Exhibit 2.3
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)
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DEBTORS' FOURTH AMENDED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
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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: October 24, 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.
TABLE OF CONTENTS
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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..................................................................12
C. Priority Tax Claims..................................................................12
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS..........12
A. Summary..............................................................................12
B. Classification and Treatment of Claims and Equity Interests: Exide...................14
C. Classification and Treatment of Claims and Equity Interests: Subsidiary Debtors......17
D. Special Provision Governing Unimpaired Claims........................................19
ARTICLE IV. ACCEPTANCE OR REJECTION OF THE PLAN..............................................19
A. Voting Classes.......................................................................19
B. Acceptance by Impaired Classes.......................................................19
C. Presumed Acceptance of Plan..........................................................19
D. Presumed Rejection of Plan...........................................................19
E. Non-Consensual Confirmation..........................................................19
ARTICLE V. MEANS FOR IMPLEMENTATION OF THE PLAN..............................................20
A. Restructuring........................................................................20
B. Continued Corporate Existence and Vesting of Assets in the Reorganized Debtors.......20
C. Cancellation of Old Notes and Equity Interests.......................................20
D. Source and Timing for Effective Date Plan Distributions and Discharge................21
E. Issuance of New Securities; Execution of Related Documents...........................21
F. Issuance of Stock of Reorganized Subsidiary Debtors to Reorganized Exide.............21
G. Corporate Governance, Directors and Officers, and Corporate Action...................21
H. Dismissal of Creditors Committee Adversary Proceeding and other Plan Settlements.....22
I. Sources of Cash for Plan Distribution................................................22
J. Private Company Status and Stock Transfer Limitations................................22
K. Payment of Agent Expenses............................................................23
L. Adoption of Company Incentive Plan...................................................23
ARTICLE VI. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES............................23
A. Assumption of Executory Contracts and Unexpired Leases...............................23
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases.................24
C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed................24
D. Indemnification of Directors, Officers and Employees.................................24
E. Compensation and Benefit Programs....................................................24
ARTICLE VII. PROVISIONS GOVERNING DISTRIBUTIONS..............................................25
A. Distributions for Claims Allowed as of the Effective Date............................25
B. Delivery and Distributions and Undeliverable or Unclaimed Distributions..............25
C. Timing and Calculation of Amounts to be Distributed..................................26
D. Minimum Distribution.................................................................26
E. Setoffs..............................................................................26
F. Surrender of Canceled Instruments or Securities......................................26
G. Failure to Surrender Canceled Instruments............................................26
H. Lost, Stolen, Mutilated or Destroyed Debt Securities.................................26
ARTICLE VIII. PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS OR
EQUITY INTERESTS..........................................................................27
A. Resolution of Disputed Claims........................................................27
B. Allowance of Claims..................................................................28
C. Controversy Concerning Impairment....................................................28
ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN................28
A. Condition Precedent to Confirmation..................................................28
B. Conditions Precedent to Consummation.................................................28
C. Waiver of Conditions.................................................................29
D. Effect of Non-occurrence of Conditions to Consummation...............................29
ARTICLE X. RELEASE, INJUNCTIVE AND RELATED PROVISIONS........................................29
A. Subordination........................................................................29
B. Releases by the Debtors..............................................................30
C. Releases by Holders of Claims........................................................30
D. Release of Foreign Subsidiary Borrowers and the Domestic Non-Debtor..................30
E. Exculpation..........................................................................31
F. Preservation of Rights of Action.....................................................31
G. Discharge of Claims and Termination of Equity Interests..............................32
H. Injunction...........................................................................33
ARTICLE XI. RETENTION OF JURISDICTION........................................................33
ARTICLE XII. MISCELLANEOUS PROVISIONS........................................................34
A. Effectuating Documents, Further Transactions and Corporation Action..................34
B. Dissolution of Committees............................................................34
C. Payment of Statutory Fees............................................................34
D. Letters of Credit....................................................................34
E. Modification of Plan.................................................................34
F. Revocation of Plan...................................................................34
G. Successors and Assigns...............................................................35
H. Reservation of Rights................................................................35
I. Section 1146 Exemption...............................................................35
J. Further Assurances...................................................................35
K. Service of Documents.................................................................35
L. Filing of Additional Documents.......................................................36
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DEBTORS' FOURTH AMENDED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
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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. "10% Senior Note Indenture" means that certain indenture dated April 28,
1995, as amended from time to time, as between Exide and The Bank of New York,
as trustee, pursuant to which the 10% Senior Notes were issued.
