General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 31 133K
2: EX-1 Matlin Patterson Polymer 3 12K
3: EX-2 Matlin Patterson Polymer 6 23K
4: EX-3 Matlin Patterson Polymer 6 24K
5: EX-4 Matlin Patterson Polymer 79 287K
6: EX-7 Matlin Patterson Polymer 51 248K
| Page | (sequential) | | | | (alphabetic) | Top |
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- Alternative Formats (Word, et al.)
- A. Assumption and Rejection of Executory Contracts and Unexpired Leases
- A. Certain Mutual Releases
- A. Conditions Precedent to Confirmation
- A. Continued Corporate Existence
- A. DIP Facility Claims
- A. Dissolution of Committee
- A. Manner of Payment
- A. Prosecution of Objections to Claims
- Article I. Definitions, Rules of Interpretation, Computation of Time and Governing Law
- Article Iii. Classification and Treatment of Classified Claims and Equity Interests
- Article Ii. Treatment of Unclassified Claims
- Article Iv. Acceptance or Rejection of the Amended Modified Plan
- Article Ix. Conditions Precedent to Confirmation and Consummation of This Amended Modified Plan
- Article Vi. Executory Contracts and Unexpired Leases
- Article Viii. Procedures for Treatment of Disputed, Contingent, and Unliquidated Claims
- Article Vii. Provisions Governing Distributions
- Article V. Means for Implementation of the Amended Modified Plan
- Article Xii. Miscellaneous Provisions
- Article Xi. Retention of Jurisdiction
- Article X. Release, Injunctive and Related Provisions
- A. Voting Classes
- B. Acceptance by Impaired Classes
- B. Administrative Expense Claims
- B. Classification and Treatment of Claims Against and Equity Interests in the Debtors
- B. Conditions Precedent to Consummation
- B. Corporate Governance, Corporate Action, and Directors and Officers
- B. Defined Terms
- B. Distributions for Claims Allowed as of the Effective Date
- B. Estimation of Claims
- B. Limited Releases by Holders of Equity Interests and Claims
- B. Payment of Statutory Fees
- B. Rejection Claims; Cure of Defaults
- C. Cancellation of Securities And Agreements
- C. Compensation and Reimbursement Claims of Professionals
- C. Conditions Precedent to Closing of New Investment
- C. Delivery of Distributions and Undeliverable or Unclaimed Distributions
- C. Fees and Expenses
- C. Indemnification and Reimbursement Obligations
- C. Payments and Distributions on Disputed Claims
- C. Preservation of Causes of Action
- C. Presumed Acceptance of Amended Modified Plan
- D. Allowance of Claims
- D. Exculpation
- D. Issuance of New Polymer Common Stock and New Polymer Notes
- D. Maintenance of Director and Officer Liability Insurance
- D. Presumed Rejection of Amended Modified Plan
- D. Priority Tax Claims
- D. Record Date and Distribution Record Date
- D. Waiver of Conditions Precedent
- E. Discharge of Debtors
- E. Effect of Non-Occurrence of Consummation
- Effective Date
- E. Injunction
- E. Non-Consensual Confirmation
- E. Revesting Of Assets; Releases of Liens
- E. Timing and Calculation of Amounts to be Distributed
- F. De Minimis and Fractional Distributions
- F. Discharge of Claims and Termination of Equity Interests
- F. Effectuating Documents, Further Transactions and Corporate Action
- F. Sources of Cash for Amended Modified Plan Distribution
- G. Exit Revolving Credit Facility
- G. Modification of Amended Modified Plan
- G. Setoffs
- H. New Investment
- H. Revocation of Amended Modified Plan
- H. Surrender of Canceled Instruments or Securities
- I. Exit Letters of Credit
- I. Lost, Stolen, Mutilated or Destroyed Instruments or Securities
- I. Successors and Assigns
- J. Compensation And Benefit Programs
- J. Preservation of Subordination Rights
- J. Reservation of Rights
- K. Restructuring Transactions
- K. Section 1146 Exemption
- L. Further Assurances
- L. Limited Substantive Consolidation
- M. Term of Existing Injunctions or Stays
- N. Post Effective Date Fees and Expenses
- O. Severability
- P. Conflicts
- Q. Notices
- R. Closing of Cases
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| 1 | 1st Page - Filing Submission
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| 4 | Article I. Definitions, Rules of Interpretation, Computation of Time and Governing Law
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| " | B. Defined Terms
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| 19 | Article Ii. Treatment of Unclassified Claims
|
| " | A. DIP Facility Claims
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| " | B. Administrative Expense Claims
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| " | C. Compensation and Reimbursement Claims of Professionals
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| " | D. Priority Tax Claims
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| " | Article Iii. Classification and Treatment of Classified Claims and Equity Interests
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| 20 | B. Classification and Treatment of Claims Against and Equity Interests in the Debtors
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| 23 | Article Iv. Acceptance or Rejection of the Amended Modified Plan
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| " | A. Voting Classes
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| " | B. Acceptance by Impaired Classes
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| 24 | C. Presumed Acceptance of Amended Modified Plan
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| " | D. Presumed Rejection of Amended Modified Plan
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| " | E. Non-Consensual Confirmation
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| " | Article V. Means for Implementation of the Amended Modified Plan
|
| " | A. Continued Corporate Existence
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| " | B. Corporate Governance, Corporate Action, and Directors and Officers
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| 27 | C. Cancellation of Securities And Agreements
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| " | D. Issuance of New Polymer Common Stock and New Polymer Notes
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| 28 | E. Revesting Of Assets; Releases of Liens
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| " | F. Sources of Cash for Amended Modified Plan Distribution
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| " | G. Exit Revolving Credit Facility
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| " | H. New Investment
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| 29 | Effective Date
|
| " | I. Exit Letters of Credit
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| 30 | J. Compensation And Benefit Programs
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| " | K. Restructuring Transactions
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| " | L. Limited Substantive Consolidation
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| 31 | Article Vi. Executory Contracts and Unexpired Leases
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| " | A. Assumption and Rejection of Executory Contracts and Unexpired Leases
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| " | B. Rejection Claims; Cure of Defaults
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| " | C. Indemnification and Reimbursement Obligations
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| 32 | Article Vii. Provisions Governing Distributions
|
| " | A. Manner of Payment
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| " | B. Distributions for Claims Allowed as of the Effective Date
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| " | C. Delivery of Distributions and Undeliverable or Unclaimed Distributions
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| 33 | D. Record Date and Distribution Record Date
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| " | E. Timing and Calculation of Amounts to be Distributed
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| " | F. De Minimis and Fractional Distributions
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| " | G. Setoffs
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| 34 | H. Surrender of Canceled Instruments or Securities
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| " | I. Lost, Stolen, Mutilated or Destroyed Instruments or Securities
|
| " | J. Preservation of Subordination Rights
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| 35 | Article Viii. Procedures for Treatment of Disputed, Contingent, and Unliquidated Claims
|
| " | A. Prosecution of Objections to Claims
|
| " | B. Estimation of Claims
|
| " | C. Payments and Distributions on Disputed Claims
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| " | D. Allowance of Claims
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| 36 | Article Ix. Conditions Precedent to Confirmation and Consummation of This Amended Modified Plan
|
| " | A. Conditions Precedent to Confirmation
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| " | B. Conditions Precedent to Consummation
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| " | C. Conditions Precedent to Closing of New Investment
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| 37 | D. Waiver of Conditions Precedent
|
| " | E. Effect of Non-Occurrence of Consummation
|
| " | Article X. Release, Injunctive and Related Provisions
|
| " | A. Certain Mutual Releases
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| 38 | B. Limited Releases by Holders of Equity Interests and Claims
|
| " | C. Preservation of Causes of Action
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| 40 | D. Exculpation
|
| " | E. Injunction
|
| " | F. Discharge of Claims and Termination of Equity Interests
|
| " | Article Xi. Retention of Jurisdiction
|
| 41 | Article Xii. Miscellaneous Provisions
|
| " | A. Dissolution of Committee
|
| " | B. Payment of Statutory Fees
|
| " | C. Fees and Expenses
|
| 42 | D. Maintenance of Director and Officer Liability Insurance
|
| " | E. Discharge of Debtors
|
| " | F. Effectuating Documents, Further Transactions and Corporate Action
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| " | G. Modification of Amended Modified Plan
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| 43 | H. Revocation of Amended Modified Plan
|
| " | I. Successors and Assigns
|
| " | J. Reservation of Rights
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| " | K. Section 1146 Exemption
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| " | L. Further Assurances
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| " | M. Term of Existing Injunctions or Stays
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| 44 | N. Post Effective Date Fees and Expenses
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| " | O. Severability
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| " | P. Conflicts
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| " | Q. Notices
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| 46 | R. Closing of Cases
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Exhibit 7
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF SOUTH CAROLINA
In re: ) Chapter 11
)
POLYMER GROUP, INC. et al.,1 ) Case No. 02-5773 (W)
) (Jointly Administered)
Debtors. )
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DEBTORS' JOINT SECOND AMENDED MODIFIED PLAN OF REORGANIZATION
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James A. Stempel George B. Cauthen
Jonathan P. Friedland District Court ID No. 81
Roger J. Higgins NELSON MULLINS RILEY
Ryan Nadick & SCARBOROUGH, L.L.P.
Ryan B. Bennett Keenan Building, Third Floor
KIRKLAND & ELLIS 1330 Lady Street
200 East Randolph Drive P.O. Box 11070 (29211)
Chicago, Illinois 60601 Columbia, SC 29201
Telephone: (312) 861-2000 Telephone: (803) 799-2000
Facsimile: (312) 861-2200 Facsimile: (803) 256-7500
Co-Counsel to Polymer Group, Inc., et al.
Dated: January __, 2003
---------------------------
1 The Debtors are the following entities: Polymer Group, Inc., PGI
Polymer, Inc., PGI Europe, Inc., Chicopee, Inc., FiberTech Group, Inc.,
Technetics Group, Inc., Fibergol Corporation, Fabrene Corp., Fabrene Group
LLC, PNA Corp., FNA Polymer Corp., FNA Acquisition, Inc., Loretex Corporation,
Dominion Textile (USA) Inc., Poly-Bond Inc., FabPro Oriented Polymers, Inc.,
PGI Asset Management Company, PGI Servicing Company, Pristine Brands
Corporation; PolyIonix Separation Technologies, Inc., Bonlam (S.C.), Inc.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS, 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. TREATMENT OF UNCLASSIFIED CLAIMS................................16
A. DIP Facility Claims.............................................16
B. Administrative Expense Claims...................................16
C. Compensation and Reimbursement Claims of Professionals..........16
D. Priority Tax Claims.............................................16
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY
INTERESTS.......................................................16
A. Summary.........................................................16
B. Classification and Treatment of Claims Against and Equity
Interests in the Debtors........................................17
ARTICLE IV. ACCEPTANCE OR REJECTION OF THE AMENDED MODIFIED PLAN............20
A. Voting Classes..................................................20
B. Acceptance by Impaired Classes..................................20
C. Presumed Acceptance of Amended Modified Plan....................21
D. Presumed Rejection of Amended Modified Plan.....................21
E. Non-Consensual Confirmation.....................................21
ARTICLE V. MEANS FOR IMPLEMENTATION OF THE AMENDED MODIFIED PLAN............21
A. Continued Corporate Existence...................................21
B. Corporate Governance, Corporate Action, and Directors and
Officers........................................................21
C. Cancellation of Securities And Agreements.......................24
D. Issuance of New Polymer Common Stock and New Polymer Notes......24
E. Revesting Of Assets; Releases of Liens..........................25
F. Sources of Cash for Amended Modified Plan Distribution..........25
G. Exit Revolving Credit Facility..................................25
H. New Investment..................................................25
I. Exit Letters of Credit..........................................26
J. Compensation And Benefit Programs...............................27
K. Restructuring Transactions......................................27
L. Limited Substantive Consolidation...............................27
ARTICLE VI. EXECUTORY CONTRACTS AND UNEXPIRED LEASES........................28
A. Assumption and Rejection of Executory Contracts and Unexpired
Leases..........................................................28
B. Rejection Claims; Cure of Defaults..............................28
C. Indemnification and Reimbursement Obligations...................28
ARTICLE VII. PROVISIONS GOVERNING DISTRIBUTIONS.............................29
A. Manner of Payment...............................................29
B. Distributions for Claims Allowed as of the Effective Date.......29
C. Delivery of Distributions and Undeliverable or Unclaimed
Distributions...................................................29
D. Record Date and Distribution Record Date........................30
E. Timing and Calculation of Amounts to be Distributed.............30
F. De Minimis and Fractional Distributions.........................30
G. Setoffs.........................................................30
H. Surrender of Canceled Instruments or Securities.................31
I. Lost, Stolen, Mutilated or Destroyed Instruments or Securities..31
J. Preservation of Subordination Rights............................31
i
ARTICLE VIII. PROCEDURES FOR TREATMENT OF DISPUTED, CONTINGENT, AND
UNLIQUIDATED CLAIMS...........................................32
A. Prosecution of Objections to Claims.............................32
B. Estimation of Claims............................................32
C. Payments and Distributions on Disputed Claims...................32
D. Allowance of Claims.............................................32
ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THIS
AMENDED MODIFIED PLAN...........................................33
A. Conditions Precedent to Confirmation............................33
B. Conditions Precedent to Consummation............................33
C. Conditions Precedent to Closing of New Investment...............33
D. Waiver of Conditions Precedent..................................34
E. Effect of Non-Occurrence of Consummation........................34
ARTICLE X. RELEASE, INJUNCTIVE AND RELATED PROVISIONS.......................34
A. Certain Mutual Releases.........................................34
B. Limited Releases by Holders of Equity Interests and Claims......35
C. Preservation of Causes of Action................................35
D. Exculpation.....................................................37
E. Injunction......................................................37
F. Discharge of Claims and Termination of Equity Interests.........37
ARTICLE XI. RETENTION OF JURISDICTION.......................................37
ARTICLE XII. MISCELLANEOUS PROVISIONS.......................................38
A. Dissolution of Committee........................................38
B. Payment of Statutory Fees.......................................38
C. Fees and Expenses...............................................38
D. Maintenance of Director and Officer Liability Insurance.........39
E. Discharge of Debtors............................................39
F. Effectuating Documents, Further Transactions and Corporate
Action..........................................................39
G. Modification of Amended Modified Plan...........................39
H. Revocation of Amended Modified Plan.............................40
I. Successors and Assigns..........................................40
J. Reservation of Rights...........................................40
K. Section 1146 Exemption..........................................40
L. Further Assurances..............................................40
M. Term of Existing Injunctions or Stays...........................40
N. Post Effective Date Fees and Expenses...........................41
O. Severability....................................................41
P. Conflicts.......................................................41
Q. Notices.........................................................41
R. Closing of Cases................................................43
-ii-
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DEBTORS' JOINT AMENDED MODIFIED PLAN OF REORGANIZATION
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Pursuant to chapter 11 of the Bankruptcy Code, Polymer Group, Inc. and
its Filing Subsidiaries (as defined herein), debtors and debtors in possession
in the above-captioned and numbered cases, hereby respectfully propose the
following Joint Amended Modified Plan of Reorganization (the "Amended Modified
Plan").
ARTICLE I.
DEFINITIONS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW
A. Rules of Interpretation, Computation of Time and Governing Law(2)
1. For purposes of this Amended Modified Plan: (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 in this
Amended Modified Plan 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 in this Amended Modified Plan 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 in this Amended Modified Plan to
Sections, Articles and Exhibits are references to Sections, Articles and
Exhibits of or to this Amended Modified Plan; (e) the words "herein" and
"hereto" refer to this Amended Modified Plan in its entirety rather than
to a particular portion of this Amended Modified 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 of, this Amended Modified Plan; (g) the rules of
construction set forth in section 102 of the Bankruptcy Code shall apply;
and (h) any term used in capitalized form in this Amended Modified Plan
that is not defined herein but that is defined 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 by this
Amended Modified Plan, the provisions of Fed. R. Bankr. P. 9006(a) shall
apply.
3. Except to the extent that the Bankruptcy Code or the Bankruptcy
Rules are applicable, and subject to the provisions of any contract,
instrument, release, Indenture or other agreement or document entered
into in connection with this Amended Modified Plan, the rights and
obligations arising under this Amended Modified Plan shall be governed
by, and construed and enforced in accordance with, the laws of the State
in which the Bankruptcy Court resides, without giving effect to the
principles of conflict of laws thereof.
B. Defined Terms
Unless the context otherwise requires, as used in this Amended Modified
Plan, the following terms shall have the respective meanings specified below:
1. "8 3/4% Indenture" means that certain Indenture dated March 1,
1998, between Harris Trust and Savings Bank (predecessor to The Bank of
New York), as indenture trustee, and Polymer.
--------------
2 Capitalized terms not defined in Article I.A. shall have the
meaning ascribed in Article I.B. herein.
2. "8 3/4% Senior Subordinated Notes" means the 8 3/4% Series B
Senior Subordinated Notes due in 2008 issued by Polymer pursuant to the
8 3/4% Indenture in the original principal amount of $200 million and
guaranteed by all of the Debtors other than Polymer.
3. "8 7/8% Dominion Notes" means the 8 7/8% notes due 2003 issued by
Dominion pursuant to a November 1, 1993 Indenture.
4. "9 1/4% Dominion Notes" means the 9 1/4% notes due 2006, issued
by Dominion pursuant to an April 1, 1996 Indenture.
5. "9% Indenture" means that certain Indenture dated July 1, 1997,
between Harris Trust and Savings Bank (predecessor to the Bank of New
York), as indenture trustee, and Polymer.
6. "9% Senior Subordinated Notes" means the Series B 9% Senior
Subordinated Notes due in 2007 issued by Polymer in the original
principal amount of $400 million pursuant to the 9% Indenture and
guaranteed by all of the Debtors other than Polymer.
7. "Accrued Professional Compensation" means, at any given moment:
(a) all accrued fees (including but not limited to success fees) for
services rendered by all Professionals in the Chapter 11 Cases that the
Bankruptcy Court has not yet awarded as compensation, either pursuant to
an interim order or a Final Order; and (b) all expenses incurred by all
Professionals in the Chapter 11 Cases that the Bankruptcy Court has not
awarded as reimbursement, either pursuant to an interim order or a Final
Order.
