible Notes.
103. "Option A Electors" means those Holders of Prepetition Credit Facility
Claims, if any, who chose the Class P3 Election A, pursuant to Article III.B.3
hereof.
104. "Option B Electors" means those Holders of Prepetition Credit Facility
Claims, if any, who chose the Class P3 Election B, pursuant to Article III.B.3
hereof.
105. "Other Priority Claims" means any Claim accorded priority in right of
payment under section 507(a) of the Bankruptcy Code, other than a Priority Tax
Claim or an Administrative Claim.
106. "Other Secured Claims" means any and all Secured Claims against the
Debtors not specifically described herein.
107. "Person" means a person as defined in section 101(41) of the
Bankruptcy Code.
108. "PITWD Claims" means those Claims against the Debtors based on or
derived from allegations of personal injury tort or wrongful death, within the
meaning of 28 U.S.C. 157(b)(5).
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109. "Plan" means this Joint Plan of Reorganization, either in its present
form or as it may be altered, amended, modified or supplemented from time to
time in accordance with the Plan, the Bankruptcy Code and the Bankruptcy Rules.
110. "Plan Supplement" means the compilation of documents and forms of
documents, schedules and exhibits to be Filed not less than 10 days prior to the
hearing on the Confirmation Hearing, as it may be altered, amended, modified or
supplemented from time to time in accordance with the terms hereof and in
accordance with the Bankruptcy Code and the Bankruptcy Rules.
111. "Prepetition Credit Facility" means that certain amended and restated
credit and guarantee agreement dated September 29, 2000, as amended from time to
time, among Exide and certain borrowing subsidiaries and certain guarantors and
the Agent and certain other parties thereto.
112. "Prepetition Credit Facility Claims" means all Claims of any Person
(i) derived from or based upon the Prepetition Credit Facility and all documents
relating thereto, including the Prepetition Domestic Secured Claims, Prepetition
Foreign Secured Claims and the Prepetition Credit Facility Swap Claim, (ii)
derived from or based upon any guaranty of the obligations under the Prepetition
Credit Facility and all documents relating thereto and (iii) arising under or in
connection with the Final DIP Order and derived from or based upon the
Prepetition Credit Facility and all documents relating thereto.
113. "Prepetition Credit Facility Swap Claim" means the Claim based upon
the $60,000,000 two-year interest rate swap with Exide dated as of October 20,
2000.
114. "Prepetition Domestic Secured Claims" means all Prepetition Credit
Facility Claims that are not Prepetition Foreign Secured Claims.
115. "Prepetition Domestic Secured Claims Liquidation Value" means the
value available for distribution to Holders of Prepetition Domestic Secured
Claims as of the Effective Date if the Debtors were liquidated under chapter 7
of the Bankruptcy Code, as set forth in the section of the Disclosure Statement
entitled "LIQUIDATION ANALYSIS" and within the meaning of section
1129(a)(7)(A)(ii) of the Bankruptcy Code.
116. "Prepetition Foreign Secured Claims" means all Prepetition Credit
Facility Claims as to which any of the Foreign Subsidiary Borrowers are
obligors.
117. "Prepetition Lenders" means those Persons party to the Prepetition
Credit Facility as lenders thereunder.
118. "Priority Tax Claim" means a Claim of a governmental unit of the kind
specified in section 507(a)(8) of the Bankruptcy Code.
119. "Professional", or collectively "Professionals" means a Person or
Entity (a) employed pursuant to a Final Order in accordance with sections 327
and 1103 of the Bankruptcy Code and to be compensated for services rendered
prior to the Effective Date, pursuant to sections 327, 328, 329, 330 and 331 of
the Bankruptcy Code, or (b) for which compensation and reimbursement has been
allowed by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy
Code.
120. "Pro Rata" means the proportion that an Allowed Claim or an Allowed
Equity Interest bears to the aggregate amount of Allowed Claims or the aggregate
amount of Allowed Equity Interests in such Class or subclass, as applicable.
121. "Purported Lease" means one of the contracts at issue in the
Recharacterization Adversary Proceeding.
122. "Purported Lessor" means the defendants in the Recharacterization
Adversary Proceeding.
123. "Recharacterization Adversary Proceeding" means that certain adversary
proceeding filed by the Debtors in the Bankruptcy Court on March 24, 2003,
docketed as adversary proceeding number 03-51952 (KJC).
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124. "Registration Rights Agreement" means an agreement to be entered into
by Exide and New Exide for the benefit of holders of New Exide Preferred Stock
and New Exide Common Stock, substantially in the form set forth in the Plan
Supplement.
125. "Releasees" means the Debtors and their Affiliates, the Reorganized
Debtors and each of their Affiliates, the Creditors Committee, the Equity
Committee, the Agent, the Option A Electors and all officers, directors,
members, employees, attorneys, financial advisors, accountants, investment
bankers, agents and representatives of each of the foregoing, whether current or
former, in each case in their capacity as such, and only if serving in such
capacity on the Initial Petition Date or thereafter.
126. "Reorganized Debtor" means any Debtor and Debtor in Possession, or any
successor thereto, by merger, consolidation, or otherwise, on and after the
Effective Date.
127. "Reorganized Debtors" means the Debtors and Debtors in Possession, or
any successors thereto, by merger, consolidation, or otherwise, on and after the
Effective Date.
128. "Reorganized Exide" means Exide or any successors thereto, by merger
(including Exide Operating), consolidation, or otherwise, on and after the
Effective Date.
129. "Reorganized Subsidiary Debtors" means the Subsidiary Debtors, or any
successors thereto, by merger, consolidation, or otherwise, on and after the
Effective Date.
130. "RBD Liquidation" means RBD Liquidation L.L.C., a Delaware limited
liability company.
131. "Refined Metals" means Refined Metals Corporation, a Delaware
corporation.
132. "Schedules" mean the schedules of assets and liabilities, schedules of
executory contracts, and the statement of financial affairs as the Bankruptcy
Court requires the Debtors to File pursuant to section 521 of the Bankruptcy
Code, the Official Bankruptcy Forms and the Bankruptcy Rules, as they may be
amended and supplemented from time to time.
133. "Secured Claim" means (a) a Claim that is secured by a lien on
property in which the Estate has an interest, which lien is valid, perfected and
enforceable under applicable law or by reason of a Final Order, or that is
subject to setoff under section 553 of the Bankruptcy Code, to the extent of the
value of the Claim Holder's interest in the Estate's interest in such property
or to the extent of the amount subject to setoff, as applicable, as determined
pursuant to section 506(a) of the Bankruptcy Code, or (b) a Claim Allowed under
this Plan as a Secured Claim.
134. "Securities Act" means the Securities Act of 1933, 15 U.S.C. sections
77a-77aa, as now in effect or hereafter amended, or any similar federal, state
or local law.
135. "Securities Exchange Act" means the Securities and Exchange Act of
1934, as amended.
136. "Solicitation Order" means an order of the Bankruptcy Court (a)
approving the adequacy of the Disclosure Statement and (b) establishing certain
solicitation and voting procedures, dates and deadlines.
137. "Standstill Agreement" means that certain Standstill Agreement and
Fifth Amendment to the Credit Agreement dated as of April 15, 2002, as amended,
among Exide and certain borrowing subsidiaries and certain guarantors and the
Agent and certain other parties thereto.
138. "Subsequent Debtors" means Dixie Metals and Refined Metals, having
Filed voluntary chapter 11 petitions on the Subsequent Petition Date.
139. "Subsequent Petition Date" means November 21, 2002.
140. "Subsidiary Debtors" means Exide Delaware; Exide Illinois, RBD
Liquidation, Dixie Metals and Refined Metals.
141. "Unimpaired Claims" means Claims in an Unimpaired Class.
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142. "Unimpaired Class" means an unimpaired Class within the meaning of
section 1124 of the Bankruptcy Code.
143. "Voting Deadline" means the date stated in the Voting Instructions by
which all Ballots must be received.
144. "Voting Instructions" mean the instructions for voting on the Plan
contained in the Solicitation Order, in the section of the Disclosure Statement
entitled "SOLICITATION; VOTING PROCEDURES" and in the Ballots and the Master
Ballots.
ARTICLE II.
ADMINISTRATIVE AND PRIORITY TAX CLAIMS
A. Administrative Claims
Subject to the provisions of section 330(a) and 331 of the Bankruptcy Code,
each Holder of an Allowed Administrative Claim will be paid the full unpaid
amount of such Allowed Administrative Claim in Cash (i) on the Effective Date,
(ii) or if such Claim is Allowed after the Effective Date, on the date such
Claim is Allowed, or (iii) upon such other terms as may be agreed upon by such
Holder and Reorganized Debtor or otherwise upon an order of the Bankruptcy
Court; provided that Allowed Administrative Claims representing obligations
incurred in the ordinary course of business or otherwise assumed by a Debtor
pursuant hereto will be assumed on the Effective Date and paid or performed by
such Reorganized Debtor when due in accordance with the terms and conditions of
the particular agreements governing such obligations.
B. DIP Facility Claims
Subject to the provisions of sections 328, 330(a) and 331 of the Bankruptcy
Code, Allowed DIP Facility Claims will be paid in full in Cash on the later of
(i) the Effective Date or (ii) the date on which, in Reorganized Exide's sole
discretion, sufficient proceeds from the Exit Facility become available to repay
the Allowed DIP Facility Claims.
C. Priority Tax Claims
On the Effective Date or as soon as practicable thereafter, each Holder of
a Priority Tax Claim due and payable on or prior to the Effective Date shall be
paid, at the option of the respective Reorganized Debtor, (a) Cash in an amount
equal to the amount of such Allowed Claim, or (b) Cash over a six-year period
from the date of assessment as provided in section 1129(a)(9)(C) of the
Bankruptcy Code, with interest payable at a rate of 3% per annum or such other
rate as may be required by the Bankruptcy Code. The amount of any Priority Tax
Claim that is not an Allowed Claim or that is not otherwise due and payable on
or prior to the Effective Date, and the rights of the Holder of such Claim, if
any, to payment in respect thereof shall (x) be determined in the manner in
which the amount of such Claim and the rights of the Holder of such Claim would
have been resolved or adjudicated if the Chapter 11 Cases had not been
commenced, (y) survive the Effective Date and Consummation of the Plan as if the
Chapter 11 Cases had not been commenced, and (z) not be discharged pursuant to
section 1141 of the Bankruptcy Code. In accordance with section 1124 of the
Bankruptcy Code, the Plan shall leave unaltered the legal, equitable, and
contractual rights of each Holder of a Priority Tax Claim.
ARTICLE III.
CLASSIFICATION AND TREATMENT
OF CLASSIFIED CLAIMS AND EQUITY INTERESTS
A. Summary
The categories of Claims and Equity Interests listed below classify Claims
and Equity Interests for all purposes, including voting, confirmation and
distribution pursuant hereto and pursuant to sections 1122 and 1123(a)(1) of the
Bankruptcy Code. A Claim or Equity Interest shall be deemed classified in a
particular Class only
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to the extent that the Claim or Equity Interest qualifies within the description
of that Class and shall be deemed classified in a different Class to the extent
that any remainder of such Claim or Equity Interest qualifies within the
description of such different Class. A Claim or Equity Interest is in a
particular Class only to the extent that such Claim or Equity Interest is
Allowed in that Class and has not been paid or otherwise settled prior to the
Effective Date.
THE ESTATES OF THE DEBTORS HAVE NOT BEEN CONSOLIDATED, SUBSTANTIVELY OR
OTHERWISE. ANY CLAIMS HELD AGAINST ONE OF THE DEBTORS WILL BE SATISFIED SOLELY
FROM THE CASH AND ASSETS OF SUCH DEBTOR. EXCEPT AS SPECIFICALLY SET FORTH
HEREIN, NOTHING IN THIS PLAN OR THE DISCLOSURE STATEMENT SHALL CONSTITUTE OR BE
DEEMED TO CONSTITUTE AN ADMISSION THAT ONE OF THE DEBTORS IS SUBJECT TO OR
LIABLE FOR ANY CLAIM AGAINST THE OTHER DEBTORS. THE CLAIMS OF CREDITORS THAT
HOLD CLAIMS AGAINST MULTIPLE DEBTORS WILL BE TREATED AS SEPARATE CLAIMS WITH
RESPECT TO EACH DEBTOR'S ESTATE FOR ALL PURPOSES (INCLUDING, BUT NOT LIMITED TO,
DISTRIBUTIONS AND VOTING), AND SUCH CLAIMS WILL BE ADMINISTERED AS PROVIDED IN
THE PLAN.
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1. Summary of Classification and Treatment of Claims and Equity
Interests: Exide
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Class Claim Status Voting Right
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P1 Other Priority Claims Unimpaired Deemed to Accept
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P2 Other Secured Claims Unimpaired Deemed to Accept
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P3 Prepetition Credit Facility Claims Impaired Entitled to vote
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P4 General Unsecured Claims Impaired Entitled to vote
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P5 2.9% Convertible Note Claims Impaired Deemed to reject
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P6 Equity Interests Impaired Deemed to reject
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2. Summary of Classification and Treatment of Claims and Equity
Interests: Subsidiary Debtors
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Class Claim Status Voting Right
--------------------------------------------------------------------------
S1 Other Priority Claims Unimpaired Deemed to accept
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S2 Other Secured Claims Unimpaired Deemed to accept
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S3 Prepetition Credit Facility Claims Impaired Entitled to vote
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S4 General Unsecured Claims Impaired Deemed to Reject
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S5 Equity Interests Impaired Deemed to Reject
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B. Classification and Treatment of Claims and Equity Interests: Exide
1. Class P1--Other Priority Claims
(a) Classification: Class P1 consists of all Other Priority Claims
against Exide.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Allowed Class P1 Claims are unaltered by the Plan. Unless
otherwise agreed to by the Holders of the Allowed Other Priority Claim and
Exide, each Holder of an Allowed Class P1 Claim shall receive, in full and
final satisfaction of such Allowed Class P1 Claim, one of the following
treatments, in the sole discretion of Exide:
(i) Reorganized Exide will pay the Allowed Class P1 Claim in full
in Cash on the Effective Date or as soon thereafter as is practicable;
provided that, Class P1 Claims representing obligations incurred in
the ordinary course of business will be paid in full in Cash when such
Class P1 Claims become due and owing in the ordinary course of
business; or
(ii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class P1 is Unimpaired and the Holders of Class P1 Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
P1 are not entitled to vote to accept or reject the Plan.
2. Class P2--Other Secured Claims
(a) Classification: Class P2 consists of all Other Secured Claims
against Exide.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Class P2 Claims are unaltered by the Plan. Unless otherwise
agreed to by the Holder of the Allowed Class P2 Claim and Exide, each
Holder of an Allowed Class P2 Claim shall receive, in full and final
satisfaction of such Allowed Class P2 Claim, one of the following
treatments, in the sole discretion of Exide:
(i) the legal, equitable and contractual rights to which such
Claim entitles the Holder thereof shall be unaltered by the Plan;
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(ii) Reorganized Exide shall surrender all collateral securing
such Claim to the Holder thereof, without representation or warranty
by or further recourse against Exide or Reorganized Exide; or
(iii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class P2 is Unimpaired and the Holders of Class P2 Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
P2 are not entitled to vote to accept or reject the Plan.
3. Class P3--Prepetition Credit Facility Claims
(a) Classification: Class P3 consists of the Prepetition Credit
Facility Claims against Exide.
(b) Treatment: Class P3 Claims shall be Allowed Claims in the
aggregate amount of $729,345,426.14. Holders of Allowed Class P3 and S3
Prepetition Credit Facility Claims may elect on their respective Ballots
either (i) Class P3 Election A or (ii) Class P3 Election B, provided that
Holders must elect the same treatment for both their Class P3 and S3
Claims. Any Class P3 Holder that does not make an election on its Ballot is
deemed to be an Option B Elector. The Holder of the Prepetition Credit
Facility Swap Claim is deemed to be an Option A Elector with respect to
such Claim.
(i) Class P3 Election A: After the Confirmation Date and prior to
the Effective Date, Holders of Prepetition Foreign Secured Claims who
choose the Class P3 Election A shall receive, in exchange for and in
full and final satisfaction of their Prepetition Foreign Secured
Claims, an Exchange Note with a principal amount equal to the fair
market value of the product of (x) such Holder's Prepetition Foreign
Secured Claims divided by the sum of such Holder's Prepetition Foreign
Secured Claims plus such Holder's Prepetition Domestic Secured Claims
and (y) such Holder's Pro Rata share of the New Exide Preferred Stock
remaining after distributions, if any, pursuant to the Class P3
Election B. On or as soon as practicable after the Effective Date,
Holders of Allowed Class P3 and S3 Prepetition Credit Facility Claims
who choose the Class P3 Election A shall receive, in full and final
satisfaction of their Prepetition Domestic Secured Claims and Exchange
Notes, (A) a Pro Rata share (based on the aggregate of such Holder's
Prepetition Domestic Secured Claims and Prepetition Foreign Secured
Claims that were exchanged for the Exchange Notes) of 100% of the New
Exide Preferred Stock remaining after distributions, if any, pursuant
to the Class P3 Election B, and (B) a Pro Rata distribution in Cash,
not to exceed $25,000,000 in the aggregate in any circumstances, of
the proceeds in the European Asset Sales Escrow Account and the
European Contingent Asset Sales Proceeds. As a condition to the
receipt of a Pro Rata share of the New Exide Preferred Stock, each
Option A Elector shall (A) execute the amendment to the Prepetition
Credit Facility summarized in the Amended Prepetition Foreign Credit
Agreement Term Sheet and (B) become a party to the New Exide
Shareholder Agreement.
(ii) Class P3 Election B: On or as soon as practicable after the
Effective Date, Holders of Allowed Class P3 and S3 Prepetition Credit
Facility Claims who choose the Class P3 Election B shall receive, in
full and final satisfaction of their Prepetition Domestic Secured
Claims, a Pro Rata share (based on the aggregate of the Prepetition
Domestic Secured Claims) of the Class P3 Election B Distribution. On
the Effective Date, the Prepetition Foreign Secured Claims of Option B
Electors shall be governed by the Amended Prepetition Foreign Credit
Agreement. As a condition to the receipt of a Pro Rata share of the
Class P3 Election B Distribution, each Option B Elector shall become a
party to the New Exide Shareholder Agreement.