4. "10% Senior Note Indenture Trustee" means The Bank of New York, as
trustee under the 10% Senior Note Indenture.
5. "10% Senior Note Indenture Trustee Charging Lien" means any lien or
other priority for payment of any Indenture Trustee Fees due the Indenture
Trustee under the 10% Senior Note Indenture, which the 10% Senior Note Indenture
Trustee is entitled pursuant to the 10% Senior Note Indenture against all money
or property held or collected by the 10% Senior Note Indenture Trustee,
including, but not limited to, distributions to be made to holders of Allowed
10% Senior Note Claims.
6. "10% Senior Note Indenture Trustee Fees" means the reasonable fees and
expenses incurred by the Indenture Trustee from and after the Petition Date
through the Effective Date in connection with the Chapter 11 Cases, including
the reasonable fees and expenses of its agents and counsel, in accordance with
the terms of the Senior Note Indenture.
7. "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.
8. "2.9% Convertible Note Claims" means all Claims derived from or based
upon the 2.9% Convertible Notes.
9. "Adequate Protection Superpriority Claims" has the meaning set forth in
the Final DIP Order.
10. "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.
11. "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.
12. "Agent" means Credit Suisse First Boston in its capacity as
administrative agent under the Prepetition Credit Facility.
13. "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.
14. "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
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deemed timely Filed under applicable law; or (e) a Claim or Equity Interest that
is allowed pursuant to the terms hereof.
15. "Allowed ... Claim" means an Allowed Claim in the particular Class
described.
16. "Allowed Equity Interest" means an Allowed Equity Interest in the
particular Class described.
17. "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.
18. "Amended Prepetition Foreign Credit Agreement Term Sheet" means that
certain term sheet attached hereto as Exhibit A.
19. "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.
20. "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.
21. "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.
22. "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.
23. "Beneficial Holder" means the Person or Entity holding the beneficial
interest in a Claim or Equity Interest.
24. "Business Day" means any day, other than a Saturday, Sunday or "legal
holiday" (as defined in Bankruptcy Rule 9006(a)).
25. "Cash" means legal tender of the United States of America or the
equivalent thereof, including bank deposits, checks and Cash Equivalents.
26. "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.
27. "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,
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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.
28. "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.
29. "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.
30. "Claim Holder" or "Claimant" means the Holder of a Claim.
31. "Claims Objection Bar Date" means the deadline for the Debtors,
Reorganized Debtors or any other Person or Entity to file an objection to the
allowance of any Claim, which shall be 120 days after the Effective Date.
32. "Class" means a category of Holders of Claims or Equity Interests as
set forth in Article III hereof.
33. "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.
34. "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.
35. "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.
36. "Committees" means, collectively, the Creditors Committee and the
Equity Committee.
37. "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.
38. "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.
39. "Confirmation Hearing" means the hearing at which the Confirmation
Order is considered by the Bankruptcy Court.
40. "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.
41. "Confirmation Order" means the order of the Bankruptcy Court confirming
the Plan pursuant to section 1129 of the Bankruptcy Code.
42. "Consummation" means the occurrence of the Effective Date.
43. "Creditor" means any Holder of a Claim.
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44. "Creditors Committee" means the official committee of unsecured
creditors appointed in these Chapter 11 Cases.
45. "Creditors Committee 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).
46. "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.
47. "Debtor" means one of the Debtors, in its individual capacity, as a
debtor in these Chapter 11 Cases.
48. "Debtor in Possession" means one of the Debtors in Possession, in its
individual capacity, as debtor in possession in these Chapter 11 Cases.
49. "Debtors" means, collectively, the Initial Debtors and the Subsequent
Debtors.
50. "Debtors in Possession" means the Debtors, as debtors in possession in
these Chapter 11 Cases.
51. "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.
52. "DIP Facility Claims" means Claims derived from or based upon the DIP
Facility.
53. "Disclosure Statement" means the Second Amended Disclosure Statement
for Debtors' Third Amended Joint Plan of Reorganization under Chapter 11 of the
Bankruptcy Code dated September 8, 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.
54. "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.
55. "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.
56. "Distribution Record Date" means the date for determining, in the case
of the Prepetition Credit Facility Claims or registered securities, which
Holders of Claims are eligible to receive distributions hereunder, and shall be
the Confirmation Date.