8. "Adequate Protection Obligations" means any and all security
interests, liens and/or superpriority Allowed Claims granted to the
Prepetition Agent and/or Senior Lenders pursuant to the DIP Credit
Agreement and Final Order (I) authorizing Debtors to (A) Obtain
Post-Petition Financing pursuant to 11 U.S.C. ss.ss.105, 361, 362, 363,
364(c)(1), 364(c)(2), 364(c)(3) and 364(d)(1); and (B) Utilize Cash
Collateral pursuant to 11 U.S.C. ss.ss.105, 361, 362, 363; and (II)
Granting Adequate Protection to Prepetition Secured Lenders pursuant to
11 U.S.C. ss.ss.105, 361, 362 and 363.
9. "Administrative Expense Claim" means any Claim for costs and
expenses of administration of the Chapter 11 Cases under sections 503(b),
507(b) or 1114(e)(2) of the Bankruptcy Code, including: (a) the actual
and necessary costs and expenses of preserving the Estates and operating
the businesses of the Debtors (such as wages, salaries or commissions for
services and payments for goods and other services and leased premises)
incurred after the Petition Date; (b) compensation for legal, financial
advisory, accounting and other services and reimbursement of expenses
awarded or allowed under section 330(a) or 331 of the Bankruptcy Code;
(c) all fees and charges assessed against the Estates under Chapters 123
of Title 28 of the United States Code, 28 U.S.C. ss.ss.1911-30; (d)
Adequate Protection Obligations; (e) obligations designated as Allowed
Administrative Expense Claims pursuant to a Final Order.
10. "Affiliate" means any Person that is an "Affiliate" of any of
the Debtors within the meaning of section 101(2) of the Bankruptcy Code.
11. "Allowed" means, with respect to any Claim or Equity Interest,
as of the date of determination, except as otherwise provided herein: (a)
a Claim or Equity Interest that has been scheduled by the Debtors in
their schedules of liabilities or interests as other than disputed,
contingent or unliquidated and as to which neither the Debtors nor any
other party in interest has Filed an objection or request for estimation
by the Effective Date; (b) a Claim or Equity Interest that either (i) is
evidenced by a timely-filed Proof of Claim or Equity Interest and is not
a Disputed Claim or Disputed Equity Interest after the deadline for
objecting to or requesting an estimation of such a Claim or Equity
Interest has expired; or (ii) has been allowed by an order of the
Bankruptcy Court; (c) a Claim or Equity Interest that is allowed in any
contract, instrument, Indenture or other agreement entered into or
assumed in connection with this Amended Modified Plan; or (d) a Claim or
Equity Interest that is allowed pursuant to the terms of this Amended
Modified Plan.
12. "Amended Modified Disclosure Statement" means the Amended
Modified Disclosure Statement with respect to this Amended Modified Plan,
as it may be amended, supplemented or modified
2
from time to time, prepared by the Debtors and distributed in accordance
with sections 1125, 1126(b) and/or 1145 of the Bankruptcy Code, Fed. R.
Bankr. P. 3018 and/or other applicable law.
13. "Amended Modified Plan" means this Debtors' Joint Second Amended
Modified Plan of Reorganization and any and all exhibits thereto, as may
be modified, amended or supplemented from time to time.
14. "Amended Modified Plan Supplement" means a separate volume, to
be Filed, containing, among other things, the Indenture governing the
Convertible Notes, Series A Warrants and Series B Warrants. The Amended
Modified Plan Supplement (containing drafts or final versions of the
foregoing documents) shall be Filed as early as practicable (but in no
event later than ten (10) Business Days) prior to the commencement of the
Confirmation Hearing, or on such other date as the Bankruptcy Court may
establish.
15. "Ballot" or "Ballots" means the forms accompanying the Amended
Modified Disclosure Statement upon which the Holders of Impaired Claims
and Impaired Equity Interests shall indicate their acceptance or
rejection of this Amended Modified Plan.
16. "Balloting Order" means the order entered on December 3, 2002,
(a) Approving Solicitation Procedures; (b) Approving the Form and Manner
of Notice of the Confirmation Hearing; and (c) Scheduling the Hearing on
Confirmation of the Amended Modified Plan of Reorganization.
17. "Bank Term Sheet" means the Summary of Terms and Conditions,
dated as of May 8, 2002, as amended by the Supplement to Summary Terms
and Conditions, the terms of which are supported by the Steering
Committee of Senior Lenders, which shall be attached as Exhibit G to the
Amended Modified Disclosure Statement.
18. "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.
19. "Bankruptcy Court" means the United States Bankruptcy Court for
the District of South Carolina (Columbia Division) or any other court
having jurisdiction of the Chapter 11 Cases.
20. "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as amended from time to time, as applicable to the Chapter 11
Cases under 28 U.S.C. ss. 2075, and Local Rules of the Bankruptcy Court,
as amended from time to time.
21. "Bar Date" means September 4, 2002, the last date on which
Creditors could have timely filed Proofs of Claim or Equity Interests in
the Chapter 11 Cases, or such other date as may be set by the Bankruptcy
Court.
22. "Beneficial Holder" means the Person or Entity holding the
beneficial interest in a Claim or Equity Interest.
23. "Bonlam (S.C.)" means Bonlam (S.C.), Inc., a South Carolina
corporation, a debtor and debtor-in-possession in the Chapter 11 Cases.
24. "Boyd" means James G. Boyd.
25. "Business Day" means a day other than a Saturday, a Sunday or
any other day on which commercial banks in New York, New York are
required or are authorized to close by law or executive order.
26. "Cash" means legal tender of the United States of America or the
equivalent thereof, including bank deposits, checks or similar
instruments.
3
27. "Cash Equivalents" means equivalents of Cash in the form of
readily marketable securities or instruments issued by a Person other
than the Debtors, 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.
28. "Causes of Action" means all Claims, actions, choses in action,
causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages,
judgments, third-party claims, counterclaims and cross claims (including,
but not limited to, all Claims in any avoidance, recovery, subordination
or other actions against Insiders and/or any other Persons under the
Bankruptcy Code, including sections 510, 542, 543, 544, 545, 547, 548,
549, 550, 551 and 553 of the Bankruptcy Code) of the Debtors, the
Debtors-in-Possession and/or the Estates (including, but not limited to,
those actions listed in the Amended Modified Disclosure Statement and the
Amended Modified Plan Supplement) that are or may be pending on the
Effective Date or instituted by the Reorganized Debtors after the
Effective Date against any Person based on law or equity, including, but
not limited to, under the Bankruptcy Code, whether direct, indirect,
derivative, or otherwise and whether asserted or unasserted, known or
unknown.
29. "Change of Control Agreement" means, with respect to Zucker and
Boyd, those certain letter agreements, each of which is dated May 22,
1998, as amended on May 11, 2002.
30. "Chapter 11 Cases" means the above-captioned cases commenced by
the Debtors under chapter 11 of the Bankruptcy Code on the Petition Date,
styled In re Polymer Group, Inc., et al., Case No. 02-5773(W) (Bankr.
D.S.C. 2002) (Jointly Administered), currently pending before the
Bankruptcy Court.
31. "Chicopee" means Chicopee, Inc., a Delaware corporation and a
debtor and debtor-in-possession in the Chapter 11 Cases.
32. "Chicopee Sale" means the sale of the warehouse in Dayton,
New Jersey, owned by Chicopee.
33. "Chicopee Sale Order" means the Order of the Bankruptcy Court
dated October 28, 2002 approving the Chicopee Sale. The Confirmation
Order shall constitute the "further order" contemplated by the Chicopee
Sale Order and shall contain provisions permitting the release from
escrow of the Escrow Funds (as defined in the Chicopee Sale Order) and
application thereof in accordance with the Bank Term Sheet.
34. "Chicopee Sale Proceeds" means 100% of the Net Proceeds (as
defined in the Chicopee Sale Order) of the Chicopee Sale.
35. "Claim" means a claim, as defined in section 101(5) of the
Bankruptcy Code, whether or not asserted by a Proof of Claim or otherwise
in the Chapter 11 Cases.
36. "Claims Objection Deadline" means the date that is 60 days after
the Effective Date unless otherwise extended by an order of the
Bankruptcy Court.
37. "Class" means a category of Holders of Claims or Equity
Interests, as described in Article III of this Amended Modified Plan.
38. "Class A Common Stock" means the shares of Class A Common Stock,
par value $.01 per share of New Polymer (of which, 9.6 million shares,
less the number of Class C Common Stock shall be issued on the Effective
Date) containing terms and conditions to be described in the Amended
Modified Plan Supplement.
4
39. "Class B Common Stock" means the 400,000 shares of Class B
Common Stock, par value $.01 per share, representing 4% of the New
Polymer Common Stock issued on the Effective Date, containing the terms
and conditions described in the Amended Modified Plan Supplement,
together with any additional shares subsequently issued in respect of the
limited anti-dilution provisions of the Class B Common Stock relating to
the issuance of Class A Common Stock upon the conversion of some or all
of the Convertible Notes.
40. "Class C Common Stock" means the shares of Class C Common Stock,
par value $.01 per share, authorized to be issued by New Polymer (which
shall be issued on the Effective Date as part of the 9.6 million shares
of Class A and Class C Common Stock) to the Electing Non-GOF Holders, who
shall transfer, on the Effective Date, all such shares of Class C Common
Stock to the SPE in exchange for their respective Pro Rata shares of SPE
Equity and SPE Notes. The Class C Common Stock shall contain the terms
and conditions described in the Amended Modified Plan Supplement.
41. "Class D Common Stock" means the 498,688 shares of Class D
Common Stock, par value $.01 per share, authorized to be issued by New
Polymer upon the exercise of the Series A Warrants, containing the terms
and conditions described in the Amended Modified Plan Supplement,
together with any additional shares subsequently issued in respect of the
limited anti-dilution provisions of the Series A Warrants.
42. "Class E Common Stock" means the 523,557 shares of Class E
Common Stock, par value $.01 per share, authorized to be issued by New
Polymer upon the exercise of the Series B Warrants, containing the terms
and conditions described in the Amended Modified Plan Supplement,
together with additional shares subsequently issued in respect of the
limited anti-dilution provisions of the Series B Warrants.
43. "Committee" means the official committee of unsecured creditors
appointed in the Chapter 11 Cases by the United States Trustee on May 17,
2002.
44. "Committee Members" means any current or former members of the
Committee.
45. "Confirmation" means entry on the docket by the clerk of the
Bankruptcy Court of the Confirmation Order.
46. "Confirmation Date" means January 3, 2003, the date of entry on
the docket by the clerk of the Bankruptcy Court of the Original
Confirmation Order.
47. "Confirmation Hearing" means the hearing to consider
confirmation of this Amended Modified Plan under section 1128 of the
Bankruptcy Code.
48. "Confirmation Order" means the order entered by the Bankruptcy
Court on January __, 2003, confirming this Amended Modified Plan, as may
be supplemented, modified, amended or superseded by further order of the
Bankruptcy Court, and which supersedes the Original Confirmation Order;
provided, however, that the term "Confirmation Order" also includes the
Original Confirmation Order as appropriate.
49. "Consummation" means the occurrence of the Effective Date.
50. "Convertible Notes" means the 10% convertible subordinated notes
due December 2007, to be issued by New Polymer to the Participating
Allowed Class 4 Claim Holders in exchange for the New Investment and
which shall be issued pursuant to the Indenture attached as an exhibit to
the Amended Modified Plan Supplement in an aggregate principal amount
equal to $50 million.
51. "Critical Business Relations Claims" means all prepetition
claims of Critical Business Relations.
52. "Critical Business Relations" means any vendor who provided
services or goods on terms to the Debtors during the pendency of these
Chapter 11 Cases and with whom the Reorganized Debtors intend to do
business subsequent to the Effective Date.
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53. "CSFB" means Credit Suisse First Boston.
54. "D&O Releasees" means all of the past and present directors,
current Management, and Professionals of the Debtors and their Affiliates
in each case in their capacity as such.
55. "Debtors" or "Debtors-in-Possession" means: Polymer, PGI
Polymer, PGI Europe, Chicopee, FiberTech, Technetics, Fibergol, Fabrene,
Fabrene Group, PNA, FNA, FNA Acquisition, Loretex, Dominion, Poly-Bond,
FabPro, PGI Asset Management, PGI Servicing, Pristine; PolyIonix, and
Bonlam (S.C.).
56. "DIP Agent" means J.P. Morgan Chase Bank, in its capacity as
Administrator and Collateral Agent under the DIP Facility.
57. "DIP Credit Agreement" means the Revolving Credit and Guaranty
Agreement, dated as of May 30, 2002, among Polymer, the DIP Lenders and
JP Morgan Chase Bank, as Administrative, Documentation and Collateral
Agent.
58. "DIP Facility" means the commitment secured by the Debtors for
the debtors-in-possession financing from the DIP Lenders in the original
principal amount of $125 million.
59. "DIP Facility Claim" means a Claim arising under or as a result
of the DIP Facility.
60. "DIP Lenders" mean the lenders that are party to the DIP Credit
Agreement.
61. "Disputed" means, with respect to any Claim or Equity Interest,
as of the date of determination, any Claim or Equity Interest: (a) listed
on the Schedules as unliquidated, disputed or contingent, unless and
until it is Allowed; (b) as to which any Debtor or any other
party-in-interest has Filed a timely objection or request for estimation
in accordance with the Bankruptcy Code and the Bankruptcy Rules, which
objection or request for estimation has not been withdrawn or determined
by an order of the Bankruptcy Court; (c) as to which the deadline for
filing objections has not passed (whether or not an objection has been
filed), unless and to the extent such Claim or Equity Interest has been
Allowed pursuant to an order of the Bankruptcy Court; or (d) is otherwise
disputed by any of the Debtors or any other party in interest in
accordance with applicable law, which dispute has not been withdrawn or
determined by an order of the Bankruptcy Court.
62. "Distribution Notification Date" means the fortieth (40th) day
following the Confirmation Date.
63. "Dominion" means Dominion Textile (USA) Inc., a Delaware
corporation, a debtor and debtor-in-possession in the Chapter 11 Cases.
64. "Dominion Notes" means, collectively, the 8 7/8% Dominion Notes
and the 9 1/4% Dominion Notes.
65. "Dominion Note Claims" means, collectively, all Claims arising
from or related to the Dominion Notes.
66. "Effective Date" means the date selected by the Debtors which is
the later of (i) 45 days after the Confirmation Date; or (ii) three (3)
business days after all conditions specified in Article IX.B herein have
been (x) satisfied or (y) waived in accordance with Article IX.D herein;
but, in no event later than February 21, 2003, unless waived in writing
by the Prepetition Agent; provided, however, that the Prepetition Agent,
on behalf of the Senior Lenders, will agree to waive compliance with this
February 21, 2003, deadline to the extent that the Debtors make payments
of current interest due under the Prepetition Credit Facility at rates
set in the Bank Term Sheet (together with the applicable margins set
forth in the Bank Term Sheet as applicable to the Restructured
Facilities); provided, further, that the Effective Date shall in no event
occur later than 90 days after the Confirmation Date unless waived in
writing by GOF and the Prepetition Agent (on behalf of the Senior
Lenders).
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67. "Electing Non-GOF Holders" means Non-GOF Holders who elect to
receive their Pro Rata shares of Class C Common Stock in satisfaction of
their respective Allowed Class 4 Claims. On the Effective Date, Electing
Non-GOF Holders shall be deemed to have transferred all of such shares of
Class C Common Stock to the SPE in exchange for their Pro Rata shares of
SPE Equity and SPE Notes. In order to be an Electing Non-GOF Holder, a
Non-GOF Holder must be a Qualified Institutional Buyer and make a
representation to that effect.
68. "Entity" means an "entity" within the meaning of section 101(15)
of the Bankruptcy Code.
69. "Equity Interest" means any equity interest in any of the
Debtors including, but not limited to, all issued, unissued, authorized
or outstanding shares of stock or other Equity Security together with any
warrants, options or contractual rights to purchase or acquire such
interests at any time and all rights arising with respect thereto.
70. "Equity Releasees" means the Holders of Equity Interests in the
Debtors, solely in their capacity as Holders of Equity Interests, and
their attorneys, financial advisors, accountants, investment bankers,
agents, and other representatives (solely in connection with their
representation of such Holders in respect of their Equity Interests).
71. "Equity Security" means a (i) share in a corporation, whether or
not denominated "stock" or security; (ii) an interest of a limited
partner in a limited partnership; (iii) an interest in a general
partnership; or (iv) a warrant or right (other than a right to consent)
to purchase, sell or subscribe to a share, security or interest of the
kind specified in (i), (ii) or (iii) of this definition.
72. "Estates" means the collective estates of each of the Debtors
created by section 541 of the Bankruptcy Code on and after the Petition
Date.
73. "Exit Facility" means the Restructured Facilities and the Exit
Revolving Credit Facility.
74. "Exit Letters of Credit" means the letters of credit in the
aggregate amount of $25 million to be issued or caused to be issued by
GOF in favor of the Postpetition Agent to support amortization payments
due between the Effective Date and December 31, 2004, under the
Restructured Facilities pursuant to the Bank Term Sheet, which amount
shall not exceed $25 million.
75. "Exit Revolving Credit Facility" means that certain five-year
revolving credit facility in the amount of $50 million to be provided to
the Debtors as contemplated by the Bank Term Sheet and pursuant to the
terms and conditions of a Commitment Letter (which shall be consistent in
all respects to those of the Bank Term Sheet) to be executed before the
Confirmation Date and subject to definitive documentation to be filed as
part of the Amended Modified Plan Supplement.
76. "FabPro" means FabPro Oriented Polymers, Inc., a Delaware
corporation, a debtor and debtor-in-possession in the Chapter 11 Cases.
77. "Fabrene Group" means Fabrene Group LLC, a Delaware corporation,
a debtor and debtor-in-possession in the Chapter 11 Cases.
78. "Fabrene" means Fabrene Corp., a Delaware corporation, a debtor
and debtor-in-possession in the Chapter 11 Cases.
79. "Fibergol" means Fibergol Corporation, a Delaware corporation, a
debtor and debtor-in-possession in the Chapter 11 Cases.
80. "FiberTech" means FiberTech Group, Inc., a Delaware corporation,
a debtor and debtor-in-possession in the Chapter 11 Cases.
81. "File" means to file with the Clerk of the Bankruptcy Court in
the Chapter 11 Cases in accordance with the Bankruptcy Code and
Bankruptcy Rules.