(c) Voting: Class P3 is Impaired and Holders of Class P3 Claims are
entitled to vote to accept or reject the Plan.
4. Class P4--General Unsecured Claims
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(a) Classification: For purposes of voting, Class P4 consists of all
General Unsecured Claims against Exide. For purposes of distributions,
Class P4 consists of two subclasses: Non-Noteholder General Unsecured
Claims (Class P4-A) and 10% Senior Note Claims (Class P4-B).
(b) Treatment:
(i) Class P4-A: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class P4-A Non-Noteholder General
Unsecured Claim will receive, in full and final satisfaction of their
Class P4-A Non-Noteholder General Unsecured Claims:
(A) a Pro Rata distribution of the Class P4-A Cash Pool,
plus,
(B) if the Class P4 Cash Pool Excess is greater than zero,
a Pro Rata distribution of the Class P4 Cash Pool
Excess, as determined based on the aggregate of all
Allowed Class P4 Claims.
(ii) Class P4-B: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class P4-B 10% Senior Note Claim will
receive, in full and final satisfaction of their Class P4-B 10% Senior
Note Claims:
(A) a Pro Rata distribution of the New Exide Common Stock,
plus
(B) if the Class P4 Cash Pool Excess is greater than zero,
a Pro Rata distribution of the Class P4 Cash Pool
Excess, as determined based on the aggregate of all
Allowed Class P4 Claims.
(c) Voting: Class P4 is Impaired and Holders of Class P4 Claims are
entitled to vote to accept or reject the Plan.
5. Class P5--2.9% Convertible Note Claims
(a) Classification: Class P5 consists of all 2.9% Convertible Note
Claims against Exide.
(b) Treatment: On the Effective Date the 2.9% Convertible Notes will
be cancelled and Holders thereof will not receive a distribution under the
Plan in respect of such Claims.
(c) Voting: Class P5 is Impaired and is conclusively deemed to reject
the Plan. Holders of Class P5 Claims are not entitled to vote to accept or
reject the Plan.
6. Class P6--Equity Interests
(a) Classification: Class P6 consists of the Equity Interests in
Exide.
(b) Treatment: On the Effective Date Class P6 Equity Interests will be
cancelled and Holders thereof will not receive a distribution under the
Plan in respect of such Interests.
(c) Voting: Class P6 is Impaired and is conclusively deemed to reject
the Plan. Holders of Class P6 Equity Interests are not entitled to vote to
accept or reject the Plan.
C. Classification and Treatment of Claims and Equity Interests: Subsidiary
Debtors
1. Class S1--Other Priority Claims
(a) Classification: Class S1 consists of all Other Priority Claims
against the respective Subsidiary Debtors.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Allowed Class S1 Claims are unaltered by the Plan. Unless
otherwise agreed to by the Holders of the Allowed Other
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Priority Claim and the respective Subsidiary Debtor, each Holder of an
Allowed Class S1 Claim shall receive, in full and final satisfaction of
such Allowed Class S1 Claim, one of the following treatments, in the sole
discretion of the applicable Subsidiary Debtor:
(i) The applicable Reorganized Debtor will pay the Allowed Class
S1 Claim in full in Cash on the Effective Date or as soon thereafter
as is practicable; provided that, Class S1 Claims representing
obligations incurred in the ordinary course of business will be paid
in full in Cash when such Class S1 Claims become due and owing in the
ordinary course of business; or
(ii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class S1 is Unimpaired and the Holders of Class S1 Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
S1 are not entitled to vote to accept or reject the Plan.
2. Class S2--Other Secured Claims
(a) Classification: Class S2 consists of all Other Secured Claims
against the respective Subsidiary Debtors.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Class S2 Claims are unaltered by the Plan. Unless otherwise
agreed to by the Holder of the Allowed Class S2 Claim and the applicable
Subsidiary Debtor, each Holder of an Allowed Class 2B Claim shall receive,
in full and final satisfaction of such Allowed Class 2B Claim, one of the
following treatments, in the sole discretion of the applicable Subsidiary
Debtor:
(i) the legal, equitable and contractual rights to which such
Claim entitles the Holder thereof shall be unaltered by the Plan;
(ii) the applicable Reorganized Debtor shall surrender all
collateral securing such Claim to the Holder thereof, without
representation or warranty by or further recourse against the
applicable Debtor or Reorganized Debtor; or
(iii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class S2 is Unimpaired and the Holders of Class S2 Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
S2 are not entitled to vote to accept or reject the Plan.
3. Class S3--Prepetition Credit Facility Claims
(a) Classification: Class S3 consists of all Prepetition Credit
Facility Claims against the respective Subsidiary Debtors.
(b) Treatment: Class S3 Claims shall be Allowed Claims in the
aggregate amount of $729,345,426.14. On account of their Class S3 Claims,
the Holders thereof will receive the treatment set forth for Class P3 in
Article III.B.3 above.
(c) Voting: Class S3 is Impaired and Holders of Class S3 Claims are
entitled to vote to accept or reject the Plan.
4. Class S4--General Unsecured Claims
(a) Classification: Class S4 consists of all General Unsecured Claims
against the respective Subsidiary Debtors.
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(b) Treatment: On or as soon as practicable after the Effective Date,
each Allowed Class S4 Claim will be cancelled and Holders of Allowed Class
S4 Claims will receive no distribution on account thereof.
(c) Voting: Class S4 is Impaired and is conclusively deemed to reject
the Plan. Holders of Class S4 Claims are not entitled to vote to accept or
reject the Plan.
5. Class S5--Equity Interests
(a) Classification: Class S5 consists of all Equity Interest in the
respective Subsidiary Debtors.
(b) Treatment: On or as soon as practicable after the Effective Date,
each Allowed Class S5 Equity Interest will be cancelled.
(c) Voting: Class S5 is Impaired and is conclusively deemed to reject
the Plan. Holders of Class S5 Interests are not entitled to vote to accept
or reject the Plan.
D. Special Provision Governing Unimpaired Claims
Except as otherwise provided in the Plan, nothing under the Plan shall
affect the Debtors' or the Reorganized Debtors' rights in respect of any
Unimpaired Claims, including, but not limited to, all rights in respect of legal
and equitable defenses to or setoffs or recoupments against such Unimpaired
Claims.
ARTICLE IV.
ACCEPTANCE OR REJECTION OF THE PLAN
A. Voting Classes
Each Holder of an Allowed Claim in Classes P3, P4, and S3 shall be entitled
to vote to accept or reject the Plan.
B. Acceptance by Impaired Classes
An Impaired Class of Claims shall have accepted the Plan if (a) the Holders
(other than any Holder designated under section 1126(e) of the Bankruptcy Code)
of at least two-thirds in amount of the Allowed Claims actually voting in such
Class have voted to accept the Plan and (b) the Holders (other than any Holder
designated under section 1126(e) of the Bankruptcy Code) of more than one-half
in number of the Allowed Claims actually voting in such Class have voted to
accept the Plan.
C. Presumed Acceptance of Plan
Classes P1, P2, S1 and S2 are Unimpaired under the Plan, and, therefore,
are presumed to have accepted the Plan pursuant to section 1126(f) of the
Bankruptcy Code.
D. Presumed Rejection of Plan
Classes P5, P6, S4 and S5 are impaired and shall receive no distributions,
and, therefore, are presumed to have rejected the Plan pursuant to section
1126(g) of the Bankruptcy Code.
E. Non-Consensual Confirmation
The Debtors reserve the right to seek Confirmation of the Plan under
section 1129(b) of the Bankruptcy Code, to the extent applicable, in view of the
deemed rejection by Classes P5, P6, S4 and S5. In the event that Class P3, P4,
and/or S3 fails to accept the Plan in accordance with section 1129(a)(8) of the
Bankruptcy Code, the Debtors reserve the right (a) to request that the
Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code and/or (b) to modify the Plan in accordance with Article XII.D
hereof.
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ARTICLE V.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Restructuring
Prior to the Confirmation Date, (i) Exide will form a new Dutch company
("Exide CV"), (ii) Exide will then transfer the shares of two existing foreign
subsidiaries, Exide Holding Asia PTE Limited ("Exide Holding Asia") and Exide
Holding Europe S.A. ("Exide Holding Europe"), to Exide CV, (iii) Exide CV will
then form another new Dutch company ("Exide BV") and transfer its newly-acquired
shares of Exide Holding Europe and Exide Holding Asia to Exide BV in exchange
for equity and debt and (iv) Exide Holding Europe will be converted from a
French S.A. to a French S.A.R.L.
After the Confirmation Date and prior to the Effective Date, (i) Holders of
Prepetition Foreign Secured Claims who choose the Class P3 Election A shall
receive, in exchange for and in full and final satisfaction of their Prepetition
Foreign Secured Claims, an Exchange Note with a principal amount equal to the
fair market value of the product of (x) such Holder's Prepetition Foreign
Secured Claims divided by the sum of such Holder's Prepetition Foreign Secured
Claims plus such Holder's Prepetition Domestic Secured Claims and (y) such
Holder's Pro Rata share of the New Exide Preferred Stock remaining after
distributions, if any, pursuant to the Class P3 Election B and (ii) Exide may
transfer such Prepetition Foreign Secured Claims to one or more subsidiaries,
including Exide Holding Europe.
After the Confirmation Date and on or prior to the Effective Date, (i) the
Holders of Prepetition Credit Facility Claims, or a nominee on behalf of them,
will form New Exide with nominal capitalization, (ii) New Exide will form two
wholly-owned subsidiaries, both Delaware corporations, (iii) such new
subsidiaries together will form another new Delaware corporation that will be
owned 50% by each of them ("Exide Holding III") and (iv) such new Delaware
corporation will form another new Delaware corporation ("Exide Operating").
On the Effective Date, (i) New Exide will make a capital contribution of
shares of New Exide Preferred Stock and New Exide Common Stock to the two
wholly-owned subsidiaries described in the preceding paragraph, which shares
will then be contributed to the other newly-formed Delaware corporations until
such shares are held in part by Exide Holding III and by Exide Operating, (ii)
Exide Holding III and Exide Operating will transfer the New Exide Preferred
Stock and New Exide Common Stock to Exide, (iii) the New Exide Preferred Stock
and New Exide Common Stock shall be distributed by Exide to Creditors in
accordance with Article III hereof, (iv) Exide will transfer substantially all
of its owned real property to Exide Holding III, and (v) Exide will merge with
and into Exide Operating (the "Merger").
B. Continued Corporate Existence and Vesting of Assets in the Reorganized
Debtors
The Reorganized Debtors shall continue to exist after the Effective Date as
separate corporate entities, with all the powers of a corporation under the laws
of their respective states of incorporation and without prejudice to any right
to alter or terminate such existence (whether by merger or otherwise) under such
applicable state law. Except as otherwise provided in the Plan, on and after the
Effective Date, all property of the Debtors' Estates, and any property acquired
by the Debtors or Reorganized Debtors under the Plan, shall vest in the
respective Reorganized Debtors, free and clear of all Claims, liens, charges, or
other encumbrances. On and after the Effective Date, the Reorganized Debtors may
operate their business and may use, acquire or dispose of property and
compromise or settle any Claims or Equity Interests, without supervision or
approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy
Code or Bankruptcy Rules, other than those restrictions expressly imposed by the
Plan and the Confirmation Order.
C. Cancellation of Old Notes and Equity Interests
On the Effective Date and prior to the Merger, except to the extent
otherwise provided herein, all notes, instruments, certificates, and other
documents evidencing (a) the Old Notes, (b) Equity Interests, and (c) any stock
options, warrants or other rights to purchase Equity Interests shall be canceled
and the obligations of the Debtors thereunder or in any way related thereto
shall be discharged. On the Effective Date and prior to the Merger, except to
the extent otherwise provided herein, any indenture relating to any of the
foregoing shall be deemed to be
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canceled, as permitted by section 1123(a)(5)(F) of the Bankruptcy Code, and the
obligations of the Debtors thereunder shall be discharged.
D. Source and Timing for Effective Date Plan Distributions and Discharge
All distributions under the Plan which are to be made by the Debtors as of
the Effective Date shall be deemed to have been made by the Debtors immediately
prior to the Merger. All Claims that are discharged as of the Effective Date
shall be deemed to have been discharged immediately prior to the Merger, and
Exide Operating shall not succeed to any liability with respect to any such
Claims or the distributions (if any) provided for such Claims under the Plan.
E. Issuance of New Securities; Execution of Related Documents
New Exide shall issue all securities, notes, instruments, certificates, and
other documents required to be issued pursuant hereto, including, without
limitation, the New Exide Preferred Stock and New Exide Common Stock, each of
which shall be distributed as provided herein. New Exide and its subsidiaries
shall execute and deliver such other agreements, documents and instruments,
including the New Exide Shareholder Agreement and the Amended Prepetition
Foreign Credit Agreement, as are required to be executed pursuant to the terms
hereof.
F. Issuance of Stock of Reorganized Subsidiary Debtors to Reorganized Exide
On or immediately after the Effective Date, the common stock of the
Reorganized Subsidiary Debtors shall be issued to Reorganized Exide.
G. Corporate Governance, Directors and Officers, and Corporate Action
1. New Certificate of Incorporation and By-laws
On the Effective Date, the Reorganized Debtors will file the New
Organizational Documents with the Secretary of State for the relevant state of
incorporation or formation. The New By-laws will prohibit the issuance of
non-voting securities pursuant to section 1123(a)(6) of the bankruptcy code.
After the Confirmation Date and on or before the Effective Date, the Holders of
Prepetition Credit Facility Claims, or a nominee on behalf of them, will file
the New Exide Certificate of Incorporation with the Secretary of State of
Delaware. The New Exide Certificate of Incorporation will, among other things,
(a) authorize the issuance and terms of the New Exide Preferred Stock, and (b)
authorize the issuance and terms of the New Exide Common Stock.
2. Directors and Officers of New Exide
Subject to any requirement of Bankruptcy Court approval pursuant to section
1129(a)(5) of the Bankruptcy Code, as of the Effective Date, the officers of
Exide immediately prior to the Effective Date will be the officers of New Exide.
Pursuant to section 1129(a)(5), Exide will disclose, on or prior to the
Confirmation Date, the identity and affiliations of any Person proposed to serve
on the initial board of directors of New Exide. To the extent any such Person is
an "Insider" under the Bankruptcy Code, the nature of any compensation for such
Person will also be disclosed. Each such director and officer shall serve from
and after the Effective Date pursuant to the terms of the New Exide Certificate
of Incorporation, the New By-laws and the Delaware General Corporation Law. New
Exide will initially have a newly-appointed seven person board of directors, as
described in the New Exide Shareholder Agreement Term Sheet.
3. Corporate Action
On the Effective Date, the adoption and filing of the New Exide Certificate
of Incorporation and New Organizational Documents, the approval of the New Exide
By-laws and the New By-laws, the appointment of directors and officers for New
Exide, the adoption of the Company Incentive Plan, the restructuring
transactions contemplated by Article V.A hereof, and all actions contemplated
hereby shall be authorized and approved by the Bankruptcy Court in all respects
(subject to the provisions hereof). All matters provided for herein involving
the corporate structure of the Debtors or Reorganized Debtors, and any corporate
action required by the Debtors or Reorganized Debtors in connection with the
Plan, shall be deemed to have occurred and shall be in effect, without any
requirement of further action by the security holders or directors of the
Debtors or Reorganized Debtors. On the
-19-
Effective Date, the appropriate officers of the Reorganized Debtors and members
of the board of directors of the Reorganized Debtors are authorized and directed
to issue, execute and deliver the agreements, documents, securities and
instruments contemplated by the Plan in the name of and on behalf of the
Reorganized Debtors.
H. Dismissal of Creditors Committee Adversary Proceeding and other Plan
Settlements
Pursuant to Bankruptcy Rule 9019, and in consideration for the
classification, distribution, releases and other benefits provided under the
Plan, including without limitation the distributions to be made to Holders of
General Unsecured Claims pursuant to Articles III.B.4 of the Plan, the
provisions of this Plan shall constitute a good faith compromise and settlement
of all Claims and controversies resolved pursuant to the Plan including, without
limitation, (a) the releases set forth in Articles X.B, X.C and X.D hereof, and
(b) the Creditors Committee/R2 Adversary Proceeding which shall be deemed
settled pursuant to section 1123(b)(3)(A) of the Bankruptcy Code. The entry of
the Confirmation Order shall constitute the Bankruptcy Court's approval of each
of the foregoing compromises or settlements, and all other compromises and
settlements provided for in the Plan, including the releases, and the Bankruptcy
Court's findings shall constitute its determination that such compromises,
settlements and releases are in the best interests of the Debtors, the estates,
the creditors and other parties in interest, and are fair, equitable and within
the range of reasonableness. In addition to the general injunction set forth in
Article X.H hereof, from and after the Effective Date, the Creditors Committee,
R2 Investments, LDC and each Holder of General Unsecured Claims and 2.9%
Convertible Note Claims shall be permanently enjoined from continuing in any
manner the Creditors Committee/R2 Adversary Proceeding.
I. Sources of Cash for Plan Distribution
All Cash necessary for Reorganized Debtors to make payments pursuant hereto
shall be obtained from existing Cash balances, if any, and proceeds of the Exit
Facility.
J. Private Company Status
Neither New Exide nor Reorganized Exide, upon the Effective Date, shall be
a reporting company under the Securities Exchange Act.
K. Payment of Agent Expenses
On the Effective Date or as soon as practicable thereafter, the Debtors
shall pay all unpaid Agent Expenses for the period up to and including the
Effective Date. Thereafter, Reorganized Exide shall timely pay all reasonable
Agent Expenses incurred after the Effective Date.
L. Adoption of Company Incentive Plan
On or shortly after the Effective Date, New Exide will adopt the Company
Incentive Plan. The Company Incentive Plan will provide that covered employees
will receive or have the right to receive securities representing from 5% to 10%
of the fully-diluted shares of New Exide Common Stock.
ARTICLE VI.
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. Assumption of Executory Contracts and Unexpired Leases
Immediately prior to the Effective Date, except as otherwise provided
herein, all executory contracts or unexpired leases of the Debtors, including,
without limitation, customer program agreements, vendor agreements and warranty
obligations, will be deemed assumed in accordance with the provisions and
requirements of sections 365 and 1123 of the Bankruptcy Code except those
executory contracts and unexpired leases that (1) have been rejected by order of
the Bankruptcy Court, (2) are the subject of a motion to reject pending on the
Effective Date, (3) are identified on a list to be included in the Plan
Supplement, (4) that relate to the purchase or other acquisition of Equity
Interests, or (5) are rejected pursuant to the terms hereof.