57. "Dixie Metals" means Dixie Metals Company, a Delaware corporation.
58. "Domestic Non-Debtor" means GNB Battery Technologies Japan, Inc., a
Delaware corporation.
59. "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.
60. "Entity" means an entity as defined in section 101(15) of the
Bankruptcy Code.
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61. "Equity Committee" means the official committee of equity security
holders appointed in these Chapter 11 Cases.
62. "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.
63. "Estate" means the estate of a Debtor created by section 541 of the
Bankruptcy Code upon the commencement of its respective Chapter 11 Case.
64. "European Contingent Asset Sales Proceeds" means an amount in Cash, if
any, not to exceed $10,000,000 in any circumstances, from either or both of (a)
the net sales proceeds from the sale of the Caslnuovo property, and (b) the net
sales proceeds from the sale of the European smelters, in each instance payable
on or as soon as practicable after the closing of such transaction; provided,
that if the net sales proceed from the sale of the Caslnuovo property are at
least (euro)8,000,000, the European Contingent Asset Sales Proceeds shall be
deemed to include an additional amount of Cash, if any, such that the European
Contingent Asset Sales Proceeds shall equal $10,000,000.
65. "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.
66. "Exide" means Exide Technologies, f/k/a Exide Corporation, a Delaware
corporation.
67. "Exide BV" has the meaning set forth in Article V.A hereof.
68. "Exide CV" has the meaning set forth in Article V.A. hereof.
69. "Exide Delaware" means Exide Delaware, L.L.C., a Delaware limited
liability company.
70. "Exide Holding III" has the meaning set forth in Article V.A hereof.
71. "Exide Holding Asia" has the meaning set forth in Article V.A hereof.
72. "Exide Holding Europe" has the meaning set forth in Article V.A hereof.
73. "Exide Illinois" means Exide Illinois, Inc., a Pennsylvania
corporation.
74. "Exide Operating" has the meaning set forth in Article V.A. hereof.
75. "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.
76. "File" or "Filed" means file or filed with the Bankruptcy Court in the
Chapter 11 Cases.
77. "Final Decree" means the decree contemplated under Bankruptcy Rule
3022.
78. "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.
79. "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.
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80. "Foreign Asset Sales" has the meaning set forth in the Intercreditor
and Subordination Agreement.
81. "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 Sonnak 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.
82. "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.
83. "Holder" and collectively, "Holders" mean a Person or Entity holding an
Equity Interest or Claim, including a holder.
84. "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.
85. "Impaired Claim" means a Claim classified in an Impaired Class.
86. "Impaired Class" means each of Classes P3, P4, P5, P6, S3, S4 and S5 as
set forth in Article III hereof.
87. "Initial Debtors" means, collectively, Exide; Exide Delaware; Exide
Illinois, and RBD Liquidation, having Filed voluntary chapter 11 petitions on
the Initial Petition Date.
88. "Initial Petition Date" means April 15, 2002.
89. "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.
90. "Letter of Credit" means a letter of credit issued pursuant to the
Prepetition Credit Facility.
91. "Liquidity Event" means the earliest to occur of (a) a refinancing of
the Exit Facility in connection with or with a contemplated distribution of a
portion of the refinancing proceeds to or on account of the Holders of New Exide
Preferred Stock, (b) a sale of all or material assets of New Exide in
conjunction with or with a contemplated distribution of a portion of the sale
proceeds to or on account of the Holders of New Exide Preferred Stock, and (c)
an initial public offering of New Exide.
92. "Liquidity Event Distribution" means an amount of Cash equal to
$20,000,000 minus the amount of European Contingent Asset Sale Proceeds, if any,
paid to the Option A Electors as of the date of a Liquidity Event, payable on or
as soon as practicable after the occurrence of a Liquidity Event.
93. "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.
94. "Merger" means the meger of Exide into Exide Operating, as set forth in
Article V.A.
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95. "New By-laws" means the by-laws of the Reorganized Debtors,
substantially in the forms contained in the Plan Supplement.
96. "New Exide" means a corporation to be incorporated under the laws of
the State of Delaware.
97. "New Exide Board of Directors" means the board of directors of New
Exide, determined according to the New Exide Shareholder Agreement.
98. "New Exide By-laws" means the by-laws of New Exide, substantially in
the form contained in the Plan Supplement.
99. "New Exide Certificate of Incorporation" means the certificate of
incorporation of New Exide, substantially in the form contained in the Plan
Supplement.