7
82. "Filing Subsidiaries" means, collectively, PGI Polymer, PGI
Europe, Chicopee, FiberTech, Technetics, Fibergol, Fabrene, Fabrene
Group, PNA, FNA, FNA Acquisition, Loretex, Dominion, Poly-Bond, FabPro,
PGI Asset Management, PGI Servicing, Pristine, PolyIonix, Bonlam (S.C.).
83. "Final Decree" means the decree contemplated under Fed. R.
Bankr. P. 3022.
84. "Final Order" means an order of the Bankruptcy Court (i) as to
which the time to appeal, petition for certiorari or move for reargument,
reconsideration or rehearing has expired and as to which no appeal,
petition for certiorari or other proceedings for reargument,
reconsideration or rehearing is pending; or (ii) if an appeal, writ of
certiorari, reargument or rehearing thereof has been sought, such order
has been affirmed by the highest court to which such order was appealed
or from which certiorari was sought, reargument, reconsideration or
rehearing has been denied or resulted in no modification of such order,
and the time to take any further appeal, petition for certiorari or move
for reargument, reconsideration or rehearing has expired; provided,
however, that a possibility that a motion under Rule 59 or 60 of the
Federal Rules of Civil Procedure or any analogous Bankruptcy Rule may be,
but has not been, Filed with respect to such order, shall not cause such
order not to be a Final Order.
85. "FNA Acquisition" means FNA Acquisition Group, a Delaware
corporation, a debtor and debtor-in-possession in the Chapter 11 Cases.
86. "FNA" means FNA Polymer Corp, a North Carolina corporation, a
debtor and debtor-in-possession in the Chapter 11 Cases.
87. "General Unsecured Claim" means any unsecured Claim against one
or more of the Debtors (including the Dominion Note Claims and the
GK/Ives Claims) that is not a Priority Tax Claim, Priority Non-Tax Claim,
Administrative Expense Claim, Senior Lender Claim, Critical Business
Relations Claim, Intercompany Claim or Other Securities Claim and
Interest, and shall include, except as set forth above in this
definition, all unsecured claims not otherwise classified that are not
cured, paid, released or waived pursuant to this Amended Modified Plan,
assumed by a Debtor pursuant to this Amended Modified Plan or agreements
incorporated into this Amended Modified Plan, or classified in any other
class, including, without limitation, claims (a) for goods sold and/or
services rendered, (b) for monies lent, (c) based upon guarantees of
performance or payment of the obligations or duties of any Person, (d)
for tort liability, (e) for environmental remediation, (f) of
Governmental Units under any applicable unclaimed property or escheat
laws, (g) of Governmental Units for taxes, assessments, penalties or
charges which are not Tax Claims, (h) for contribution, reimbursement or
indemnity, (i) for fines, penalties or other assessments; (j) for the
portion of any Claim supported directly or indirectly by a letter of
credit issued for the account of a Debtor in excess of the amount
available under such letter of credit; and (k) representing the
undersecured portion of any claim that is otherwise a Secured Claim.
88. "GK/Ives" means, together, Dr. Guillermo Kraves and the Ives
Company Limited.
89. "GK/Ives Claims" means those Claims against the Debtors of
GK/Ives arising from that certain Purchase and Option Agreement, dated as
of July 1, 2000, (and any other agreements, if any, referenced by GK/Ives
in its proofs of claim) as evidenced in certain proofs of claim as timely
filed on December 23, 2002, in the aggregate amount of $18,590,813.06, as
the same may be amended or modified (with all rights of the Debtors and
parties in interest to object to any proposed amendment or modification
being reserved).
90. "GOF" means MatlinPatterson Global Opportunities Partners L.P.
91. "GOF Board Members" means the five members of the New Polymer
Board of Directors who shall be appointed by GOF pursuant to this Amended
Modified Plan.
92. "Holder" means the Beneficial Holder of a Claim or Equity
Interest.
8
93. "Impaired" means, with respect to a Claim or an Equity Interest,
a Claim or an Equity Interest with respect to which this Amended Modified
Plan alters the legal, equitable or contractual rights to which such
Claim or Equity Interest entitles its Holder.
94. "Impaired Claim" means a Claim classified in an Impaired Class.
95. "Impaired Class" means each of Classes 2, 4 and 6, as set forth
in Article III herein.
96. "Impaired Equity Interest" means an Equity Interest that is
classified in an Impaired Class.
97. "Intercompany Claim" means any Claim held by any direct or
indirect subsidiary of Polymer that is not a Filing Subsidiary against
any Debtor or by any Debtor against any other Debtor, including, but not
limited to a Claim that was: (a) incurred after the Petition Date; or (b)
incurred as a result of the extension of credit in connection with the
purchase of goods or services in the ordinary course of business.
98. "Intercompany Interests" means any and all Equity Securities of
a Debtor that are owned by another Debtor as of the Record Date.
99. "Lien" means any charge against or interest in property to
secure payment of a debt or performance of an obligation, including a
right of set off to secure payment of a debt or performance of an
obligation.
100. "Loretex" means Loretex Corporation, a New York corporation, a
debtor and debtor-in-possession in the Chapter 11 Cases.
101. "Management" means, collectively, Zucker, Boyd and all other
officers covered by the director and officer liability insurance policies
referred to in Article XII.D hereof.
102. "Master Ballots" means the forms accompanying the Amended
Modified Disclosure Statement upon which the Nominees of the Beneficial
Holders of the Senior Subordinated Notes and the Nominees of Beneficial
Holders of Class 6 Equity Interests respectively, shall indicate
acceptances or rejections of this Amended Modified Plan by the Beneficial
Holders in accordance with the Voting Instructions.
103. "New Investment" means the purchase by the Participating
Allowed Class 4 Claim Holders of Convertible Notes for a total purchase
price of $50 million, all in accordance with the provisions of Article
V.H hereof.
104. "New Polymer" means Polymer or any successor thereto, by
merger, consolidation, or otherwise, on and after the Effective Date.
105. "New Polymer Affiliate" means (i) GOF; (ii) Zucker; (iii) Boyd;
(iv) CSFB; (v) any "Insider" (as defined in the Bankruptcy Code) of GOF,
Zucker, Boyd or CSFB; (vi) the Intertech Group, Inc.; (vii) GTC Fund III
Limited Partnership and (viii) any other Entity directly or indirectly
controlling or controlled by or under direct or indirect common control
with GOF, Zucker, Boyd or CSFB where "control" means the power to direct
the management or policies of such Entity, directly or indirectly;
provided, that nothing in this definition shall be an admission that any
such entity is an affiliate of New Polymer for any purpose other than for
the purpose of defining New Polymer Affiliated Transactions.
106. "New Polymer Affiliated Transaction" means entering into any
transaction involving any New Polymer Affiliate; provided, however, that,
in the case of GOF, CSFB or a New Polymer Affiliate of GOF or CSFB, that
such transaction exceeds $10 million, provided, further, that
transactions between New Polymer, its subsidiaries or its affiliates and
Huntsman Company, LLC, its subsidiaries or its affiliates substantially
consistent with past practice shall not be a "New Polymer Affiliated
Transaction" for the purposes of the foregoing. The foregoing $10 million
threshold shall not apply to management or transaction fees because such
transactions are prohibited at any dollar amount.
9
107. "New Polymer Board of Directors" means the board of directors
of New Polymer, constituted in accordance with Article V.B.3 hereof.
108. "New Polymer Common Stock" means collectively, the Class A
Common Stock, the Class B Common Stock, the Class C Common Stock, the
Class D Common Stock and the Class E Common Stock, authorized to be
issued pursuant to, and with rights and obligations set forth in, any
document created by, or agreement entered into by, New Polymer.
109. "New Polymer Notes" means the Convertible Notes and the New
Senior Subordinated Notes.
110. "New Senior Subordinated Notes" means the 10% Senior
Subordinated Notes due December 2007, to be issued by New Polymer to GOF
in a face amount equal to the amount of any drawing under the Exit
Letters of Credit (or any other advances made by or caused by GOF solely
in lieu of drawing under the Exit Letters of Credit to make the
amortization payments due under the Restructured Facilities from the
Effective Date to December 31, 2004), which New Senior Subordinated Notes
shall have the terms listed in an Exhibit to the Amended Modified Plan
Supplement. The New Senior Subordinated Notes shall be senior in right of
payment to the Convertible Notes. In no event shall the aggregate
principal amount of the New Senior Subordinated Notes exceed $25 million.
111. "Nominee" means any broker, dealer, commercial bank, trust
company, savings and loan association or other Person in whose name a
Beneficial Holder's Subordinated Notes are registered or held of record
as of the Record Date.
112. "Non-GOF Holders" means those Holders of Class 4 General
Unsecured Claims other than GOF.
113. "Non-GOF Board Members" means the two members of the New
Polymer Board of Directors appointed, pursuant to the Amended Modified
Plan, by the Non-GOF Holders, who are Committee Members and who are
Holders of Senior Subordinated Notes.
114. "Notice, Claims and Balloting Agent" means Trumbull Bankruptcy
Services, located at 4 Griffin Road North, Windsor, CT 06095, Attn:
Francine Gordon -- (860) 687-7592.
115. "Official Bankruptcy Forms" means the Official and Procedural
Bankruptcy Forms, prescribed by the Judicial Conference of the United
States, in accordance with Fed. R. Bankr. P. 9009.
116. "Old Polymer Common Stock" means all of the issued and
outstanding shares of Polymer's common stock.
117. "Organizational Documents" means the certificate of
incorporation, articles of organization, bylaws, operating agreement,
partnership agreement, and/or other organizational and governing
documents (including all those that govern or impact the appointment,
election, and/or removal of directors, managers, managing partners or
persons of equivalent authority), as the case may be, of an Entity.
118. "Original Confirmation Order" means the order entered by the
Bankruptcy Court on January 3, 2003, confirming this Amended Modified
Plan, which order is superseded by the Confirmation Order.
119. "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 Expense Claim.
120. "Other Secured Claims" means all Secured Claims, other than
Senior Lender Claims, against any of the Debtors held by any Person or
Entity.
121. "Other Securities Claims and Interests" means (a) any Equity
Interest in Polymer (other than Old Polymer Common Stock), including, but
not limited to, any warrants, options, conversion privileges or contract
rights to purchase or acquire any equity securities of Polymer at any
time (including any rights, if any, under the Shareholder Rights Plan,
whether contingent or otherwise), and (b) any Claims, obligations,
10
rights, suits, damages, causes of action, remedies, and liabilities
whatsoever, whether known or unknown, foreseen or unforeseen, currently
existing or hereafter arising, in law, equity or otherwise arising from
rescission of a purchase or sale of a security of Polymer (including the
Senior Subordinated Notes and Old Polymer Common Stock) or the purchase
or sale of a security of an Affiliate of Polymer, for damages arising
from the purchase, sale or holding of such securities or the exercise of
an option, warrant, conversion privilege or contractual right to such
purchase or sale (including any rights, if any, under the Shareholder
Rights Plan, whether contingent or otherwise), or for reimbursement,
indemnification or contribution allowed under section 502 of the
Bankruptcy Code on account of such a Claim.
122. "Over Subscription Rights" means, in the event that any Non-GOF
Holder does not elect to exercise its Subscription Rights, the right of
each Participating Allowed Class 4 Claim Holder to elect to purchase
those unpurchased Convertible Notes on a Pro Rata basis (determined
exclusive of accrued and unpaid interest).
123. "Participating Allowed Class 4 Claim Holders" means those
Holders of Allowed Class 4 Claims or their permitted transferees who
elect to participate in the New Investment in accordance with the
Subscription Rights.
124. "Person" means a "person" within the meaning of section 101(41)
of the Bankruptcy Code.
125. "Petition Date" means the date on which Debtors filed their
respective voluntary petitions for relief commencing the Chapter 11
Cases, which for all the Debtors other than Bonlam (S.C.), was May 11,
2002, and which was April 23, 2002, for Bonlam (S.C.).
126. "PGI Asset Management" means PGI Asset Management Company, a
Delaware corporation, a debtor and debtor-in-possession in the Chapter 11
Cases.
127. "PGI Board Members" means the two members of the New Polymer
Board of Directors appointed by Polymer's existing board of directors
pursuant to the Amended Modified Plan and who initially shall be Zucker
and Boyd.
128. "PGI Europe" means PGI Europe, Inc., a Delaware corporation, a
debtor and debtor-in-possession in the Chapter 11 Cases.
129. "PGI Polymer" means PGI Polymer, Inc., a Delaware corporation,
a debtor and debtor-in-possession in the Chapter 11 Cases.
130. "PGI Servicing" means PGI Servicing Company, a Delaware
corporation, a debtor and debtor-in-possession in the Chapter 11 Cases.
131. "Plan Party" means GOF, the Debtors, the Committee and each of
the Committee Members.
132. "PNA" means PNA Corp., a North Carolina corporation, a debtor
and debtor-in-possession in the Chapter 11 Cases.
133. "Poly-Bond" means Poly-Bond Inc., a Delaware corporation, a
debtor and debtor-in-possession in the Chapter 11 Cases.
134. "PolyIonix" means PolyIonix Separation Technologies, Inc., a
Delaware corporation, a debtor and debtor-in-possession in the Chapter 11
Cases.
135. "Polymer" means Polymer Group, Inc., a Delaware corporation, a
debtor and debtor-in-possession in the Chapter 11 Cases.
136. "Post-Confirmation Estates" means each Estate, collectively and
individually, upon and after the Effective Date, pursuant to the terms
and conditions of this Amended Modified Plan.
11
137. "Postpetition Agent" means J.P. Morgan Chase Bank, in its
capacity as Agent under the Exit Facility.
138. "Prepetition Agent or Prepetition Administrative Agent" means
JP Morgan Chase Bank (formerly known as The Chase Manhattan Bank), in its
capacity as Agent under the Prepetition Credit Facility.
139. "Prepetition Credit Facility" means the Second Amended,
Restated and Consolidated Credit Agreement, dated as of July 3, 1997, as
amended through and including Amendment No. 7 among the Prepetition
Agent, the Senior Lenders and the Debtors, which provides for secured
revolving credit borrowings, term loans and letters of credit with
aggregate commitments of up to $600 million, together with all related
notes, certificates, security agreements, mortgages, pledges,
indemnities, collateral assignments, undertakings, guarantees, and other
instruments and documents, as each may have been amended or modified from
time to time.
140. "Priority Non-Tax Claim" means a Claim entitled to priority
pursuant to section 507(a) of the Bankruptcy Code other than a Priority
Tax Claim.
141. "Priority Tax Claim" means a Claim entitled to priority
treatment pursuant to section 507(a)(8) of the Bankruptcy Code.
142. "Pristine" means Pristine Brands Corporation, a Delaware
corporation, a debtor and debtor-in-possession in the Chapter 11 Cases.
143. "Pro Rata" means proportionately, so that, e.g., with respect
to a distribution on account of an Allowed Claim, the ratio of (a) (i)
the amount of property distributed on account of a particular Allowed
Claim to (ii) the amount of the Allowed Claim, is the same as the ratio
of (b) (i) the amount of property distributed on account of all Allowed
Claims in the Class in which such Allowed Claim is included to (ii) the
amount of all Allowed Claims in that Class.
144. "Professionals' Escrow Account" means an interest-bearing
savings account maintained by the Reorganized Debtors with funds
deposited solely for the purpose of paying all fees and expenses of
Professionals in the Chapter 11 Cases.
145. "Professional" 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.
146. "Proof of Claim" has the meaning ascribed to it in Fed. R.
Bankr. P. 3001.
147. "Qualified Institutional Buyer" means a "qualified
institutional buyer" as defined in Rule 144A, promulgated under the
Securities Act.
148. "Record Date" means the date to be established by the
Bankruptcy Court in the Scheduling Order for the purpose of determining
those Holders of Allowed Claims and Equity Interests that are entitled to
vote to accept or reject this Amended Modified Plan.
149. "Releasees" means each of the Debtors, the Reorganized Debtors,
the D&O Releasees, the Senior Lender Releasees, CSFB, GOF,
MatlinPatterson Global Advisers LLC, CSFB Global Opportunities Advisers
L.L.C., the Committee, the Committee Members, the DIP Agent and the DIP
Lenders (and all Subsidiaries and Affiliates and officers, directors,
partners, members, attorneys and other professionals, and agents of each
of the foregoing), as such are referred to in connection with certain
mutual releases described in Article X.A herein.
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150. "Reorganized Debtors" means the Debtors and
Debtors-in-Possession, or any successors thereto, by merger,
consolidation, or otherwise pursuant to this Amended Modified Plan, on
and after the Effective Date.
151. "Restated By-laws" means the restated by-laws of the
Reorganized Debtors, the form of which shall be Filed on or before the
Confirmation Date.
152. "Restated Certificate of Incorporation" means that certificate
of incorporation of New Polymer that has been amended pursuant to Article
V.B.1 herein.
153. "Restructured Facilities" means, the Prepetition Credit
Facility as restructured pursuant to the terms and conditions contained
in the Bank Term Sheet and subject to execution of definitive
documentation, forms of which will be included as exhibits to the Amended
Modified Plan Supplement.
154. "Restructuring Transactions" means the transactions described
in Article V.K herein.
155. "Schedules" means the schedules of assets and liabilities and
schedules of executory contracts as Filed on July 1, 2002, and the
statement of financial affairs as Filed on June 28, 2002, as amended and
supplemented from time to time.
156. "Scheduling Order" means the order entered by the Bankruptcy
Court on November 14, 2002, granting the Motion of the Debtors with
Supporting Memorandum of Law for Entry of an Order Approving the
Procedures and Materials Employed to Provide Notice of the Modified
Disclosure Statement, filed on November 14, 2002.
157. "Secured Claim" means that portion of a Claim (a) that is
secured by a Lien on property in which any of the Debtors or their
Estates has an interest, which Lien is valid, perfected and enforceable
under applicable law or by reason of a Final Order and is not subject to
avoidance under the Bankruptcy Code or applicable non-bankruptcy law, 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 Debtors' or
Estates' 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) Allowed under this Amended Modified Plan as a
Secured Claim.
158. "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.
159. "Senior Lender Claims" means any and all Claims of the Senior
Lenders arising from the Prepetition Credit Facility, excluding the
Adequate Protection Obligations, which Claims shall be deemed Allowed
without the need to File any Proof of Claim.