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Immediately prior to the Effective Date, except as otherwise provided in
this section, all Purported Leases shall be deemed assumed on a conditional
basis pending the entry of a final, non-appealable order resolving the
Recharacterization Adversary Proceeding in accordance with the provisions and
requirements of sections 365 and 1123 of the Bankruptcy Code except those
Purported Leases that (1) have been rejected on a conditional basis pending the
entry of a final, non-appealable order resolving the Recharacterization
Adversary Proceeding by order of the Bankruptcy Court, (2) are the subject of a
motion to reject on a conditional basis pending the entry of a final,
non-appealable order resolving the Recharacterization Adversary Proceeding
pending on the Effective Date, or (3) are identified on a list to be included in
the Plan Supplement. To the extent that a final, non-appealable order is entered
in the Recharacterization Adversary Proceeding providing that a Purported Lease
is a "true lease," the conditional assumption or rejection of such Purported
Lease, whichever is applicable, shall become final and such Purported Lessor
shall be entitled to the treatment provided for other lessors and non-debtor
parties to executory contracts. To the extent that a final, non-appealable order
is entered in the Recharacterization Adversary Proceeding providing that a
Purported Lease is a secured financing transaction, such Purported Lessor shall
be entitled to a Class P2-Other Secured Claim to the extent of the value of the
equipment subject to the Purported Lease under section 506 of the Bankruptcy
Code if such Purported Lessor qualifies as a secured creditor under applicable
non-bankruptcy law and a P4-General Unsecured Claim for any amounts owed by the
Debtors greater than the value of the equipment or for the entire amount of such
allowed claim if the Purported Lessor does not qualify as a secured creditor
under applicable non-bankruptcy law. With respect to any Purported Lease as to
which the Debtors retain possession of the underlying equipment, from the
Confirmation Date through the date of entry of a dispositive final,
non-appealable order in the Recharacterization Adversary Proceeding with respect
to such Purported Lease or by other agreement between the parties, the Debtors
and the Purported Lessors shall continue to perform their obligations under the
Purported Leases in accordance with each such Purported Lease's terms; provided
however, that with respect to any Purported Lease that is conditionally assumed
as of the Confirmation Date, the Debtors shall not be required to make any cure
payment within the meaning of section 365 of the Bankruptcy Code until the entry
of a final, non-appealable order in the Recharacterization Adversary Proceeding
determining that such Purported Lease is a "true lease." In the event that the
Debtors conditionally assume a Purported Lease and a final, non-appealable order
is entered in the Recharacterization Adversary Proceeding determining that such
Purported Lease is a "true lease," the Debtors shall provide such Purported
Lessor with a notice setting forth the proposed cure amount within 30 days of
the entry of such order. If the Purported Lessor does not agree with the
Debtors' proposed cure amount, such Purported Lessor may submit an alternative
cure amount within 30 days of receipt of the Debtors' notice. If the parties are
unable to agree on a cure amount, a hearing shall be set before the Bankruptcy
Court to determine the cure amount. Any bar date relating to Administrative
Claims established in the Plan or otherwise shall not apply to Administrative
Claims alleged by the Purported Lessors relating to the Purported Leases.
Rather, upon the motion of the Debtors or the Purported Lessors, the Bankruptcy
Court shall establish a bar date and related notice and filing procedures, in
the Recharacterization Adversary Proceeding, for Administrative Claims alleged
by the Purported Lessors relating to the Purported Leases.
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases
All proofs of Claims with respect to Claims arising from the rejection of
executory contracts or unexpired leases, if any, must be Filed with the
Bankruptcy Court according to the deadlines established by the Bankruptcy Court
in the Chapter 11 Cases. Any Claims arising from the rejection of an executory
contract or unexpired lease not Filed within such time will be forever barred
from assertion against the Debtors or Reorganized Debtors, their Estates and
property unless otherwise ordered by the Bankruptcy Court or provided herein.
C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed
Any monetary amounts by which each executory contract and unexpired lease
to be assumed pursuant to the Plan is in default shall be satisfied, pursuant to
section 365(b)(1) of the Bankruptcy Code, by payment of the default amount in
Cash on the Effective Date or on such other terms as the parties to such
executory contracts or unexpired leases may otherwise agree. In the event of a
dispute regarding: (1) the amount of any cure payments, (2) the ability of a
Reorganized Debtor or any assignee to provide "adequate assurance of future
performance" (within the meaning of section 365 of the Bankruptcy Code) under
the contract or lease to be assumed, or (3) any other matter pertaining to
assumption, the cure payments required by section 365(b)(1) of the Bankruptcy
Code shall be made following the entry of a Final Order resolving the dispute
and approving the assumption.
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D. Indemnification of Directors, Officers and Employees
The obligations of the Debtors to indemnify any Person serving at any time
after the Initial Petition Date as one of their directors, officers or employees
by reason of such Person's service in such capacity, or as a director, officer
or employee of any other corporation or legal entity, to the extent provided in
the Debtors' constituent documents, by a written agreement with a Debtor or
under applicable state corporate law, shall be deemed and treated as executory
contracts that are assumed by the Reorganized Debtors pursuant hereto and
pursuant to section 365 of the Bankruptcy Code as of the Effective Date.
Accordingly, such indemnification obligations shall be treated as Administrative
Claims, and shall survive unimpaired and unaffected by entry of the Confirmation
Order, irrespective of whether such indemnification is owed for an act or event
occurring before or after the Petition Date. Notwithstanding anything to the
contrary contained herein, such assumed indemnity obligations shall not be
discharged, Impaired, or otherwise modified by confirmation of this Plan and
shall be deemed and treated as executory contracts that have been assumed by the
relevant Debtors pursuant to this Plan as to which no proofs of claim need be
Filed.
E. Compensation and Benefit Programs
Except as otherwise expressly provided herein, all employment and severance
agreements and policies, and all compensation and benefit plans, policies, and
programs of the Debtors applicable to their employees, former employees,
retirees and non-employee directors and the employees, former employees and
retirees of its subsidiaries, including, without limitation, all savings plans,
retirement plans, health care plans, disability plans, severance benefit
agreements and plans, incentive plans, deferred compensation plans and life,
accidental death and dismemberment insurance plans shall be treated as executory
contracts under the Plan and on the Effective Date shall be deemed assumed
pursuant to the provisions of sections 365 and 1123 of the Bankruptcy Code; and
the Debtors' obligations under such programs to such Persons shall survive
confirmation of this Plan, except for (1) executory contracts or employee
benefit plans specifically rejected pursuant to this Plan (to the extent such
rejection does not violate sections 1114 and 1129(a)(13) of the Bankruptcy
Code), (2) all employee equity or equity-based incentive plans, and (3) such
executory contracts or employee benefit plans as have previously been rejected,
are the subject of a motion to reject as of the Effective Date, or have been
specifically waived by the beneficiaries of any employee benefit plan or
contract; provided however, that the Debtors' obligations, if any, to pay all
"retiree benefits" as defined in section 1114(a) of the Bankruptcy Code shall
continue.
ARTICLE VII.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims Allowed as of the Effective Date
Except as otherwise provided herein or as may be ordered by the Bankruptcy
Court, distributions to be made on account of Claims that are allowed as of the
Effective Date and are entitled to receive distributions under the Plan shall be
made on the Effective Date, or as soon as practicable thereafter.
For purposes of determining the accrual of interest or rights in respect of
any other payment from and after the Effective Date, the New Exide Preferred
Stock and New Exide Common Stock to be issued under the Plan shall be deemed
issued as of the Effective Date regardless of the date on which the certificates
evidencing such shares are actually dated or distributed; provided that
Reorganized Exide shall withhold any actual payment until such distribution is
made and no interest shall accrue or otherwise be payable on any such withheld
amounts.
B. Delivery and Distributions and Undeliverable or Unclaimed Distributions
1. Delivery of Distributions in General
Distributions to Holders of Allowed Claims shall be made to the Holders of
such allowed Claims as of the Distribution Record Date. Except as otherwise
provided herein, distributions to Holders of Allowed Claims shall be made at the
address of the Holder of such Claim as indicated on the records of the
Reorganized Debtors as of the date that such distribution is made.
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2. Undeliverable Distributions
(a) Holding of Undeliverable Distributions. If any distribution to a
Holder of an Allowed Claim is returned to a Reorganized Debtor as
undeliverable, no further distributions shall be made to such Holder unless
and until such Reorganized Debtor is notified in writing of such Holder's
then-current address. Undeliverable distributions shall remain in the
possession of the relevant Reorganized Debtor subject to section (b) below
until such time as a distribution becomes deliverable. Undeliverable Cash
shall not be entitled to any interest, dividends or other accruals of any
kind. As soon as reasonably practicable, the Reorganized Debtors shall make
all distributions that become deliverable.
(b) Failure to Claim Undeliverable Distributions. In an effort to
ensure that all Holders of valid Allowed Claims receive their allocated
distributions, sixty (60) days after the Effective Date, the Reorganized
Debtors will File with the Bankruptcy Court a listing of unclaimed
distribution holders. This list will be maintained for as long as the
Chapter 11 Cases are pending. Any Holder of an Allowed Claim, irrespective
of when a Claim became an Allowed Claim, that does not assert a Claim
pursuant hereto for an undeliverable distribution (regardless of when not
deliverable) within one year after the Effective Date shall have its Claim
for such undeliverable distribution discharged and shall be forever barred
from asserting any such Claim against any Reorganized Debtor or its
property. In such cases: (i) any Cash held for distribution on account of
such Claims shall be property of the relevant Reorganized Debtor, free of
any restrictions thereon; and (ii) any New Exide Preferred Stock or New
Exide Common Stock held for distribution on account of such Claims shall be
canceled and of no further force or effect. Nothing contained herein shall
require the Reorganized Debtors to attempt to locate any Holder of an
Allowed Claim.
3. Compliance with Tax Requirements/Allocations. In connection with the
Plan, to the extent applicable, the Reorganized Debtors shall comply with all
tax withholding and reporting requirements imposed on them by any governmental
unit, and all distributions pursuant hereto shall be subject to such withholding
and reporting requirements. For tax purposes, distributions received in respect
of Allowed Claims will be allocated first to unpaid interest that accrued on
such Claims with any excess allocated to the principal amount of Allowed Claims.
C. Timing and Calculation of Amounts to be Distributed
On the Effective Date or as soon as practicable thereafter, each Holder of
an Allowed Claim against a Reorganized Debtor shall receive the full amount of
the distributions that the Plan provides for Allowed Claims in the applicable
Class. If and to the extent that there are Disputed Claims, beginning on the
date that is 20 calendar days after the end of the calendar quarter following
the Effective Date and 20 calendar days after the end of each calendar quarter
thereafter, distributions shall also be made, pursuant hereto, to Holders of
Disputed Claims in any Class whose Claims were allowed during the previous
calendar quarter. Such quarterly distributions shall also be in the full amount
that the Plan provides for Allowed Claims in the applicable Class.
D. Minimum Distribution
Any other provision of the Plan notwithstanding, payments of fractions of
shares of New Exide Preferred Stock or fractions of shares of New Exide Common
Stock will not be made and will be deemed to be zero. Any other provision of the
Plan notwithstanding, the Reorganized Debtors will not be required to make
distributions or payments of fractions of dollars. Whenever any payment of a
fraction of a dollar under the Plan would otherwise be called for, the actual
payment will reflect a rounding of such fraction to the nearest whole dollar (up
or down), with half dollars or less being rounded down.
E. Setoffs
The Reorganized Debtors may, pursuant to section 553 of the Bankruptcy Code
or applicable non-bankruptcy law, set off against any Allowed Claim and the
distributions to be made pursuant hereto on account of such Claim (before any
distribution is made on account of such Claim), the Claims, Equity Interests,
rights and causes of action of any nature that Exide or Reorganized Exide may
hold against the Holder of such Allowed Claim; provided that neither the failure
to effect such a setoff nor the allowance of any Claim hereunder shall
constitute a waiver or release by the Debtors or Reorganized Debtors of any such
Claims, Equity Interests, rights and causes of
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action that the Debtors or Reorganized Debtors may possess against such Holder,
except as specifically provided herein.
F. Surrender of Canceled Instruments or Securities
Subject to Subsection H below, each record Holder of a Claim based on or
derived from the 10% Senior Notes, as a condition precedent to receiving any
distribution on account of such Claims, shall surrender the certificates or
other documentation underlying such Claim, and all such surrendered certificates
and other documentations shall be marked as canceled.
G. Failure to Surrender Canceled Instruments
Any Holder of Allowed Claims relating to the 10% Senior Notes that fails to
surrender or is deemed to have failed to surrender its security shall have its
claim for a distribution pursuant hereto on account of such Allowed Claim
discharged and shall be forever barred from asserting any such Claim against
Reorganized Exide or its properties. In such cases, any New Exide Common Stock
held for distribution on account of such Claim shall be disposed of pursuant to
the provisions set forth in Subsection B above.
H. Lost, Stolen, Mutilated or Destroyed Debt Securities
Any Holder of a Claim relating to the 10% Senior Notes that is evidenced by
a note or by a certificate that has been lost, stolen, mutilated or destroyed
shall, in lieu of surrendering such note or underlying documentation, deliver to
Reorganized Exide: (1) an affidavit of loss reasonably satisfactory to
Reorganized Exide setting forth the unavailability of the note; and (2) such
additional indemnity as may reasonably be required by Reorganized Exide to hold
the Reorganized Debtors harmless from any damages, liabilities or costs incurred
in treating such individual as a Holder of an Allowed Claim. Upon compliance
with this procedure by a Holder of an Allowed Claim evidenced by such a lost,
stolen, mutilated or destroyed note or underlying documentation, such Holder
shall, for all purposes under the Plan, be deemed to have surrendered such note.
ARTICLE VIII.
PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT
AND UNLIQUIDATED CLAIMS OR EQUITY INTERESTS
A. Resolution of Disputed Claims
1. Prosecution of Objections to Claims
After the Effective Date the Reorganized Debtors shall have the authority
on or before the Claims Objection Bar Date to File objections, settle,
compromise, withdraw or litigate to judgment objections to Claims. From and
after the Effective Date, the Reorganized Debtors may settle or compromise any
Disputed Claim without approval of the Bankruptcy Court. The Debtors also
reserve the right to resolve any Disputed Claim outside the Bankruptcy Court
under applicable governing law. The Debtors reserve the right to seek an
extension of the Claims Objection Bar Date.
2. Estimation of Claims
The Debtors or Reorganized Debtors may, at any time, request that the
Bankruptcy Court estimate any contingent or unliquidated Claim pursuant to
section 502(c) of the Bankruptcy Code regardless of whether a Debtor or
Reorganized Debtor has previously objected to such Claim or whether the
Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court will
retain jurisdiction to estimate any Claim at any time during litigation
concerning any objection to any Claim, including during the pendency of any
appeal relating to any such objection. In the event that the Bankruptcy Court
estimates any contingent or unliquidated Claim, that estimated amount will
constitute either the Allowed amount of such Claim or a maximum limitation on
such Claim, as determined by the Bankruptcy Court. If the estimated amount
constitutes a maximum limitation on such Claim, the Debtors or Reorganized
Debtors may elect to pursue any supplemental proceedings to object to any
ultimate payment on such Claim. All of the aforementioned Claims and objection,
estimation and resolution procedures are cumulative and
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not necessarily exclusive of one another. Claims may be estimated and
subsequently compromised, settled, withdrawn or resolved by any mechanism
approved by the Bankruptcy Court.
3. PITWD Claims
Notwithstanding anything herein to the contrary, all objections,
settlements and litigation with respect to PITWD Claims, and the allowance and
payment of PITWD Claims shall be governed by the PITWD Claims Procedures,
attached hereto as Exhibit D.
4. Payments and Distributions on Disputed Claims
Notwithstanding any provision herein to the contrary, except as otherwise
agreed by Reorganized Exide in its sole discretion, no partial payments and no
partial distributions will be made with respect to a Disputed Claim until the
resolution of such disputes by settlement or Final Order. On the date or, if
such date is not a business day, on the next successive business day that is 20
calendar days after the calendar quarter in which a Disputed Claim becomes an
Allowed Claim, the Holder of such Allowed Claim will receive all payments and
distributions to which such Holder is then entitled under the Plan.
Notwithstanding the foregoing, any Person or Entity who holds both an Allowed
Claim(s) and a Disputed Claim(s) will not receive payment or distribution on the
Allowed Claim(s) (or Allowed Equity Interest(s)), except as otherwise agreed by
Reorganized Exide in its sole discretion, until the Disputed Claim(s) is
resolved by settlement or Final Order. In the event there are Disputed Claims
requiring adjudication and resolution, Exide reserves the right, or upon order
of the Court, to establish appropriate reserves for potential payment of such
Claims.
B. Allowance of Claims
Except as expressly provided herein or in any order entered in the Chapter
11 Cases prior to the Effective Date (including the Confirmation Order), no
Claim shall be deemed Allowed, unless and until such Claim is deemed Allowed
under the Bankruptcy Code or the Bankruptcy Court enters a Final Order in the
Chapter 11 Cases allowing such Claim. Except as expressly provided in the Plan
or any order entered in the Chapter 11 Cases prior to the Effective Date
(including the Confirmation Order), Reorganized Exide after Confirmation will
have and retain any and all rights and defenses Exide had with respect to any
Claim as of the Initial Petition Date. All Claims of any Person or Entity that
owes money to a Debtor shall be disallowed unless and until such Person or
Entity pays in full the amount it owes such Debtor, or Reorganized Debtor, as
the case may be.
C. Controversy Concerning Impairment
If a controversy arises as to whether any Claims or any Class of Claims are
Impaired under the Plan, the Bankruptcy Court shall, after notice and a hearing,
determine such controversy before the Confirmation Date.
ARTICLE IX.
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
A. Condition Precedent to Confirmation
It shall be a condition to Confirmation of the Plan that the following
conditions have been satisfied or waived pursuant to the provisions of Article
IX.C. hereof:
1. All provisions, terms and conditions of the Plan shall have been
approved in the Confirmation Order.