100. "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 and
Exchange Act.
101. "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 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.
102. "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.
103. "New Exide Preferred Stock Term Sheet" means that certain term sheet
governing the New Exide Preferred Stock, attached hereto as Exhibit B.
104. "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.
105. "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.
106. "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
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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.
107. "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.
108. "Non-Noteholder General Unsecured Claims" means all General Unsecured
Claims that are not 10% Senior Note Claims.
109. "Old Notes" means, collectively, the 10% Senior Notes and the 2.9%
Convertible Notes.
110. "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.
111. "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.
112. "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.
113. "Other Secured Claims" means any and all Secured Claims against the
Debtors not specifically described herein.
114. "Person" means a person as defined in section 101(41) of the
Bankruptcy Code.
115. "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).
116. "Plan" means this Fourth Amended 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.
117. "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.
118. "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.
119. "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.
120. "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.
121. "Prepetition Domestic Secured Claims" means all Prepetition Credit
Facility Claims that are not Prepetition Foreign Secured Claims.
122. "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
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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.
123. "Prepetition Foreign Secured Claims" means all Prepetition Credit
Facility Claims as to which any of the Foreign Subsidiary Borrowers are
obligors.
124. "Prepetition Lenders" means those Persons party to the Prepetition
Credit Facility as lenders thereunder.
125. "Priority Tax Claim" means a Claim of a governmental unit of the kind
specified in section 507(a)(8) of the Bankruptcy Code.
126. "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.
127. "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.
128. "Purported Lease" means one of the contracts at issue in the
Recharacterization Adversary Proceeding.
129. "Purported Lessor" means the defendants in the Recharacterization
Adversary Proceeding.
130. "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).
131. "Registration Rights Agreement" means an agreement to be entered into
by Reorganized Exide and New Exide for the benefit of holders of New Exide
Preferred Stock, substantially in the form set forth in the Plan Supplement.
132. "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.
133. "Reorganized Debtor" means any Debtor and Debtor in Possession, or any
successor thereto, by merger, consolidation, or otherwise, on and after the
Effective Date.
134. "Reorganized Debtors" means the Debtors and Debtors in Possession, or
any successors thereto, by merger, consolidation, or otherwise, on and after the
Effective Date.
135. "Reorganized Exide" means Exide or any successors thereto, by merger
(including Exide Operating), consolidation, or otherwise, on and after the
Effective Date.
136. "Reorganized Subsidiary Debtors" means the Subsidiary Debtors, or any
successors thereto, by merger, consolidation, or otherwise, on and after the
Effective Date.
137. "RBD Liquidation" means RBD Liquidation L.L.C., a Delaware limited
liability company.
138. "Refined Metals" means Refined Metals Corporation, a Delaware
corporation.
139. "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
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Bankruptcy Code, the Official Bankruptcy Forms and the Bankruptcy Rules, as they
may be amended and supplemented from time to time.
140. "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.
141. "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.
142. "Securities and Exchange Act" means the Securities and Exchange Act of
1934, as amended.
143. "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.
144. "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.
145. "Subsequent Debtors" means Dixie Metals and Refined Metals, having
Filed voluntary chapter 11 petitions on the Subsequent Petition Date.
146. "Subsequent Petition Date" means November 21, 2002.
147. "Subsidiary Debtors" means Exide Delaware; Exide Illinois, RBD
Liquidation, Dixie Metals and Refined Metals.
148. "Unimpaired Claims" means Claims in an Unimpaired Class.
149. "Unimpaired Class" means an unimpaired Class within the meaning of
section 1124 of the Bankruptcy Code.
150. "Unknown Causes of Action" has the meaning set forth in Article X.F.1
below.
151. "Voting Deadline" means the date stated in the Voting Instructions by
which all Ballots must be received.
152. "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. The Holders of Allowed
Adequate Protection Superpriority Claims, if any, will receive on account of
such Claims the treatment set forth for Class P3 in Article III.B.3 below.
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In the event and to the extent that any Holder receives payment of any Allowed
Adequate Protection Superpriority Claims separate from the Class P3 treatment,
such payment shall reduce, on a dollar for dollar basis, such Holder's
distribution of the $15,000,000 cash fund, the European Contingent Asset Sales
Proceeds, and the Liquidity Event Distribution otherwise set for distribution to
Class P3 Creditors.