160. "Senior Lender Closing Prepayment" means the payment that the
Debtors shall make to the Prepetition Agent on the Effective Date, for
the Pro Rata benefit of the Senior Lenders, to the extent Cash and Cash
Equivalents held by Polymer and its subsidiaries (after giving effect to
payment of (i) Professional Fees (which shall include any success fees
payable by the Debtors or the Committee to a financial advisor) relating
to these Chapter 11 Cases and the payments to GOF set forth in Article
XII.C hereof; (ii) the Chicopee Sale Proceeds (to the extent that the
Chicopee Sale closes before the Effective Date); and (iii) the Senior
Lender Paydown) is greater than $35 million; provided that such Senior
Lender Closing Prepayment shall be in an amount at least equal to $5
million.
161. "Senior Lender Paydown" means the payment that the Debtors
shall make to the Prepetition Agent on the Effective Date, for the Pro
Rata benefit of the Senior Lenders, comprising $50 million in Cash from
funds generated by the New Investment.
162. "Senior Lender Releasees" means all Senior Lenders and the
Prepetition Administrative Agent, Postpetition Agent, as well as all
former Holders of indebtedness incurred under the Prepetition Credit
Facility (solely in such capacity) and their attorneys, financial
advisors, employees, officers and
13
directors, accountants, investment bankers, agents and other
representatives (solely in connection with their representation of such
Senior Lenders, Prepetition Administrative Agent, Postpetition Agent and
former Holders of indebtedness incurred under the Prepetition Credit
Facility in respect of the Prepetition Credit Facility).
163. "Senior Lenders" means those certain financial institutions
party to the Prepetition Credit Facility that continue, as of the Record
Date, to be Holders of indebtedness incurred under the Prepetition Credit
Facility, and the other Holders, as of the Record Date, of indebtedness
incurred under the Prepetition Credit Facility.
164. "Senior Subordinated Note Claims" means, collectively, all
Claims arising from or related to the Senior Subordinated Notes.
165. "Senior Subordinated Notes" means, collectively, the 9% Senior
Subordinated Notes and the 8 3/4% Senior Subordinated Notes.
166. "Senior Subordinated Note Indentures" means, collectively, the
8 3/4% Indenture and the 9% Indenture.
167. "Senior Subordinated Notes Indenture Trustee" means BNY Midwest
Trust Company as successor trustee to Harris Trust and Savings Bank under
the Senior Subordinated Note Indentures.
168. "Series A Warrants" means the Series A Warrants to purchase
498,688 shares of Class D Common Stock, par value $.01 per share, to be
issued by New Polymer, which are designed to allow the Holders to
participate as stockholders in the appreciation of the equity value of
New Polymer above certain thresholds and which contain the terms and
conditions described in Exhibit D to the Amended Modified Plan
Supplement, including, without limitation, the requirement that the
Series A Warrants shall not be exercisable until holders of Class A
Common Stock, Class B Common Stock, and Class C Common Stock shall have
received distributions in accordance with the priorities set forth in
Exhibit J to the Amended Modified Disclosure Statement at section C,
"Distributions".
169. "Series B Warrants" means the Series B Warrants to purchase
523,557 shares of Class E Common Stock, par value $.01 per share, to be
issued by New Polymer, which are designed to allow the Holders to
participate as stockholders in the appreciation of the equity value of
New Polymer above certain thresholds and which contain the terms and
conditions described in Exhibit E to the Amended Modified Plan
Supplement, including, without limitation, the requirement that the
Series A Warrants shall not be exercisable until holders of Class A
Common Stock, Class B Common Stock, Class C Common Stock and Class D
Common Stock shall have received distributions in accordance with the
priorities set forth in Exhibit J to the Amended Modified Disclosure
Statement at section C, "Distributions".
170. "Shareholder Rights Plan" means Polymer's shareholder rights
plan or "poison pill" embodied in the Rights Agreement, dated as of April
15, 1996, by and among Polymer and First Union National Bank of North
Carolina.
171. "Solicitation Agent" means Innisfree M&A Incorporated, located
at 501 Madison Avenue, New York, New York 10022.
172. "SPE" means the special purpose entity that will, in the event
that Non-GOF Holders elect to receive Class C Common Stock, hold Class C
Common Stock and whose SPE Equity and SPE Notes will, in such event, be
held by the Electing Non-GOF Holders.
173. "SPE Equity" means the equity interests in the SPE that are
issued to the Electing Non-GOF Holders, together with the SPE Notes, in
exchange for their Class C Common Stock.
174. "SPE Notes" means those debt instruments that are to be issued
by the SPE to the Electing Non-GOF Holders, together with the SPE Equity,
in exchange for their Class C Common Stock. Such SPE Notes, at maturity,
will equal the amount of the Allowed Class 4 Claims exchanged by such
Electing Non-
14
GOF Holders for Pro Rata shares of Class C Common Stock under the Amended
Modified Plan, which shall be contributed to the SPE in exchange for Pro
Rata shares of SPE Equity and SPE Notes with interest payable-in-kind
(other than payments on the SPE Notes from the irreducible cash payment
in the form of a dividend or other contractual commitment by New Polymer
on the Class C Common Stock that, in the aggregate, shall equal the
lesser of (i) 1% per annum of the principal amount of the SPE Notes; and
(ii) $1.0 million per annum). The SPE Notes will be nonrecourse to
Polymer and New Polymer.
175. "Statement of Officers and Directors" means the statement Filed
seven (7) Business Days prior to the commencement of the Confirmation
Hearing identifying the initial officers and directors of the Reorganized
Debtors, and containing any other information, if any, required by
Article V.B.3 of this Amended Modified Plan.
176. "Subscription Rights" means (a) the right of the Holders of
Allowed Class 4 Claims to elect to purchase the Convertible Notes on a
Pro Rata basis (determined exclusive of accrued and unpaid interest), and
(b) unless otherwise indicated, the Over Subscription Rights which shall
be attached to, and inure to the benefit of, the Holders of Subscription
Rights, in each case as described in Article V.H of this Amended Modified
Plan.
177. "Subsidiary" means a corporation or limited liability company
in which any Debtor owns or controls, directly or indirectly, at least a
50% equity interest.
178. "Substantive Consolidation Order" means the Order of the
Bankruptcy Court substantively consolidating, for limited purposes, the
Chapter 11 Cases (which may be part of the Confirmation Order).
179. "Supplemental Election Form" means the form by which a
Participating Allowed Class 4 Claim Holder may indicate its intention to
participate in the New Investment and by which a Holder of an Allowed
Class 4 Claim (if such a Holder is a Qualified Institutional Buyer) must
indicate whether such Holder elects to receive Class A Common Stock or
Class C Common Stock as its treatment under the Amended Modified Plan.
180. "Tax Rate" means the rate equal to the underpayment rate
specified in 26 U.S.C. ss. 6621 (determined without regard to 26 U.S.C.
ss. 6621(c)) as of the Effective Date.
181. "Technetics" means Technetics Group, Inc., a Delaware
corporation, a debtor and debtor-in-possession in the Chapter 11 Cases.
182. "Unimpaired Claim" means each Claim that is in an Unimpaired
Class under the Amended Modified Plan.
183. "Unimpaired Classes" means Classes 1, 3, 5 and 7, which are not
impaired Classes within the meaning of section 1124 of the Bankruptcy
Code.
184. "Voting Deadline" means the date stated in the Voting
Instructions by which all Ballots must be received.
185. "Voting Instructions" means the instructions for voting on this
Amended Modified Plan contained in (a) the Section of the Amended
Modified Disclosure Statement entitled VOTING AND CONFIRMATION PROCEDURE
and (b) the Ballots and Master Ballots.
186. "Warrants" means the Series A Warrants and Series B Warrants.
187. "Zucker" means Jerry Zucker.
15
ARTICLE II.
TREATMENT OF UNCLASSIFIED CLAIMS
A. DIP Facility Claims
On the Effective Date, each Holder of an Allowed DIP Facility Claim
shall receive in full satisfaction, settlement, release, and discharge of, and
in exchange for, such Allowed DIP Facility Claim, any and all liens against,
or security interests in, property of the Debtors or the Estates, Cash equal
to the unpaid portion of such Allowed DIP Facility Claim. At such time, the
DIP Facility shall be deemed terminated and the obligations thereunder of the
Debtors and the Reorganized Debtor shall be terminated.
B. Administrative Expense Claims
Each Holder of an Allowed Administrative Expense Claim (other than
Professionals) shall receive the full unpaid amount of such Allowed
Administrative Expense Claim in Cash on the Effective Date, or upon such other
terms as may be agreed upon by such Holder and the Debtors, or otherwise upon
order of the Bankruptcy Court; provided, however, that Allowed Administrative
Expense Claims representing obligations incurred in the ordinary course of
business or otherwise assumed by the Reorganized Debtors pursuant to this
Amended Modified Plan shall be paid in the ordinary course of business in
accordance with the terms and conditions of the particular agreements
governing such obligations.
C. Compensation and Reimbursement Claims of Professionals
All Professionals that are awarded compensation or reimbursement by
the Bankruptcy Court in accordance with sections 330 or 331 of the Bankruptcy
Code that are entitled to the priorities established pursuant to sections
503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code, shall be
paid in full, in Cash, the amounts allowed by the Bankruptcy Court: (a) on or
as soon as reasonably practicable following the later to occur of (i) the
Effective Date; and (ii) the date upon which the Bankruptcy Court order
allowing such Claim becomes a Final Order; or (b) upon such other terms as may
be mutually agreed upon between such Professional and the Reorganized Debtors.
On the Effective Date, there shall be escrowed into the Professionals' Escrow
Account all estimated accrued amounts owed to Professionals through the
Confirmation Date pending entry of a Final Order on each such Professional's
final fee application.
D. Priority Tax Claims
Each Holder of an Allowed Priority Tax Claim, at the sole option of
the Debtors, shall be entitled to receive on account of such Allowed Priority
Tax Claim, in full satisfaction, settlement, release and discharge of and in
exchange for such Allowed Priority Tax Claim, (i) equal Cash payments made on
the last Business Day of every three-month period following the Effective
Date, over a period not exceeding six (6) years after the assessment of the
tax on which such Claim is based, totaling the principal amount of such Claim
plus simple interest on any outstanding balance from the Effective Date
calculated at the interest rate available on ninety (90) day United States
Treasuries on the Effective Date; or (ii) such other treatment agreed to by
the Allowed Priority Tax Claim Holder and the Debtors.
ARTICLE III.
CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS
AND EQUITY INTERESTS
A. Summary
Pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code, the
categories of Claims and Equity Interests listed below classify Claims and
Equity Interests for all purposes, including voting and distribution pursuant
to this Amended Modified Plan. A Claim or Equity Interest shall be deemed
classified in a particular Class only to the extent that such 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
16
that such Claim or Equity Interest is Allowed in that Class and has not been
paid or otherwise settled prior to the Effective Date.
THIS AMENDED MODIFIED PLAN SEEKS LIMITED SUBSTANTIVE CONSOLIDATION OF THE
DEBTORS' ESTATES SOLELY FOR THE LIMITED PURPOSES ENUMERATED IN THIS AMENDED
MODIFIED PLAN, AS FURTHER DESCRIBED IN ARTICLE V.L HEREIN. IF SUCH LIMITED
SUBSTANTIVE CONSOLIDATION IS AUTHORIZED AND ORDERED BY THE BANKRUPTCY COURT,
ALL ALLOWED CLAIMS AGAINST THE DEBTORS OR THEIR ESTATES SHALL BE SATISFIED
FROM THE COMBINED CASH AND OTHER ASSETS OF ALL OF THE DEBTORS AND REORGANIZED
DEBTORS.
The classification of Claims against and Equity Interests in the Debtors
pursuant to this Amended Modified Plan is as follows:
====================================================================
Class Claim Status Voting Rights
====================================================================
1 Priority Non-Tax Claims Unimpaired Not entitled to vote
2 Senior Lender Claims Impaired Entitled to vote
3 Other Secured Claims Unimpaired Not entitled to vote
4 General Unsecured Claims Impaired Entitled to vote
5 Critical Business Unimpaired Not entitled to vote
Relations Claims and
Intercompany Claims
6 Old Polymer Common Impaired Entitled to vote
Stock Interests
7 Intercompany Interests Unimpaired Not entitled to vote
8 Other Securities Claims Impaired Not entitled to vote
and Interests (deemed to have rejected)
======================================================================
B. Classification and Treatment of Claims Against and Equity Interests in
the Debtors
1. Class 1 - Priority Non-Tax Claims
a. Classification: Class 1 consists of all Priority Non-Tax Claims.
b. Treatment: The legal, equitable and contractual rights of the
Holders of Class 1 Claims are unaltered by this Amended Modified Plan. Unless
the Debtors and the Holder of an Allowed Class 1 Claim agree to a different
treatment, each such Holder shall receive one of the following alternative
treatments, at the Reorganized Debtors' election.
(i) to the extent due and owing on the Effective Date, such
Claim will be paid on the Effective Date in full in Cash by the
Reorganized Debtors;
(ii) to the extent not due and owing on the Effective Date,
such Claim will be paid in full in Cash by the Reorganized Debtors
when and as such Claim becomes due and owing in the ordinary course
of business; or
(iii) such Claim will be otherwise treated in any other manner
so that such Claim shall otherwise be rendered unimpaired pursuant
to section 1124 of the Bankruptcy Code.
17
Any default with respect to any Class 1 Claim that existed immediately
prior to the Petition Date shall be deemed cured upon the Effective
Date.
c. Voting: Class 1 is not impaired, and the Holders of Class 1
Claims are conclusively deemed to have accepted this Amended Modified
Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the
Holders of Claims in Class 1 are not entitled to vote to accept or reject
this Amended Modified Plan.
2. Class 2 - Senior Lender Claims
a. Classification: Class 2 consists of all Senior Lender Claims.
b. Treatment: On or as soon as practicable after the Effective
Date, in full and complete satisfaction of all Senior Lender Claims
asserted against any and all Debtors, each Holder of an Allowed Senior
Lender Claim shall receive, on account of its Allowed Senior Lender Claim
in accordance with the Bank Term Sheet, its Pro Rata share of (A)
participation in the Restructured Facilities, (B) the Senior Lender
Paydown, (C) the Chicopee Sale Proceeds (provided, that the Chicopee Sale
closes before the Effective Date) and (D) the Senior Lender Closing
Prepayment.
c. Voting: Class 2 is impaired, and the Holders of Class 2
Claims are entitled to vote to accept or reject this Amended Modified
Plan. In the event Class 2 rejects this Amended Modified Plan, Debtors
reserve the right to seek confirmation pursuant to section 1129(b) of the
Bankruptcy Code as set forth in Article IV.E herein.
3. Class 3 - Other Secured Claims
a. Classification: Class 3 consists of all Other Secured
Claims.
b. Treatment: Unless the Holder of such Claim and Debtors agree
to a different treatment, each Holder of an Allowed Class 3 Claim shall
receive one of the following alternative treatments, at the election of
the Reorganized Debtors:
(i) the legal, equitable and contractual rights of the
Holders of Allowed Class 3 Claims shall be unaltered by this Amended
Modified Plan;
(ii) Debtors shall surrender all Collateral securing such
Claim to the Holder thereof, without representation or warranty by
or recourse against the Debtors or Reorganized Debtors; or
(iii) such Claim will be otherwise treated in any other
manner so that such Claim shall be rendered unimpaired pursuant to
section 1124 of the Bankruptcy Code.
Any default with respect to any Class 3 Claim that existed immediately
prior to the Petition Date shall be deemed cured upon the Effective
Date.
c. Voting: Class 3 is not impaired, and the Holders of Class 3
Claims are conclusively deemed to have accepted this Amended Modified
Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the
Holders of Class 3 Claims are not entitled to vote to accept or reject
this Amended Modified Plan.
4. Class 4 - General Unsecured Claims
a. Classification: Class 4 consists of all General Unsecured
Claims.
b. Treatment: Each Holder of an Allowed General Unsecured Claim
shall receive, in full and complete satisfaction of each such Holder's
Claim, on, or as soon as practicable after the Effective
18
Date, its Pro Rata share of Class A Common Stock in exchange for the
amount of its Allowed Claim, provided, however, that, in the alternative,
each such Holder who is a Qualified Institutional Buyer may elect to
receive its Pro Rata share of Class C Common Stock, which shall be
contributed to the SPE in exchange for SPE Equity and SPE Notes. The
Holder of an Allowed Class 4 Claim may make only one election with
respect to its Claim on the Supplemental Election Form, which election
will be made after the Confirmation Date and prior to the 40th day
thereafter. The failure of a Class 4 Claim Holder to make an election
under this Amended Modified Plan shall be deemed an election to receive
its Pro Rata share of Class A Common Stock with respect to its Allowed
Claim. The total number of Class A Common Stock and Class C Common Stock
shares to be issued on the Effective Date will be 9.6 million. Each
Holder of an Allowed Class 4 Claim also will be given the option to take
part in the New Investment by exercising its Subscription Rights in
accordance with the Supplemental Election Form.
c. Voting: Class 4 is impaired, and the Holders of Class 4
Claims are entitled to vote to accept or reject this Amended Modified
Plan. In the event Class 4 rejects this Amended Modified Plan, Debtors
reserve the right to seek confirmation pursuant to section 1129(b) of the
Bankruptcy Code as set forth in Article IV.E herein.
5. Class 5 - Critical Business Relations Claims and Intercompany
Claims
a. Classification: Class 5 consists of all Critical Business
Relations Claims and Intercompany Claims.
b. Treatment: The legal, equitable and contractual rights of
the Holders of Class 5 Claims are unaltered by this Amended Modified
Plan. Unless the Holder of such Claim and Debtors agree to a different
treatment, each Holder of an Allowed Class 5 Claim shall receive one of
the following alternative treatments, at the election of the Debtors:
(i) to the extent then due and owing on the Effective
Date, such Claim will be paid in full in Cash by the Reorganized
Debtors;
(ii) to the extent not due and owing on the Effective
Date, such Claim (A) will be paid in full in Cash by the Reorganized
Debtors on the Effective Date, or (B) will be paid in full in Cash
by the Reorganized Debtors when and as such Claim becomes due and
owing in the ordinary course of business; or
(iii) such Claim will be otherwise treated in any other
manner so that such Claim shall otherwise be rendered unimpaired
pursuant to section 1124 of the Bankruptcy Code.