2. The Confirmation Order shall approve the dismissal of the Creditors
Committee Adversary Proceeding and other plan settlements, including releases,
as described in Article V.G and Article X hereof.
3. The identities of the individuals proposed to serve on the New Exide
Board of Directors shall have been designated according to the New Exide
Shareholder Agreement, and disclosed to the Bankruptcy Court.
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B. Conditions Precedent to Consummation
It shall be a condition to Consummation of the Plan that the following
conditions shall have been satisfied or waived pursuant to the provisions of
Article IX.C hereof:
1. The Confirmation Order confirming the Plan, as the Plan may have been
modified, shall have been entered and become a Final Order in form and substance
reasonably satisfactory to the Debtors and shall provide that:
(a) the Debtors and Reorganized Debtors are authorized and directed to
take all actions necessary or appropriate to enter into, implement and
consummate the contracts, instruments, releases, leases, indentures and
other agreements or documents created in connection with the Plan;
(b) the provisions of the Confirmation Order are nonseverable and
mutually dependent;
(c) New Exide is authorized to issue the New Exide Preferred Stock and
New Exide Common Stock; and
(d) the New Exide Preferred Stock and New Exide Common Stock issued
under the Plan in exchange for Claims against Exide are exempt from
registration under the Securities Act of 1933 pursuant to section 1145 of
the Bankruptcy Code, except to the extent that Holders of the New Exide
Preferred Stock and/or New Exide Common Stock are "underwriters," as that
term is defined in section 1145 of the Bankruptcy Code.
2. The following agreements and documents, in form and substance
satisfactory to the Debtors and the Agent shall have been tendered for delivery
and all conditions precedent thereto, if any, shall have been satisfied:
(a) the New Organizational Documents and New By-laws;
(b) the agreement for the Exit Facility and all documents provide for
therein or contemplated thereby;
(c) the Amended Prepetition Foreign Credit Agreement;
(d) the New Exide Shareholder Agreement; and
(e) the Registration Rights Agreement, if any.
3. All actions, documents and agreements necessary to implement the Plan
shall have been effected or executed.
4. The New Exide Board of Directors shall have been appointed.
5. Neither New Exide nor Reorganized Exide, upon the Effective Date and the
occurrence of the transactions contemplated by the Plan, shall be subject to the
reporting requirements under the Securities Exchange Act, and Reorganized Exide
shall have filed a certification on Form 15 certifying that Reorganized Exide
has less than 300 record holders of any class of security and is not otherwise
subject to the reporting requirements of section 15(d) of the Securities
Exchange Act.
6. Holders of no more than $17.5 million of Prepetition Foreign Secured
Claims shall have elected the Class P3 Election B, pursuant to Article III.B.3
hereof.
C. Waiver of Conditions
The Debtors, in their sole discretion may waive any of the conditions to
Confirmation of the Plan and/or to Consummation of the Plan set forth in this
Article IX at any time, without notice, without leave or order of the Bankruptcy
Court, and without any formal action other than proceeding to confirm and/or
consummate the Plan,
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provided that the Debtors may only waive the conditions in this Article IX with
the written consent of the Agent, which consent shall not be unreasonably
withheld, delayed or denied.
D. Effect of Non-occurrence of Conditions to Consummation
If the Consummation of the Plan does not occur, the Plan shall be null and
void in all respects and nothing contained in the Plan or the Disclosure
Statement shall: (1) constitute a waiver or release of any Claims by or against,
or any Equity Interests in, the Debtors; (2) prejudice in any manner the rights
of the Debtors; or (3) constitute an admission, acknowledgment, offer or
undertaking by the Debtors in any respect.
ARTICLE X.
RELEASE, INJUNCTIVE AND RELATED PROVISIONS
A. Subordination
The classification and manner of satisfying all Claims and Equity Interests
and the respective distributions and treatments hereunder take into account
and/or conform to the relative priority and rights of the Claims and Equity
Interests in each Class in connection with any contractual, legal and equitable
subordination rights relating thereto whether arising under general principles
of equitable subordination, section 510(b) of the Bankruptcy Code or otherwise,
and any and all such rights are settled, compromised and released pursuant
hereto. The Confirmation Order shall permanently enjoin, effective as of the
Effective Date, all Persons and Entities from enforcing or attempting to enforce
any such contractual, legal and equitable subordination rights satisfied,
compromised and settled in this manner.
B. Releases by the Debtors
Except as otherwise specifically provided herein, for good and valuable
consideration, including the service of the Releasees to facilitate the
expeditious reorganization of Exide, the implementation of the restructuring
contemplated by the Plan, and the obligations and undertakings of Option A
Electors set forth in the Plan, the Releasees, on and after the Effective Date,
shall be deemed released by the Debtors and Reorganized Debtors from any and all
Claims, obligations, rights, suits, damages, causes of action, remedies and
liabilities whatsoever, whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, that a Debtor or its
Affiliates would have been legally entitled to assert in their own right
(whether individually or collectively) or on behalf of the Holder of any Claim
or Equity Interest or other Person or Entity, based in whole or in part upon any
act or omission, transaction, agreement, event or other occurrence taking place
on or before the Effective Date, including, without limitation, claims related
to or arising from (a) the Prepetition Credit Facility, including but not
limited to the negotiation, formulation, preparation, administration, execution,
and enforcement thereof, and any payments received by the lenders thereunder,
(b) any guaranty arising under the Prepetition Credit Facility, (c) any liens,
pledges, or collateral of any kind and (d) any of the other loan documents
referred to in the Prepetition Credit Facility or any other documents
contemplated thereby or therein or the transactions contemplated thereby or
therein or any action taken or omitted to be taken by the Agent under or in
connection with any of the foregoing; provided, however, the foregoing shall not
release any Claims or liabilities in respect of ordinary commercial
relationships between a Debtor and any such Person, including as between a
Debtor and one of its Affiliates, it being understood that the matters listed in
clauses (a) through (d) above do not relate to an ordinary commercial
relationship between the Debtors and the Prepetition Lenders.
C. Releases by Holders of Claims
On and after the Effective Date, each Holder of a Claim who has accepted
the Plan shall be deemed to have unconditionally released each Releasee from any
and all Claims, obligations, rights, suits, damages, causes of action, remedies
and liabilities whatsoever, including any derivative claims asserted on behalf
of Exide, whether known or unknown, foreseen or unforeseen, existing or
hereafter arising, in law, equity or otherwise, that such Person or Entity would
have been legally entitled to assert (whether individually or collectively),
based in whole or in part upon any act or omission, transaction, agreement,
event or other occurrence taking place on or before the Effective Date in any
way relating or pertaining to (s) the Debtors or Reorganized Debtors; (t) the
purchase or sale, or the rescission of a purchase or sale, of any security of
any Debtor, (u) the Chapter 11 Cases, or (v) the negotiation,
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formulation and preparation of the Plan or any related agreements, instruments
or other documents, (w) the Prepetition Credit Facility, including, but not
limited to the negotiation, formulation, preparation, administration, execution,
and enforcement thereof, and any payments received by such Lenders, (x) any
guaranty arising under the Prepetition Credit Facility, (y) any liens, pledges,
or collateral of any kind and (z) any of the other loan documents referred to in
the Prepetition Credit Facility or any other documents contemplated thereby or
therein or the transactions contemplated thereby or therein or any action taken
or omitted by the Agent under or in connection with any of the foregoing.
D. Release of Foreign Subsidiary Borrowers and the Domestic Non-Debtor
On and after the Effective Date, each Option A Elector shall be deemed to
have unconditionally released the Foreign Subsidiary Borrowers and the Domestic
Non-Debtor from any and all Claims, obligations, rights, suits, damages, causes
of action, remedies and liabilities whatsoever, including any derivative claims
asserted on behalf of Exide, whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, that such Person or
Entity would have been legally entitled to assert (whether individually or
collectively), based in whole or in part upon any act or omission, transaction,
agreement, event or other occurrence taking place on or before the Effective
Date in any way relating or pertaining to (1) the Debtors, Reorganized Debtors,
Foreign Subsidiary Borrowers or the Domestic Non-Debtor, (2) the purchase or
sale, or the rescission of a purchase or sale, of any security of any Debtor,
(3) the Chapter 11 Cases, (4) the negotiation, formulation and preparation of
the Plan or any related agreements, instruments or other documents, (5) the
Prepetition Credit Facility, (6) any guaranty arising under the Prepetition
Credit Facility, (7) any liens, pledges, or collateral of any kind and (8) any
of the other loan documents referred to in the Prepetition Credit Facility or
any other documents contemplated thereby or therein or the transactions
contemplated thereby or therein. In addition, each Option A Elector shall be
deemed to have submitted to the jurisdiction of the Bankruptcy Court with
respect to the treatment, discharge and release of such Holder's Prepetition
Credit Facility Claims.
E. Exculpation
The Releasees shall neither have nor incur any liability to any Person or
Entity for any pre or post-petition act taken or omitted to be taken in
connection with, or related to the formulation, negotiation, preparation,
dissemination, implementation, administration, Confirmation or Consummation of
the Plan, the Disclosure Statement or any contract, instrument, release or other
agreement or document created or entered into in connection with the Plan or any
other pre or post-petition act taken or omitted to be taken in connection with
or in contemplation of the restructuring of the Debtors.
F. Preservation of Rights of Action
1. Maintenance of Causes of Action
Except as otherwise provided in the Plan, the Debtors shall retain all
rights to commence and pursue, as appropriate, any and all Causes of Action,
whether arising before or after the Petition Date, in any court or other
tribunal including, without limitation, in an adversary proceeding Filed in one
or more of the Chapter 11 Cases including those actions listed in the Plan
Supplement.
Except as otherwise provided in the Plan, in accordance with section
1123(b)(3) of the Bankruptcy Code, any claims, rights, and Causes of Action that
the Debtors may hold against any Entity shall vest in the applicable Reorganized
Debtor. The Debtors and Reorganized Debtors, through their authorized agents or
representatives, shall retain and may exclusively enforce any and all such
claims, rights or Causes of Action. The Debtors or Reorganized Debtors, as the
case may be, shall have the exclusive right, authority, and discretion to
institute, prosecute, abandon, settle, or compromise any and all such claims,
rights, and Causes of Action without the consent or approval of any third party
and without any further order of court.
2. Preservation of All Causes of Action Not Expressly Settled or Released
Unless a claim or Cause of Action against a Creditor or other Entity is
expressly waived, relinquished, released, compromised or settled in the Plan or
any Final Order, the Debtors expressly reserve such claim or Cause of Action for
later adjudication by the Debtors or Reorganized Debtors (including, without
limitation, claims and
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Causes of Action not specifically identified or which the Debtors may presently
be unaware or which may arise or exist by reason of additional facts or
circumstances unknown to the Debtors at this time or facts or circumstances
which may change or be different from those which the Debtors now believe to
exist) and, therefore, no preclusion doctrine, including, without limitation,
the doctrines of res judicata, collateral estoppel, issue preclusion, claim
preclusion, waiver, estoppel (judicial, equitable or otherwise) or laches shall
apply to such claims or Causes of Action upon or after the confirmation or
consummation of the Plan based on the Disclosure Statement, the Plan or the
Confirmation Order, except where such claims or Causes of Action have been
released in the Plan or other Final Order. In addition, the Debtors and
Reorganized Debtors expressly reserve the right to pursue or adopt any claims
alleged in any lawsuit in which a Debtor is a defendant or an interested party,
against any person or entity, including, without limitation, the plaintiffs or
co-defendants in such lawsuits.
Any Entity to whom the Debtors have incurred an obligation (whether on
account of services, purchase or sale of goods or otherwise), or who has
received services from the Debtors or a transfer of money or property of the
Debtors, or who has transacted business with the Debtors, or leased equipment or
property from the Debtors should assume that such obligation, transfer, or
transaction may be reviewed by the Reorganized Debtors subsequent to the
Effective Date and may, if appropriate, be the subject of an action after the
Effective Date, whether or not (a) such Entity has Filed a proof of claim
against the Debtors in the Chapter 11 Cases; (b) such Entity's proof of claim
has been objected to; (c) such Entity's Claim was included in the Debtors'
Schedules; or (d) such Entity's scheduled claim has been objected to by the a
Debtor or has been identified by a Debtor as disputed, contingent, or
unliquidated.
G. Discharge of Claims and Termination of Equity Interests
Except as otherwise provided herein: (1) 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 Claims
from and after the Petition Date, against any Debtor or any of its assets or
properties, (2) on the Effective Date, all such Claims against, and Equity
Interests in any Debtor shall be satisfied, discharged and released in full and
(3) all Persons and Entities shall be precluded from asserting against the
Debtors, the Reorganized Debtors, their successor, 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.
H. Injunction
Except as otherwise provided herein, from and after the Effective Date, all
Holders of Claims or Equity Interests shall be permanently enjoined from
commencing or continuing in any manner, any suit, action or other proceeding, on
account of or respecting any Claim, Equity Interest, obligation, debt, right,
Cause of Action, remedy or liability or any other claim or cause of action
released or to be released pursuant hereto.
ARTICLE XI.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of
the Effective Date, the Bankruptcy Court shall retain such jurisdiction over the
Chapter 11 Cases after the Effective Date as legally permissible, including
jurisdiction to:
1. allow, disallow, determine, liquidate, classify, estimate or establish
the priority or secured or unsecured status of any Claim or Equity Interest,
including the resolution of any request for payment of any Administrative Claim
and the resolution of any and all objections to the allowance or priority of
Claims or Equity Interests;
2. grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code or the
Plan, for periods ending on or before the Effective Date;
-29-
3. resolve any matters related to the assumption, assumption and assignment
or rejection of any executory contract or unexpired lease to which Exide is
party or with respect to which Exide may be liable and to hear, determine and,
if necessary, liquidate, any Claims arising therefrom, including those matters
related to the amendment after the Effective Date to add any executory contracts
or unexpired leases to the list of executory contracts and unexpired leases to
be rejected;
4. ensure that distributions to Holders of Allowed Claims are accomplished
pursuant to the provisions hereof;
5. decide or resolve any motions, adversary proceedings, contested or
litigated matters and any other matters and grant or deny any applications
involving Exide that may be pending on the Effective Date;
6. enter such orders as may be necessary or appropriate to implement or
consummate the provisions hereof and all contracts, instruments, releases,
indentures and other agreements or documents created in connection with the
Plan, Plan Supplement or the Disclosure Statement;
7. resolve any cases, controversies, suits or disputes that may arise in
connection with the Consummation, interpretation or enforcement of the Plan or
any Person's or Entity's obligations incurred in connection with the Plan;
8. issue injunctions, enter and implement other orders or take such other
actions as may be necessary or appropriate to restrain interference by any
Person or Entity with Consummation or enforcement of the Plan, except as
otherwise provided herein;
9. resolve any cases, controversies, suits or disputes with respect to the
releases, injunction and other provisions contained in Article X hereof and
enter such orders as may be necessary or appropriate to implement such releases,
injunction and other provisions;
10. enter and implement such orders as are necessary or appropriate if the
Confirmation Order is for any reason modified, stayed, reversed, revoked or
vacated;
11. determine any other matters that may arise in connection with or relate
to this Plan, the Disclosure Statement, the Confirmation Order or any contract,
instrument, release, indenture or other agreement or document created in
connection with the Plan or the Disclosure Statement; and
12. enter an order and/or final decree concluding the Chapter 11 Cases.
ARTICLE XII.
MISCELLANEOUS PROVISIONS
A. Effectuating Documents, Further Transactions and Corporation Action
The Debtors and Reorganized Debtors are authorized to execute, deliver,
File or record such contracts, instruments, releases and other agreements or
documents and take such actions as may be necessary or appropriate to
effectuate, implement and further evidence the terms and conditions hereof and
the securities issued pursuant hereto.
Prior to, on or after the Effective Date (as appropriate), all matters
provided for hereunder that would otherwise require approval of the shareholders
or directors of the Debtors or Reorganized Debtors shall be deemed to have
occurred and shall be in effect prior to, on or after the Effective Date (as
appropriate) pursuant to applicable state general corporation law without any
requirement of further action by the shareholders or directors of the Debtors or
Reorganized Debtors.
-30-
B. Dissolution of Committees
Upon the entry of the Confirmation Order, the Creditors Committee and
Equity Committee (to the extent still existing) shall dissolve and members shall
be released and discharged from all rights and duties arising from, or related
to, the Chapter 11 Cases.
C. Payment of Statutory Fees
All fees payable pursuant to section 1930 of Title 28 of the United States
Code, as determined by the Bankruptcy Court at the hearing pursuant to section
1128 of the Bankruptcy Code, shall be paid on the earlier of when due or the
Effective Date, or as soon thereafter as practicable, but prior to the closing
of the Chapter 11 Cases, with respect to any such fees payable after the
Effective Date.
D. Letters of Credit
The Debtors will cause each Letter of Credit that has not expired, been
terminated, been replaced and terminated, or fully drawn on or before the
Effective Date, to be replaced and terminated on the Effective Date, provided,
however, that in the event any such Letter of Credit shall not have been so
replaced and terminated on the Effective Date, the Debtors may at their option
provide to the Agent cash collateral for each such Letter of Credit in an amount
equal to 105% of the undrawn balance of such Letter of Credit as of the
Effective Date.
E. Modification of Plan
Subject to the limitations contained in the Plan, (1) the Debtors reserve
the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to
amend or modify the Plan prior to the entry of the Confirmation Order and (2)
after the entry of the Confirmation Order, the Debtors or Reorganized Debtors,
as the case may be, may, upon order of the Bankruptcy Court, amend or modify the
Plan, in accordance with section 1127(b) of the Bankruptcy Code, or remedy any
defect or omission or reconcile any inconsistency in the Plan in such manner as
may be necessary to carry out the purpose and intent of the Plan.
F. Revocation of Plan
The Debtors reserve the right to revoke or withdraw the Plan prior to the
Confirmation Date and to File subsequent plans of reorganization. If the Debtors
revoke or withdraw the Plan, or if Confirmation or Consummation does not occur,
then (a) the Plan shall be null and void in all respects, (b) any settlement or
compromise embodied in the Plan (including the fixing or limiting to an amount
certain any Claim or Equity Interest or Class of Claims or Equity Interests),
assumption or rejection of executory contracts or leases affected by the Plan,
and any document or agreement executed pursuant hereto, shall be deemed null and
void, and (c) nothing contained in the Plan shall (i) constitute a waiver or
release of any Claims by or against, or any Equity Interests in, such Debtor or
any other Person, (ii) prejudice in any manner the rights of such Debtor or any
other Person, or (iii) constitute an admission of any sort by Debtor or any
other Person.
G. Successors and Assigns
The rights, benefits and obligations of any Person or Entity named or
referred to herein shall be binding on, and shall inure to the benefit of any
heir, executor, administrator, successor or assign of such Person or Entity.
H. Reservation of Rights
Except as expressly set forth herein, this Plan shall have no force or
effect unless the Bankruptcy Court shall enter the Confirmation Order. None of
the filing of this Plan, any statement or provision contained herein, or the
taking of any action by a Debtor with respect to this Plan shall be or shall be
deemed to be an admission or waiver of any rights of a Debtor with respect to
the Holders of Claims or Equity Interests prior to the Effective Date.
I. Section 1146 Exemption
Pursuant to section 1146(c) of the Bankruptcy Code, any transfers of
property pursuant hereto shall not be subject to any document recording tax,
stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, stamp
-31-
act, real estate transfer tax, mortgage recording tax or other similar tax or
governmental assessment in the United States, and the Confirmation Order shall
direct the appropriate state or local governmental officials or agents to forgo
the collection of any such tax or governmental assessment and to accept for
filing and recordation any of the foregoing instruments or other documents
without the payment of any such tax or governmental assessment.
J. Further Assurances
The Debtors, Reorganized Debtors, Releasees and all Holders of Claims
receiving distributions hereunder and all other parties in interest shall, from
time to time, prepare, execute and deliver any agreements or documents and take
any other actions as may be necessary or advisable to effectuate the provisions
and intent of this Plan.
K. Service of Documents
Any pleading, notice or other document required by the Plan to be served on
or delivered to the Reorganized Debtors shall be sent by first class U.S. mail,
postage prepaid to:
Exide Technologies
210 Carnegie Center, Suite 500
Princeton, New Jersey 08540
Attn: Stuart H. Kupinsky, Executive Vice President,
General Counsel and Secretary
with copies to:
Kirkland & Ellis LLP
200 E. Randolph Drive
Chicago, Illinois 60601
Attn: Matthew N. Kleiman, Esq.
Ross M. Kwasteniet, Esq.
Pachulski, Stang, Ziehl, Young, Jones & Weintraub
919 North Market Street
P.O. Box 8705
Wilmington, Delaware 19899-8705
Attn: Laura Davis Jones, Esq.
James E. O'Neill, Esq.
L. Filing of Additional Documents
On or before the Effective Date, the Debtors may File with the Bankruptcy
Court such agreements and other documents as may be necessary or appropriate to
effectuate and further evidence the terms and conditions hereof.
-32-
Respectfully Submitted,
EXIDE TECHNOLOGIES
------------------------------
By:
Its:
EXIDE DELAWARE, L.L.C.
------------------------------
By:
Its:
EXIDE ILLINOIS, INC.
------------------------------
By:
Its:
RBD LIQUIDATION, L.L.C.
------------------------------
By:
Its:
DIXIE METALS COMPANY
------------------------------
By:
Its:
REFINED METALS CORPORATION
------------------------------
By:
Its:
EXHIBIT B
LIQUIDATION ANALYSIS
EXHIBIT B
LIQUIDATION ANALYSIS
The Bankruptcy Code requires that each holder of an impaired Allowed Claim or
Interest either (a) accepts the Plan or (b) receives or retains under the Plan
property of a value, as of the Effective Date, that is not less than the value
such holder would receive or retain if the Debtors were liquidated under Chapter
7 of the Bankruptcy Code on the Effective Date. The first step in meeting this
test is to determine the dollar amount that would be generated from the
liquidation of the Debtors' assets and properties in the context of a Chapter 7
liquidation case. The gross amount of cash available would be the sum of the
proceeds from the disposition of the Debtors' assets and the cash held by the
Debtors at the time of the commencement of the Chapter 7 case. Such amount is
reduced by the amount of any Allowed Claims secured by such assets, the costs
and expenses of the liquidation, and such additional administrative expenses and
priority claims that may result from the termination of the Debtors' businesses
and the use of Chapter 7 for the purposes of liquidation. Any remaining net cash
would be allocated to creditors and shareholders in strict priority in
accordance with section 726 of the Bankruptcy Code.
A general summary of the assumptions used by the Debtors in preparing the
liquidation analysis follows. Specific assumptions are discussed below.
Estimate of Proceeds Available for Distribution
Estimates were made of the cash proceeds which might be realized from the
liquidation of the Debtors' assets. The Chapter 7 liquidation period is assumed
to commence on September 30, 2003 and to last twelve months following the
appointment of a Chapter 7 trustee. While some assets may be liquidated in less
than twelve months, other assets may be more difficult to collect or sell,
requiring a liquidation period substantially longer than twelve months; this
time would allow for the collection of receivables, sale of assets and wind down
of daily operations. For certain assets, such as fixtures and equipment,
liquidation values were assessed for general classes of assets by estimating the
percentage recoveries which the Debtors might achieve through the disposition of
those assets.
Estimate of Costs
The Debtors' costs of liquidation under Chapter 7 would include the fees payable
to a Chapter 7 trustee, as well as those which might be payable to attorneys and
other professionals that such a trustee may engage. Further, costs of
liquidation could include any obligations and unpaid expenses incurred by the
Debtors during the Chapter 11 Cases and allowed in the Chapter 7 case, such as
trade obligations, compensation for attorneys, financial advisors, appraisers,
accountants and other professionals, and costs and expenses of members of any
statutory committee of secured or unsecured creditors appointed by the United
States Trustee pursuant to section 1102 of the Bankruptcy Code and any other
committee so appointed. Moreover, additional claims would arise by reason of the
breach or rejection of obligations incurred and executory contracts or leases
entered into by the Debtors both prior to, and during the pendency of, the
Chapter 11 Cases.
Distribution of Net Proceeds under Absolute Priority Rule
The foregoing types of claims, costs, expenses, fees and such other claims that
may arise in a liquidation case would be paid in full from the liquidation
proceeds before the balance of those proceeds would be made available to pay
pre- and post-Chapter 11 priority, secured and unsecured claims. Under the
absolute priority rule, no junior creditor would receive any distribution until
all senior creditors are paid in full, and no equity holder would receive any
distribution until all creditors are paid in full. THE
DEBTORS BELIEVE THAT IN A CHAPTER 7 CASE, HOLDERS OF THE OLD COMMON STOCK
INTERESTS WOULD RECEIVE NO DISTRIBUTIONS OF PROPERTY.
In developing their conclusion, the Debtors considered the effects that a
Chapter 7 liquidation would have on the ultimate proceeds that would otherwise
be available for distribution to creditors in a Chapter 11 case, including (i)
the increased costs and expenses of a liquidation under Chapter 7 arising from
fees payable to a trustee in bankruptcy and professional advisors to such
trustee, (ii) the erosion in value of assets in a Chapter 7 case in the context
of the expeditious liquidation required under Chapter 7 and the "forced sale"
atmosphere that would prevail, and (iii) substantial increases in post petition
claims which would be satisfied on a priority basis. THE DEBTORS HAVE
DETERMINED, AS SUMMARIZED ON THE FOLLOWING CHART, THAT CONFIRMATION OF THE PLAN
WILL PROVIDE EACH CREDITOR AND INTEREST HOLDER WITH A RECOVERY THAT IS NOT LESS
THAN IT WOULD RECEIVE PURSUANT TO A LIQUIDATION OF THE DEBTORS UNDER CHAPTER 7
OF THE BANKRUPTCY CODE.
Summary of Recoveries
--------------------------
Description Class No. Under the Plan Chapter 7
- ---------------------------------- --------- -------------- ---------
Administrative Claims 100.0% 100.0%
DIP Facility Claims 100.0% 100.0%
Priority Tax Claims 100.0% 0.0%
Other Priority Claims P1 100.0% 0.0%
Other Secured Claims P2 100.0% 4.3%
Prepetition Credit Facility Claims P3 70.2-72.0% 4.3%/1/
General Unsecured Claims P4 1.4% 0.0%
2.9% Convertible Note Claims P5 0.0% 0.0%
Equity Interests P6 0.0% 0.0%
- ----------
/1/ Taking into consideration projected recoveries on account of Allowed
Prepetition Foreign Secured Claims of Option B Electors, if any, the
aggregate recovery will be 16.6%
Moreover, the Debtors believe that the value of any distributions from the
liquidation proceeds to each class of Allowed Claims in a Chapter 7 case would
be the same or less than the value of distributions under the Plan because such
distributions in a Chapter 7 case may not occur for a substantial period of
time. In this regard, it is possible that distribution of the proceeds of the
liquidation could be delayed for a year or more after the completion of such
liquidation in order to resolve the claims and prepare for distributions. In the
event litigation were necessary to resolve claims asserted in the Chapter 7
case, the delay could be further prolonged and administrative expenses further
increased. THE EFFECTS OF THIS DELAY ON THE VALUE OF DISTRIBUTIONS UNDER THE
HYPOTHETICAL LIQUIDATION HAVE NOT BEEN CONSIDERED.
THE DEBTORS' LIQUIDATION ANALYSIS IS AN ESTIMATE OF THE PROCEEDS THAT MAY BE
GENERATED AS A RESULT OF A HYPOTHETICAL CHAPTER 7 LIQUIDATION OF THE ASSETS OF
THE DEBTORS. Underlying the liquidation analysis are a number of estimates and
assumptions that are inherently subject to significant economic, competitive and
operational uncertainties and contingencies beyond the control of the Debtors or
a Chapter 7 trustee. Additionally, various liquidation decisions upon which
certain assumptions are based are subject to change. Therefore, there can be no
assurance that the assumptions and estimates employed in determining the
liquidation values of the Debtors' assets will result in the proceeds which
would be realized were the Debtors to undergo an actual liquidation. The actual
amounts of Allowed Claims against the Estate could vary significantly from
B-2
the Debtors' estimate, depending on the claims asserted during the pendency of
the Chapter 7 case. This liquidation analysis does not include liabilities that
may arise as a result of potential litigation, (as discussed in the Disclosure
Statement) certain new tax assessments or other potential claims. This analysis
also does not include potential recoveries from avoidance actions. No value was
assigned to additional proceeds which might result from the sale of certain
items with intangible value. Therefore, the actual liquidation value of the
Debtors could vary materially from the estimates provided herein.
The liquidation analysis set forth below was based on the book values of the
Debtors' assets as of March 31, 2003.
ASSET VALUE SUMMARY
Estimated
Book Value Hypothetical Liquidation
($ In 000's) Footnotes at 3/31/03 Recovery % Value
--------- ---------- ------------ -----------
Asset Category
Cash and Cash Equivalents $ 8,434 100.0% $ 8,434
Accounts Receivable (Net) 161,341 73.6% 118,717
Intercompany Receivables 1 44,849 7.4% 3,327
Inventories 2 161,567 63.8% 103,061
Other Current Assets 3 23,449 0.0% --
Property, Plant and Equipment (Net) 247,939 31.5% 78,126
Goodwill and Other Intangibles (Net) 40,965 0.0% --
Investments in Affiliates 4 2,118 0.0% --
Deferred financing costs (Net) 647 0.0% --
Non Current Deferred Income Tax -- 0.0% --
Intercompany notes receivable 5 236,593 2.9% 6,837
Other 6 45,451 0.0% --
Liquidation of non-Debtor Subsidiaries 7 n/a 0.0% 3,158
-------- --------
Total Assets $973,353 $321,660
======== ========
(See distribution analysis on following page)
Note: The results above reflect the orderly liquidation value of the following
debtor entities: Exide Technologies, Exide Delaware LLC, Exide Illinois
Inc., RBD Liquidation LLC, Dixie Metals Company, and Refined Metals Corp.
Footnotes:
(1) Includes corporate management fees receivable along with some receivables
arising from Intercompany trade
(2) Recovery amount includes incremental wind down costs (excluding
inefficiencies) of approximately $21.9M required to convert WIP inventories
to FGI. These costs are then subtracted before estimating recoveries to
various stakeholders in the priority of claims analysis on the following
page. Note that the book value has been adjusted to reflects these
conversion costs
(3) Includes prepaid rent and prepaid insurance. No recovery is assumed
(4) Includes 50% ownership Interest in Deta Douglass and a 51% Interest in
AI Dobowy. No recovery is assumed
(5) Includes hybrid note of approximately $109M between debtor and EHE and a
$42M note to Exide Asia. Also included is approximately $49.1M In DIP
funds on-lent to European entities as of 3/31/03
(6) Other non-current assets includes $24M in cash collateral accounts held in
escrow for environmental and workers compensation claims. This and all
other non-current "other" assets are estimated to have no recovery in
liquidation
(7) Liquidation value shown reflects the remaining equity value of non-debtor
entities after an assumed liquidation and distribution in accordance with
local priority of claims rules
B-3
DISTRIBUTION ANALYSIS
Estimated Hypothetical Estimated
($ In 000's) Claims Recovery % Recovery
--------- ------------ ---------
Net Proceeds Available for Distribution (see previous page) $321,660
* Estimated Court Ordered Environmental Claim 40,000 100.0% 40,000
Less: Chapter 7 Administrative Claims
* Chapter 7 Trustee Fees 9,650 100.0% 9,650
* Chapter 7 Professional Fees 12,000 100.0% 12,000
* Wind Down Costs - Manufacturing 28,622 100.0% 28,622
* Wind Down Costs - G&A 16,577 100.0% 16,577
* Key Employee Retention Plan 5,000 100.0% 5,000
--------- --------
Total Chapter 7 Administrative Claims 71,848 71,848
--------
Net Proceeds Available after Chapter 7 Admin Claims 209,811
Less: Superpriority (Post-Petition Secured) Claims
* Carve-out for Professional Fees 5,000 100.0% 5,000
* Debtor-in Possession Facility (includes accrued Interest) 176,074 100.0% 176,074
--------- --------
Total Superpriority Administrative Claims 181,074 181,074
--------
Net Proceeds Available after Suporpriority Claims 28,737
Less: Prepetition Secured Claims
* Prepetition Global Credit Facility (Tranche B and Revolver) 437,308 4.3% 18,802
* Prepetition Global Credit Facility (Accrued Pre-Petition Interest) 3,200 4.3% 138
* Prepetition Global Credit Facility - "Adequate Protection" Accrual 26,850 4.3% 1,154
* Prepetition Global Credit Facility - Deficiency from Rest of World 201,010 4.3% 8,643
--------- --------
Total Secured Claims 668,368 28,737
--------
Net Proceeds Available after Prepetition Secured Claims --
Less: Administrative and Priority Claims
* Post Ch. 11 Accounts Payable 67,679 0.0% --
* Post Ch. 11 Wages and Benefits 35,457 0.0% --
* Pre-Petition Pension Obligations 128,293 0.0% --
* Other Priority Claims 35,938 0.0% --
--------- --------
Total Administrative and Priority Claims 267,367 --
--------
Net Proceeds Available after Admin and Priority Claims --
Less: General Unsecured Claims
* Secured Debt - Deficiency Claim 639,631 0.0% --
* 10% Senior Notes 300,000 0.0% --
* General Unsecured Claims 300,898 0.0% --
--------- ----- --------
Total Unsecured Claims 1,240,529 --
--------
Net Proceeds Available after Unsecured Claims --
Less: Convertible Notes 321,132 0.0% --
--------
Net Estimated Recovery to Equityholders $ --
========
B-4
Footnotes to Liquidation Analysis
Cash and cash equivalents
Cash and cash equivalents consist of all cash in banks or operating accounts,
and liquid investments with maturities of three months or less and are assumed
to be fully recoverable.
Accounts Receivable
Accounts Receivable consist of outstanding payments due from the Company's
customers. The recovery of accounts receivable is based on management's estimate
of collection (given such factors as the aging and historical collection
patterns of the receivables, and the effect, if any, of the liquidation on
collectibility).
Intercompany Receivables
Intercompany Receivables consist of trade payables owed to the Debtors by
non-Debtor subsidiaries. The recovery on intercompany receivables assumes that
such trade payables would be treated as unsecured claims in the event of the
liquidation of each of the non-Debtor subsidiaries where the payables reside.
Inventories
Management has determined that, in order to maximize recoveries in a
liquidation, it would be necessary to convert work in process inventory, as well
as certain raw materials, into finished goods inventory. The inventory value,
therefore, includes the capitalized costs associated with converting certain raw
materials and work in process inventories into finished goods inventories; those
costs are then included in wind down costs (see below). The recovery on
remaining raw materials and finished goods inventories considers, among other
things, reference to advance rates under the DIP facility.
Other current assets
Other current assets include prepaid rent and prepaid insurance, and are assumed
to have no liquidation value.
Property, Plant and Equipment
Property, Plant and Equipment includes land, buildings, and machinery and
equipment. The value of Property, Plant and Equipment was based on available
appraisals,, which were then discounted to reflect, among other things, the
effects of a Chapter 7 context and environmental remediation costs.
Goodwill and Other Intangibles
Goodwill and Other Intangibles consists primarily of the excess of the cost over
the fair value of net assets of purchased businesses. All assets included in
this category are assumed to have no liquidation value.
Investments in Affiliates
Investments in Affiliates includes the Debtors' 50% ownership interest in Deta
Douglass and the Debtors' 51% ownership interest in Al Dobowy. Both investments
are assumed to have no recovery in a liquidation.
B-5
Deferred Financing Costs
Deferred Financing Costs includes prepaid bank fees, and are assumed to have no
liquidation value.
Intercompany Notes Receivable
Intercompany Notes Receivable consists of notes owed to the Debtors by
non-Debtor subsidiaries. The recovery on Intercompany Notes Receivable assumes
that such obligations would be treated as unsecured claims in the event of the
liquidation of each of the non-Debtor subsidiaries where the notes reside.
Other Assets
Other Assets includes $24 million in cash collateral accounts held in escrow for
environmental and workers compensation claims. All Other Assets are assumed to
have no recovery in a liquidation.
Liquidation of non-Debtor Subsidiaries
Recovery reflects proceeds related to the Debtors' equity interest in the
liquidation of non-Debtor subsidiaries.
Chapter 7 Trustee Fees
Trustee fees are estimated at 3% of gross liquidation proceeds, based on
statutory requirements of the Bankruptcy Code.
Chapter 7 Professional Fees
Chapter 7 Professional fees represent the costs of a Chapter 7 case related to
attorneys, accountants, appraisers and other professionals retained by the
trustee. Based on management's review of the nature of these costs and the
outcomes of similar liquidations, fees were estimated at $1,000,000 per month
during the liquidation period.
Wind Down Costs
Wind down costs consist of general and administrative expenses to be incurred
during the Chapter 7 liquidation. Management assumes that the liquidation would
occur over a twelve-month period and that such general and administrative
expenses would decrease over time. In addition, wind down costs also include the
cost of converting certain raw materials and work in progress inventories into
finished goods inventories, including costs for additional raw materials, labor,
and overhead.
Key Employee Retention Plan
It is assumed that a retention plan of $5 million would be instituted to retain
employees during the Chapter 7 period.
Chapter 7 Professional Fees pursuant to Carveout
Pursuant to the credit agreement governing the DIP Facility, Chapter 11
Professional Fees are reimbursed with the proceeds of the DIP Facility in an
amount not to exceed $5,000,000. These fees consist primarily of attorneys'
fees, turnaround management fees, and financial advisory fees incurred during
the Chapter 11 period prior to the liquidation.
B-6
DIP Facility
The DIP Facility is afforded super priority claim status in the Chapter 11 Cases
and is collateralized by first liens on certain eligible U.S. assets of the
Debtors, principally accounts receivable, inventory and property.
Prepetition Domestic Secured Claims
The Prepetition Domestic Secured Claims include all Prepetition Credit Facility
Claims that are not Prepetition Foreign Secured Claims, including the existing
revolving credit facility, the existing term loan B, and accrued interest.
Postpetition Accounts Payable
Accounts Payable represents amounts due to the Debtors' vendors resulting from
services or product received during the Chapter 11 period.
Postpetition Wages and Benefits
Postpetition wage claims, including wages, vacation, and other related
compensation, have been estimated based on applicable law.
Prepetition Pension Obligations
Prepetition pension obligations are treated as a Chapter 11 priority claim.
Other Priority Claims
Other Priority Claims include, among other things, legal reserves, warranty
reserves, and tax claims.
General Unsecured Claims
General unsecured claims include deficiency claims related to the Prepetition
Domestic Secured Claims, 10% Senior Notes claims, and other general unsecured
claims, including among other things, prepetition accounts payable, prepetition
wages and benefits, prepetition tax claims, prepetition environmental claims,
and accrued interest on the 10% Senior Notes.
2.9% Convertible Note Claims
The 2.9% Convertible Notes are subordinated to General Unsecured Claims of the
Debtors.
B-7
Support Schedule
EXIDE TECHNOLOGIES
Liquidation Analysis ($000s)
Property, Plant & Equipment Analysis - Debtor Entities
- --------------------------------------------------------------------------------
Net Book Estimated Recovery
Property, Plant & Equipment Detail Value Recovery % Amount
- ------------------------------------------------------ -------- ---------- --------
Land and Improvements $ 17,707 60.0% $10,624/(1)/
Buildings and Improvements 91,553 40.0% 36,621/(2)/
Machinery and Equipment 101,092 30.0% 30,328/(3)/
Furniture and Fixtures 5,533 10.0% 553
Hardware -- 0.0% --
Leasehold Improvements (14) 0.0% --
Capitalized Interest 16,264 0.0% --/(4)/
Assets in Progress 15,739 0.0% --/(5)/
Vehicles 65 0.0% --
-------- -------
Net Property, Plant & Equipment $247,938 $78,126
======== =======
/(1)/ Land and Improvements
Appraised Land and Improvements (FMV) $ 4,110
Less: Discount to Appraisal @ 20% (822)
Less: Environmental Reserve @ 15% (617)
-------
Estimated value of appraised property in a liquidation 2,672
NBV of Appraised land 4,268
-------
Estimated Recovery % 62.6%
Rounded 60.0%
=======
/(2)/Buildings and Improvements
Appraised Buildings and Improvements (FMV) $11,750
Less: Discount to Appraisal @ 20% (2,350)
Less: Environmental Reserve @ 15% (1,763)
-------
Estimated value of appraised property in a liquidation 7,638
NBV of Appraised Buildings 19,550
-------
Assumed Recovery % 39.1%
Rounded 40.0%
=======
/(3)/ Machinery and Equipment
Appraised Machinery and Equipment (Orderly Liquidation Value) $ 4,528
Less: Discount to Appraisal @ 10% (453)
-------
Estimated value of appraised property in a liquidation 4,075
NBV of Appraised Machinery and Equipment 12,355
-------
Assumed Recovery % 33.0%
Rounded 30.0%
=======
Notes:
/1a)/ Appraisals were performed on a Fair Market Value basis. 20% discount
reflects adjustment to orderly liquidation value
/1b)/ Assumed environmental remediation costs upon sale of land/buildings
/2a)/ Appraisals were performed on a Fair Market Value basis. 20% discount
reflects adjustment to orderly liquidation value
/2b)/ Assumed environmental remediation costs upon sale of land/buildings
/3)/ Appraisal was performed on a "Liquidation Value - In Place" basis. 10%
discount reflects adjustment to entire sale
/4)/ Capitalized financing cost associated with "Assets in Progress" are
assumed to have zero re-sale value in a liquidation
/5)/ Fixed assets not yet completed are assumed to have no recovery
- --------------------------------------------------------------------------------
EXHIBIT C
PROJECTIONS
EXHIBIT C
PROJECTIONS
($ in 000s) Estimated as of September 30, 2003
----------------------------------
BALANCE SHEET Pre- Effect of Pro
Reorg. Reorg. Forma
--------- ---------- ---------
ASSETS
Current Assets:
Cash and Equivalents 34,000 4,036 38,036
Accounts Receivable 575,685 -- 575,685
Inventories 363,570 -- 363,570
Prepaid Expenses and Other 21,347 -- 21,347
--------- ---------- ---------
Total Current Assets 994,602 4,036 998,638
Property Plant & Equipment 519,479 -- 519,479
Goodwill - Incl. Reorg Value in Excess of Book 511,480 (202,306) 309,174
Deferred Financing Costs 8,276 9,724 18,000
Deferred Income Taxes 100,250 -- 100,250
Investments in Subsidiaries and Affiliates 6,186 -- 6,186
Other Assets 70,728 -- 70,728
--------- ---------- ---------
TOTAL ASSETS 2,211,001 (188,546) 2,022,455
========= ========== =========
LIABILITIES AND EQUITY/(DEFICIT)
Current Liabilities:
Accounts Payable 221,957 -- 221,957
Accrued Expenses 213,761 -- 213,761
Accrued Interest Payable 57,093 (57,093) --
Restructuring Reserve 43,088 (14,000) 29,088
Warranty Reserve 60,251 -- 60,251
--------- ---------- ---------
Total Current Liabilities 596,150 (71,093) 525,058
DIP Facility 164,495 (164,495) --
Receivables Securitization 132,124 (132,124) --
New NA Revolver -- -- --
New NA Term Loan -- 200,000 200,000
New EUR Term Loan -- 250,000 250,000
Global Credit Facility (European Portion Only) 271,416 (271,416) --
DM Notes 96,634 (96,634) --
Other Debt and Capitalized Leases 31,330 1,196 32,526
Noncurrent Retirement Obligations 304,947 -- 304,947
Other Noncurrent Liabilities 172,124 -- 172,124
Minority Interest 21,827 -- 21,827
--------- ---------- ---------
Subtotal Liab Not Subject to Compromise 1,791,046 (284,565) 1,506,481
Liabilities Subject to Compromise:
Accounts Payable 72,115 (72,115) --
Accrued Interest Payable 19,403 (19,403) --
Accrued Expenses and Other Liabilities 62,114 (62,114) --
Other Noncurrent Liabilities 6,578 (6,578) --
Global Credit Facility (NA Portion Only) 437,308 (437,308) --
10% Senior Notes 300,000 (300,000) --
2.9% Convertible Senior Sub Notes 321,132 (321,132) --
Other Debt and Capitalized Leases 22,853 (22,853) --
--------- ---------- ---------
Subtotal Liabilities Subject to Compromise 1,241,503 (1,241,503) --
--------- ---------- ---------
Total Liabilities 3,032,549 (1,526,068) 1,506,481
Total Stockholders Equity/(Deficit) (821,548) 1,337,522 515,974
--------- ---------- ---------
TOTAL LIABILITIES & EQUITY/(DEFICIT) 2,211,001 (188,546) 2,022,455
========= ========== =========
($ in 000s) Estimated as of Fiscal Year Ending March 31,
---------------------------------------------------------
FY 2004 FY 2005 FY 2006 FY 2007 FY 2008
--------- --------- --------- --------- ---------
BALANCE SHEET
ASSETS
Current Assets:
Cash and Equivalents 74,764 117,790 187,515 271,743 375,074
Accounts Receivable 570,049 576,596 594,841 616,240 641,597
Inventories 337,755 332,204 334,847 344,894 359,580
Prepaid Expenses and Other 21,347 21,347 21,347 21,347 21,347
--------- --------- --------- --------- ---------
Total Current Assets 1,003,915 1,047,937 1,138,550 1,254,224 1,397,599
Property Plant & Equipment 509,692 491,614 477,536 463,459 449,381
Goodwill - Incl. Reorg Value in Excess of Book 309,174 309,174 309,174 309,174 309,174
Deferred Financing Costs 16,200 12,600 9,000 5,400 1,800
Deferred Income Taxes 100,250 100,250 100,250 100,250 100,250
Investments in Subsidiaries and Affiliates 6,186 6,186 6,186 6,186 6,186
Other Assets 70,728 70,728 70,728 70,728 70,728
--------- --------- --------- --------- ---------
TOTAL ASSETS 2,016,146 2,038,490 2,111,425 2,209,421 2,335,118
========= ========= ========= ========= =========
LIABILITIES AND EQUITY/(DEFICIT)
Current Liabilities:
Accounts Payable 222,508 239,187 251,992 264,976 279,892
Accrued Expenses 210,737 210,737 210,737 210,737 210,737
Accrued Interest Payable -- -- -- -- --
Restructuring Reserve 37,230 19,092 5,636 5,636 5,636
Warranty Reserve 59,611 60,565 61,332 62,057 62,923
--------- --------- --------- --------- ---------
Total Current Liabilities 530,087 529,581 529,696 543,406 559,188
New NA Revolver -- -- -- -- --
New NA Term Loan 200,000 198,000 196,000 194,000 192,000
New EUR Term Loan 250,000 247,500 245,000 242,500 240,000
Other Debt and Capitalized Leases 32,526 32,526 32,526 32,526 32,526
Noncurrent Retirement Obligations 311,075 285,175 266,975 246,675 243,475
Other Noncurrent Liabilities 153,951 133,297 120,247 107,197 94,147
Minority Interest 21,827 21,827 21,827 21,827 21,827
--------- --------- --------- --------- ---------
Total Liabilities 1,499,466 1,447,905 1,412,271 1,388,130 1,383,163
Total Stockholders Equity/(Deficit) 516,680 590,584 699,155 821,290 951,955
--------- --------- --------- --------- ---------
TOTAL LIABILITIES & EQUITY/(DEFICIT) 2,016,146 2,038,490 2,111,425 2,209,421 2,335,118
========= ========= ========= ========= =========
($ in 000s) Estimated for the Fiscal Year Ending March 31,
--------------------------------------------------------------
FY 2004 FY 2005 FY 2006 FY 2007 FY 2O08
---------- ---------- ---------- ---------- ----------
INCOME STATEMENT
Gross Sales 2,415,604 2,528,136 2,635,169 2,760,565 2,903,581
Growth % -2.6% 4.7% 4.2% 4.8% 5.2%
Warranty (50,862) (53,900) (56,732) (60,061) (63,722)
Disc/Allowances (89,387) (95,435) (100,554) (106,539) (113,273)
---------- ---------- ---------- ---------- ----------
Net Sales 2,275,356 2,378,801 2,477,882 2,593,966 2,726,587
% of Gross Sales 94.2% 94.1% 94.0% 94.0% 93.9%
COGS (excl. Depreciation) (1,689,028) (1,746,123) (1,821,554) (1,915,711) (2,027,256)
---------- ---------- ---------- ---------- ----------
Gross Margin 586,328 632,678 656,328 678,254 699,331
% of Net Sales 25.8% 26.6% 26.5% 26.1% 25.6%
Operating Expenses
Selling and Marketing (236,478) (236,840) (241,958) (246,444) (253,209)
General and Administrative (132,450) (130,602) (126,175) (126,121) (125,484)
Engineering and R&D (18,419) (18,917) (19,436) (19,977) (20,541)
---------- ---------- ---------- ---------- ----------
Subtotal Operating Epenses (387,347) (386,359) (387,569) (391,542) (399,234)
Other lncome/(Expense) 1,762 1,762 1,762 1,762 1,762
---------- ---------- ---------- ---------- ----------
EBITDAR 200,743 248,081 270,521 288,475 301,860
% of Net Sales 8.8% 10.4% 10.9% 11.1% 11.1%
Depreciation and Amortization (80,578) (78,078) (74,078) (74,078) (74,078)
Restructuring Expenses (102,956) (25,000) (3,200) (800) (800)
Interest Expense (69,182) (38,132) (37,855) (37,577) (37,300)
Income Tax Expense (8,323) (32,967) (48,818) (53,884) (59,017)
COD Income / (Goodwill Impairment) 1,337,522 -- -- -- --
---------- ---------- ---------- ---------- ----------
Net Income / (Loss) 1,277,226 73,904 108,570 122,136 130,665
========== ========== ========== ========== ==========
% of Net Sales 56.1% 3.1% 4.4% 4.7% 4.8%
($ in 000s) Estimated for the Fiscal Year Ending March 31,
----------------------------------------------------
FY 2004 FY 2005 FY 2006 FY 2007 FY 2O08
-------- -------- -------- -------- --------
INDIRECT STATEMENT OF CASH FLOWS
EBITDAR 200,743 248,081 270,521 288,475 301,860
Operating Working Capital Changes
Accounts Receivable 26,208 (6,547) (18,245) (21,399) (25,358)
Inventories 21,456 5,551 (2,643) (10,047) (14,686)
Accounts Payable (495) 16,679 12,805 12,984 14,916
Accrued Expenses (3,709) 953 767 725 866
-------- -------- -------- -------- --------
Net Change in Working Capital 43,458 16,636 (7,317) (17,736) (24,261)
Other Operating Cash Flows
Capital Expenditures (59,995) (60,000) (60,000) (60,000) (60,000)
Asset Sale Proceeds 3,100 -- -- -- --
Add Back: NA Pension Expense 20,800 20,600 18,800 17,400 16,800
Less: NA Pension Cash Funding (11,898) (46,500) (37,000) (37,700) (20,000)
Environmental (19,134) (17,104) (10,000) (10,000) (10,000)
Legal Settlements (9,000) (50) (50) (50) (50)
Cash Taxes (8,323) (32,967) (46,818) (53,884) (59,017)
Daramec Penalty Payments (4,000) (3,500) (3,000) (3,000) (3,000)
Inter-Company Funding (Mgt Fee) -- -- -- -- --
-------- -------- -------- -------- --------
Subtotal - Other Operating Cash
Flows (88,450) (139,521) (138,068) (147,234) (135,267)
OPERATING CASH FLOW 155,752 125,197 125,136 123,505 142,331
Restructuring Cash Costs
Advisor Fees (incl. Success Fees) (32,588) -- -- -- --
Lease Cure Costs (5,000) -- -- -- --
Administrative Claims (400) -- -- -- --
Priority Tax Claims (1,500) -- -- -- --
Other Secured and Priority Claims (5,000) -- -- -- --
Severance-Prior Period Actions (4,803) (5,738) (2,456) -- --
Severance-Current Year Initiatives (37,678) (30,000) (13,200) (800) (800)
Other Restructuring Cash Costs (8,100) (7,400) (1,000) -- --
Employee Retention Payments (4,200) -- -- -- --
-------- -------- -------- -------- --------
Subtotal-Restructuring
Cash Costs (99,268) (43,138) (16,656) (800) (800)
-------- -------- -------- -------- --------
FREE CASH FLOW(before debt svc) 56,484 82,059 108,480 122,705 141,531
Financing Cash Costs
Securitization Proceeds & Buyouts (135,313) -- -- -- --
Borrowings on DIP Facility (168,764) -- -- -- --
Borrowings on New NA Revolver -- -- -- -- --
Transfer of Post-Reorg
Funds from ROW -- -- -- -- --
Borrowings on New NA Term Loan 200,000 (2,000) (2,000) (2,000) (2,000)
Borrowings on New EUR Term Loan 250,000 (2,500) (2,500) (2,500) (2,500)
DM Note Repayment
(incl. Ace Interest) (101,045) -- -- -- --
Trade and Tort Cash Settlement (4,400) -- -- -- --
Financing Costs (18,000) -- -- -- --
Interest Payments - New Debt (16,014) (32,691) (32,413) (32,136) (31,858)
Interest Payments - DIP (4,931) -- -- -- --
Interest Payments - Other Debt (23,019) (1,842) (1,842) (1,842) (1,842)
-------- -------- -------- -------- --------
Subtotal - Financing Cash Costs (21,486) (39,032) (38,755) (38,477) (38,200)
-------- -------- -------- -------- --------
NET CASH FLOW 34,998 43,026 69,725 84,228 103,331
======== ======== ======== ======== ========
Beginning Cash Balance 39,766 74,764 117,790 187,515 271,743
Plus: Net Cash Flow (from above) 34,998 43,026 69,725 84,228 103,331
-------- -------- -------- -------- --------
Ending Cash Balance 74,764 117,790 187,515 271,743 375,074
======== ======== ======== ======== ========
In re Exide Technologies Case No. 02-11125
A Delaware Corporation
STATEMENT OF FINANCIAL AFFAIRS
RIDER 17a - ENVIRONMENTAL INFORMATION
List the name and address of every site for which the debtor has received notice
in writing by a governmental unit that it may be liable or potentially liable
under or in violation of an Environmental Law. Indicate the governmental unit,
the date of notice, and if known, the Environmental Law: (See the accompanying
general response).
- -------------------------------------------------------------------------------------------------------------
Name and Address of Environmental
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice Law
- -------------------------------------------------------------------------------------------------------------
Exide Corporation Interstate Lead US Environmental April 22, 1997 Comprehensive
& GNB Company Protection Agency (Entered) Environmental
Technologies Superfund Site Region 4 Response
Company, Inc. Leeds, AL Atlanta Federal Center Compensation and
61 Forsyth Street Liability Act
Atlanta, GA 30303
- -------------------------------------------------------------------------------------------------------------
Exide Corporation Estes Landfill Arizona Department of August 25, 2000 Arizona Revised
Phoenix,AZ Environmental Quality Statutes
3033 North Central Avenue
Phoenix, AZ 85012
- -------------------------------------------------------------------------------------------------------------
Exide Corporation 415 S. Seventh Avenue California Regional Water Judgement in
City of Industry, CA Quality Control Board Civil Suit
- -------------------------------------------------------------------------------------------------------------
GNB Inc. ALCO Pacific Lead US Environmental April 17, 1998 Comprehensive
Battery Site Protection Agency (UAO) Environmental
16914 South Broadway Region 9 February 11, 1998 Response
Compton, CA 75 Hawthorne Street (Request to Compensation
San Francisco, CA 94105 Participate in and Liability
Removal Action) Act
- -------------------------------------------------------------------------------------------------------------
General Battery Operating Industries, US Environmental June 16, 1998 Comprehensive
Corporation & GNB Inc Protection Agency Environmental
Technologies, Landfill Superfund Region 9 Response
Inc. Site 75 Hawthorne Street Compensation
Monterey Park, San Francisco, CA 94105 and Liability
California Act
- -------------------------------------------------------------------------------------------------------------
Exide Corporation San Gabriel Valley US Environmental August 18, 1998 Comprehensive
& Superfund Site Protection Agency 104(e)request Environmental
GNB Technologies, Puente Valley Operable Region 9 Response
Inc. Unit 75 Hawthorne Street June 2, 2000 Compensation
California San Francisco,CA 94105 and Liability
Act
- -------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------
NPL or NPL
Debtor Entity Proceeding Docket Status Style Site
- ----------------------------------------------------------------------------
Exide Corporation Consent CV-97-AR-0001-S Ongoing Yes
& GNB Decree
Technologies
Company, Inc.
- ----------------------------------------------------------------------------
Exide Corporation Information Yes
request
- ----------------------------------------------------------------------------
Exide Corporation No
- ----------------------------------------------------------------------------
GNB Inc. Unilateral 98-05 Yes
Administrative
Order
- ----------------------------------------------------------------------------
General Battery Offer for Ongoing Yes
Corporation & GNB deminimus
Technologies, settlement
Inc.
- ----------------------------------------------------------------------------
Exide Corporation EPA issued Ongoing Yes
& 104(e) request
GNB Technologies, for information
Inc.
- ----------------------------------------------------------------------------
SOFA 17a
1 OF 7
8/28/2003
In re Exide Technologies Case No. 02-11125
A Delaware Corporation
STATEMENT OF FINANCIAL AFFAIRS
RIDER 17a - ENVIRONMENTAL INFORMATION
List the name and address of every site for which the debtor has received notice
in writing by a governmental unit that it may be liable or potentially liable
under or in violation of an Environmental Law. Indicate the governmental unit,
the date of notice, and if known, the Environmental Law: (See the accompanying
general response).
- ---------------------------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice Environmental Law
- ---------------------------------------------------------------------------------------------------------------
Exide Stringfellow Site US Environmental Comprehensive
Technologies Riverside County, CA Protection Agency Environmental
Region 9 Response
75 Hawthorne Street Compensation and
San Francisco, CA 94105 Liability Act
- ---------------------------------------------------------------------------------------------------------------
General Battery One Arkansas Street City and County of December 17, 1998 San Francisco
Corporation San Francisco, CA San Francisco Health Code
1930 Market Street
San Francisco, CA
- ---------------------------------------------------------------------------------------------------------------
Exide Corporation Sapp Battery US Environmental October 19, 1992 Comprehensive
& Superfund Site Protection Agency (Lodged) Environmental
GNB Incorporated
& Jackson County, FL Region 4 Response
Schuylkill Metals Atlanta Federal Center Compensation and
Corporation 61 Forsyth Street Liability Act
Atlanta, GA 30303
- ---------------------------------------------------------------------------------------------------------------
GNB Technologies, Raleigh Street Dump US Environmental March 13, 2000 Comprehensive
Inc. Tampa, FL Protection Agency Environmental
Region 4 Response
Atlanta Federal Center Compensation and
61 Forsyth Street Liability Act
Atlanta, GA 30303
- ---------------------------------------------------------------------------------------------------------------
Exide Exide Technologies Georgia Department of State RCRA Program
Technologies 3639 Joy Road Natural Resources
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------------------------------
Exide Corporation NL Industries/ US Environmental November 9, 1999 Comprehensive
& Taracorp Protection Agency (Consent Decree Environmental
General Battery Superfund Site Region 5 Lodged) Response
Corporation & Granite City, IL 77 West Jackson Blvd. Compensation an
GNB Technologies, Chicago, IL Liability Act d
Inc.
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
NPL or
NPL Style
Debtor Entity Proceeding Docket Status Site
- ---------------------------------------------------------------------------------
Exide Consent Decree Yes
Technologies
- ---------------------------------------------------------------------------------
General Battery Cleanup and Ongoing No
Corporation Abatement
Order
#98-001
- ---------------------------------------------------------------------------------
Exide Corporation Consent Decree C.A. No. Ongoing Yes
&
GNB Incorporated 92-50244/LAC
&
Schuylkill Metals
Corporation
- ---------------------------------------------------------------------------------
GNB Technologies, 104(e) No
Inc. Information
Request
- ---------------------------------------------------------------------------------
Exide Technologies RCRA Permit Ongoing No
Required RFI
- ---------------------------------------------------------------------------------
Exide Corporation Consent Decree CA. No. 91-CV578-JLF Ongoing Yes
&
General Battery (S.D. ILL)
Corporation &
GNB Technologies, DOJ REF No. 90-11-3-
Inc. 608A
- ---------------------------------------------------------------------------------
SOFA 17a
2 OF 7
8/28/2003
In re Exide Technologies Case No. 02-11125
A Delaware Corporation
STATEMENT OF FINANCIAL AFFAIRS
RIDER 17a - ENVIRONMENTAL INFORMATION
List the name and address of every site for which the debtor has received notice
in writing by a governmental unit that it may be liable or potentially liable
under or in violation of an Environmental Law. Indicate the governmental unit,
the date of notice, and if known, the Environmental Law: (See the accompanying
general response).
- -----------------------------------------------------------------------------------------------------
Name and Address of Environmental
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice Law
- -----------------------------------------------------------------------------------------------------
Exide Corporation Four County Landfill Indiana Department November 2, 1998 Comprehensive
Site of Environmental
Delong, IN Environmental Response
Management Compensation
100 N. Senate Avenue and Lability
Indianapolis, IN Act
- -----------------------------------------------------------------------------------------------------
Exide Technologies Exide Technologies Kansas Department of
1825 S. 4th Street Health & Environment
Leavenworth, KS 1000 SW Jackson St.,
Suite 320
Topeka, KS 66612
-1366
- -----------------------------------------------------------------------------------------------------
Schuylkill Metals Petro Processors Louisiana Department
Corporation Superfund Site of
Baton Rouge, LA Environmental
Quality
7290 BlueBonnet
Blvd.
Baton Rouge,
LA 70810
- -----------------------------------------------------------------------------------------------------
Exide Corporation Delatte Metals US Environmental Not Dated Comprehensive
& Superfund Site Protection Agency Environmental
Schuylkill Metals 19113 Weinberger Road Region 6 Response
Corporation & GNB Ponchatoula, LA 70454 1445 Ross Avenue Compensation
Technologies, Inc. Suite 1200 and Liability
Dallas, TX 75202 Act
-2733
- -----------------------------------------------------------------------------------------------------
GNB Technologies, Stovall Dirt Pit Site Louisiana Department Louisiana
Inc. Shreveport, LA of Environmental
Environmental Quality Act
Quality
7290 BlueBonnet
Baton Rouge, LA
- -----------------------------------------------------------------------------------------------------
Exide Corporation Ramona Park Landfill US November 21, Comprehensive
Superfund Site Environmental 2000 January Environmental
Utica, Ml Protection 7, 1997 104(e) Response
Agency Region 5 request Compensation
77 West Jackson and Liability
Blvd. Chicago, IL Act
- -----------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------
NPL or NPL
Debtor Entity Proceeding Docket Status Style Site
- --------------------------------------------------------------------------
Exide Corporation Agreed Order Ongoing Yes
- --------------------------------------------------------------------------
Exide Technologies No
- --------------------------------------------------------------------------
Schuylkill Metals Ongoing Yes
Corporation
- --------------------------------------------------------------------------
Exide Corporation EPA issued Yes
& 104(e)
Schuylkill Metals request
Corporation & GNB for
Technologies, Inc. information
- --------------------------------------------------------------------------
GNB Technologies, Cooperative Ongoing Yes
Inc. Agreement
For Site
Investigation
And
Remediation
- --------------------------------------------------------------------------
Exide Corporation Agreement and V-W-00-C-616 Ongoing Yes
Administrative
Order by
Consent
- --------------------------------------------------------------------------
SOFA 17a
3 OF 7
8/28/2003
In re Exide Technologies Case No. 02-11125
A Delaware Corporation
STATEMENT OF FINANCIAL AFFAIRS
RIDER 17a - ENVIRONMENTAL INFORMATION
List the name and address of every site for which the debtor has received notice
in writing by a governmental unit that it may be liable or potentially liable
under or in violation of an Environmental Law. Indicate the governmental unit,
the date of notice, and if known, the Environmental Law: (See the accompanying
general response).
- ---------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ---------------------------------------------------------------------------------------------
GNB Technologies, Oak Grove Landfill US Environmental 1991
Inc. Anoka County, MN Protection Agency
Region 5
77 West Jackson Blvd.
Chicago, IL
- ---------------------------------------------------------------------------------------------
GNB Technologies Union Scrap Iron & Minnesota Pollution February 25, 2000
Inc. Metal Minneapolis, MN Control Agency
520 Lafayett Road North
St. Paul, MN 55155
- ---------------------------------------------------------------------------------------------
Exide Corporation & Omaha Lead Site US Environmental August 17, 2001
GNB Technologies, Omaha, NB Protection Agency
Inc. Region 7 (Exide)
901 North 5th Street March 15, 2000
Kansas City, KS (GNB)
- ---------------------------------------------------------------------------------------------
Exide Corporation NL Industries/ US Environmental July 1993
Dutchboy Paints Protection Agency
NJ Region 2
290 Broadway, 19th Fl.
New York, NY
- ---------------------------------------------------------------------------------------------
Exide Corporation & NL Industries, Inc. US Environmental April 5, 1999
GNB Technologies, Superfund Site Protection Agency (Entered)
Inc. Pedricktown, NJ Region 2
290 Broadway, 19th Floor
New York, NY
- ---------------------------------------------------------------------------------------------
GNB Technologies, Perth Amboy US Environmental July 13, 1993
Inc. NJ Protection Agency
Region 2
290 Broadway, 19th Fl.
New York, NY
- ---------------------------------------------------------------------------------------------
GNB Technologies, Magic Marker Property New Jersey Department of December 1, 1998
Inc. 467 Calhoun Street Environmental Protection (Remediation
Trenton, NJ PO Box 407 Investigation
Trenton, NJ 08625-0407 Agreement)
- ---------------------------------------------------------------------------------------------
GNB Technologies, 11155 SW Denney Rd. Oregon Department of
Inc. Beaverton, OR Environmental Quality
2020 SW Fourth Ave.
Suite 400
Portland, OR 97204
- ---------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
NPL or
NPL Style
Debtor Entity Environmental Law Proceeding Docket Status Site
- ------------------------------------------------------------------------------------------------
GNB Technologies, Comprehensive 104(e) Yes
Inc. Environmental Information
Response Request
Compensation and
Liability Act
- ------------------------------------------------------------------------------------------------
GNB Technologies Comprehensive Settlement Ongoing Yes
Inc. Environmental Agreement and
Response Consent Order
Compensation and
Liability Act
- ------------------------------------------------------------------------------------------------
Exide Corporation & Comprehensive EPA issued Yes
GNB Technologies, Environmental 104(e) request
Inc. Response or information
Compensation and
Liability Act
- ------------------------------------------------------------------------------------------------
Exide Corporation Comprehensive EPA issued Yes
Environmental 104(e) request
Response for information
Compensation and
Liability Act
- ------------------------------------------------------------------------------------------------
Exide Corporation & Comprehensive Consent Decree C.A. No. 99-52 Ongoing Yes
GNB Technologies, Environmental
Inc. Response
Compensation and
Liability Act
- ------------------------------------------------------------------------------------------------
GNB Technologies, Comprehensive 104(e) Yes
Inc. Environmental Information
Response Request
Compensation and
Liability Act
- ------------------------------------------------------------------------------------------------
GNB Technologies, Remedial Ongoing No
Inc. Investigation
Agreement
- ------------------------------------------------------------------------------------------------
GNB Technologies, State of Oregon Ongoing No
Inc. Voluntary Cleanup
Program
- ------------------------------------------------------------------------------------------------
SOFA 17a
4 OF 7
8/28/2003
In re Exide Technologies Case No. 02-11125
A Delaware Corporation
STATEMENT OF FINANCIAL AFFAIRS
RIDER 17a - ENVIRONMENTAL INFORMATION
List the name and address of every site for which the debtor has received notice
in writing by a governmental unit that it may be liable or potentially liable
under or in violation of an Environmental Law. Indicate the governmental unit,
the date of notice, and if known, the Environmental Law: (See the accompanying
general response).
- ---------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ---------------------------------------------------------------------------------------------
General Battery States Battery Oregon Department of July 14, 1998
Corporation Company, Inc. Environmental Quality
2258 N.W. Suffolk 811 SW Sixth Avenue
Street Portland, OR Portland, OR 97204-1390
- ---------------------------------------------------------------------------------------------
General Battery Hamburg Lead US Environmental August 30, 1993
Corporation Superfund Site Protection Agency September3,1998
Hamburg, PA Region 3 104(e) requests
1650 Arch Street June 15,2000
Philadelphia, PA Complaint)
19103-2029
- ---------------------------------------------------------------------------------------------
General Battery Exide Technologies Pennsylvania Department of March 17, 1999
Corporation 251 Grand Street Environmental Protection
Hamburg, PA 1005 Cross Roads Blvd.
Reading, PA 19605
- ---------------------------------------------------------------------------------------------
Exide Corporation Tonolli Corporation US Environmental October 14, 1993
& GNB Technologies, Superfund Site Protection Agency (AOC Effective
Inc. RD#1, Tonolli Rd. Region 3 Date)
Nesquehoning, PA 1650 ArchStreet
Philadelphia, PA
19103-2029
- ---------------------------------------------------------------------------------------------
General Battery Brown's Battery US Environmental June 3, 1996
Corporation Breaking Superfund Protection Agency (Consent Decree
Site 446 Fisher Dam Region 3 Entered)
Road Shoemakersville, 1650 Arch Street
PA Philadelphia, PA
19103-2029
- ---------------------------------------------------------------------------------------------
General Battery Berks Landfill US Environmental March 31, 1998
Corporation Superfund Site Spring Protection Agency
Township, PA Region 3
1650 Arch Street
Philadelphia, PA
19103-2029
- ---------------------------------------------------------------------------------------------
Exide Corporation & Ross Metals Superfund US Environmental March 16, 2001
Batteries Unlimited, Site Rossville, TN Protection Agency (SMC & Enpak)
Inc. & Schuylkill Region 4 March 24, 1998
Metals Corporation Atlanta Federal Center (Exide)
& Enpak, Inc. & GNB 61 Forsyth Street Atlanta, April 2, 1998
Technologies, Inc. GA 30303 (Batteries
Unlimited)
- ---------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
NPL or
NPL Style
Debtor Entity Environmental Law Proceeding Docket Status Site
- ----------------------------------------------------------------------------------------------------
General Battery Comprehensive No
Corporation Environmental
Response
Compensation and
Liability Act
- ----------------------------------------------------------------------------------------------------
General Battery Comprehensive EPA issued C.A. 00-CU-3057 Ongoing Yes
Corporation Environmental 104(e) requests
Response or information;
Compensation and complaint lodged
Liability Act
- ----------------------------------------------------------------------------------------------------
General Battery No
Corporation
- ----------------------------------------------------------------------------------------------------
Exide Corporation Comprehensive Administrative CV-98-0363 Ongoing Yes
& GNB Technologies, Environmental Order on Consent
Inc. Response and Consent
Compensation and Decree
Liability Act
- ----------------------------------------------------------------------------------------------------
General Battery Comprehensive Consent Decree C.A. No. 85-1372 Ongoing Yes
Corporation Environmental
Response
Compensation and
Liability Act
- ----------------------------------------------------------------------------------------------------
General Battery Comprehensive Consent Decree Not Coded yet Ongoing Yes
Corporation Environmental (Past Costs) (Past Costs)
Response
Compensation and Administrative III-98-071-DC
Liability Act Order
- ----------------------------------------------------------------------------------------------------
Exide Corporation & Comprehensive EPA issued Yes
Batteries Unlimited, Environmental 104(e) requests
Inc. & Schuylkill Response for information
Metals Corporation Compensation and
& Enpak, Inc. & GNB Liability Act
Technologies, Inc.
- ----------------------------------------------------------------------------------------------------
SOFA 17a
5 OF 7
8/28/2003
In re Exide Technologies Case No. 02-11125
A Delaware Corporation
STATEMENT OF FINANCIAL AFFAIRS
RIDER 17a - ENVIRONMENTAL INFORMATION
List the name and address of every site for which the debtor has received notice
in writing by a governmental unit that it may be liable or potentially liable
under or in violation of an Environmental Law. Indicate the governmental unit,
the date of notice, and if known, the Environmental Law: (See the accompanying
general response).
- --------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- --------------------------------------------------------------------------------------------
Exide Corporation Jerrell B. Thompson Texas Natural Resource March 5, 1998
State Superfund Site Conservation Commission
Canton, TX 2100 Park 35 Circle
Austin, TX 78753
- --------------------------------------------------------------------------------------------
Exide Corporation JCS Company State Texas Natural Resource March 5, 1998
Superfund Site Conservation Commission
Canton, TX 2100 Park 35 Circle
Austin, Texas 78753
- --------------------------------------------------------------------------------------------
Exide Technologies & Poly-Cycle Industries, US Environmental October 18, 1991
GNB Technologies, Inc. Site Tecula, TX Protection Agency
Inc. Region 6
1445 Ross Avenue
Suite 1200
Dallas, TX 75202-2733
- --------------------------------------------------------------------------------------------
Exide Corporation & Poly-Cycle Industries Texas Natural Resource June 2, 1999
GNB Technologies, Inc. State Superfund Conservation Commission
Inc. Site Palmer, TX 12100 Park 35 Circle
Austin, Texas 78753
- --------------------------------------------------------------------------------------------
Exide Corporation Poly-Cycle Industries Texas Natural Resource August 2, 2000
Jacksonville, TX Conservation Commission
12100 Park 35 Circle
Austin, Texas 78753
- --------------------------------------------------------------------------------------------
GNB Technologies, Materials Recovery Texas Natural Resource June 1, 1998
Inc. Enterprises Conservation Commission
State Superfund Site 12110 Park 35 Circle
Ovalo, TX Austin, Texas 78753
- --------------------------------------------------------------------------------------------
GNB Technologies, RSR Corporation US Environmental December 14, 1998
Inc. Dallas, TX Protection Agency (Consent Decree
Region 4 Entered)
Atlanta Federal
Center 61 Forsyth Street
Atlanta, GA 30303
- --------------------------------------------------------------------------------------------
Exide Corporation Waste Disposal WDE Landfill PRP Group April 1994
Engineering
- --------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
NPL or
NPL Style
Debtor Entity Environmental Law Proceeding Docket Status Site
- ------------------------------------------------------------------------------------------
Exide Corporation Texas Health and PRP notification Yes
Safety Code
- ------------------------------------------------------------------------------------------
Exide Corporation Texas Health and PRP notification Yes
Safety Code
- ------------------------------------------------------------------------------------------
Exide Technologies & Comprehensive EPA issued Yes
GNB Technologies, Environmental 104(e) request
Inc. Response for information
Compensation and
Liability Act
- ------------------------------------------------------------------------------------------
Exide Corporation & State Superfund Voluntary Ongoing Yes
GNB Technologies, Cleanup
Inc. Agreement
- ------------------------------------------------------------------------------------------
Exide Corporation State Superfund Information Yes
request
- ------------------------------------------------------------------------------------------
GNB Technologies, State Superfund Agreed Order Yes
Inc.
- ------------------------------------------------------------------------------------------
GNB Technologies, Comprehensive Consent Decree Ongoing Yes
Inc. Environmental
Response
Compensation and
Liability Act
- ------------------------------------------------------------------------------------------
Exide Corporation Comprehensive Yes
Environmental
Response
Compensation and
Liability Act
- ------------------------------------------------------------------------------------------
SOFA 17a
6 OF 7
8/28/2003
In re Exide Technologies Case No. 02-11125
A Delaware Corporation
STATEMENT OF FINANCIAL AFFAIRS
RIDER 17a - ENVIRONMENTAL INFORMATION
List the name and address of every site for which the debtor has received notice
in writing by a governmental unit that it may be liable or potentially liable
under or in violation of an Environmental Law. Indicate the governmental unit,
the date of notice, and if known, the Environmental Law: (See the accompanying
general response).
- ------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ------------------------------------------------------------------------------------
Exide Technologies Exide Missouri October 16, 2001
Technologies Department of
PO Box 156 Forest Natural Resources
City, MO 64451
- ------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
NPL or
NPL Style
Debtor Entity Environmental Law Proceeding Docket Status Site
- -------------------------------------------------------------------------------------
Exide Technologies MDNR Air Quality Notice of Proposed No
Violation Settlement
Agreement
Being Rev.
- -------------------------------------------------------------------------------------
SOFA 17a
7 OF 7
8/28/2003
In re Exide Technologies Case No. 02-11125
A Delaware Corporation
STATEMENT OF FINANCIAL AFFAIRS
RIDER 17a - ENVIRONMENTAL INFORMATION
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- -----------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Tennessee Department of February 9, 1995
364 Exide Drive Environmental
Bristol, TN Conservation
401 Church Street
Nashville, TN 37243-1535
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Tennessee Department of December 25, 1997
364 Exide Drive Environmental
Bristol, TN Conservation
2305 Silvermave Road
Johnson City, TN 37601
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Tennessee Department of March 29, 1999
364 Exide Drive Environmental
Bristol, TN Conservation
2305 Silvermave Road
Johnson City, TN 37601
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Tennessee Department of May 3, 1999
364 Exide Drive Environmental
Bristol, TN Conservation
2305 Silvermave Road
Johnson City, TN 37601
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Tennessee Department of September 7, 1999
364 Exide Drive Environmental
Bristol, TN Conservation
401 Church Street
Nashville, TN 37243-1535
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Tennessee Department of January 5, 2000
364 Exide Drive Environmental
Bristol, TN Conservation
401 Church Street
Nashville, TN 37243-1535
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Tennessee Department of May 25, 2000
364 Exide Drive Environmental
Bristol, TN Conservation
401 Church Street
Nashville, TN 37243-1535
- -----------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
SOFA 17b
1 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- -----------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Tennessee Department of September 20,
364 Exide Drive Environmental 2000
Bristol, TN Conservation
401 Church Street
Nashville, TN 37243-1535
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Tennessee Department of June 13, 2001
364 Exide Drive Environmental
Bristol, TN Conservation
2305 Silvermave Road
Johnson City, TN 37601
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Iowa Department of April 13, 1993
3400 West Avenue Natural Resources
Burlington, IA Wallace State Office
Building Des Moines,
IA 50319
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Iowa Department of April 15, 1993
3400 West Avenue Natural Resources
Burlington, IA Wallace State Office
Building Des Moines,
IA 50319
- -----------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Iowa Department of December 8, 1998
3400 West Avenue Natural Resources
Burlington, IA Air Quality Section
1004 West Madison
Washington, IA 52353
- -----------------------------------------------------------------------------------------
Exide Exide Corporation Iowa Department of November 2, 2000
Technologies 3400 West Avenue Natural Resources
Burlington, IA 502 E. 9th Street
Wallace State
Office Building
Des Moines, IA50319
- -----------------------------------------------------------------------------------------
GNB Technologies Exide Technologies January 11, 1994
14500 Nelson Avenue
City of Industry,
CA 91746
- -----------------------------------------------------------------------------------------
Exide Exide Technologies Georgia Department May 4, 2000
Technologies 3639 Joy Road of Environmetal
Columbus, GA 31906 Protection 205
Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- -----------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Complete
Technologies
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
Exide Complete
Technologies
- ---------------------------------------------------------------------
SOFA 17b
2 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ---------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of July 13, 1998
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of June 5, 1998
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of April 20, 1998
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of April 30, 1998
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of March 19, 1998
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of March 12, 1997
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of March 11, 1997
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
- -----------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
SOFA 17b
3 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ---------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of December 18, 1997
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of December 9, 1997
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of October 19, 1997
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of June 9, 1997
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of January 9, 1996
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Georgia Department of November 8, 1994
3639 Joy Road Environmetal Protection
Columbus, GA 31906 205 Butler Street, SE
Floyd Towers East
Atlanta, GA 30334
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Department of June 28, 1995
1880 Valley View Lane Transportation
Farmers Branch,
TX 75234-8905
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Oklahoma Department of August 28, 1996
1880 Valley View Lane Pollution Control
Farmers Branch,
TX 75234-8905
- ---------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
GNB Technologies
- ------------------------------------------------------------------
GNB Technologies
- ------------------------------------------------------------------
SOFA 17b
4 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ----------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ----------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource November 29, 1996
1880 Valley View Lane Conservation Commission
Farmers Branch, PO Box 13087
TX 75234-8905 Austin, Texas 78711-3087
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource March 7, 1997
1880 Valley View Lane Conservation Commission
Farmers Branch, PO Box 13087
TX 75234-8905 Austin, Texas 78711-3087
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource April 15, 1999
1880 Valley View Lane Conservation Commission
Farmers Branch, PO Box 13087
TX 75234-8905 Austin, Texas 78711-3087
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource April 8, 2000
1880 Valley View Lane Conservation Commission
Farmers Branch, PO Box 13087
TX 75234-8905 Austin, Texas 78711-3087
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department February 11, 1991
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department June 10, 1993
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department October 13, 1995
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department February 14, 1996
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department May 15, 1996
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
- -----------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
SOFA 17b
5 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ---------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department April 18, 1997
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department August 26, 1997
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department February 19, 1998
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department April 9, 1998
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Mississippi Department February 5, 1992
250 Ellis Street of Environmental
Florence, MS 39073 Quality
PO Box 10385
Jackson, MS 39289-0395
- ---------------------------------------------------------------------------------------
Exide Exide Technologies Missouri Department of June 3, 2002
Technologies PO Box 156 Natural Resources
Forest City, MO 64451 Air Pollution Control
PO Box 176
Jefferson City, MO 65102
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource March 9, 1993
7471 South 5th Street Conservation Commission
Frisco, TX 75034 PO Box 13087
Austin, Texas 78711-3087
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource January 8, 1994
7471 South 5th Street Conservation Commission
Frisco, TX 75034 PO Box 13087
Austin, Texas 78711-3087
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource September 25,
7471 South 5th Street Conservation Commission 1994
Frisco, TX 75034 PO Box 13087
Austin, Texas 78711-3087
- ---------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource February 3, 1995
- -----------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
Exide Complete
Technologies
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
- -----------------------------------------------------------------
GNB Technologies Complete
SOFA 17b
6 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ------------------------------------------------------------------------------------------
7471 South 5th Street Conservation Commission
Frisco, TX 75034 PO Box 13087
Austin, Texas 78711-3087
- ------------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource February 21, 1996
7471 South 5th Street Conservation Commission
Frisco, TX 75034 PO Box 13087
Austin, Texas 78711-3087
- ------------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Texas Natural Resource November 26, 1996
7471 South 5th Street Conservation Commission
Frisco, TX 75034 PO Box 13087
Austin, Texas 78711-3087
- ------------------------------------------------------------------------------------------
Exide Exide Technologies Texas Natural Resource December 8, 2001
Technologies 7471 South 5th Street Conservation Commission
Frisco, TX 75034 PO Box 13087
Austin, Texas 78711-3087
- ------------------------------------------------------------------------------------------
Exide Exide Technologies Arkansas Department of May 2, 2002
Technologies 4115 South Zero Street Environmental Quality
Fort Smith, AR 72903 PO Box 8913
Little Rock, AR 72219
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department March 3, 1999
251 Grand Street of Environmental
Hamburg, PA Protection
1005 Cross Roads Blvd.
Reading, PA 19605
- ------------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Kansas Department of 1992
3001 Fairfax Health and Environment
Trafficway Forbes Field Building 740
Kansas City, KS 66115 Topeka, KS 66620
- ------------------------------------------------------------------------------------------
GNB Technologies Exide Technologies Kansas Department of March 12, 1993
3001 Fairfax Health and Environment
Trafficway Forbes Field Building 740
Kansas City, KS 66115 Topeka, KS 66620
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department July 2, 1996
829 Paramount Avenue of Environmental
Lampeter, PA Protection
PO Box 8762
Harrisburg, PA 17105-8762
- ------------------------------------------------------------------------------------------
Exide Exide Technologies Department of Toxic and September 12,
Technologies 2700 South Indiana Substance Control 2000
Street
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
Exide Complete
Technologies
- ------------------------------------------------------------------
Exide Complete
Technologies
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
GNB Technologies Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Complete
Technologies
- ------------------------------------------------------------------
SOFA 17b
7 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ------------------------------------------------------------------------------------------
Los Angeles, CA 90023 1011 N. Gramdview Avenue
Glendale, CA 91201
- ------------------------------------------------------------------------------------------
Exide Exide Technologies Department of Toxic and April 27, 2000
Technologies 2700 South Indiana Substance Control
Street 1011 N. Gramdview Avenue
Los Angeles, CA 90023 Glendale, CA 91201
- ------------------------------------------------------------------------------------------
Exide Exide Technologies Department of Toxic and August 1, 2000
Technologies 2700 South Indiana Substance Control
Street 1011 N. Gramdview Avenue
Los Angeles, CA 90023 Glendale, CA 91201
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of October 21, 1993
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of October 11, 1994
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of December 7, 1994
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of July 14, 1995
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of October 25, 1996
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
Exide Complete
Technologies
- ------------------------------------------------------------------
Exide Complete
Technologies
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
SOFA 17b
8 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Iowa Department of October 23, 1998
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
United States
Environmental
Protection Agency
726 Minnesota Avenue
Kansas City, KS
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of November 3, 1998
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of December 11, 1998
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of January 18, 2000
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of March 30, 2000
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of July 11, 2000
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of July 17, 2000
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of September 20,
913 South 10th Street Natural Resources 2000
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
SOFA 17b
9 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a govemmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of October 10,2000
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of December 5, 2000
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of December 27, 2000
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of January 10, 2001
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of February 11, 2001
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of February 28, 2001
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of March 7, 2001
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of May 16, 2001
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of May 24, 2001
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
SOFA 17b
10 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of July 20, 2001
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of November 6, 2001
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Technologies Iowa Department of May 14, 2002
913 South 10th Street Natural Resources
Manchester, IA 817 W. Fayette
Manchester, IA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania February 11, 1992
Spring Valley & Department of
Nolan St. Environmental Resources
Reading, PA 1005 Cross Roads Blvd.
Reading, PA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department November 23,1992
Spring Valley & of Environmental
Nolan St. Resources
Reading, PA 1005 Cross Roads Blvd.
Reading, PA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department February 11, 1993
Spring Valley & of Environmental
Nolan St. Resources
Reading, PA 625 Cherry Street
Reading, PA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania November 6, 1993
Spring Valley & Department of
Nolan St. Environmental Resources
Reading, PA One Ararat Blvd.
Harrisburg, PA &
United States
Environmental
Protection Agency
303 Methodist Building
Wheeling, WV
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania April 21,1994
Spring Valley & Department of
Nolan St. Reading, PA Environmental Resources
1005 Cross Roads Blvd.
Reading, PA
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Solid Waste Complete
Management
Act of
Pennsylvania
- ------------------------------------------------------------------
Exide Corporation Solid Waste Complete
Management
Act of
Pennsylvania
- ------------------------------------------------------------------
Exide Corporation Solid Waste Complete
Management
Act of
Pennsylvania
- ------------------------------------------------------------------
SOFA 17b
11 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department August 31, 1994
Spring Valley & of Environmental
Nolan St. Resources
Reading, PA 1005 Cross Roads Blvd.
Reading, PA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department October 18, 1994
Spring Valley & of Environmental
Nolan St. Resources
Reading, PA 1005 Cross Roads Blvd.
Reading, PA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department February 12, 1995
Spring Valley & of Environmental
Nolan St. Resources
Reading, PA One Ararat Blvd.
Harrisburg, PA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department June 20, 1995
Spring Valley Rd of Environmental
and Montrose Avenue Resources
Reading,PA 19605 1005 Cross Roads Blvd.
Reading, PA 19605
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department August 15, 1996
Spring Valley & of Environmental
Nolan St. Resources
Reading, PA 1005 Cross Roads Blvd.
Reading, PA
- ------------------------------------------------------------------------------------------
Exide Exide Corporation Pennsylvania Department September 2,1996
Technologies Spring Valley & of Environmental
Montrose Avenue Resources
Reading, PA 1005 Cross Roads Blvd.
Reading, PA 19605
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department April 27, 1997
Spring Valley & of Environmental
Montrose Avenue Resources
Reading, PA 1005 Cross Roads Blvd.
Reading, PA 19605
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department April 22, 1999
Spring Valley & of Environmental
Montrose Avenue Resources
Reading, PA 1005 Cross Roads Blvd.
Reading, PA 19605
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department January 23, 2000
Spring Valley & of Environmental
Nolan St. Resources
Reading, PA 1005 Cross Roads Blvd.
Reading, PA
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
Exide Corporation Solid Waste Complete
Management
Act of
Pennsylvania
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Solid Waste Complete
Management
Act of
Pennsylvania
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Technologies Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
Exide Corporation Complete
- ------------------------------------------------------------------
SOFA 17b
12 OF 13
8/28/2003
List the name and address of every site for which the debtor provided notice to
a governmental a unit of a release of Hazardous Material. Indicate the
governmental unit to which the notice was sent and the date of the notice (See
accompanying general response).
- ------------------------------------------------------------------------------------------
Name and Address of
Debtor Entity Site Name and Address Regulatory Unit Date(s) of Notice
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department October 23, 2000
Spring Valley & of Environmental
Nolan St. Protection
Reading, PA 1005 Cross Roads Blvd.
Reading, PA 19605 &
United States
Environmental
Protection Agency
1650 Arch Street
Philadelphia, PA
- ------------------------------------------------------------------------------------------
Exide Corporation Exide Corporation Pennsylvania Department January 23, 2001
Spring Valley & of Environmental
Nolan St. Protection
Reading, PA 1005 Cross Roads Blvd.
Reading, PA 19605 &
United States
Environmental
Protection Agency
1650 Arch Street
Philadelphia, PA
- ------------------------------------------------------------------------------------------
Exide Technologies Exide Corporation Pennsylvania Department January 16, 2002
Spring Valley & of Environmental
Nolan St. Protection
Reading, PA 1005 Cross Roads Blvd.
Reading, PA 19605 &
United States
Environmental
Protection Agency
1650 Arch Street
Philadelphia, PA
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------
Environmental
Debtor Entity Law Proceeding Docket Status
- ------------------------------------------------------------------
Exide Corporation Federal Water Complete
Pollution
Control Act
- ------------------------------------------------------------------
Exide Corporation Federal Water Complete
Pollution
Control Act
- ------------------------------------------------------------------
Exide Technologies Federal Water Complete
Pollution
Control Act
- ------------------------------------------------------------------
SOFA 17b
13 OF 13
8/28/2003