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 fixed rate determined as of the
Confirmation Date by the formula provided in section 6621(a)(2) of the Internal
Revenue Code and compounded daily (as provided in section 6622 of the Internal
Revenue Code), provided, however, that tax obligations owed to the Missouri
Department of Revenue shall be paid at a rate of 5% annual interest. Any
deferred payments made pursuant to section 1129(a)(9)(C) of the Bankruptcy Code
shall be by equal quarterly Cash payments beginning on the first day of the
calendar month following the Effective Date, and following on the first day of
each third calendar month thereafter, as necessary. 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, and notwithstanding any other provision of the Plan to the
contrary, the Plan shall leave unaltered the legal, equitable, and contractual
rights of each Holder of a Priority Tax Claim. If the Reorganized Debtors
substantially default on the payments of a tax due to a local, state or federal
taxing authority under this Plan, then the total amount still owed to such
local, state or federal taxing authority under this Plan shall become due and
payable, and such local, state or federal taxing authority may collect such
amount as otherwise permitted under nonbankruptcy law. In this context,
"substantial default" shall mean that the Reorganized Debtors have defaulted on
two consecutive Plan payments owing to a given local, state or federal taxing
authority, and, after receiving written notice of such default from the local,
state or federal taxing authority, have not, within sixty days, cured the
default.
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 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
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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
- --------------------------------------------------------------------------
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
- --------------------------------------------------------------------------
2. 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
- --------------------------------------------------------------------------
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.
On the Effective Date or as soon as practicable thereafter, the
Allowed Class P2 Claims of local, state and federal taxing authorities, if any,
shall be paid, at the option of the respective Reorganized Debtor, (a) Cash in
an amount equal to the amount of such Allowed Class P2 Claim, or (b) Cash over a
six-year period from the date of assessment of the tax to which the claim
relates, with interest payable at a fixed rate determined as of the Confirmation
Date by the formula provided in section 6621(a)(2) of the Internal Revenue Code
and compounded daily (as provided in section 6622 of the Internal Revenue Code),
provided, however, that tax obligations owed to the Missouri Department of
Revenue shall be paid at a rate of 5% annual interest. Any deferred payments
made pursuant to this provision of the Plan shall be by equal quarterly Cash
payments beginning on the first day of the calendar month following the
Effective Date, and following on the first day of each third calendar month
thereafter, as necessary. Notwithstanding any other provision of the Plan, all
local, state and federal taxing authorities shall retain their applicable legal
and equitable rights, if any, against non-Debtor obligors with respect to local,
state and federal tax obligations owed by the Debtors.
Notwithstanding any other provision of this Plan, any oversecured
Allowed Class 2A Claim of a state or federal taxing authority shall be entitled
to postpetition interest at the rate provided for in section 6621(a)(2) of the
Internal Revenue Code up to the amount by which the value of the property
securing the oversecured Allowed Class P2 Claim exceeds the value of such claim.
All local, state and federal taxing authorities shall retain the tax
liens and rights to setoff securing their Allowed Class P2 Claims and, in the
event the Reorganized Debtors substantially default on the payment of such
claims (as provided for in this Plan), then the total amount still owed to the
applicable state or federal taxing authority under this Plan shall become due
and payable, and the local, state or federal taxing authority may collect such
amount as otherwise permitted under nonbankruptcy law. In this context,
"substantial default" shall mean that the Reorganized Debtors have defaulted on
two consecutive Plan payments owing to a given local, state or federal taxing
authority, and, after receiving written notice of such default from the local,
state or federal taxing authority, have not, within sixty days, cured the
default.
(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. Any Class P3 Holder that does not make an
election on its Ballot or chooses the Class P3 Election B, may, at any time
prior to the Distribution Record Date, choose the Class P3 Election A with
respect to such Claim by providing notice of such choice to the Debtors in
writing. 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
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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. 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) on or as soon as
practicable after the Effective Date, 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 $35,000,000 in the
aggregate in any circumstances, consisting of (I) $15,000,000 in Cash,
on or as soon as practicable after the Effective Date, (II) the
European Contingent Asset Sale Proceeds, and (III) the Liquidity Event
Distribution. 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
(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.
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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 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;
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(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.