Any default with respect to any Class 5 Claim that existed immediately
prior to the filing of the Chapter 11 Case shall be deemed cured upon the
Effective Date.
c. Voting: Class 5 is not impaired and the Holders of Class 5 Claims
are conclusively deemed to have accepted this Amended Modified Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the
Holders of Class 5 Claims are not entitled to vote to accept or reject
this Amended Modified Plan.
6. Class 6 - Old Polymer Common Stock Equity Interests
a. Classification: Class 6 consists of all Old Polymer Common
Stock Interests.
b. Treatment: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Equity Interest in Old Polymer Common
Stock shall receive, in full and complete satisfaction of such Equity
Interest, a Pro Rata share of (i) Class B Common Stock (which shall not
be diluted by any conversion of the Convertible Notes); (ii) the Series A
Warrants; and (iii) the Series B Warrants.
19
c. Allowance: Each Holder of an Allowed Class 6 Old Polymer
Common Stock Equity Interest shall be Allowed in the amount of the number
of shares of Old Polymer Common Stock held by each applicable Holder as
of the Record Date.
d. Voting: Class 6 is impaired and Holders of Allowed Class 6
Old Polymer Common Stock Equity Interests are entitled to vote to accept
or reject this Amended Modified Plan. In the event Class 6 rejects this
Amended Modified Plan, Debtors reserve the right to seek confirmation
pursuant to section 1129(b) of the Bankruptcy Code as set forth in
Article IV.E herein.
7. Class 7 - Intercompany Interests
a. Classification: Class 7 consists of all Intercompany
Interests.
b. Treatment: The legal, equitable and contractual rights of
the Holders of Class 7 Claims are unaltered by this Amended Modified
Plan.
c. Voting: Class 7 is not impaired, and the Holders of Class 7
Claims are conclusively deemed to have accepted this Amended Modified
Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the
Holders of Class 7 Claims are not entitled to vote to accept or reject
this Amended Modified Plan.
8. Class 8 - Other Securities Claims and Interests
a. Classification: Class 8 consists of all Other Securities
Claims and Interests of whatever kind or nature.
b. Treatment: On the Effective Date, all Other Securities
Claims and Interests shall be deemed cancelled and of no further force
and effect, whether surrendered for cancellation or otherwise, and no
distribution to the Holders of Other Securities Claims and Interests
shall be made hereunder.
c. Voting: Class 8 is impaired, but since Holders of Other
Securities Claims and Interests are receiving no distribution hereunder,
Holders of Class 8 Claims shall be deemed to have rejected this Amended
Modified Plan and are not entitled to vote to accept or reject this
Amended Modified Plan.
ARTICLE IV.
ACCEPTANCE OR REJECTION OF THE AMENDED MODIFIED PLAN
A. Voting Classes
Subject to Articles IV.C and D herein, Claim and Equity Interest Holders
in each Impaired Class of Claims or Equity Interests are entitled to vote as a
class to accept or reject this Amended Modified Plan. Each Holder of an
Allowed Claim or Equity Interest in Classes 2, 4 and 6 shall be entitled to
vote to accept or reject this Amended Modified Plan.
B. Acceptance by Impaired Classes
An Impaired Class of Claims shall be deemed to have accepted this Amended
Modified 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 this
Amended Modified Plan; (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 this Amended
Modified Plan. An Impaired Class of Equity Interests shall be deemed to have
accepted this Amended Modified Plan if 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 Equity Interests actually voting in such
Class have voted to accept this Amended Modified Plan.
20
C. Presumed Acceptance of Amended Modified Plan
Classes 1, 3, 5 and 7 are Unimpaired Classes under this Amended Modified
Plan, and, therefore, are presumed to have accepted this Amended Modified Plan
pursuant to section 1126(f) of the Bankruptcy Code.
D. Presumed Rejection of Amended Modified Plan
Class 8 is impaired under this Amended Modified Plan and is receiving no
distribution hereunder. Accordingly, Class 8 is deemed to have rejected this
Amended Modified Plan.
E. Non-Consensual Confirmation
To the extent that any Impaired Class rejects this Amended Modified Plan
or is deemed to have rejected this Amended Modified Plan, the Debtors will
request confirmation of this Amended Modified Plan as it may be modified from
time to time, under section 1129(b) of the Bankruptcy Code. The Debtors
reserve the right to alter, amend, modify, revoke or withdraw this Amended
Modified Plan or any Amended Modified Plan Exhibit or Schedule, including to
amend or modify it to satisfy the requirements of section 1129(b) of the
Bankruptcy Code, if necessary.
ARTICLE V.
MEANS FOR IMPLEMENTATION OF THE AMENDED MODIFIED PLAN
A. Continued Corporate Existence
Subject to any Restructuring Transactions, the Reorganized Debtors shall
continue to exist after the Effective Date as separate corporate entities, in
accordance with the applicable laws in the respective jurisdictions in which
they are incorporated and pursuant to their respective certificates or
articles of incorporation and by-laws in effect prior to the Effective Date,
except to the extent such certificates or articles of incorporation and
by-laws are amended by, or pursuant to, this Amended Modified Plan.
B. Corporate Governance, Corporate Action, and Directors and Officers
1. Certificates of Incorporation and By-laws.
a. The certificate or articles of incorporation and by-laws of
each Debtor shall be amended as necessary to satisfy the provisions of
this Amended Modified Plan and the Bankruptcy Code, and shall include,
among other things, pursuant to section 1123(a)(6) of the Bankruptcy
Code, a provision prohibiting the issuance of non-voting equity
securities, but only to the extent required by section 1123(a)(6) of the
Bankruptcy Code.
b. In addition to the foregoing, New Polymer's Certificate of
Incorporation shall include the following terms and provisions:
(i) New Polymer's authorized capital stock, and the
designated shares in each class or series of capital stock, shall be
limited to such number of shares as is necessary for the issuances
contemplated hereunder, including conversion or exercise of all
convertible or exercisable securities to be issued hereunder,
including applicable anti-dilution protection;
(ii) The stockholders of New Polymer shall be authorized
to take action by written consent in lieu of a meeting thereof;
(iii) The New Polymer Board of Directors shall not be
classified; and
(iv) The provisions of Polymer's current Certificate of
Incorporation that require an affirmative vote of 80% of the voting
capital stock for the taking of certain
21
actions shall be amended to provide that such actions may be taken
with the affirmative vote of 50% of the voting capital stock.
c. In addition to the foregoing, New Polymer's bylaws shall
provide for the following terms and conditions:
(i) Shareholders holding a minimum of 25% of New Polymer
Common Stock shall be authorized to call special meetings;
(ii) The notice requirements for shareholders to place
matters on the ballot for consideration at annual and special
meetings shall not be unduly prohibitive and, in any event, shall be
to GOF's and the Committee's reasonable satisfaction; and
(iii) Shareholders shall be authorized to take action by
written consent in lieu of a meeting thereof.
2. Corporate Action. All actions contemplated by, and required for
the effectiveness of, this Amended Modified Plan shall be deemed authorized
and approved in all respects. All matters provided for in this Amended
Modified Plan involving the corporate structure of the Debtors or the
Reorganized Debtors, and any corporate action required by the Debtors or the
Reorganized Debtors in connection with this Amended Modified Plan, shall be
deemed to have occurred and shall be in effect, without any requirement of
further action by the directors of the Debtors or the Reorganized Debtors. On
the Effective Date, the appropriate officers and directors of the Reorganized
Debtors are authorized and directed to issue, execute and deliver the
agreements, documents, Equity Securities and instruments contemplated by this
Amended Modified Plan in the name of and on behalf of the Reorganized Debtors.
3. Directors and Officers of the Reorganized Debtors.
a. Pursuant to section 1129(a)(5) of the Bankruptcy Code, the
Debtors will disclose, by Filing, ten (10) days prior to the Confirmation
Date, a Statement of Officers and Directors, identifying any Person
proposed to serve on the initial boards of directors of the Reorganized
Debtors. To the extent any such Person is an Insider, the nature of any
compensation for such Person also will be disclosed. The classification
and composition of the boards of directors shall be consistent with each
Reorganized Debtor's amended Certificate of Incorporation and other
constituent documents. Each such director or officer shall serve from and
after the Effective Date pursuant to the terms of each Reorganized
Debtor's amended Certificate of Incorporation, other constituent
documents, and the applicable state incorporation law.
b. New Polymer will be governed by the New Polymer Board of
Directors, which shall consist of nine members, each of whom shall have a
term of three years, comprising the following categories: (i) five GOF
Board Members; (ii) two PGI Board Members, who initially shall be Zucker
and Boyd; and (iii) two Non-GOF Board Members.
c. During such three year term, any vacancy by a GOF Board
Member shall be filled by GOF, any vacancy by a PGI Board Member shall be
filled by a nominee of the other PGI Board Member subject to the
limitation set forth in clause d of this Article V.B.3, and any vacancy
by a Non-GOF Board Member shall be filled by a nominee of the other
Non-GOF Board Member. After three years from the Effective Date, each
Non-GOF Board Member, each PGI Board Member and any other stockholder
nominee will be included on New Polymer's slate of board nominees only if
such Non-GOF Board Member, such PGI Board Member or other stockholder
nominee is supported by the affirmative vote of shares representing not
less than 12 1/2 % of the New Polymer Common Stock (provided that, for
purposes of nomination, each share of holders of New Polymer Common Stock
may only be counted in support of one nominee). GOF will agree to vote in
favor of any nominee included on New Polymer's slate of board nominees
whose nomination is supported by shares representing at least 12 1/2% of
the New Polymer Common Stock as set forth above.
22
d. GOF Board Members, Non-GOF Board Members and PGI Board
Members may be removed only for cause subject to the following
exceptions: (i) GOF may remove any GOF Board Member with or without
cause; and (ii) each of Zucker and Boyd (or any director who is appointed
to fill a vacancy created by the death, resignation or removal of Zucker
or Boyd) may be removed from the board (a) if Zucker's or Boyd's
employment, as the case may be, with New Polymer or its subsidiaries is
terminated for cause; or (b) if Zucker's or Boyd's employment, as the
case may be, with New Polymer or any Subsidiaries or affiliates is
terminated without cause or Zucker or Boyd, as the case may be, resigns
and, in either such case under this clause (b), he is paid the amounts,
if any, to which he is legally entitled under his respective Change of
Control Agreement or any other applicable agreement, provided, however,
that, during the pendency of any dispute relating to (x) his termination;
(y) whether his termination is for cause; or (z) whether he is entitled
to payment under his respective Change of Control Agreement or any other
applicable agreement, the New Polymer Board of Directors shall be
permitted to remove him (or his successor) from the New Polymer Board of
Directors. If Zucker or Boyd ultimately is removed as a director for
cause or pursuant to clause (ii) (b) of the foregoing sentence, the
number of directors on the New Polymer Board of Directors shall be
reduced to eliminate such vacancy or vacancies; provided, however, that
during the pendency of any dispute as described above the vacancy or
vacancies shall not be eliminated nor shall any replacement director be
appointed.
e. At least one Non-GOF Board Member shall be on each of the
audit, compensation and executive committees of the New Polymer Board of
Directors.
4. Corporate Governance. The Plan Parties will take all actions necessary
to implement the corporate governance provisions as set forth below:
a. New Polymer shall be a reporting company under Section 12(g)
of the Securities Exchange Act of 1934, as amended, on the Effective
Date. New Polymer will agree not to seek suspension of its reporting
obligations pursuant to Rule 12h-3 of the Securities Exchange Act of
1934, as amended, or otherwise. Unless and until New Polymer is taken
private, New Polymer shall remain a reporting company and shall continue
to file quarterly and annual reports and all other required filings made
by reporting companies regardless of the number of Holders of its New
Polymer Common Stock or Convertible Notes. New Polymer shall remain a
Delaware corporation, except to the extent necessary to effectuate a
bonafide business combination or other transaction; provided, however,
that any such business combination or other transaction with a
New Polymer Affiliate shall require the approval of a Non-GOF Board
Member.
b. New Polymer shall use reasonable best efforts to be a listed
company on the NYSE or included for quotation on The NASDAQ Stock Market
on the Effective Date of the Amended Modified Plan or as soon as
practicable thereafter.
c. All Holders of outstanding shares of the New Polymer Common
Stock shall have pre-emptive rights to buy a pro-rata share of any
issuance of securities by New Polymer after the Effective Date, subject
to customary exclusions, including, without limitation, exclusions for
(i) employee and non-employee director stock option grants and similar
stock-based compensatory arrangements; (ii) the shares issuable upon the
conversion of the Convertible Notes; and (iii) the shares of Class B
Common Stock pursuant to the anti-dilution provisions of the Class B
Common Stock pursuant to conversion of the Convertible Notes. Holders of
New Polymer Common Stock shall be granted "tag-along" rights by GOF
applicable to all sales by GOF and GOF affiliates that result in GOF and
GOF affiliates beneficially owning less than an aggregate of 54.9% of the
New Polymer Common Stock on a fully-diluted basis and any sales
thereafter.
d. New Polymer shall not enter into any agreement to pay, nor
will pay, any management or transaction fee to any New Polymer Affiliate.
Without the written approval of at least one Non-GOF Board Member, New
Polymer (i) may not enter into any New Polymer Affiliated Transaction; or
(ii) may not change any provision of its charter, by-laws, shareholder
agreements or other agreements or operative document that accomplish the
provisions of Article V.B.3 or B.4 of this Amended Modified Plan.
e. The Shareholder Rights Plan shall be terminated and
rejected.
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f. As of the Effective Date, the Organizational Documents of
New Polymer and its Subsidiaries and Affiliates shall prohibit their
respective officers from exercising voting rights of any securities held
by New Polymer or such subsidiaries and affiliates without express
authorization from the New Polymer Board of Directors or other applicable
governing body.
g. As of the Effective Date, the Organizational Documents of
each Subsidiary and Affiliate of New Polymer (including, without
limitation, each Entity identified on Exhibit H to the Amended Modified
Disclosure Statement) shall each provide that the stockholders, members,
partners or other equity Holders, as the case may be, of such Entity
shall be permitted to remove as of the Effective Date, at any time and
from time to time thereafter, any director, manager, managing partner or
person of equivalent authority, with or without cause at any time,
through action by a majority in interest of such stockholders, members,
partners or other equity Holders (which action may, at the option thereof
and to the extent permissible by law, be taken in writing or pursuant to
a meeting thereof).
h. Any action by the New Polymer Board of Directors requiring a
vote from a Non-GOF Board Member shall require the vote of a Non-GOF
Board Member only as long as the New Polymer Board of Directors continues
to have seats designated for such Non-GOF Board Members.
C. Cancellation of Securities And Agreements.
On the Effective Date, except as otherwise provided for in this Amended
Modified Plan, (a) Senior Subordinated Note Claims, Other Securities Claims
and Interests, Old Polymer Common Stock, and any other note, bond, Indenture,
or other instrument or document evidencing or creating any indebtedness or
obligation of a Debtor, and (b) the obligations of the Debtors under any
agreements, Indentures or certificates of designations governing Senior
Subordinated Note Claims, Other Securities Claims and Interests, Old Polymer
Common Stock, and any other note, bond, Indenture or other instrument or
document evidencing or creating any indebtedness or obligation of a Debtor, as
the case may be, shall be cancelled and terminated and shall be discharged
pursuant to section 1141 of the Bankruptcy Code.
D. Issuance of New Polymer Common Stock and New Polymer Notes
1. New Polymer Common Stock. On the Effective Date, New Polymer
shall issue and distribute in accordance with the terms of this
Amended Modified Plan, the New Polymer Common Stock as follows: the
Class A Common Stock Pro Rata (in sum with the Class C Common Stock,
9.6 million shares to be issued on the Effective Date) to Holders of
Allowed Class 4 Claims who elect to receive Class A Common Stock,
the Class B Common Stock (400,000 shares of New Polymer Common Stock
issued on the Effective Date) to Holders of Allowed Claims in Class
6 and the Class C Common Stock (representing in sum with the Class A
Stock, 9.6 million shares to be issued on the Effective Date) to the
Electing Non-GOF Holders.
2. Section 1145 Exemption. To the maximum extent provided by
section 1145 of the Bankruptcy Code and applicable nonbankruptcy
laws, the shares of New Polymer Common Stock issued pursuant to this
Amended Modified Plan are exempt from registration under the
Securities Act.
3. Issuance of Instruments. Except as otherwise provided
herein, on or as soon as reasonably practicable after the Effective
Date, the Reorganized Debtors shall issue all securities, notes,
instruments, certificates, warrants and other documents to be issued
in accordance with this Amended Modified Plan. The Reorganized
Debtors shall execute and deliver such other agreements, documents
and instruments as are required to be executed in accordance with
the terms herein.
4. Pursuant to Article V.H hereof, on the Effective Date, New
Polymer shall issue Convertible Notes to the new indenture
trustee(s) on behalf of the Holders of Participating Allowed Class 4
Claim in exchange for the New Investment in an aggregate principal
amount equal to $50 million. The Convertible Notes shall be issued
pursuant to the Indenture attached as an exhibit to the Amended
Modified Plan Supplement.
24
5. New Polymer also shall issue New Senior Subordinated Notes
to GOF to the extent of any draws on the Exit Letters of Credit (or
any other advance made, or caused to be made, by GOF solely in lieu
of a drawing under the Exit Letters of Credit to make the
amortization payments under the Restructured Facilities from the
Effective Date through December, 2004, which amount shall not exceed
$25 million). The New Senior Subordinated Notes shall be senior in
right of payment to the Convertible Notes.
6. Except as otherwise provided in this Amended Modified Plan,
on or as soon as reasonably practicable after the Effective Date,
the Reorganized Debtors shall issue all Equity Securities, notes,
instruments, certificates, warrants and other documents to be issued
in accordance with this Amended Modified Plan. The Reorganized
Debtors shall execute and deliver such other agreements, documents
and instruments as are required to be executed in accordance with
the terms of this Amended Modified Plan.
E. Revesting Of Assets; Releases of Liens
The property of each Debtor's Estate, together with any property of
each Debtor that is not property of its Estate and that is not specifically
disposed of pursuant to this Amended Modified Plan, shall revest in the
applicable Debtor on the Effective Date. Thereafter, each Reorganized Debtor
may operate its business and may use, acquire, and dispose of property free of
any restrictions of the Bankruptcy Code, the Bankruptcy Rules, and the
Bankruptcy Court. As of the Effective Date, all property of each Reorganized
Debtor shall be free and clear of all Claims and Equity Interests, except as
specifically provided in this Amended Modified Plan or the Confirmation Order.
Without limiting the generality of the foregoing, each Reorganized Debtor may,
without application to or approval by the Bankruptcy Court, pay fees that it
incurs after the Effective Date for reasonable professional fees and expenses.
F. Sources of Cash for Amended Modified Plan Distribution
All Cash necessary for the Reorganized Debtors to make payments
pursuant to this Amended Modified Plan shall be obtained from existing Cash
balances, the New Investment, the operations of the Debtors or Reorganized
Debtors or post-Confirmation borrowing under all available facilities of the
Debtors or Reorganized Debtors, including, but not limited to, the Exit
Revolving Credit Facility, to the extent permitted thereunder. The Reorganized
Debtors may also make such payments using Cash received from their
Subsidiaries and Affiliates in the ordinary course of business.
G. Exit Revolving Credit Facility
1. On the Effective Date, New Polymer, certain of its
Subsidiaries, and certain Senior Lenders and, if necessary, other
parties, shall enter into the Exit Revolving Credit Facility, in
order to (a) make other payments required to be made on the
Effective Date; provided, that the Exit Revolving Credit Facility
may not be used to repay the DIP Facility Claim, and (b) provide
such additional borrowing capacity as may be required by the
Reorganized Debtors and the Subsidiaries following the Effective
Date to maintain their operations. The Confirmation Order shall
provide that the Debtors are authorized to execute, deliver, record
or file all documents necessary or appropriate to implement the Exit
Revolving Credit Facility.
H. New Investment
1. General. On the Effective Date, New Polymer will be provided
with $50.0 million of funding. The New Investment will be made by
the Participating Allowed Class 4 Claim Holders who choose to
participate in the New Investment by exercising their Subscription
Rights and will consist of $50.0 million in Cash which will be used
to fund the Senior Lender Paydown on the Effective Date in
accordance with the Bank Term Sheet. The Participating Allowed Class
4 Claims Holders shall receive Convertible Notes as summarized
below.
2. Subscription Rights and Over Subscription Rights; Method of
Election to Participate in New Investment. On the Confirmation Date,
all Holders of Allowed Class 4 Claims as of the Record Date shall be
deemed to have been issued Subscription Rights to purchase their Pro
Rata share (determined exclusive of accrued and unpaid interest) of
the Convertible Notes to be issued by New Polymer on the
25
Effective Date. Each Subscription Right shall carry with it an
Over Subscription Right, which shall attach to, and inure to the
benefit of, the Beneficial Holder of the Subscription Right. Subject
to all applicable state and federal securities laws, the
Subscription Rights, along with any attendant Over Subscription
Rights, shall be transferable for a period of not less than forty
(40) days commencing on the Confirmation Date. Parties electing to
purchase or sell Subscription Rights and Over Subscription Rights
separately from the corresponding underlying Claims shall do so at
their own risk and judgment as to whether such purchases and sales
comply with applicable laws and regulations. To purchase
Convertible Notes and participate in the New Investment, Beneficial
Holders of Subscription Rights (which may include the Holders of
Allowed Class 4 Claims to which such Subscription Rights are
initially issued or their transferees) must exercise the
Subscription Rights in the manner set forth on the Supplemental
Election Form on or prior to the date which is forty (40) days after
the Confirmation Date. Non-GOF Holders are not obligated to exercise
their Subscription Rights, and, in the event that not all
Subscription Rights are properly exercised, Participating Allowed
Class 4 Claim Holders shall be entitled to exercise their Over
Subscription Rights. Exercise of the Over Subscription Rights shall
be in the manner set forth in the Supplemental Election Form.
Participating Allowed Class 4 Claim Holders that are Non-GOF Holders
are not obligated to exercise their Over Subscription Rights. GOF
has committed itself to elect to exercise its Subscription Rights
and its Over Subscription Rights, if any. As to all Convertible
Notes allocated for purchase by the Non-GOF Holders pursuant to the
Subscription Rights or the Over Subscription Rights which are not
purchased by such Non-GOF Holders, GOF agrees to act as "Standby
Purchaser" to ensure that all such Convertible Notes will be
purchased and the issuance of such Convertible Notes results in
proceeds of $50 million.
3. Convertible Notes. Interest on the Convertible Notes will be
paid in cash, semi-annually in arrears, at a rate of 10% per annum.
The principal of the Convertible Notes is due December 2007.
Holders of the Convertible Notes will be entitled at any time before
the final maturity of the Convertible Notes, subject to prior redemption
or repurchase, to convert any Convertible Notes or portions thereof into
Class A Common Stock at the then applicable conversion price. The
Convertible Notes, prior to giving effect to any anti-dilution
adjustments, shall be convertible into an aggregate number of shares of
New Polymer Common Stock representing 40% of the outstanding equity of
New Polymer (after giving effect to the conversion of such Convertible
Notes and the related anti-dilution provisions of the Class B Common
Stock issued to Holders of Allowed Equity Interests in Old Polymer Common
Stock). The Convertible Notes will have anti-dilution provisions
equivalent to customary broad-based anti-dilution protections of
preferred stock with customary exclusions.
At any time prior to the final maturity of the Convertible Notes,
subject to any limitations contained in the Exit Facility, New Polymer
may redeem the outstanding Convertible Notes in whole or from time to
time in part on at least thirty (30) days prior written notice if the
trading price of the Class A Common Stock exceeds 130% of the conversion
price of the Convertible Notes for twenty (20) trading days in a period
of thirty (30) consecutive trading days. The redemption price will equal
100% of the face amount of the Convertible Notes to be redeemed together
with accrued interest thereon.
The Convertible Notes will be unsecured and will be subordinate in
right of payment to (i) all other existing and future senior indebtedness
of New Polymer; and (ii) any Senior Subordinated Notes.
Each Reorganized Debtor shall guarantee the Convertible Notes on a
junior subordinated basis.
I. Exit Letters of Credit.
Under this Amended Modified Plan, GOF will issue or cause to be
issued the Exit Letters of Credit to guarantee the amortization payments
due from the Effective Date through December 31, 2004, under the
Restructured Facilities and the Bank Term Sheet in the event that the
Reorganized Debtors are unable to make such amortization payments.
Any drawings under the Exit Letters of Credit (or any advances
made, or caused to be made, by GOF, solely in lieu of drawing on the
Exit Letters of Credit to make the amortization payments under the
Restructured Facilities from the Effective Date through December 31,
2004, which amount shall not exceed
26
$25 million) will be evidenced by the New Senior Subordinated Notes to be
issued by New Polymer to GOF.
On the Effective Date, GOF will receive certain fees for posting
the Exit Letters of Credit. See Article XII.C herein.
J. Compensation And Benefit Programs
Except and to the extent previously assumed by a Final Order on or
before the Confirmation Date, all employee compensation and benefit programs
of the Debtors, including programs subject to sections 1114 and 1129(a)(13) of
the Bankruptcy Code, entered into before or after the Petition Date and not
since terminated, shall be deemed to be, and shall be treated as though they
are, executory contracts that are assumed under Article VI.A herein.
K. Restructuring Transactions
On or after the Effective Date, the applicable Reorganized Debtors
may enter into such transactions and may take such actions as may be necessary
or appropriate to effect a corporate restructuring of their respective
businesses, to otherwise simplify the overall corporate or capital structure
of the Reorganized Debtors, or to reincorporate certain of the Filing
Subsidiaries under the laws of jurisdictions other than the laws of which the
applicable Filing Subsidiaries are presently incorporated. Such restructuring
may include one or more mergers, consolidations, restructures, dispositions,
liquidations, or dissolutions, as may be determined by the Debtors or
Reorganized Debtors to be necessary or appropriate (collectively, the
"Restructuring Transactions"). The actions to effect the Restructuring
Transactions may include: (a) the execution and delivery of appropriate
agreements or other documents of merger, consolidation, restructuring,
disposition, liquidation, or dissolution containing terms that are consistent
with the terms of this Amended Modified Plan and that satisfy the applicable
requirements of applicable state law and such other terms to which the
applicable entities may agree; (b) the execution and delivery of appropriate
instruments of transfer, assignment, assumption, or delegation of any asset,
property, right, liability, duty, or obligation on terms consistent with the
terms of this Amended Modified Plan and having such other terms to which the
applicable entities may agree; (c) the filing of appropriate certificates or
articles of merger, consolidation, or dissolution pursuant to applicable state
law; and (d) all other actions that the applicable entities determine to be
necessary or appropriate, including making filings or recordings that may be
required by applicable state law in connection with such transactions. In each
case in which the surviving, resulting, or acquiring corporation in any such
transaction is a successor to a Reorganized Debtor, such surviving, resulting,
or acquiring corporation will perform the obligations of the applicable
Reorganized Debtor pursuant to this Amended Modified Plan to pay or otherwise
satisfy the Allowed Claims against such Reorganized Debtor, except as provided
in any contract, instrument, or other agreement or document effecting a
disposition to such surviving, resulting, or acquiring corporation, which may
provide that another Reorganized Debtor will perform such obligations.
L. Limited Substantive Consolidation
1. This Amended Modified Plan is premised upon the limited
substantive consolidation of the Debtors solely for purposes of actions
associated with the confirmation and consummation of this Amended
Modified Plan, including but not limited to voting, confirmation and
distribution. This Amended Modified Plan does not contemplate the merger
or dissolution of any Debtor or the transfer or commingling of any asset
of any Debtor, except to accomplish the distributions under this Amended
Modified Plan, other than distributions on account of Intercompany
Claims, which shall be made in the ordinary course of business following
the Effective Date. Such limited substantive consolidation shall not
effect (other than for Amended Modified Plan voting, treatment, and/or
distribution purposes) (i) the legal and corporate structures of the
Reorganized Debtors, subject to the right of the Debtors or Reorganized
Debtors to effect Restructuring Transactions as provided in Article V.K
herein; (ii) Equity Interests in the Subsidiaries or (iii) pre- and
post-Petition Date guarantees that are required to be maintained (x) in
connection with executory contracts or unexpired leases that were entered
into during the Chapter 11 Cases or that have been or will be assumed; or
(y) pursuant to the terms and conditions contained herein.
27
2. This Amended Modified Plan shall serve as a motion seeking entry
of an order substantively consolidating the Chapter 11 Cases, as
described herein. Unless an objection to substantive consolidation is
made in writing by any creditor affected by this Amended Modified Plan as
herein provided on or before five (5) days prior to the date that is
fixed by the Bankruptcy Court as the last date on which acceptances to
this Amended Modified Plan may be received, or such other date as may be
fixed by the Bankruptcy Court, the Substantive Consolidation Order (which
may be the Confirmation Order) may be entered by the Bankruptcy Court. In
the event any such objections are timely filed, a hearing with respect
thereto shall be scheduled by the Bankruptcy Court, which hearing may,
but need not, coincide with the Confirmation Hearing.
ARTICLE VI.
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. Assumption and Rejection of Executory Contracts and Unexpired
Leases
Attached as an exhibit to the Amended Modified Disclosure Statement
is a list of executory contracts and unexpired leases that the Debtors wish to
reject. Such executory contracts and unexpired leases shall be deemed rejected
by the Debtors on the Effective Date, and the entry of the Confirmation Order
by the Bankruptcy Court shall constitute approval of such rejections pursuant
to sections 365(a) and 1123 of the Bankruptcy Code. The Debtors may, in the
future, identify additional executory contracts and unexpired leases that they
may wish to reject and reserve the right to seek such rejection prior to the
Effective Date.
Any executory contracts or unexpired leases which (i) have not
expired by their own terms on or prior to the Effective Date; (ii) have not
been assumed, assumed and assigned or rejected prior to the Effective Date;
(iii) have not been rejected pursuant to the terms of this Amended Modified
Plan; or (iv) are not the subject of a motion to reject pending as of the
Effective Date, shall be deemed assumed by the Debtors on the Effective Date,
and the entry of the Confirmation Order by the Bankruptcy Court shall
constitute approval of such assumptions pursuant to sections 365(a) and 1123
of the Bankruptcy Code.
B. Rejection Claims; Cure of Defaults
If the rejection of an executory contract or unexpired lease results
in damages to the other party or parties to such contract or lease, any claim
for such damages, if not heretofore evidenced by a Proof of Claim that has
been Filed, shall be forever barred and shall not be enforceable against the
Debtors, the Reorganized Debtors, or their properties, successors or assigns,
unless a Proof of Claim is Filed and served upon counsel for the Debtors on or
before thirty (30) days after the later to occur of (i) the Confirmation Date;
and (ii) the date of entry of an order by the Bankruptcy Court authorizing
rejection of a particular executory contract or unexpired lease.
The Debtors believe that no cure payments pursuant to section
365(b)(1) of the Bankruptcy Code need to be made on any of the executory
contracts and unexpired leases that they are assuming under this Amended
Modified Plan because the Debtors are current on all of their obligations with
respect to such contracts and leases and all prepetition obligations will have
been satisfied under the Amended Modified Plan. If, however, a counterparty to
any such executory contract or unexpired lease believes that cure payments are
due pursuant to section 365(b)(1) of the Bankruptcy Code, or that there is a
dispute regarding the ability of the Reorganized Debtors to provide "adequate
assurance of future performance" within the meaning of the Bankruptcy Code
under the contract or lease to be assumed, or there is a dispute with regard
to any other matters pertaining to the assumption or the cure payments
required by section 365(b)(1) of the Bankruptcy Code, such counterparty must
File an objection to the assumption of its executory contract or unexpired
lease by the Debtors not later than ten (10) days prior to the Confirmation
Date. The Bankruptcy Court shall have, and exercise, jurisdiction over any
such objection, and which objection shall be resolved by a Final Order. The
effective date of the assumption of an executory contract or unexpired lease
subject to any such objection shall be determined by any such Final Order.
C. Indemnification and Reimbursement Obligations
Pursuant to this Amended Modified Plan, the Reorganized Debtors
shall assume the obligations of the Debtors, if any, to indemnify and
reimburse the D&O Releasees against and for any obligations incurred pursuant
to
28
articles or certificates of incorporation, codes of regulations, by-laws,
applicable law or specific agreements, or any combination of the foregoing.
ARTICLE VII.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Manner of Payment
Any payment in Cash to be made by the Debtors shall be made, at the
election of the Debtors, by check drawn on a domestic bank or by wire transfer
from a domestic bank.
B. Distributions for Claims Allowed as of the Effective Date
Except as otherwise required by the Bankruptcy Code or as may be
ordered by the Bankruptcy Court, distributions to be made on the Effective
Date on account of Claims that are Allowed as of the Effective Date and that
are entitled to receive distributions under this Amended Modified Plan shall
be made on the Effective Date or as soon as practicable thereafter.
Distributions on account of Claims that become Allowed Claims after the
Effective Date shall be made pursuant to Article VII and Article VIII hereof.
C. Delivery of Distributions and Undeliverable or Unclaimed
Distributions
1. Delivery of Distributions in General
Distributions to the Holders of Allowed Claims who are Holders of
record as of the Record Date shall be made at the address of such Holder as
indicated on the books and records of the Debtors. Except as otherwise
provided by the Amended Modified Plan or the Bankruptcy Code, distributions
shall be made in accordance with the provisions of the applicable Indenture,
participation agreement, loan agreement or analogous instrument or agreement,
if any. Distributions of Class A Common Stock to the Holders of Allowed Senior
Subordinated Note Claims shall be made directly to the Senior Subordinated
Notes Indenture Trustee. Similarly, distributions of Class A Common Stock to
Holders of Allowed Dominion Note Claims shall be made to the Indenture Trustee
for the Dominion Notes. Distribution of Class C Common Stock shall be made to
the Electing Non-GOF Holders, who shall contribute such Class C Common Stock
to the SPE in exchange for SPE Equity and SPE Notes, pursuant to the terms of
the SPE governing instruments.
2. Undeliverable Distributions
a. Holding of Undeliverable Distributions. If any Allowed
Claim Holder's distribution is returned to the Reorganized Debtors
as undeliverable, no further distributions shall be made to such
Holder unless and until the Reorganized Debtors are notified in
writing of such Holder's then-current address, such that the
distribution becomes deliverable. Undeliverable distributions shall
remain in the possession of the Reorganized Debtors until such time
as a distribution becomes deliverable. Undeliverable Cash shall not
be entitled to any interest, dividends or other accruals of any
kind.
b. Failure to Claim Undeliverable Distributions. In an
effort to ensure that all Holders of Allowed Claims receive their
allocated distributions, the Reorganized Debtors shall File a
listing of Holders of undeliverable distributions. This list will be
maintained for as long as the Chapter 11 Cases remain open. Any
Holder of an Allowed Claim that does not assert a Claim for an
undeliverable distribution within two years after the Effective Date
shall have his, her, or its Claim for such undeliverable
distribution discharged and shall be forever barred from asserting
any such Claim against the Reorganized Debtors or their property. In
such cases, any Cash or New Polymer Common Stock held for
distribution on account of such Claims shall become property of the
Reorganized Debtors, free of any restrictions thereon. Nothing
contained herein requires the Reorganized Debtors to attempt to
locate any Holder of an Allowed Claim.
c. Compliance with Tax Requirements. In connection with
this Amended Modified Plan, to the extent applicable, the
Reorganized Debtors shall comply with all tax withholding and
reporting
29
requirements imposed by any government unit, and all
distributions pursuant to this Amended Modified Plan shall be
subject to such withholding and reporting requirements.
3. Time Bar to Cash Payments
Checks issued by the Reorganized Debtors on account of Allowed
Claims shall be null and void if not negotiated within ninety (90) days from
and after the date of issuance thereof. Requests for reissuance of any check
shall be made directly to the Reorganized Debtors by the Holder of the Allowed
Claim with respect to which the check was originally issued. Any Claim in
respect of such a voided check shall be made on or before the second (2nd)
anniversary of the Effective Date. After such date, all Claims and respective
voided checks shall be discharged and forever barred and the Reorganized
Debtors shall retain all monies related thereto.
D. Record Date and Distribution Record Date
As of the close of business on the Record Date, the transfer
registers for any instrument, security, or other documentation canceled
pursuant to Article V.C herein shall be closed for voting purposes. From the
Confirmation Date until the Distribution Notification date, Holders of Allowed
Class 4 Claims may freely trade Allowed Class 4 Claims and the associated
Subscription Rights. As of the close of business in the Distribution
Notification Date, the transfer registers shall be closed for all Claims and
Equity Interests. Each Reorganized Debtor shall have no obligation to
recognize the transfer of any such instrument, security, or other
documentation occurring after the Distribution Notification Date, and shall be
entitled for all purposes herein to recognize and deal only with those Holders
of record as of the close of business on the Distribution Notification Date,
as the case may be.
E. Timing and Calculation of Amounts to be Distributed
Beginning on the Effective Date, the Reorganized Debtors, in their
sole discretion and as frequently as reasonably practicable and efficient
under the circumstances, shall make the distributions to the Holders of
Allowed Claims in accordance with this Amended Modified Plan. Beginning on the
date that is the end of each calendar quarter following the Effective Date,
the Reorganized Debtors, in their discretion and as frequently and reasonably
practicable and efficient under the circumstances, shall also make the
distributions to Holders of Disputed Claims whose Claims were Allowed during
the preceding calendar quarter, in accordance with this Amended Modified Plan.
F. De Minimis and Fractional Distributions
No Cash payment of less than ten dollars ($10.00) shall be made by
the Reorganized Debtors on account of any Allowed Claim, unless a specific
request therefore is made in writing by the Holder of any such Claim. In the
event a Holder of an Allowed Claim is entitled to distribution that is not a
whole dollar number, the actual payment or issuance made will reflect a
rounding of such fractional portion of such distribution down or up to the
nearest whole dollar, but in any case not to result in a distribution that
exceeds total distribution authorized by this Amended Modified Plan for such
Holder. No fractional shares of New Polymer will be issued. If any issuance of
shares would otherwise call for issuance of a fraction of a share, (a)
fractions 1/2 or greater shall be rounded to the next higher whole number, and
(b) fractions of less than 1/2 shall be rounded to the next lower whole
number.
G. Setoffs
Except as otherwise provided herein, the Reorganized Debtors may,
pursuant to sections 502(d) or 553 of the Bankruptcy Code or applicable
non-bankruptcy law, offset against any Allowed Claim, and the distributions to
be made pursuant to this Amended Modified Plan on account of such Claim
(before any distribution is made on account of such Claim), the Claims,
rights, and Causes of Action of any nature that the Debtors or Reorganized
Debtors may hold against the Holder of such Allowed Claim; provided, however,
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, rights, and Causes of Action that the
Debtors or Reorganized Debtors may possess against such Holder.
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H. Surrender of Canceled Instruments or Securities
1. Generally
Except as set forth in Section I of Article VII herein, as a
condition precedent to receiving any distribution pursuant to this Amended
Modified Plan on account of an Allowed Claim evidenced by the instruments,
securities or other documentation canceled pursuant to Article V.C herein, the
Holder of a Claim shall tender the applicable instruments, securities or other
documentation evidencing the Holder's Claim to the Reorganized Debtors except
as set forth herein. Any distributions pursuant to this Amended Modified Plan
on account of any Claim evidenced by such instruments, securities, or other
documentation shall, pending such surrender, be treated as an undeliverable
distribution pursuant to Article VII.C hereof.
2. Old Polymer Common Stock
Each record Holder of an Allowed Equity Interest representing Old
Polymer Common Stock shall transmit the certificates representing its Old
Polymer Common Stock to the Solicitation Agent in accordance with written
instructions that the Reorganized Debtors will provide, as promptly as
practicable following the Effective Date, to those record Holders. These
instructions shall specify that delivery of stock certificates representing
Old Polymer Common Stock will be effected, and risk of loss and title thereto
will pass, only upon the proper delivery of stock certificates with a letter
of transmittal in accordance with those instructions. All surrendered stock
certificates shall be marked as canceled.
3. Failure to Surrender Canceled Instruments
If any Holder of an Allowed Claim evidenced by an instrument,
security, or other documentation canceled pursuant to Article V.C herein,
fails to either tender such instrument, security, or other documentation or
comply with the provisions of Article VII herein within one year after the
Effective Date, its entitlement to a distribution pursuant to this Amended
Modified Plan on account of such canceled instrument, security, or other
documentation shall be discharged, and such Holder shall be forever barred
from asserting such Claim against or interest in any Reorganized Debtor or its
property. In such case, any property held for distribution on account of such
Claim shall be disposed of pursuant to the provisions set forth in Article
VII.C herein.
I. Lost, Stolen, Mutilated or Destroyed Instruments or Securities
Any Holder of an Allowed Claim on account of any instrument,
security, or other documentation canceled pursuant to Article V.C herein that
has been lost, stolen, mutilated or destroyed shall, in lieu of surrendering
any such instrument, security or other documentation: (i) deliver to the
Reorganized Debtors (or, in the case of the Senior Subordinated Notes, the
applicable Senior Subordinated Notes Indenture Trustee) (A) an affidavit of
loss reasonably satisfactory to the Reorganized Debtors (or, in the case of a
Senior Subordinated Note, to the applicable Senior Subordinated Notes
Indenture Trustee) setting forth the unavailability of such instrument,
security, or other document; and (B) such additional security or indemnity as
may reasonably be required by the Reorganized Debtors to hold the Reorganized
Debtors (or, in the case of the Senior Subordinated Notes and the Dominion
Notes, the applicable Indenture trustee) harmless from any damages,
liabilities or costs incurred in treating such individual as a Holder of an
Allowed Claim; and (ii) satisfy any other requirements under the applicable
Senior Subordinated Note Indenture, any article or certificate of
incorporation or by-law, or any other relevant document. Upon compliance with
this Section of this Amended Modified Plan by a Holder of a Claim evidenced by
such instrument, security or other documentation, such Holder shall, for all
purposes under this Amended Modified Plan, be deemed to have surrendered such
instrument, security or other documentation.
J. Preservation of Subordination Rights
All subordination rights and Claims relating to subordination of the
Allowed Claim of any Creditor shall remain valid, enforceable and unimpaired
in accordance with section 510 of the Bankruptcy Code or otherwise, except as
otherwise provided in this Amended Modified Plan.
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ARTICLE VIII.
PROCEDURES FOR TREATMENT OF DISPUTED,
CONTINGENT, AND UNLIQUIDATED CLAIMS
A. Prosecution of Objections to Claims
After the Confirmation Date, the Debtors and the Reorganized Debtors
shall have the exclusive authority to File, settle or compromise (with the
consent of GOF) withdraw or litigate to judgment, any objections to Claims.
From and after the Confirmation Date, the Debtors and the Reorganized Debtors,
with the consent of GOF, may settle or compromise any Disputed Claim without
approval of the Bankruptcy Court.
B. Estimation of Claims
The Debtors or the 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 the
Debtors or Reorganized Debtors previously have 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 the litigation concerning any objection to any Claims, including
without limitation, during the pendency of any appeal relating to any such
objection. Subject to the provisions of section 502(j) of the Bankruptcy Code,
in the event that the Bankruptcy Court estimates any contingent or
unliquidated Claim, the amount so estimated shall constitute the Allowed
amount of such Claim. If the estimated amount constitutes a maximum limitation
on the amount of such Claim, the Debtors may pursue supplementary proceedings
to object to the allowance of such Claim. All of the aforementioned objection,
estimation and resolution procedures are intended to be cumulative and not
necessarily exclusive of one another. Claims may be estimated and subsequently
compromised, settled, withdrawn or resolved by any mechanism approved by the
Bankruptcy Court.
C. Payments and Distributions on Disputed Claims
Notwithstanding any provision herein to the contrary, except as
otherwise agreed to by the Debtors or the Reorganized Debtors in their sole
discretion, no partial payments and no partial distributions will be made with
respect to a Disputed Claim until the resolution of such dispute by settlement
or Final Order. In accordance with Article VII herein, as soon as reasonably
practicable after 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 this Amended Modified Plan. Notwithstanding the
foregoing, any Person or Entity who holds both an Allowed Claim(s) and a
Disputed Claim(s) will receive the appropriate payment or distribution on the
Allowed Claim(s), although, except as otherwise agreed to by the Debtors or
the Reorganized Debtors in their sole discretion, no payment or distribution
will be made on the Disputed Claim(s) until such dispute is resolved by
settlement or Final Order. In the event there are Disputed Claims requiring
adjudication and resolution, the Debtors reserve the right to, or, if so
ordered by the Bankruptcy Court shall, establish appropriate reserves for
potential payment of such Claims.
D. Allowance of Claims
Except as expressly provided herein or 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 by the Debtors or Reorganized
Debtors, or the Bankruptcy Court enters a Final Order in the Chapter 11 Cases
allowing such Claim. Except as expressly provided in this Amended Modified
Plan or any order entered in the Chapter 11 Cases prior to the Effective Date
(including the Confirmation Order), the Reorganized Debtors after Confirmation
will have and retain any and all rights and defenses the Debtors had with
respect to any Claim as of the Petition Date, including the Causes of Action
referenced in Article X.C herein and Section III.J.3 of the Amended Modified
Disclosure Statement and the Filing of any motions or other pleadings for
estimation of the amount of disputed claims. All Claims of any Person or
Entity that owes money to the Debtors shall be disallowed unless and until
such Person or Entity pays the full amount it owes the Debtors. Any objection
to an Administrative Expense Claim, Priority Claim, Secured Claim or Critical
Business Relations Claims and Intercompany Claims must be Filed and served on
or before one hundred and twenty (120) days after the Effective Date.
32
ARTICLE IX.
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THIS AMENDED MODIFIED PLAN
A. Conditions Precedent to Confirmation
It shall be a condition precedent to the Confirmation of this
Amended Modified Plan that the following conditions shall have been satisfied
or waived pursuant to the terms and conditions contained herein:
1. The Clerk of the Bankruptcy Court shall have entered an
order granting approval of the Amended Modified Disclosure Statement
and finding that it contains adequate information pursuant to
section 1125 of the Bankruptcy Code and that order shall have become
a Final Order; and
2. The Substantive Consolidation Order and the Confirmation
Order in form and substance acceptable to the Debtors and GOF shall
have been signed by the Bankruptcy Court and duly entered on the
docket for the Chapter 11 Cases by the Clerk of the Bankruptcy
Court.
B. Conditions Precedent to Consummation
It shall be a condition to the Consummation of this Amended Modified
Plan that the following conditions shall have been satisfied or waived
pursuant to the provisions of Article IX.D herein:
1. The Confirmation Order and the Substantive Consolidation
Order shall be Final Order(s);
2. The closing of the Exit Revolving Credit Facility and the
Restructured Facilities shall have occurred;
3. The New Investment shall have been made by the Participating
Allowed Class 4 Claim Holders;
4. The Senior Lenders shall have received the Senior Lender
Paydown, the Chicopee Sale Proceeds, (provided, that the Chicopee
Sale shall have closed prior to the Effective Date) and the Senior
Lender Closing Prepayment as contemplated by the Bank Term Sheet;
and
5. GOF shall have issued, or caused the issuance, of the Exit
Letters of Credit for the benefit of the Postpetition Agent.
C. Conditions Precedent to Closing of New Investment
It shall be a condition to the closing of the New Investment and
GOF's obligations as a standby purchaser that the following conditions, among
others, shall have been satisfied or waived by GOF:
1. The closing of the Exit Revolving Credit Facility and the
Restructured Facilities shall have occurred in accordance with this
Amended Modified Plan.
2. GOF shall not have given Polymer written notice that GOF, in
its sole discretion, has determined that the results of its
environmental diligence review were not reasonably satisfactory.
3. The Debtors, GOF or New Polymer, as the case may be, shall
have obtained all governmental consents and made all governmental
filings required or reasonably advisable in connection with the
transactions contemplated by the Amended Modified Plan (including
without limitation, any consents and filings required or reasonably
advisable pursuant to the Hart-Scott-Rodino Antitrust Act (the "HSR
Act"), any applicable foreign antitrust law or regulation, and the
New Jersey Industrial Site Recovery Act) prior to the applicable
deadlines, filing periods or other timeframes associated with such
consents and filings, and the applicable waiting period under the
HSR Act or any applicable foreign antitrust law or regulation, if
any, shall have expired or been terminated.
33
4. New Polymer's Certificate of Incorporation shall have been
duly amended to reflect the changes set forth in this Amended
Modified Plan.
5. New Polymer's Bylaws shall have been amended to reflect the
changes set forth in this Amended Modified Plan.
6. Polymer's Shareholder Rights Plan shall be rejected pursuant
to a Filed order, which order may be the Confirmation Order.
7. The Organizational Documents of each Reorganized Debtor and
their direct or indirect subsidiaries shall be duly modified to
reflect changes set forth in this Amended Modified Plan.
8. On or before the Confirmation Date, Zucker and Boyd shall
execute and deliver a letter in the form of Exhibit L and Exhibit M,
respectively, to the Amended Modified Disclosure Statement, unless
this condition is waived in writing by GOF.
D. Waiver of Conditions Precedent
To the extent legally permissible, each of the conditions precedent
set forth in Article IX.A and Article IX.B may be waived, in whole or in part,
by the Debtors with the consent of GOF, the Prepetition Agent, the
Postpetition Agent and the Committee. Any such waiver of a condition precedent
shall be in writing and may be effected at any time, without notice or leave
or order of the Bankruptcy Court and without any formal action.
E. Effect of Non-Occurrence of Consummation
If the Confirmation Order is vacated, this Amended Modified Plan
shall be null and void in all respects and nothing contained in this Amended
Modified Plan or the Amended Modified 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. Certain Mutual Releases
Except as otherwise specifically provided herein, on and after the
Effective Date, each of the Releasees, for good and valuable consideration,
including, but not limited to, the commitment, obligation and service of each
of the aforementioned individuals and entities to facilitate the expeditious
reorganization of the Debtors and the implementation of the restructuring
contemplated by this Amended Modified Plan, shall automatically be deemed to
have released one another unconditionally and forever from any and all Claims,
obligations, rights, suits, damages, Causes of Action, remedies and
liabilities whatsoever, whether liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, that any of the
foregoing Persons or Entities 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, relating in any
way to the Debtors, the Reorganized Debtors, the Chapter 11 Cases, this
Amended Modified Plan, the Amended Modified Disclosure Statement, or any
related agreements, instruments or other documents, except for (i) Claims
arising under this Amended Modified Plan; and (ii) any intentional acts of the
D&O Releasees, GOF and the Committee and Committee Members which constitute
fraud and, when the party bringing the cause of action (or its respective
employees, agents or advisors) did not have actual knowledge of such
intentional acts (or the substance of such acts) as of the Effective Date;
provided, however, with respect to any intentional acts which constitute
fraud, the knowledge of former and existing officers and directors of Polymer
or any of its Debtor Affiliates shall not be imputed to Polymer or New Polymer
(before or after the Effective Date). With respect to any claim brought by the
Reorganized Debtors in the nature of a derivative claim or otherwise (x) if
the action is initiated by Non-GOF Holders, directly or indirectly, the actual
knowledge of the Committee Members or of their and the Committee's
34
employees, agents or advisors who have provided advice in the Chapter 11 Cases
shall determine whether or not the Debtors or the Reorganized Debtors had
actual knowledge of the intentional acts as of the Effective Date; and (y) if
the action is initiated by GOF, directly or indirectly, the actual knowledge
of GOF or its employees, agents or advisors shall determine whether or not the
Debtors or the Reorganized Debtors had actual knowledge of the intentional
acts as of the Effective Date, provided, however, that the approval of the New
Polymer Board of Directors of an action primarily initiated by the Non-GOF
Holders or Non-GOF Board Members shall not change the determination of actual
knowledge. Each of GOF and each Committee Member, after inquiry of its
employees, agents and advisors who have provided advice in the Chapter 11
Cases, acknowledges and agrees that either (i) it has no actual knowledge of
any intentional acts which constitute fraud, or could reasonably form the
basis for a claim that such acts constitute fraud, as of the date hereof; or
(ii) to the extent that either GOF or any Committee Member may have any actual
knowledge of any such intentional acts which constitute fraud, or could
reasonably form the basis for a claim that such acts constitute fraud, as of
the date hereof, GOF or the applicable Committee Member, as the case may be,
agrees that any claims based on such knowledge will be released on the
Effective Date. Notwithstanding the foregoing, D&O Releasees shall not be
released or discharged from contractual obligations to the Debtors or
Reorganized Debtors with respect to employment and other agreements assumed
pursuant to the Amended Modified Plan or otherwise.
B. Limited Releases by Holders of Equity Interests and Claims
On and after the Effective Date, each Holder of a Claim or Equity
Interest who is voting on the Amended Modified Plan should make an election on
their Ballot to either agree or not agree to the Releases described in the
paragraph below. Any Holder of a Claim or Interest in Class 4 or 6 that does
not make an election will be deemed to not agree to the Releases. Holders of
Class 8 Claims, who are deemed to have rejected the Amended Modified Plan,
shall be deemed to have not agreed to the Releases. Holders of Class 1, 3, 5
or 7 Claims (who are deemed to have accepted the Amended Modified Plan
pursuant to section 1126 of the Bankruptcy Code) also shall be deemed not to
have agreed to the Releases. This Release does not apply to (i) Holders of
Class 2 Claims, (ii) GK/Ives or (iii) any Holder of an Allowed Class 4 Claim
or Class 6 Equity Interest that did not specifically agree to the Limited
Release. The Limited Release applies only to those Holders of Allowed Class 4
Claims and Class 6 Equity Interests who specifically agree to the Limited
Releases.
The Release unconditionally releases the Releasees from any and all
claims (as defined in section 101(5) of the Bankruptcy Code), 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 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 the Debtors or the Reorganized Debtors, the Debtors'
Chapter 11 Cases, or the negotiation, formulation and preparation of this
Amended Modified Plan or any related agreements, instruments or other
documents.
C. Preservation of Causes of Action
The Debtors are currently investigating whether to pursue potential
Causes of Action against certain Persons or Entities. The investigation has
not been completed to date, and, subject to the Releases granted in Article X
hereof, the Reorganized Debtors shall retain all rights on behalf of the
Debtors to commence and pursue any and all Causes of Action (under any theory
of law, including, without limitation, the Bankruptcy Code, and in any court
or other tribunal including, without limitation, in an adversary proceeding
Filed in the Chapter 11 Cases) discovered in such an investigation to the
extent the Reorganized Debtors deem appropriate. Potential Causes of Action
currently being investigated by the Debtors, which may but need not 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,
(i) a list of potential Claims and Causes of Action that will be set forth in
the Amended Modified Plan Supplement to the extent determined as of the date
thereof; and (ii) Preference Actions that will be set forth in the Amended
Modified Plan Supplement to the extent determined as of the date thereof:
1. Any other Causes of Action, whether legal, equitable or
statutory in nature, arising out of, or in connection with the
Debtor's businesses or operations, including, without limitation,
the following: possible claims against vendors, landlords,
sublessees, assignees, customers or suppliers for warranty,
35
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 Person or
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;
2. Any and all avoidance actions 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 any of the Debtors; and
3. Any and all Causes of Action listed in the Schedule of
Causes of Action set forth in the Amended Modified Plan Supplement.
In addition, there may be numerous other Causes of Action which
currently exist or may subsequently arise that are not set forth herein, in
the Cause of Action Summary or in the List of Retained Causes of Action,
because the facts upon which such Causes of Action are based are not currently
or fully known by the Debtors and, as a result, can not be raised during the
pendency of the Chapter 11 Cases (collectively, the "Unknown Causes of
Action"). The failure to list any such Unknown Cause of Action herein, or in
the Cause of Action Summary or the List of Retained Causes of Action, is not
intended to limit the rights of the Reorganized Debtors to pursue any Unknown
Cause of Action to the extent the facts underlying such Unknown Cause of
Action subsequently become fully known to the Debtors.
Unless Causes of Action against a Person or Entity are expressly
waived, relinquished, released, compromised or settled in the Amended Modified
Plan or any Final Order, the Debtors expressly reserve all Causes of Action
and Unknown Causes of Action, including the Causes of Action described herein
and in the Causes of Action Summary and the List of Retained Causes of Action,
as well as any other Causes of Action or Unknown Causes of Action, for later
adjudication and therefore, no preclusion doctrine, including, without
limitation, the doctrines of res judicata, collateral estoppel, issue
preclusion, claim preclusion, estoppel (judicial, equitable or otherwise) or
laches shall apply to such Causes of Action upon or after the confirmation or
consummation of the Amended Modified Plan. In addition, the Debtors expressly
reserve the right to pursue or adopt any claims alleged in any lawsuit in
which the Debtors are a defendant or an interested party, including the
lawsuits described in the Amended Modified Disclosure Statement, against any
Person, including, without limitation, the plaintiffs and co-defendants in
such lawsuits.
Except as otherwise provided in the Amended Modified Plan or in any
contract, instrument, release, Indenture or other agreement entered into in
connection with the Amended Modified Plan, in accordance with section
1123(b)(3) of the Bankruptcy Code, any Claims, rights, and Causes of Action
that the respective Debtors, Estates, or Post-Confirmation Estates may hold
against any Person or Entity, including but not limited to those Causes of
Action listed in the Amended Modified Disclosure Statement, shall vest in the
Reorganized Debtors, and the 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 Reorganized Debtors may pursue any and all such Claims,
rights, or Causes of Action, as appropriate, in accordance with the best
interests of the Reorganized Debtors. Subject to Article VIII.A herein, the
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 the Bankruptcy Court.
The Debtors specifically waive any and all Claims, rights and Causes of
Action accruing prior to the Confirmation Date that they or their respective
estates may have against the Senior Lenders, the Prepetition Agent, GOF, CSFB
Global Opportunities Advisers L.L.C., MatlinPatterson Global Advisers LLC or
the Committee.
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D. Exculpation
The Releasees shall neither have nor incur any liability to any
Person or Entity for any act taken or omitted to be taken in connection with
or related to the formulation, preparation, dissemination, implementation,
administration, Confirmation or Consummation of this Amended Modified Plan,
the Amended Modified Disclosure Statement or any contract, instrument, release
or other agreement or document created or entered into in connection with this
Amended Modified Plan (except for any obligations arising in the ordinary
course of business), or any other act taken or omitted to be taken in
connection with the Chapter 11 Cases; provided, however, that the foregoing
provisions of this Article X.D 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;
provided, however, that exculpation for any such acts or omissions shall
remain subject to the Bankruptcy Court's potential future review, whether sua
sponte or at the request of a party-in-interest.
E. Injunction
From and after the Effective Date, the Releasees, all Persons and
Entities specifically and expressly agreeing to the Limited Release and all
Persons and Entities to whom the Exculpation applies are permanently enjoined
from commencing or continuing in any manner, any suit, action or other
proceeding, on account of or respecting any Claim, demand, liability,
obligation, debt, right, Cause of Action, interest or remedy exculpated,
released or to be released as to such Person or Entity pursuant to this
Article.
F. Discharge of Claims and Termination of Equity Interests
Except as otherwise provided in the Amended Modified Plan, (a) the
rights afforded in the Amended Modified Plan and the treatment of all Claims
and Equity Interests therein, shall be in exchange for and in complete
satisfaction, discharge and release of Claims and Equity Interests of any
nature whatsoever, including any interest accrued on such Claims from and
after the Petition Date, against the Debtors and the Debtors-in-Possession, or
any of their assets or properties, (b) on the Effective Date, all such Claims
against, and Equity Interests in the Debtors shall be satisfied, discharged
and released in full and (c) all Persons and Entities shall be precluded from
asserting against the Reorganized Debtors, their successors or their 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.
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 is legally
permissible, including without limitation, jurisdiction to:
A. allow, disallow, determine, liquidate, classify, estimate or
establish the priority or secured or unsecured status of any Claim, including
the resolution of any request for payment of any Administrative Expense Claim
and the resolution of any and all objections to the allowance or priority of
Claims;
B. grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code or this
Amended Modified Plan, for periods ending on or before the Confirmation Date;
C. resolve any matters related to the assumption, assumption and
assignment, or rejection of any executory contract or unexpired lease to which
any of the Debtors is a party or with respect to which any of the Debtors may
be liable and to hear, determine and, if necessary, liquidate any Claims
arising therefrom;
D. ensure that distributions to Holders of Allowed Claims are
accomplished pursuant to the provisions of this Amended Modified Plan,
including without limitation ruling on any motion Filed pursuant to Article
VIII herein and resolving any disputes concerning any distributions
contemplated in or relating to Article VII herein;
37
E. decide or resolve any motions, adversary proceedings, contested
or litigated matters and any other matters and grant or deny any applications
involving the Debtors that may be pending on the Effective Date;
F. enter such orders as may be necessary or appropriate to implement
or consummate the provisions of this Amended Modified Plan and all contracts,
instruments, releases, Indentures and other agreements or documents created in
connection with this Amended Modified Plan or the Amended Modified Disclosure
Statement;
G. resolve any cases, controversies, suits or disputes that may
arise in connection with the Consummation, interpretation or enforcement of
this Amended Modified Plan or any Person's or Entity's obligations incurred in
connection with this Amended Modified Plan;
H. 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 the Consummation or enforcement of this Amended
Modified Plan, except as otherwise provided herein;
I. resolve any cases, controversies, suits or disputes with respect
to the releases, injunction and other provisions contained in Article X herein
and enter such orders as may be necessary or appropriate to implement such
releases, injunction and other provisions;
J. enter and implement such orders as are necessary or appropriate
if the Confirmation Order is for any reason modified, stayed, reversed,
revoked or vacated;
K. determine any other matters that may arise in connection with or
relate to this Amended Modified Plan, the Confirmation Order or any contract,
instrument, release, Indenture or other agreement or document created in
connection with this Amended Modified Plan or the Amended Modified Disclosure
Statement; and
L. enter an order and/or final decree closing the Chapter 11 Cases.
ARTICLE XII.
MISCELLANEOUS PROVISIONS
A. Dissolution of Committee
On the Effective Date, the Committee shall dissolve and the
Committee Members, and the Professionals retained by the Committee shall be
released and discharged from all rights and duties arising from, or related to
the Chapter 11 Cases.
B. Payment of Statutory Fees
All fees payable pursuant to 28 U.S.C. ss. 1930, as determined by
the Bankruptcy Court at the hearing pursuant to section 1128 of the Bankruptcy
Code, shall be paid on or before the Effective Date.
C. Fees and Expenses
On the Effective Date, in consideration of GOF acting as Standby
Purchaser for the New Investment, and in consideration of GOF's role in
facilitating a consensual resolution of the disputes among the Plan Parties
and the Senior Lenders Steering Committee, New Polymer shall pay GOF a standby
purchaser fee of $2 million plus a plan facilitation fee of $2 million. GOF
and New Polymer shall support payment in full of all the Committee's
reasonable documented professionals' fees and expenses and those of Committee
Members (for actions taken in these Chapter 11 Cases as Committee Members),
subject to approval of all such fees and expenses by the bankruptcy court, and
shall support any reasonable documented request for payment by White & Case
LLP, The McNair Law Firm, P.A., and Loeb Partners for work done prior to the
commencement of these cases or prior to the retention of Kasowitz, Benson,
Torres & Friedman LLP. GOF and the Committee shall support payment in full of
all Polymer's reasonable documented legal fees and expenses, subject to
approval of all such fees and expenses by the Bankruptcy Court.
38
On the Effective Date, in accordance with the Bank Term Sheet, GOF
shall receive a fee of 2% ($500,000) of the face amount for posting, or
causing to be posted, the Exit Letters of Credit. Upon any drawing under the
Exit Letters of Credit (or other advances made, or caused to be made, by GOF
solely in lieu of a drawing under the Exit Letters of Credit to make the
amortization payments under the Restructured Facilities from the Effective
Date through December 31, 2004, which amount shall not exceed $25 million),
New Polymer shall issue New Senior Subordinated Notes in a face amount equal
to such drawing (or other advance).
D. Maintenance of Director and Officer Liability Insurance
New Polymer shall cause to be maintained in effect for six years
from the Effective Date, the current policies of the directors' and officers'
liability insurance maintained by Polymer (provided that New Polymer may
substitute therefore policies of at least the same coverage containing terms
and conditions which are not materially less advantageous) with respect to
matters or events occurring on or prior to the Effective Date to the extent
available; provided, however, that in no event shall New Polymer be required
to expend more than an amount per year in excess of 200% of the per annum
premiums for such insurance paid by New Polymer as of the Effective Date to
maintain or procure insurance coverage pursuant hereto; and, provided further,
that if the annual premiums of such insurance coverage exceed such amount, New
Polymer shall be obligated to obtain a policy with the greatest coverage
available for a cost not exceeding such amount.
E. Discharge of Debtors
Except as otherwise provided herein, on the Effective Date: (1) the
rights afforded herein and the treatment of all Claims and Equity Interests
therein, shall be in exchange for and in complete satisfaction, discharge and
release of Claims and Equity Interests of any nature whatsoever, including any
interest accrued on such Claims from and after the Petition Date, against the
Debtors and the Debtors in Possession, or any of their assets, property, or
Estates; (2) this Amended Modified Plan shall bind all Holders of Claims
against, and Equity Interests in, the Debtors and Debtors in Possession, and
the Debtors' liability with respect thereto shall be extinguished completely,
including, without limitation, any liability of the kind specified under
section 502(g) of the Bankruptcy Code; and (3) all Persons and Entities shall
be precluded from asserting against the Debtors, the Estates, and the
Reorganized Debtors, their successors and assigns, their assets and
properties, any other Claims or Equity Interests based upon any documents,
instruments, or any act or omission, transaction or other activity of any kind
or nature that occurred prior to the Effective Date.
F. Effectuating Documents, Further Transactions and Corporate Action
Each of the Debtors and the 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 herein and the notes and securities issued pursuant to the terms
and conditions herein, including, but not limited to, all documents related to
the Exit Facility.
Prior to, on or after the Effective Date (as appropriate), all
matters provided for under this Amended Modified Plan that would otherwise
require approval of the shareholders or directors of the Debtors or the
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 the
applicable general corporation law of each state in which the respective
Debtors or Reorganized Debtors are organized without any requirement of
further action by the shareholders or directors of the Debtors or the
Reorganized Debtors.
G. Modification of Amended Modified Plan
Subject to the limitations contained herein, (1) the Debtors reserve
the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to
amend or modify this Amended Modified Plan prior to the entry of the
Confirmation Order and (2) after the entry of the Confirmation Order, the
Debtors or the Reorganized Debtors, as the case may be, may, upon order of the
Bankruptcy Court, amend or modify this Amended Modified Plan, in accordance
with section 1127(b) of the Bankruptcy Code, or remedy any defect or omission
or reconcile any
39
inconsistency in this Amended Modified Plan in such manner as may be necessary
to carry out the purpose and intent of this Amended Modified Plan.
H. Revocation of Amended Modified Plan
The Debtors reserve the right, at any time prior to the entry of the
Confirmation Order, to revoke and withdraw this Amended Modified Plan.
I. Successors and Assigns
The rights, benefits and obligations of any Person or Entity named
or referred in this Amended Modified Plan shall be binding on, and shall inure
to the benefit of, any heir, executor, administrator, successor or assign of
such Person or Entity.
J. Reservation of Rights
Except as expressly set forth herein, this Amended Modified Plan
shall have no force or effect unless the Bankruptcy Court shall enter the
Confirmation Order. The filing of this Amended Modified Plan, any statement or
provision contained in this Amended Modified Plan, or the taking of any action
by the Debtors or Debtors-in-Possession with respect to this Amended Modified
Plan shall not be and shall not be deemed to be an admission or waiver of any
rights of the Debtors or Debtors-in-Possession with respect to the Holders of
Claims or Equity Interests.
K. Section 1146 Exemption
Pursuant to section 1146(c) of the Bankruptcy Code, under this
Amended Modified Plan, (1) the issuance, distribution, transfer, or exchange
of any debt, Equity Security or other interest in the Debtors or Reorganized
Debtors; (2) the creation, modification, consolidation or recording of any
mortgage, deed or trust, or other security interest, or the securing of
additional indebtedness by such or other means (whether (a) in connection with
the issuance and distribution of any debt, Equity Security, or other interest
in the Debtors or Reorganized Debtors, (b) the Exit Revolving Credit Facility,
or (c) otherwise in furtherance of, or in connection with, this Amended
Modified Plan); (3) the making, assignment, or recording of any lease or
sublease; or (4) the making, delivery, or recording of any deed or other
instrument of transfer under, in furtherance of, or in connection with, this
Amended Modified Plan, including any deeds, bills of sale, assignments or
other instrument of transfer executed in connection with any transaction
arising out of, contemplated by, or in any way related to this Amended
Modified Plan, shall not be subject to any document recording tax, mortgage
recording tax, stamp tax, or similar tax or government assessment, and the
appropriate state or local government official or agent shall be directed by
the Bankruptcy Court to forego the collection of any such tax or government
assessment and to accept for filing and recording any of the foregoing
instruments or other documents without the payment of any such tax or
government assessment.
L. Further Assurances
The Debtors, the Reorganized Debtors, all Holders of Allowed Claims
receiving distributions under this Amended Modified Plan, 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 Amended Modified
Plan.
M. Term of Existing Injunctions or Stays
Unless otherwise provided in the Confirmation Order or herein, all
injunctions or stays in effect in the Chapter 11 Cases, pursuant to sections
105, 362 or 525 of the Bankruptcy Code, or otherwise, and in existence on the
Confirmation Date, shall remain in full force and effect until the Effective
Date.
40
N. Post Effective Date Fees and Expenses
From and after the Effective Date, the Reorganized Debtors shall, in
the ordinary course of business and without the necessity for any approval by
the Bankruptcy Court, pay the reasonable professional fees and expenses
incurred by the Reorganized Debtors related to the Consummation and to the
implementation of this Amended Modified Plan.
O. Severability
The provisions of this Amended Modified Plan shall not be severable
unless such severance is agreed to by the Debtors or Reorganized Debtors, as
applicable, and such severance would constitute a permissible modification of
this Amended Modified Plan pursuant to section 1127 of the Bankruptcy Code.
P. Conflicts
To the extent any provision of the Amended Modified Disclosure
Statement, and any documents executed in connection with the Confirmation
Order (or any exhibits, schedules, appendices, supplements or amendments to
the foregoing) conflicts with or is in any way inconsistent with the terms of
this Amended Modified Plan, the terms and provisions of this Amended Modified
Plan shall govern and control.
Q. Notices
All notices, requests, and demands to or upon the Debtors or the
Reorganized Debtors to be effective shall be in writing, including by
facsimile transmission, and unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when actually delivered to all of
the following or, in the case of notice by facsimile, when received by all of
the following, addressed as follows or to such other addresses as Filed with
the Bankruptcy Court.
Polymer Group, Inc.
PO Box 5069
4838 Jenkins Avenue
North Charleston, SC 29405
Attention: Jerry Zucker
James G. Boyd
Telephone: (843) 566-7293
Telecopier: (843) 308-0104
With a copy to:
Kirkland & Ellis
Aon Building
200 East Randolph Drive
Chicago, Illinois 60601
Attention: James A. Stempel, Esq.
Roger J. Higgins, Esq.
Telephone: (312) 861-2000
Telecopier: (312) 861-2200
Nelson Mullins Riley & Scarborough, LLP
Keenan Building, Third Floor
1330 Lady Street
P.O. Box 11070 (29211)
Columbia, SC 29201
Attention: George B. Cauthen, Esq.
Telephone: (803) 799-2000
Telecopier: (803) 256-7500
41
MatlinPatterson Global Advisers LLC
520 Madison Avenue
New York, NY 10022
Attention: Ramon Betolaza
Lap Chan
Telecopier: (212) 651-4014
Kasowitz, Benson, Torres & Friedman, LLP
1633 Broadway
New York, NY 10019
Attention: David S. Rosner, Esq.
Robert M. Novick, Esq.
Telephone: (212) 506-1700
Telecopier: (212) 506-1800
42
R. Closing of Cases
The Reorganized Debtors shall promptly, upon the full administration
of the Chapter 11 Cases, File with the Bankruptcy Court all documents required
by Fed. R. Bankr. P. 3022 and any applicable order of the Bankruptcy Court.
Respectfully submitted,
Polymer Group, Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
PGI Polymer, Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
PGI Europe, Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
Chicopee, Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
FiberTech Group, Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
43
Technetics Group, Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
Fibergol Corporation,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
Fabrene Corp.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
Fabrene Group L.L.C.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
PNA Corp.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
FNA Polymer Corp.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
44
FNA Acquisition, Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
Loretex Corporation,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
Dominion Textile (USA) Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
Poly-Bond Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
PolyIonix Separation Technologies, Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
FabPro Oriented Polymers, Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
45
Pristine Brands Corporation,,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
46
PGI Asset Management Company,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
PGI Servicing Company,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
Bonlam (S.C.), Inc.,
Debtor and Debtor-in-Possession
By:
-----------------------
Name:
---------------------
Title:
--------------------
Dates Referenced Herein and Documents Incorporated by Reference
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