On the Effective Date or as soon as practicable thereafter, the
Allowed Class S2 Claims of local, state and federal taxing authorities, if any,
shall be paid, at the option of the respective Reorganized Debtor, (a) Cash in
an amount equal to the amount of such Allowed Class S2 Claim, or (b) Cash over a
six-year period from the date of assessment of the tax to which the claim
relates, with interest payable at a fixed rate determined as of the Confirmation
Date by the formula provided in section 6621(a)(2) of the Internal Revenue Code
and compounded daily (as provided in section 6622 of the Internal Revenue Code),
provided, however, that tax obligations owed to the Missouri Department of
Revenue shall be paid at a rate of 5% annual interest. Any deferred payments
made pursuant to this provision of the Plan shall be by equal quarterly Cash
payments beginning on the first day of the calendar month following the
Effective Date, and following on the first day of each third calendar month
thereafter, as necessary. Notwithstanding any other provision of the Plan, all
local, state and federal taxing authorities shall retain their applicable legal
and equitable rights, if any, against non-Debtor obligors with respect to local,
state and federal tax obligations owed by the Debtors.
Notwithstanding any other provision of this Plan, any oversecured
Allowed Class S2 Claim of a state or federal taxing authority shall be entitled
to postpetition interest at the rate provided for in section 6621(a)(2) of the
Internal Revenue Code up to the amount by which the value of the property
securing the oversecured Allowed Class S2 Claim exceeds the value of such claim.
All local, state and federal taxing authorities shall retain the tax
liens and rights to setoff securing their Allowed Class S2 Claims and, in the
event the Reorganized Debtors substantially default on the payment of such
claims (as provided for in this Plan), then the total amount still owed to the
applicable local, state or federal taxing authority under this Plan shall become
due and payable, and the local, state or federal taxing authority may collect
such amount as otherwise permitted under nonbankruptcy law. In this context,
"substantial default" shall mean that the Reorganized Debtors have defaulted on
two consecutive Plan payments owing to a given local, state or federal taxing
authority, and, after receiving written notice of such default from the local,
state or federal taxing authority, have not, within sixty days, cured the
default.
(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"), 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 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. 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.
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
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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 canceled,
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.3(b)(ii)
hereof, (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 herein 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.
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
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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 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 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 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 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.
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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.
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.
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 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
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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.
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.
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
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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.
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.
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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 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
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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 upon approval by the Bankruptcy Court and upon notice to all
parties in interest requesting notice, provided, however, that the Reorganized
Debtors may settle or compromise any Disputed Claim with a compromise or
settlement value less than $1 million without approval of the Bankruptcy Court
and without notice to any other parties in interest. 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 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. In the event
there are Disputed Claims requiring adjudication and resolution, Exide shall
establish appropriate reserves for potential payment of such Claims.
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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 an obligation to the Debtors under section 502(d) of the Bankruptcy Code
shall be disallowed unless or until such Person or Entity has paid the amount or
turned over the property for which such person or entity is liable under section
522(i), 542, 543, 550 or 553 of the Bankruptcy Code.
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.
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;
(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
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and/or New Exide Common Stock are "underwriters," as that term is defined
in section 1145 of the Bankruptcy Code; and
(e) 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.
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 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.
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, 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
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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
Except as otherwise provided herein, 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
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,
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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, provided, however, that
the foregoing provisions of this Article X.E shall have no effect on the
liability of any Person or Entity that results from any such act or omission
that is determined in a Final Order to have constituted gross negligence or
willful misconduct.
F. Preservation of Rights of Action
1. Maintenance of Causes of Action
Except as otherwise provided in the Plan, the Reorganized Debtors shall
retain all rights on behalf of the Debtors and the post-confirmation Estates to
commence and pursue any and all Causes of Action (whether arising before or
after the Petition Date, 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)
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.
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:
(a) 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 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
(b) 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 Plan
Supplement, 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
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Chapter 11 Cases (collectively, the "Unknown Causes of Action"). The failure to
list any such Unknown Cause of Action herein or in the Plan Supplement 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 herein or in any contract, instrument,
release, indenture or other agreement entered into in connection herewith, 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.
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 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 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, provided, however, that nothing in the Plan shall be deemed
to release or nullify any environmental liability to a governmental entity under
environmental laws or regulations that any of the Debtors would be subject to as
the owner or operator of property after the Confirmation Date, and provided
further that nothing in the Plan shall be deemed to release, discharge or
preclude any claims arising after the Effective Date that such governmental
entity may have against the Reorganized Debtors or their successors.
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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;
3. 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;
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 any Debtor 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
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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.
B. 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.
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
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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 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.
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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.
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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: