Case No. 03-15299 (PSH) (Jointly Administered)United States Bankruptcy Court, N.D. Illinois.
March 25, 2004
John Wm. Butler, Jr., George N. Panagakis, Ron E. Meisler, SKADDEN, ARPS, SLATE, MEAGHER FLOM, Chicago, IL, for Debtors and Debtors-in-Possession
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER UNDER 11 U.S.C. § 1129(a) AND (b) AND FED. R. BANKR. CONFIRMING THE FIRST AMENDED JOINT PLAN OF P. 3020 LIQUIDATION OF EAGLE FOOD CENTERS, INC. AND ITS AFFILIATED DEBTORS AND DEBTORS IN POSSESSION (EOD #862)
PAMELA S. HOLLIS, Bankruptcy Judge
Upon the motion, dated December 24, 2003 (the “Motion”), of Eagle Food Centers, Inc. (“Eagle Foods”), and four of its affiliates (the “Affiliate Debtors”), debtors and debtors-in-possession in the above-captioned cases (Eagle Foods and the Affiliate Debtors collectively, the “Debtors” or the “Company”), for the entry of an order approving the Debtors’ Disclosure Statement (as defined below); establishing a record date for voting and solicitation purposes, a voting deadline and procedures for the temporary allowance of claims for voting purposes; procedures for filing objections to the First Amended Joint Plan of Liquidation of Eagle Food Centers, Inc. and Its Affiliated Debtors and Debtors in Possession (Docket No. 862) (the “Original Plan”)[1] ; determining the treatment of certain claims for notice and voting purposes and approving solicitation procedures for confirmation and seeking confirmation of the Plan (defined below); and based upon the Court’s review of (i) the Affidavits of Service with Respect to Solicitation Materials (the “Logan Declaration”) and the Affidavit of Kathleen M Logan Certifying Voting on and Tabulation of Ballots Accepting and Rejecting the First Amended Joint Plan of Liquidation of Eagle Food Centers, Inc. and Its Affiliated Debtors and Debtors in
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Possession (the “Voting Report”), filed on March 23, 2004, (ii) the Memorandum of Law in Support of Confirmation of the Original Plan as modified by the modifications set forth herein (the “Plan”), a copy of which is attached hereto as Exhibit A, filed by the Debtors on March 23, 2004, (iii) the Declarations of Randall D. McMurray, Vice President and Acting Chief Financial Officer of Eagle Food Centers, Inc. (the “McMurray Declaration”) and William J. Fasel, of Huron Consulting Group LLC (the “Fasel Declaration”), in support of Confirmation of the Plan, each filed by the Debtors on March 24, 2004, (iv) all of the evidence proffered or adduced at, objections filed in connection with, and arguments of counsel made at, the Confirmation Hearing (as defined below), and (v) the entire record of these Chapter 11 Cases; and after due deliberation thereon and good and sufficient cause appearing therefor, the Court hereby makes the following findings of fact and conclusions of law,[2]
THE COURT FINDS AND CONCLUDES THAT:
A. Filing Of First Amended Plan, On January 29, 2004, the Debtors filed the Original Plan and the Disclosure Statement with Respect to First Amended Joint Plan of Liquidation of Eagle Food Centers, Inc. and its Affiliated Debtors (as transmitted to parties-in-interest, the “Disclosure Statement”).
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B. Solicitation Procedures Order. On January 29, 2004, the Court entered an order (the “Solicitation Procedures Order”) that, among other things, (i) approved the Disclosure Statement as containing adequate information within the meaning of section 1125 of the Bankruptcy Code and F.R.Bankr.P. 3017, (ii) fixed March 25, 2004 as the date for the commencement of the hearing to consider confirmation of the Original Plan (the “Confirmation Hearing”), (iii) approved the form and method of notice of the Confirmation Hearing (the “Confirmation Hearing Notice”), and (iv) established certain procedures for soliciting and tabulating votes with respect to the Original Plan,
C. Transmittal Of Solicitation Package. The Confirmation Hearing Notice, the Disclosure Statement, the Original Plan, the Solicitation Procedures Order, and, as to Classes 3 and 4 (collectively, the “Voting Classes”), a ballot and return envelope (such ballot and envelope being referred to as a “Ballot”), were transmitted in accordance with F.R.Bankr.P. 3017(d) and the Solicitation Procedures Order, all as set forth in the Logan Declaration, In addition, as to Class 5, the Notice of Nonvoting Status with Respect to Certain Claims and Interests in the Debtors was transmitted, also as set forth in the Logan Declaration,
D. Publication Of Confirmation Hearing Notice. The Debtors published the Confirmation Hearing Notice (1) on February 27, 2004 inThe Wall Street Journal (National Edition) and the ChicagoTribune and (2) on February 28, 2004 and March 1,
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2004 in the Quad City Times (Morning Edition), as evidenced by the Affidavit of Levin Advertising Group, LLC filed on March 5, 2004 (Docket No. 929).
E. Voting Reports. On March 23, 2004, the Debtors filed the Voting Report certifying the method and results of the Ballot tabulation for each of the Voting Classes voting to accept or reject the Original Plan.
F. Exclusive Jurisdiction: Venue: Core Proceeding(28 U.S.C. § 157(b)(2) and 1334(a)). The Court has jurisdiction over the Chapter 11 Cases pursuant to 28 U.S.C. § 157 and 1334. Venue is proper pursuant to 28 U.S.C. § 1408 and 1409. Confirmation of the Plan is a core proceeding under 28 U.S.C. § 157(b)(2), and the Court has exclusive jurisdiction to determine whether the Plan complies; with the applicable provisions of the Bankruptcy Code and should be confirmed.
G. Judicial Notice. The Court takes judicial notice of the docket of the Chapter 11 Cases maintained by the Clerk of the Court and/or its duly-appointed agent, including, without limitation, all pleadings and other documents filed, all orders entered, and all evidence and arguments made, proffered or adduced at, the hearings held before the Court during the pendency of the Chapter 11 Cases.
H. Transmittal And Mailing Of Materials: Notice. Due, adequate and sufficient notice of the Disclosure Statement and Plan and of the Confirmation Hearing, along with all deadlines for voting on or filing objections to the Plan, has been given to all known Holders of Claims and Interests in accordance with the procedures set forth in
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the Solicitation Procedures Order, The Disclosure Statement, Plan, Ballots, Solicitation Procedures Order and the Confirmation Hearing Notice were transmitted and served in substantial compliance with the Solicitation Procedures Order and the Bankruptcy Rules, and such transmittal and service were adequate and sufficient. Adequate and sufficient notice of the Confirmation Hearing and the other bar dates and hearings described in the Solicitation Procedures Order was given in compliance with the Bankruptcy Rules and the Solicitation Procedures Order, and no other or further notice is or shall be required.
I. Solicitation. Votes for acceptance or rejection of the Plan were solicited in good faith and complied with sections 1125 and 1126 of the Bankruptcy Code, Bankruptcy Rules 3017 and 3018, the Disclosure Statement, the Solicitation Procedures Order, all other applicable provisions of the Bankruptcy Code, and all other rules, laws, and regulations.
J. Ballots. All procedures used to distribute solicitation materials to the applicable Holders of Claims and Interests and to tabulate the Ballots were fair and conducted in accordance with the Solicitation Procedures Order, the Bankruptcy Code, the Bankruptcy Rules, the local rules of the Bankruptcy Court for the Northern District of Illinois (Eastern Division) and all other applicable rules, laws, and regulations.
K. Impaired Classes That Have Voted To Accept The Plan. As evidenced by the Voting Reports and evidence proffered or adduced at the Confirmation Hearing, which certified both the method and results of the voting, all Voting Classes have
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accepted the Original Plan pursuant to the requirements of sections 1124 and 1126 of the Bankruptcy Code. Thus, at least one Impaired Class of Claims, determined without including any acceptance by an insider of any of the Debtors, has voted to accept the Plan with respect to the Debtors,
L. Class Deemed To Have Rejected The Plan. Class 5 (the “Zero Distribution Class”) will receive no distribution under the Plan and is deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code.
M. Burden Of Proof. The Debtors, as proponents of the Plan, have met their burden of proving the elements of sections 1129(a) and (b) of the Bankruptcy Code, by a preponderance of evidence, which is the applicable evidentiary standard in this Court. The Court also finds that the Debtors have satisfied the elements of sections 1129(a) and (b) of the Bankruptcy Code under the clear and convincing standard of proof.
N. Plan Compliance With Bankruptcy Code(11 U.S.C. S 1129(a)(1)). The Plan complies with the applicable provisions of the Bankruptcy Code, thereby satisfying section 1129(a)(1) of the Bankruptcy Code.
1. Proper Classification (11 U.S.C. § 1122. 1123(a)(1)). In addition to Administrative Claims and Priority Tax Claims (which are not required to be classified), Article III of the Plan designates four (4) Classes of Claims and one (1) Class of Interests for the Debtors. The Claims and Interests placed in each Class are substantially similar to other Claims or Interests in each such Class, Valid business, factual and legal reasons exist for separately classifying the various Classes of Claims and Interests created under the Plan, and such Classes do not unfairly discriminate between Holders of Claims or Interests. Thus, the Plan satisfies sections 1122 and 1123(a)(1) of the Bankruptcy Code.
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2. Specification Of Unimpaired Classes(11 U.S.C. § 1123(a)(2)). Section 4.1 of the Plan specifies the Classes of Claims and Interests that are Unimpaired. Thus, the Plan satisfies section 1123(a)(2) of the Bankruptcy Code.
3. Specification Of Treatment Of Impaired Classes(11 U.S.C. § 1123(a)(3)). Section 4.2 of the Plan specifics the Classes of Claims and Interests that are Impaired under the Plan. Article V of the Plan specifies the treatment of Claims in all such Classes. Thus, the Plan satisfies section 1123(a)(3) of the Bankruptcy Code.
4. No Discrimination (11 U.S.C. § 1123(a)(4)). The Plan provides for the same treatment by the Debtors for each Claim in each respective Class unless the Holder of a particular Claim has agreed to less favorable treatment with respect to such Claim. Thus, the Plan satisfies section 1123(a)(4) of the Bankruptcy Code.
5. Implementation Of Plan (11 U.S.C. § 6 1123(a)(5). The Plan provides adequate and proper means for implementation of the Plan, including, without limitation, (a) the continued corporate existence of Eagle Foods; (b) the initial selection of directors and an officer of Reorganized Eagle Foods; (c) the corporate constituent documents that will govern Reorganized Eagle Foods after the Effective Date; (d) the preservation of certain causes of action by Reorganized Eagle Foods; (e) cancellation of the Existing Securities, promissory notes, share certificates (including treasury stock), other instruments evidencing any Claims or Intrests (except such notes or other instruments evidencing indebtedness or obligations of a Debtor that are Reinstated (as defined in paragraph 45 below) or amended and restated under the Plan), and all options, warrants, calls, rights, puts, awards, commitments or any other agreements of any character to acquire such Existing Securities; and (f) exempting Reorganized Eagle Foods from certain transfer taxes and recording fees. Thus, the Plan satisfies section 1123(a)(5) of the Bankruptcy Code.
6. Prohibition Against Issuance Of Non-Voting Equity SecuritiesAnd Provisions For Voting Power Of Classes Of Securities(11 U.S.C. § 1123(a)(6)). Section 7.3 of the Plan provides that the charter and by-laws of Eagle Foods shall be amended and restated as necessary to include a provision prohibiting the issuance of non-voting equity securities. Such statutory provisions have been incorporated into the amended and restated charter and by-laws of Reorganized Eagle Foods, as set forth in Plan Exhibits A and B, respectively. Thus, the requirements of section 1123(a)(6) of the Bankruptcy Code are satisfied.
7. Selection Of Officer and Directors(11 U.S.C. § 1123(a)(7). In the Plan, as identified publicly prior to the Confirmation Hearing, or as otherwise announced
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at the Confirmation Hearing, the Debtors properly and adequately disclosed or otherwise identified the identity and affiliations of all individuals proposed to serve on or after the Effective Date as the officer and directors of Reorganized Eagle Foods. The appointment or employment of such individuals and the proposed compensation and indemnification arrangements for officers and directors are consistent with the interests of Claimholders and with public policy. Thus, section 1123(a)(7) of the Bankruptcy Code is satisfied.
8. Additional Plan Previsions (11 U.S.C. § 1123(b)). The Plan’s provisions are appropriate and consistent with the applicable provisions of the Bankruptcy Code, including, without limitation, provisions for (a) distributions to Holders of Claims, (b) the disposition of executory contracts and unexpired leases, (c) the retention of, and right to enforce, sue on, settle or compromise (or refuse 1o do any of the foregoing with respect to) certain claims or causes of action against third parties, to the extent not waived and released under the Plan, (d) resolution of Disputed Claims, (e) allowance of certain Claims, (f) indemnification obligations, (g) releases by the Debtors and Debtors-in-Possession and (h) releases by Holders of Claims and Interests.
9. F.R.Bankr.P. 3016(a). The Plan is dated and identifies the entities submitting it, thereby satisfying F.R.Bankr.P. 3016(a).
O. Debtors’ Compliance With Bankruptcy Code(11 U.S.C. § 1129(a)(2)). The Debtors have complied with the applicable provisions of the Bankruptcy Code, thereby satisfying section 1129(a)(2) of the Bankruptcy Code. Specifically, the Debtors are proper debtors under section 109 of the Bankruptcy Code and proper proponents of the Plan under section 1121(a) of the Bankruptcy Code. The Debtors have complied with the applicable provisions of the Bankruptcy Code, including as provided or permitted by orders of the Court. The Debtors have complied with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, and the Solicitation Procedures Order in transmitting the Plan, the Disclosure Statement, the Ballots and related documents and notices, and in soliciting and tabulating votes on the Plan.
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P. Plan Proposed In Good Faith (11 U.S.C. § 1129(a)(3). The Debtors have proposed the Plan in good faith and not by any means forbidden by law, thereby satisfying section 11129(a)(3) of the Bankruptcy Code. In determining that the Plan has been proposed in good faith, the Court has examined the totality of the circumstances surrounding the filing of the Chapter 11 Cases and the formulation of the Plan. See Bankruptcy Rule 3020(b). The Plan was proposed with the legitimate and honest purposes of maximizing the recovery to Claimholders under the circumstances of these Chapter 11 Cases.
Q. Payments For Services Or Costs And Expenses(11 U.S.C. § 1129(a)(4). Any payment made or to be made by the Debtors for services or for costs and expenses in connection with the Chapter 11 Cases, including all administrative expense and substantial contribution claims under sections 503 and 507 of the Bankruptcy Code, or in connection with the Plan and incident to the Chapter 11 Cases, has been approved by, or is subject to the approval of, the Court as reasonable, thereby satisfying section 1129(a)(4) of the Bankruptcy Code. Any amounts allocated by the Debtors for the payment of such services, costs and expenses, or any recoveries or disgorgements subsequently ordered by the Court on account of payments to professionals prior to final allowance of such amounts shall constitute assets owned exclusively by Reorganized Eagle Foods.
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R. Directors, Officers. And Insiders(11 U.S.C. § 1129(a)(5)). The Debtors have complied with section 1129(a)(5) of the Bankruptcy Code, The Debtors have disclosed the appointment of Randall D, McMurray as the sole officer and Chief Wind Down Officer of Reorganized Eagle Foods. The Debtors have also disclosed the identities of the initial board of directors of Reorganized Eagle Foods, which shall be comprised of Robert 1 Kelly, Hobart G. Truesdell and William Kaye. The appointment of the above officer and directors of Reorganized Eagle Foods is consistent with the interests of Holders of Claims against and Interests in the Debtors and with public policy. The identity of any insider that will be employed or retained by Reorganized Eagle Foods and the nature of such insider’s compensation has also been fully disclosed.
S. No Rate Changes (11 U.S.C. § 1129(a)(6)). Section 1129(a)(6) of the Bankruptcy Code is satisfied because the Plan does not provide for any change in rates over which a governmental regulatory commission has jurisdiction,
T. Best Interests Test (11 U.S.C. § 1129(a)(7)). The Plan satisfies section 1129(a)(7) of the Bankruptcy Code, The liquidation analysis in Appendix C to the Disclosure Statement, the Fasel Declaration and the evidence proffered or adduced at the Confirmation Hearing (1) are persuasive, credible and accurate as of the dates such evidence was prepared, presented, or proffered, (2) either have not been controverted by other persuasive evidence or have not been challenged, (3) are based upon reasonable and sound assumptions, (4) provide a reasonable estimate of the liquidation values of the
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Debtors upon conversion to a case under chapter 7 of the Bankruptcy Code, and (5) establish that each holder of a Claim or Interest in an Impaired Class that has not accepted the Plan will receive or retain under the Plan, on account of such Claim, property of a value, as of the Effective Date of the Plan, that is not less than the amount that it would receive if the Debtors were liquidated under chapter 7 of the Bankruptcy Code on such date.
U. Acceptance By Impaired Classes(11 U.S.C. § 1129(a)(8)). All Impaired Classes have voted to accept the Plan. Class 5 is deemed to have rejected the Plan and, accordingly, confirmation of the Plan as to Class 5 is sought pursuant to 11 U.S.C. § 1129(b).
V. Treatment Of Administrative Claims. Priority Tax Claims AndNon-Tax Priority Claims (11 U.S.C. § 1129(a)(9). The treatment of Administrative Claims and Non-Tax Priority Claims under the Plan satisfies the requirements of section 1129(a)(9)(A) and (B) of the Bankruptcy Code, and the treatment of Priority Tax Claims under the Plan satisfies the requirements of section 1 129(a)(9)(C) of the Bankruptcy Code.
W. Acceptance By Impaired Class (U.S.C. § 1129(a)910)). Classes 3 and 4 arc each Impaired Classes of Claims that have voted to accept the Plan and, to the best of the Debtors’ knowledge, do not contain “insiders” of any significant magnitude. Thus, section 1129(a)(10) of the Bankruptcy Code is satisfied.
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X. Feasibility (11 U.S.C. § 1129(a)(11)). The Plan proposed by the Debtors provides for a liquidation of the Debtors’ remaining assets and a distribution of Cash to creditors in accordance with the priority scheme of the Bankruptcy Code and the terms of the Plan. The Disclosure Statement, the Fasel Declaration and the evidence proffered or adduced at the Confirmation Hearing (1) are persuasive and credible, (2) have not been controverted by other evidence or challenged in any of the objections to the Plan, and (3) establish that the Plan is feasible, thus satisfying the requirements of section 1129(a) (l 1) of the Bankruptcy Code.
Y. Payment Of Fees (11 U.S.C. § 1129(a)(12)). The Debtors have paid or, pursuant 1o Sections 15.2 of the Plan, will pay by the Effective Date fees payable under 28 U.S.C. § 1930, thereby satisfying section 1129(a)(12) of the Bankruptcy Code.
Z. Continuation Of Retiree Benefits(11 U.S.C. § 1129(a)(13)), The Debtors have withdrawn from or terminated, as applicable, their retiree benefit plans pursuant to the terms of those plans and therefore none of the Debtors are obligated, on an ongoing basis or in the future, to pay any retiree benefits as defined in section 1114(a) of the Bankruptcy Code that have not already been paid. Accordingly, the requirements of section 1129(a)(13) of the Bankruptcy Code are satisfied.
AA. Section 1 129(b)/Confirmation Of The Plan Over NonacceutanceOf Impaired Classes. The Zero Distribution Class is an Impaired Class of Claims and Interests that is deemed to have rejected the Plan pursuant to 11 U.S.C. § 1126(g).
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Pursuant to section 1129(b) of the Bankruptcy Code, the Plan maybe confirmed notwithstanding the fact that not all Impaired Classes have voted to accept the Plan, All of the requirements of section 1129(a) of the Bankruptcy Code other than section 1129(a)(8) with respect to such Classes, have been met. With respect to the Zero Distribution Class, no Holders of Claims or Interests junior to the Holders of such Class will receive or retain any property under the Plan on account of such Claims or Interests, and, as evidenced by the uncontroversial valuations and estimates contained in the Disclosure Statement and put into evidence of the Confirmation Rearing, no Class of Claims or Interests senior to any such Class is receiving more than full payment on account of such Claims or Interests. Accordingly, the Plan is fair and equitable and does not discriminate unfairly, as required by section 1129(b) of the Bankruptcy Code.
AB. Principal Purpose Of Plan (111 U.S.C. § 1129(d)). The principal purpose of the Plan is not the avoidance of taxes or the avoidance of the application of section 5 of the Securities Act of 1933 (15 U.S.C. § 77e).
AC. Modifications To The Plan. The modifications to the Original Plan described and/or set forth beginning at paragraph 45 hereof constitute technical changes and/or changes with respect to particular Claims by agreement with Holders of such Claims, and do not materially adversely affect or change the treatment of any Claims or Interests. Accordingly, pursuant to Bankruptcy Rule 3019, these modifications do not require additional disclosure under section 1125 of the Bankruptcy Code or re-solicitation
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of votes under section 1126 of the Bankruptcy Code, nor do they require that Holders of Claims or Interests be afforded an opportunity to change previously cast acceptances or rejections of the Original Plan.
AD. Good Faith Solicitation (11 U.S.C. § 1125(c)). The Debtors and their agents, representatives, attorneys, and advisors have solicited voles on the Plan in good faith and in compliance with the applicable provisions of the Bankruptcy Code and the Solicitation Procedures Order and are entitled to the protections afforded by section 1125(e) of the Bankruptcy Code and the exculpation provisions set forth in Section 13.3 of the Plan.
AE. Executory Contracts. The Debtors have exercised reasonable business judgment in determining whether to assume, assume and assign, or reject each of their `executory contracts and unexpired leases as set forth in Article VIII of the Plan. Each pre-or post-Confirmation assumption, assumption and assignment, or rejection of an executory contract or unexpired lease pursuant to Sections 8.1 and 8.2 of the Plan shall be legal, valid and binding upon the Debtors or Reorganized Eagle Foods and all nondebtor parties to such executory contract or unexpired lease, all to the same extent as if such assumption, assumption and assignment, or rejection had been effectuated pursuant to an appropriate authorizing order of the Court entered before the Confirmation Date under section 365 of the Bankruptcy Code.
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AF. Substantive Consolidation. The Court finds that substantive consolidation of the Debtors and their Estates in these Chapter 11 Cases as set forth in Section 7.1 of the Plan for the purposes of all actions associated with the confirmation and consummation of the Plan will (1) facilitate and maximize prompt distributions to the Debtors’ creditors and (2) permit the Debtors’ creditors to avoid the harm that likely would result absent substantive consolidation and confirmation of the plan embodying it. The Court further finds that substantive consolidation will not unduly harm any creditor or party-in-interest and is in the best interests of the Debtors, the creditors and the Estates.
AG. Releases and Exculpation. Each of the release, indemnification and exculpation provisions set forth in the Plan: (1) is within the jurisdiction of the Court under 28 U.S.C. § 1334(a), (b), and (d); (2) is an essential means of implementing the Plan pursuant to section 1123(a)(5) of the Bankruptcy Code; (3) is an integral element of the transactions incorporated into the Plan; (4) confers a material benefit on, and is in the best interest of, the Debtors, their estates and their creditors; (5) is important to the overall objectives of the Plan to finally resolve all Claims among or against the parties-in-interest in the Chapter 11 Cases with respect to the Debtors, their organization, capitalization, operation and reorganization; and (6) is consistent with sections 105, 1123, 1129 and other applicable provisions of the Bankruptcy Code.
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AH. Conditions To Confirmation. The conditions to Confirmation set forth in Section 12, 1 of the Plan have been satisfied, waived or will be satisfied by entry of this Confirmation Order.
Al. Conditions To Effective Date. Each of the conditions to the Effective Date, as set forth in Sections 12.2 of the Plan, is reasonably likely to be satisfied. The conditions to the Effective Date, set forth in Section 12.2 of the Plan, shall be subject to waiver by the Debtors, with the consent of the Creditors’ Committee, which consent shall not be unreasonably withheld, without notice or a hearing.
AJ. Retention Of Jurisdiction. The Court properly may retain jurisdiction over the matters set forth in Article XIV of the Plan.
AK. Agreements And Other Documents. The Debtors have made adequate arid sufficient disclosure of: (1) the adoption of new or amended and restated charter and bylaws or similar constituent documents for Reorganized Eagle Foods; (2) the distributions to be made pursuant to the Plan; (3) the adoption, execution, delivery and implementation of all contracts, leases, instruments, releases and other agreements or documents related to any of the foregoing; and (4) the other matters provided for under the Plan involving the corporate structure of Reorganized Eagle Foods.
AL. Preservation Of Litigation Claims. It is in the best interests of the Holders of Claims and Interests that the Litigation Claims that are not expressly released under the
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Plan be retained by Reorganized Eagle Foods pursuant to Section 7.11 of the Plan in order to maximize the value of the Debtors’ Estates.
AM. Employee Recovery Bonus Plan. The Recovery Bonus Plan provided in section 7.6 of the Plan is an essential element of the Plan and is designed to provide the management of Reorganized Eagle Foods with the necessary incentive to maximize the value of the Debtors’ Estates and accordingly, it is in the best interest of the Debtors’ Creditors and their Estates,
AN. Election Pursuant to 11 U.S.C. § 1111(b). No secured creditor has elected the treatment provided by section 1111(b) of the Bankruptcy Code,
AO. Disputed Claims Reserve. The Debtors are required, pursuant to section 10.3 of the Plan to estimate all Disputed General Unsecured Claims prior to making any distribution, the holders of such Claims under the Plan in a manner to ensure that an adequate reserve would be available should each Disputed Claim become an Allowed Claim. Certain claims cannot be estimated based on information available to the Debtors and therefore may be reserved in their full face amount. Such reserve may not be relied upon to show that any Disputed Claim is either probable or estimable for any other purpose.
ACCORDINGLY, THE COURT HEREBY ORDERS THAT:
1. Confirmation. The Plan, which consists of the Original Plan and the modifications set forth in paragraph 45 hereof andExhibit B hereto, which are hereby
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incorporated into and constitute a part thereof, is approved and confirmed under section 1129 of the Bankruptcy Code. The terms of the Plan and the Exhibits thereto (in the final form thereof to be filed on or before the Effective Date) are incorporated by reference into and are an integral part of the Plan and this Confirmation Order.
2. Objections. All Objections to confirmation of the Plan that have not been withdrawn, waived, or settled, and all reservations of rights included therein, are overruled on the merits.
3. Provisions Of Plan And Order Nonseverable And MutuallyDependent. The provisions of the Plan and this Confirmation Order, including the findings of fact and conclusions of law set forth herein, are nonseverable and mutually dependent. This Confirmation Order constitutes a judicial determination that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the confirmation of the Plan, is valid and enforceable pursuant to its terms,
4. Plan Classification Controlling. The classification of Claims and Interests for purposes of the distributions to be made under the Plan shall be governed solely by the terms of the Plan. The classifications set forth on the Ballots tendered to or returned by the Debtors’ creditors in connection with voting on the Plan (a) were set forth on the Ballots solely for purposes of voting to accept or reject the Plan, (b) do not necessarily represent, and in no event shall be deemed to modify or otherwise affect, the actual classification of such Claims or Interests under the Plan for distribution purposes,
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(c) may not be relied upon by any creditor or interestholder as representing the actual classification of such Claims or Interests under the Plan for distributions purposes, and (d) shall not be binding on Reorganized Eagle Foods, the Estates or the Debtors.
5. Effects Of Confirmation: Immediate Effectiveness: SuccessorsAnd Assigns. The stay contemplated by Bankruptcy Rule 3020(e) shall not apply to this Confirmation Order. Subject to the provisions of Sections 12.1 and 12.2 of the Plan, and notwithstanding any otherwise applicable law, immediately upon the entry of this Confirmation Order, the terms of the Plan (including the Plan Exhibits and all documents and agreements executed pursuant to the Plan) and this Confirmation Order are deemed binding upon (a) the Debtors, (b) Reorganized Eagle Foods, (c) all Holders of Claims against and Interests in the Debtors, whether or not Impaired under the Plan and whether or not, if impaired, such Holders accepted the Plan, (d) each Person acquiring property under the Plan, (e) any other party-in-interest, (f) any Person making an appearance in these Chapter 11 Cases, and (g) each of the foregoing’s respective heirs, successors, assigns, trustees, executors, administrators, affiliates, officers, directors, agents, representatives, attorneys, beneficiaries, or guardians.
6. Substantive Consolidation.
(a) In light of the fact that substantive consolidation will promote a more equitable distribution of the Debtors’ assets, as well as the additional factors identified in the McMurray Declaration, the substantive consolidation of the
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Chapter 11 Cases and Estates that comprise the Debtors is in the bests interests of the Debtors’ stakeholders and is appropriate under section 105 of the Bankruptcy Code.
(b) On the Effective Date, (i) all Intercompany Claims by, between and among the Debtors shall be eliminated, (ii) all assets and liabilities of the Affiliate Debtors shall be merged or treated as if they were merged with the assets and liabilities of Eagle Foods, (iii) any obligation of a Debtor and all guarantees thereof by one (1) or more of the other Debtors shall be deemed to be one (1) obligation of Eagle Foods, (iv) the Affiliate Debtors’ Interests shall be cancelled, and (v) each Claim filed or to be filed against any Debtor shall be deemed filed only against Eagle Foods and shall be deemed a single Claim against and a single obligation of Eagle Foods,
(c) On the Effective Date, and in accordance with the terms of the Plan and the consolidation of the assets and liabilities of the Debtors, all Claims based upon guarantees of collection, payment or performance made by the Debtors as to the obligations of another Debtor shall be released and of no further force and effect.
(d) On the Effective Date or as soon thereafter as practicable, (a) the members of the board of directors of each of the Affiliate Debtors shall be deemed to have resigned, (b) each of the Affiliate Debtors shall be merged with and into Eagle Foods and (c) the Chapter 11 Cases of the Affiliate Debtors shall be closed, following which any and all Causes of Action or other proceedings that were or could have been brought or otherwise commenced in the Chapter 11 Case of any Affiliate Debtor, whether
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or not actually brought or commenced and whether or not such Cause of Action or other proceeding is listed on Plan Schedule 7.2 or any other plan schedule attached hereto, may be continued, brought or otherwise commenced in Eagle Foods’ Chapter 11 Case.
7. Continued Corporate Existence; Vesting Of Assets. Eagle Foods shall continue to exist as Reorganized Eagle Foods after the Effective Date in accordance with the laws of the State of Delaware and pursuant to the Amended Charter and By-Laws in effect on or prior to the Effective Date. The property of the Debtors’ Estates shall not be vested in Reorganized Eagle Foods on or following the Confirmation Date or the Effective Date but shall remain property of, and be consolidated into, the Estate of Eagle Foods and continue to be subject to the jurisdiction of the Bankruptcy Court following confirmation of the Plan.
8. Appointment of Randall D. McMurray as Chief Wind Down Officerof Reorganized Eagle Foods. The Court approves the appointment of Randall D. McMurray as the Chief Wind Down Officer and sole officer of Reorganized Eagle Foods, as disclosed at or prior to the Confirmation Hearing as of and immediately following the Effective Date. The Chief Wind Down Officer shall be authorized to execute, deliver, file or record such documents, instruments, releases and other agreements and to take such actions as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan.
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9. Recovery Bonus Plan. The Recovery Bonus Plan, as provided in section 7.6(b) of the Plan and Plan Schedule 7.6 is hereby approved and shall provide Randall D. McMurray, Jill Cirivello and Roger Peterson with additional compensation on account of achieving recovery rates near and in excess of 9.9%, the midpoint of the expected recovery range, i.e., the expected cumulative dividend distributed to Holders of Allowed General Unsecured Claims, provided that (unless otherwise stated in section 7.6 of the Plan) such employees arc employed by Reorganized Eagle Foods as of the Effective Date through the substantial completion of the Debtors’ wind down process, as determined by the board of directors of Reorganized Eagle Foods (the “Recovery Bonus Plan”). The participants in the Recovery Bonus Plan shall receive a target award opportunity based upon a percentage of annual base salary. The specific percentages and target awards for each employee are set forth on Plan Schedule 7.6 and are hereby approved. In the event a participant to the Recovery Bonus Plan is terminated without cause or resigns prior to substantial completion of the Debtors’ wind down process, such participant shall still be eligible for the Recovery Bonus Plan, provided that such participant makes himself/herself reasonably available to cooperate with the Reorganized Debtors and to provide assistance with the resolution of Claims filed against the Debtors. In such event, the participant shall be paid an hourly rate consistent with such participant’s annual base salary, or such other amount as approved by the board of directors of Reorganized Eagle Foods, for their time in connection with the resolution of Claims, including any reasonable
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travel time involving intercity travel, but shall not include any intra-city travel, including, without limitations, travel from locations within the Quad City area and all reasonable out-of-pocket expenses suffered by such participant shall be reimbursed by Reorganized Eagle Foods.
10. Appointment of Directors of Reorganized Eagle Foods. The Court approves the appointment of Robert J. Kelly, Hobart G. Truesdell and William Kaye as the members of the board of directors of Reorganized Eagle Foods, In accordance with sections 141 and 211 of General Corporation Law of the State of Delaware, the aforementioned directors shall serve for an initial one year term commencing on the Effective Date and the election of directors for subsequent terms will occur pursuant to the default rules provided by General Corporation Law of the State of Delaware, A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to poor death, resignation, retirement, disqualification or removal from office. Despite the expiration of a director’s term, the director continues to serve until a successor is elected and qualified or until there is a decrease in the number of directors. As specified in Article II, section 2 of the Amended and Restated By-laws of Reorganized Eagle Foods, any vacancy occurring on the board of directors shall be filled by a person designated by the remaining directors, even if less than a quorum, as a replacement to serve out the remainder of the applicable term.
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11. Cancellation of Existing Securities. Except as otherwise provided in the Plan and in any contract, instrument or other agreement or document created in connection with the Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to the Plan, the Existing Securities, promissory notes, share certificates (including treasury stock), other instruments evidencing any Claims or Interests (except such notes or other instruments evidencing indebtedness or obligations of a Debtor that are Reinstated (as defined below) or amended and restated under the Plan), and all options, warrants, calls, rights, puts, awards, commitments or any other agreements of any character to acquire such Existing Securities shall be deemed canceled and of no further force and effect, without any further act or action under any applicable agreement, law, regulation, order or rule, and the obligations of the Debtors, and the Prepetition Indenture Trustee to its noteholders, under the Prepetition Notes and/or the Prepetition Indenture together with the obligations of the Debtors under any other notes, share certificates and other agreements and instruments governing such Claims and Interests shall be discharged. The Holders of or parties to such canceled notes, share certificates and other agreements and instruments, to the extent not Reinstated or amended and restated under the Plan, shall have no rights arising from or relating to such notes, share certificates and other agreements and instruments or the cancellation thereof, except the rights provided pursuant to the Plan; provided, however, that no distribution under the Plan shall be made to or on behalf of any holder of an Allowed Claim evidenced
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by such cancelled instrument or security unless and until such instrument or security, if any, is received by the Disbursing Agent or Prepetition Indenture Trustee, as applicable, to the extent required under section 9.5 of the Plan,
12. Release Of Liens. Except as otherwise provided in the Plan or in any contract, instrument, release or other agreement or document created or assumed in connection with the Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to Articles IX and X of the Plan, all mortgages, deeds of trust, liens, pledges or other security interests against the property of any Debtor’s Estate shall be fully released and discharged, and all of the right, title and interest of any Holder of such mortgages, deeds of trust, liens, pledges or other security interests shall revert to the Estate of Eagle Foods and its successors and assigns. To the extent that any termination statements, instruments of satisfaction, or other similar releases of interests necessary to terminate or otherwise remove from title or record any filed financing statements, mortgages, or other documents or agreements evidencing a security interest in the Debtors’ assets shall not have been delivered to Reorganized Eagle Foods in proper form for filing and executed by the appropriate parties prior to, or in connection with, the satisfaction of the Secured Claims, then Reorganized Eagle Foods is hereby authorized to (a) execute and file such statements, instruments;, releases or other documents on behalf of the Holder of the Secured Claim with respect to the encumbered assets and (b) to file, register, or otherwise record a certified copy of this Confirmation Order, which, once
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filed, registered or otherwise recorded, shall constitute conclusive evidence of the release of all security interests in the Debtors’ assets of any kind or nature whatsoever.
13. Retained Assets. To the extent the succession to assets of the Debtors by Reorganized Eagle Foods pursuant to the Plan are deemed to constitute “transfers” of property, such transfers of property to Reorganized Eagle Foods (a) are or shall be legal, valid, and effective transfers of property, (b) vest or shall vest Reorganized Eagle Foods with good title to such property, free and clear of all liens, charges, Claims, encumbrances, or interests, except as expressly provided in the Plan or this Confirmation Order, (c) do not and shall not constitute avoidable transfers under the Bankruptcy Code or under applicable nonbankruptcy law, and (d) do not and shall not subject Reorganized Eagle Foods to any liability by reason of such transfer under the Bankruptcy Code or under applicable nonbankruptcy law, including, without limitation, any laws affecting successor or transferee liability.
14. Releases. Limitations Of Liability And Indemnification. The releases set forth in sections 13, 5 and 13.6 of the Plan, and the exculpation and limitation of liability provisions set forth in Section 13.3 of the Plan, are deemed incorporated in this Confirmation Order as if set forth in full herein and are hereby approved in their entirety. The United States Trustee’s rights are fully reserved with respect to challenging the enforceability of section 13.6(b) of the Plan in the event an action is filed requiring an
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interpretive ruling of such section by this Court pursuant to section 14(x) or any other court of competent jurisdiction.
15. Injunction. Except as otherwise specifically provided in the Plan and except as maybe necessary to enforce or remedy a breach of the Plan, the Debtors, and all Persons who have held, hold or may hold Claims or Interests and any successors, assigns or representatives of the foregoing shall be precluded and permanently enjoined on and after the Effective Date from: (a) commencing or continuing in any manner any Claim, action or other proceeding of any kind with respect to any Claim, Interest or any other right or Claim against Reorganized Eagle Foods, which they possessed or may possess prior to the Effective Date, (h) the enforcement, attachment, collection or recovery by any manner or means of any judgment, award, decree or order with respect to any Claim, Interest or any other right or Claim against Reorganized Eagle Foods, which they possessed or may possess prior to the Effective Date, (c) creating, perfecting or enforcing any encumbrance of any kind with respect to any Claim, Interest or any other right or Claim against Reorganized Eagle Foods, which they possessed or may possess prior to the Effective Date, and (d) asserting any Claims that are released hereby.
16. Term of Bankruptcy Injunction or Automatic Stay. Pursuant to Section 15, 14 of the Plan, all injunctions or stays provided for in the Chapter 11 Cases under section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect until all property of the Estates of
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Reorganized Eagle Foods and the other Debtors has been distributed and Reorganized Eagle Foods has been dissolved,
17. Matters Relating To Implementation Of The Plan: GeneralAuthorizations.
(a) The approvals and authorizations specifically set forth in this Confirmation Order are nonexclusive and are not intended to limit the authority of the Debtors or Reorganized Eagle Foods or any officer thereof to take any and all actions necessary or appropriate to implement, effectuate and consummate any and all documents or transactions contemplated by the Plan or this Confirmation Order.
(b) In addition to the authority to execute and deliver, adopt or amend, as the case may be, the contracts, leases, instruments, releases and other agreements specifically granted in this Confirmation Order, the Debtors and Reorganized Eagle Foods are authorized and empowered, without action of their respective stockholders or boards of directors, to take any and all such actions as any of their executive officers may determine are necessary or appropriate to implement, effectuate and consummate any and all documents or transactions contemplated by the Plan or this Confirmation Order.
(c) Pursuant to section 1142 of the Bankruptcy Code, no action of the stockholders or boards of directors of the Debtors or Reorganized Eagle Foods shall be required for the Debtors or Reorganized Eagle Foods to: (i) enter into, execute and deliver, adopt or amend, as the case maybe, any of the contracts, leases, instruments,
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releases and other agreements or documents and plans to be entered into, executed and delivered, adopted or amended in connection with the Plan, including any amendment or restatement of any charter or by-laws of the Debtors or Reorganized Eagle Foods, and, following the Effective Date, each of such contracts, leases, instruments, releases and other agreements shall be a legal, valid and binding obligation of Reorganized Eagle Foods and enforceable by and against Reorganized Eagle Foods in accordance with its terms; and (ii) authorize Reorganized Eagle Foods to engage in any of the activities set forth in this paragraph or otherwise contemplated by the Plan.
(d) The Chief Wind Down Officer, or his respective designees and successor(s), is authorized to execute, deliver, file, or record such contracts, instruments, releases, indentures, and other agreements or documents, and take such actions as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan, this Confirmation Order and any and all documents or transactions contemplated by the Plan or this Confirmation Order, all without further application to or order of the Court and whether or not such actions or documents are specifically referred to in the Plan, the Disclosure Statement, the Solicitation Procedures Order, this Confirmation Order or the exhibits or appendices to any of the foregoing, and the signature of such officer on a document shall be conclusive evidence of the officer’s determination that such document and any related actions are necessary and appropriate to effectuate or further evidence the terms and conditions of the Plan, this Confirmation Order or other
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documents, or transactions contemplated by the Plan or this Confirmation Order, The secretary or any assistant secretary of Reorganized Eagle Foods is authorized to certify or attest to any of the foregoing actions,
(e) Pursuant to section 1142 of the Bankruptcy Code, to the extent that, under applicable nonbankruptcy law, any of the foregoing actions otherwise would require the consent or approval of the stockholders OT the boards of directors of any of the Debtors or Reorganized Eagle Foods, this Confirmation Order shall constitute such consent or approval, and such actions are deemed to have been taken by unanimous action of the stockholders and directors of the Debtors or Reorganized Eagle Foods, Any or all such documents shall be accepted by each of the respective state filing offices and recorded in accordance with applicable state law and shall become effective in accordance with their terms and the provisions of slate law,
18. Exemption From Certain Taxes And Recording Fees. Pursuant to section 1146(c) of the Bankruptcy Code: (a) the creation of any mortgage, deed of trust, lien, pledge, or other security interest; (b) the making or assignment of any lease or sublease; (c) the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including, without limitation, any restructuring, disposition, liquidation, or dissolution, deeds, bills of sale, transfers of tangible property or the transfers, sales, and assignments of the Debtors’ or Reorganized Eagle Foods’ owned and leased real property pursuant to the Plan or otherwise or (d) any
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transfers from the Debtors to Reorganized Eagle Foods pursuant to the Plan or otherwise will not be subject to any document recording tax, stamp tax, conveyance fee, personal property tax, real estate transfer tax, intangibles or similar tax, mortgage tax, stamp act, mortgage recording tax, or other similar tax or governmental assessment, and this Confirmation Order hereby directs the appropriate state or local governmental officials or agents to forgo the collection of any such tax or governmental assessment and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment.
19. Assumptions and Assumption and Assignments. The executory contract and unexpired lease provisions of Article VIII of the Plan are specifically approved. Except as otherwise provided in the Plan or in any contract, instrument, release or other agreement or document entered into in connection with the Plan, on the Effective Date, pursuant to section 365 of the Bankruptcy Code, the Debtors shall assume or assume and assign, as indicated, each executory contract or lease listed onPlan Schedule 8.2. if any, as such contracts or leases may be amended or modified (collectively, the “Assumed Contracts and Leases”);provided, however, that the Debtors shall have the right, at any time prior to the Effective Date, to modify or supplementPlan Schedule 8.2 as permitted pursuant to section 8.6 of the Plan. Each of the Assumed Contracts and Leases, if any, shall be assumed only to the extent that any such contract or lease constitutes an executory contract or unexpired lease. Listing a contract or lease on
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Plan Schedules 8.1 or 8.2 shall not constitute an admission by the Debtors or Reorganized Eagle Foods that such contract or lease is an executory contract or unexpired lease or that the Debtors or Reorganized Eagle Foods has any liability thereunder.
20. Notice of Assumption and Assignment and Cure.
(a) This Confirmation Order shall constitute an order approving the assumptions, if any, described in Section 8.2 of the Plan, pursuant to section 365 of the Bankruptcy Code, as of the Effective Date. Within five business days after the Effective Date, the Debtors or Reorganized Eagle Foods shall provide notice to each party whose executory contract or unexpired lease is being assumed or assumed and assigned, if any, pursuant to the Plan of: (i) the contract or lease being assumed or assumed and assigned; (ii) the name of the proposed assignee, if any; (iii) the proposed cure amount (“Cure Amount Claim”), if any, that the Debtors or Reorganized Eagle Foods believes it (or its assignee) would be obligated to pay in connection with such assumption; and (iv) the procedures for such party to object to the assumption of the applicable contract or lease or the amount of the proposed Cure Amount Claim (the “Notice of Assumption”).
(b) In the event a party fails to file and serve a timely objection to the Notice of Assumption, the Cure Amount Claim stated in the Notice of Assumption shall be conclusive and Reorganized Eagle Foods may assume and/or assign the unexpired lease or executory contract without further order of Court. If a timely objection is filed, the Court shall determine the Cure amount and the propriety of the assumption or
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assignment in accordance with the Plan at the next scheduled omnibus hearing scheduled not earlier than five. (5) business days after filing of the objection. To the extent not already provided prior to the Confirmation Hearing, the Notice of Assumption shall be in substantially the form attached hereto as Exhibit C and incorporated herein by reference and shall be served on each non-debtor party to an executory contract or unexpired lease. In the event that the parties are not able to consensually resolve the issue of Cure, the Debtors or Reorganized Eagle Foods shall have the right pursuant to section 8.3 of the Plan to reject the contract or lease for a period of five (5) days after entry of a final order establishing a Cure amount in excess of that provided by the Debtors notwithstanding the occurrence of the Effective Date.
(c) To the extent the Debtor who is party to the executory contract or unexpired lease is to be merged with Eagle Foods as part of the Substantive Consolidation Order, the nondebtor parties to such executory contract or unexpired lease shall, upon assumption as contemplated herein, be deemed to have consented to the assignment of such executory contract or unexpired lease to Eagle Foods that is the surviving entity after entry of the Substantive Consolidation Order.
21. Payment Of Cure Amount Claims. The provisions (if any) of each Assumed Contract and Lease to be assumed under the Plan that are or may be in default shall be satisfied solely by Cure.
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22. Rejections. Except as otherwise provided in the Plan or in any contract, instrument, release or other agreement entered into in connection with the Plan, on the Effective Date, pursuant to sections 365
and 1123(b) of the Bankruptcy Code, all prepetition executory contracts and unexpired leases that exist between the Debtors and any Person shall be deemed rejected by the Debtors as of the Effective Date or such other date as listed on Plan Schedule 8.1, subject to the occurrence of the Effective Date (collectively, the “Rejected Contracts and Leases”), except for executory contracts and unexpired leases which: (a) have been assumed, assumed and assigned, or rejected, as applicable, pursuant to an order of the Court entered prior to the Confirmation Date; or (b) as of the Effective Date, are subject to a pending motion for approval of the assumption, assumption and assignment, or rejection, as applicable; or (c) are otherwise being assumed or assumed and assigned as set forth in Plan Schedule 8.2; provided, however, that the Debtors shall have the right, at any time prior to the Effective Date, to modify or supplement Plan Schedules 8.1
and 8.2 as permitted pursuant to section 8.6 of the Plan, All of the Rejected Contracts and Leases shall be rejected only to the extent that any such contract or lease constitutes an executory contract or unexpired lease. This Confirmation Order shall constitute an order approving such rejections, pursuant to section 365 of the Bankruptcy Code, as of the Effective Dale; provided, however, that to the extent that a prior order provides that a contract or lease was to be rejected upon notice, to the extent
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such notice has not been given as of the entry of this Confirmation Order, such order shall remain enforceable and shall control the rejection of such contract or lease,
23. Bar Date For Rejection Damage Claims And RelatedProcedures. If the rejection by a Debtor or Reorganized Eagle Foods of an executory contract or unexpired lease pursuant to the Plan results in a Claim, then such Claim shall be forever barred and shall not be enforceable against any Debtor or Reorganized Eagle Foods or the properties of any of them unless a proof of claim is filed with the Debtors’ Claims agent, Logan Company, Inc., and served upon counsel to Reorganized Eagle Foods, and counsel to the Creditors’ Committee, within thirty (30) days after service of the earlier of (a) notice of the effective date of rejection of such executory contract or unexpired lease as determined in accordance with section 8.l of the Plan or (b) other notice that the `executory contract or unexpired lease has been rejected. Nothing in section 8.4 of the Plan shall revive or deem to revive a previously Disallowed Claim or extend a previously established bar date, if applicable.
24. Professional Fee Claims. Substantial Contribution Claims AndFinal Fee Applications.
(a) On the Effective Date, the Debtors shall pay all amounts owing to Professionals for all outstanding amounts relating to prior periods through the Effective Date approved by the Bankruptcy Court in accordance with the Professional Fee Order; provided, however, that Professionals shall continue to prepare fee applications in
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accordance with the Professional Fee Order up to the Effective Date. On the Effective Date, Reorganized Eagle Foods shall increase the amount held in the Professional Fee Escrow such that the funds therein are equal to the aggregate amount of unpaid fees and expenses in connection with any outstanding applications not ruled upon by the Bankruptcy Court as of the Effective Dale plus the aggregate amount of all estimated fees and expenses, as disclosed in a filing with this Court filed and served on or prior to March 10, 2004, due for periods that have not been billed as of the Effective Date (the “Estimated Fees and Expenses”). The Estimated Fees and Expenses shall be Allowed on an interim basis, pending an application for final allowance of compensation and reimbursement of expenses as set forth in section 11.1(b) of the Plan, and the Debtors shall pay the actual fees and expenses in the ordinary course, up to the amount of such estimate, less the holdback amount as provided in the Administrative Order Pursuant to 11 U.S.C. § 105(a) and 331 Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals, entered on April 7, 2003 (Docket No, 19). The Professional Fee Escrow shall be used by Reorganized Eagle Foods to pay the remaining Professional Fee Claims owing to the Professionals as and when Allowed by the Bankruptcy Court. When all Professional Fee Claims have been paid in full, amounts remaining in such escrow account, if any, shall be returned to Reorganized Eagle Foods to supplement the Operating Reserve or for distributions to Allowed Claims in Classes 3 and 4 in accordance with the provisions ofArticle V of the Plan.
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(b) All Professionals or other entities requesting compensation or reimbursement of expenses pursuant to sections 327, 328, 330, 331, 503(b) and 1103 of the Bankruptcy Code for services rendered on or before the Effective Date (including compensation and expenses for making a substantial contribution in any of the Chapter 11 Cases) shall file with the Bankruptcy Court and serve such applications on counsel for the Debtors, the United States Trustee and as otherwise required by the Bankruptcy Court and the Bankruptcy Code, an application for final allowance of compensation and reimbursement of expenses no later than forty-five (45) days after the end of the month in which the Effective Date occurred. Objections to applications of Professionals and other entities for compensation and reimbursement of expenses must be filed with the Bankruptcy Court no later than twenty (20) days after the filing and service of a Professional’s application. All compensation and reimbursement of expenses allowed by the Bankruptcy Court shall be paid ten (10) days after the entry of an Order allowing such fees and expenses, or as soon thereafter as practicable. The Debtors and Reorganized Eagle Foods shall not object to the filing of any request for substantial contribution with respect to the entity listed on PlanSchedule 11.1(b), provided that in all instances (i) the Debtors and Reorganized Eagle Foods shall retain the right to review the reasonableness of the fees and expenses requested by any and all such entities alleging substantial contribution and (ii) such requesting entity complies with the filing requirements of the Plan or such other
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requirements as agreed to by and among the Debtors or Reorganized Eagle Foods, the Creditors’ Committee, the United States Trustee and such requesting entity.
(c) Notwithstanding subsection 11.1(a) and 11.1(b) of the Plan, on or within three (3) business days after the Confirmation Date, the Prepetition Indenture Trustee shall deliver an invoice for its fees and expenses to the Debtors, the Creditors’ Committee and the United States Trustee, each of whom shall have the right to file an objection with the Bankruptcy Court, which objection must be filed within ten (10) days of receipt. Absent any such objection, the Prepetition Indenture Trustee’s invoice for its fees and expenses shall be paid in Cash by the Debtors or Reorganized Eagle Foods, as applicable, on the Effective Date, or as soon thereafter as practicable, without need to file an application for the payment of its fees and without need for further order of the Bankruptcy Court,
25. Other Administrative Claims. All other requests for payment of an Administrative Claim (other than as set forth inSection 11.1 of the Plan), must be filed with the Bankruptcy Court and served on counsel for the Debtors and/or Reorganized Eagle Foods no later than the Administrative Claims Bar Dale. Unless the Debtors object to an Administrative Claim within one hundred twenty (120) days after the Administrative Claims Bar Date, such Administrative Claim shall be deemed allowed in the amount requested. In the event that the Debtors and/or Reorganized Eagle Foods object to an Administrative Claim and Reorganized Eagle Foods and such claimant are unable to
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resolve their dispute consensually, then Reorganized Eagle Foods shall file a motion for determination thirty (30) days following the request of such claimant. Thereafter, the Bankruptcy Court shall determine the Allowed amount, of such Administrative Claim. Notwithstanding the foregoing, the Debtors or Reorganized Eagle Foods may pay, in their discretion, in accordance with the terms and conditions of any agreements relating thereto, any Administrative Claim as to which no request for payment has been timely filed but which is paid or payable by a Debtor in the ordinary course of business.
26. Administrative Claims Bar Date Notice. On the Effective Date, or as soon thereafter as is reasonably practicable, Reorganized Eagle Foods shall provide written notice of the Administrative Claims Bar Date, which date shall be forty-five (45) days after the date on which the Debtors mail written notice of the occurrence of the Effective Date as specified in Section 11.3 of the Plan, unless otherwise ordered by the Bankruptcy Court and except as modified by Section11.1 of the Plan.
27. Employment, Indemnification and Other Agreements, and RecoveryBonus Plan Awarded to Management. The Debtors or Reorganized Eagle Foods are authorized to pay the Administrative Claims of employees who remain employed after the Effective Date which arise out of or relate to (i) their employment with the Debtors or Reorganized Eagle Foods in the ordinary course of business including, without limitation, the Recovery Bonus Plan or (ii) Continuing Indemnification Claims, in both cases without the requirement that such employees file an Administrative Claim by the
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Administrative Claim Bar Date, to the extent of Cash in the Cash Reserves. In addition, the board of directors of Reorganized Eagle Foods shall have the right to provide additional compensation to the employees of Reorganized Eagle Foods; provided that material enhancements to an employee’s compensation shall require Bankruptcy Court approval.
28. Resolution Of Claims. Except as otherwise ordered by the Court, no later than the Claims Objection Deadline (unless extended by an order of the Bankruptcy Court), the Debtors and Reorganized Eagle Foods, as the case may be, shall file objections to Claims with the Bankruptcy Court and serve such objections upon the Holders of each of the Claims to which objections are made. Nothing contained herein, however, shall limit Reorganized Eagle Foods’ right to object to Claims, if any, filed or amended after the Claims Objection Deadline. Moreover, notwithstanding the expiration of the Claims Objection Deadline and unless subsequently ordered for good cause shown to shorten time, Reorganized Eagle Foods shall continue to have the right to amend any objections and to file and prosecute supplemental objections and counterclaims to a Disputed Claim until such Disputed Claim is Allowed. The Debtors or Reorganized Eagle Foods, as the Case may be, may amend their schedules at any time before their Chapter 11 Cases are closed.
29. Disputed Claims Reserve. The Disbursing Agent shall withhold the Disputed Claims, Reserve from the Net Available Cash to be distributed to particular
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classes under the Plan, The Disputed Claims Reserve shall be equal to 100% of distributions to which Holders of Disputed Claims in Classes 3 and 4 would be entitled under the Plan its of such date if such Disputed Claims in Classes 3 and 4 were Allowed Claims in their (a) Face Amount (or if a Disputed Claim is unliquidated with no Face Amount, then based upon the good faith estimate of such Disputed Claim as estimated by Reorganized Eagle Foods) or (b) estimated amount of such Disputed Claim in Classes 3 and 4 as approved in an Order by the Bankruptcy Court pursuant to section 506(c) of the Bankruptcy Code. Reorganized Eagle Foods may request estimation for any Disputed Claim including, without limitation, any Disputed Claim that is contingent or unliquidated;provided, however nothing herein shall impair such claimant’s defenses or objections to such requested estimation. The Disputed Claims Reserve may not be relied upon to show that any Disputed Claim is either probable or estimable for any other purpose. No distribution shall be made to any Holder of a Claim in Class 3 or 4 until the Disputed Claims Reserve is established. Nothing in the Plan or this Confirmation Order shall be deemed to entitle the holder of a Disputed Claim to postpetition interest on such Claim.
30. Payment Of Fees. All fees payable by the Debtors under 28 U.S.C. § 1930 shall be paid on, or as soon as reasonably practical after, the Effective Date, and neither the Debtors, their Estates nor Reorganized Eagle Foods shall thereafter be liable for the payment of any additional fees under 28 U.S.C. § 1930 other than with respect to Eagle Foods’ Chapter 11 Case.
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31. Authorization To Consummate Plan. The Court authorizes the Debtors to consummate the Plan after entry of this Confirmation Order. The Debtors are authorized to execute, acknowledge, and deliver such deeds, assignments, conveyances, and other assurances, documents, instruments of transfer, uniform commercial code financial statements, trust agreements, mortgages, indentures, security agreements, and bills of sale and to take such other actions as may be reasonably necessary to perform the terms and provisions of the Plan, all transactions contemplated by the Plan, and all other agreements related thereto,
32. Failure To Consummate Plan And Substantial Consummation. If consummation of the Plan does not occur, then the Plan, any settlement or compromise embodied in the Plan (including the fixing or limiting to an amount certain any Claim or Class of Claims), the assumption or rejection of executory contracts or leases effected by the Plan, and any document or agreement executed pursuant to the Plan, shall be null and void. In such event, nothing contained in the Plan or this Confirmation Order, and no acts taken in preparation for consummation of the Plan, shall (a) constitute a waiver or release of any Claims by or against or Interests in the Debtors or any other Person, (b) prejudice in any manner the rights of the Debtors or any Person in any further proceedings involving the Debtors, (c) constitute an admission of any sort by the Debtors or any other Person, or (d) be construed as a finding of fact or conclusion of law with
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respect thereto. Upon the occurrence of the Effective Date with respect to the Debtors, the Plan shall be deemed substantially consummated as to the Debtors,
33. Retention Of Jurisdiction. Pursuant to sections 105(a) and 1142 of the Bankruptcy Code, and notwithstanding the entry of this Confirmation Order or the occurrence of the Effective Date, the Court shall retain exclusive jurisdiction as provided in the Plan over all matters arising out of, and related to, the Chapter 11 Cases and the Plan to the fullest extent permitted by law, including, among other items and matters, jurisdiction over those items and matters set forth in Article XIII of the Plan.
34. Dissolution of Creditors’ Committee. The Creditors’ Committee shall continue in existence until the Effective Date to exercise those powers and perform those duties specified in section 1103
of the Bankruptcy Code and shall perform such other duties as it may have been assigned by the Bankruptcy Court prior to the Effective Date. On the Effective Date, the Creditors’ Committee shall be dissolved and its members shall be deemed released of all their duties, responsibilities and obligations in connection with the Chapter 11 Cases or the Plan and its implementation, and the retention or employment of the Creditors’ Committee’s attorneys, accountants, financial advisors, and other agents shall terminate. All expenses of Creditors’ Committee members and the fees and expenses of their professionals through the Effective Date shall be paid in accordance with the terms and conditions of the Professional Fee Order and the Plan,
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35. References To Plan Provisions. The failure to include or specifically reference any particular provision of the Plan in this Confirmation Order shall not diminish or impair the effectiveness of such provision, it being the intent of the Court that the Plan be confirmed in its entirety. The provisions of the Plan and of this Confirmation Order shall be construed in a manner consistent with each other so as to effect the purposes of each; provided, however, that if there is determined to be any inconsistency between any Plan provision and any provision of this Confirmation Order that cannot be so reconciled, then, solely to the extent of such inconsistency, the provisions of this Confirmation Order shall govern and any such provision of this Confirmation Order shall be deemed a modification of the Plan and shall control and take precedence.
36. Separate Confirmation Orders. This Confirmation Order is and shall be deemed a separate Confirmation Order with respect to each of the Debtors in each Debtors’ separate Chapter 11 Case for all purposes. The Clerk of the Court is directed to file and docket this Confirmation Order in the Chapter 11 Case of each of the Debtors.
37. Filing And Recording. This Confirmation Order is and shall be binding upon and shall govern the acts of all entities including, without limitation, all filing agents, filing officers, title agents, title companies, recorders of mortgages, recorders of deeds, registrars of deeds, administrative agencies, governmental departments, secretaries of state, federal, state and local officials, and all other persons and
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entities who may be required, by operation of law, the duties of their office, or contract, to accept, file, register or otherwise record or release any document or instruments. Each and every federal, state and local government agency is hereby directed to accept any and all documents and instruments necessary, useful or appropriate (including Uniform Commercial Code financing statements) to effectuate, implement and consummate the transactions contemplated by the Plan and this Confirmation Order without payment of any recording tax, stump tax, transfer tax or similar tax imposed by state or local law.
38. Notice Of Confirmation Order and Occurrence Of EffectiveDate. On or before the fifth (5th) Business Day following the occurrence of the Effective Date, the Debtors shall serve notice of this Confirmation Order and occurrence of the Effective Dale pursuant to Bankruptcy Rules 2002(f)(7), 2002(k), and 3020(c), on all Holders of `Claims, the United States Trustee and other parties-in-interest, by causing a notice of this Confirmation Order and the occurrence of the Effective Date in substantially the form of the notice annexed hereto asExhibit D, which form is hereby approved (the “Notice of Effective Date”), to be delivered to such parties by first class mail, postage prepaid; provided, however, that notice need not be given or served under the Bankruptcy Code, the Bankruptcy Rules, or this Confirmation Order to any Person to whom the Debtors mailed a notice of the Bar Date or Confirmation Hearing, but received such notice returned marked “undeliverable as addressed,” “moved — left no forwarding address,” “forwarding order expired,” or similar reason, unless the Debtors have been informed in
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writing by such Person of that Person’s new address. Reorganized Eagle Foods is authorized to send the Notice of Effective Date to parties-in-interest, rather than a copy of the entered Confirmation Order provided that copies of said order are made available to requesting parties at their own expense. The notice described herein is adequate under the particular circumstances of the Chapter 11 Cases, and no other or further notice is necessary. Notwithstanding the foregoing, pursuant to Bankruptcy Rule 2002(1), the Debtors may satisfy the requirements of Bankruptcy Rule 2002(f)(7), by mailing the Notice of Effective Date as described above and publishing the Notice of Effective Date in TheWall Street Journal (National Edition), The ChicagoTribune and The Quad City Times within fifteen (15) Business Days of the Effective Date.
39. Exhibits To The Plan Will Operate As ControllingDocuments. In the event of an inconsistency between the Plan and the Exhibits to the Plan (as may be modified), the Exhibits to the Plan will control.
40. 28 U.S.C. § 157(d). Nothing in this Confirmation Order or the Plan is intended to modify or violate 28 U.S.C. § 157(d).
41. Distribution Record Date. Pursuant to Section 1.91 of the Plan, the record date for distributions under the Plan shall be the Confirmation Date.
42. Withdrawal of Patricia Rhynes Objection. That certain Objection Filed on Behalf of Patricia Rhynes to Confirmation of Plan (Docket no. 942) has been withdrawn with prejudice.
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43. Resolution of Topco. Limited Objection. As a result of the following language in this ordering paragraph 43.; Topco. Associates, LLC and Topco. Holdings, Inc. hereby withdraw with prejudice that certain Limited Objections of Topco. to First Amended Joint Plan of Liquidation of Eagle Food Centers, Inc. and its Affiliated Debtors (Docket No. 940).
(a) Nothing in Sections 7.12, 9.12 or any other sections of the Plan (i) shall have any effect on the unimpaired status of any Allowed Class 1 Claim or (ii) alter in any way the legal, equitable or contractual rights of Allowed Class 1 claimants.
(b) Notwithstanding Section 13, 3 of the Plan, any other Section of the Plan having any issue preclusive or claim preclusive effect, or ordering paragraphs 14 and 15 of this Order, Topco. Associates, LLC and/or Topco Holdings, Inc. (collectively, “Topco”) each (i) shall retain the right to assert any defenses, whether by virtue of set-off, recoupment or otherwise, in opposing any Litigation Claim or Claim objection brought by or on behalf of the Debtors, Reorganized Eagle Foods or any other party in interest unless any such defense is asserted for the purpose of obtaining an affirmative recovery against the Estate, in which case the Debtors, Reorganized Eagle Foods or any other party in interest may assert issue or claim preclusive effect in opposition thereto and (ii) shall retain the right to pursue and seek an affirmative recovery based on any Claims or other rights or interests asserted by Topco. in any timely-filed proof of claim, reclamation
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demand, notice under the Perishable Agricultural Commodities Act or request for payment of administrative expense or timely and properly filed amendment to any of the foregoing. Except as set forth above with respect to issue preclusive or claim preclusive effect, nothing in this paragraph shall act to prejudice or impair the rights of the Debtors, Reorganized Eagle Foods or any other party of interest to object to, counter and/or otherwise respond to any defense raised by Topco. under any theory of law or equity, to oppose any affirmative recovery sought by Topco, or 10 prosecute any Litigation Claims or Claims objections, including any objection to the timeliness or appropriateness of the filing of any Topco. proof of claim, reclamation demand, notice under the Perishable Agricultural Commodities Act or request for payment of administrative expense or any amendment thereto.
44. Withdrawal of Pledge Agreement from Plan Schedule 8.1 withIntent to File Subsequent Rejection Motion and Withdrawal of TOPCOObjection to Notice of Rejection. Pursuant to Section 8.6 of the Plan, the Debtors withdraw that certain Memorandum of Understanding and Pledge Agreement by and between Eagle Food Centers, Inc, and the Topco dated October 9, 2002 (the “Pledge Agreement”) from Plan Schedule 8.1 with the intent of filing a subsequent motion requesting approval of the rejection of the Pledge Agreement effective as of the Effective Date of the Plan. In exchange for the above modification to Plan Schedule 8.1, Topco. hereby withdraws that
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certain Objections of Topco. Associates to Notice of Rejection of Unexpired Leases and Executory Contracts (Docket No. 953).
45. Modifications To The Original Plan. At the request of the Debtors, the Original Plan is hereby modified pursuant to section 1127(a) of the Bankruptcy Code as follows:[3]
The text of Section 15.7 Exemption from Transfer Taxes shall be deleted in its entirety and replaced with the following text:
Pursuant to section 1146(c) of the Bankruptcy Code: (a) the creation of any mortgage, deed of trust, lien, pledge, or other security interest; (b) the making or assignment of any lease or sublease; (c) the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with, this Plan, including, without limitation, any restructuring, disposition, liquidation, or dissolution, deeds, bills of sale, transfers of tangible property or the transfers, sales, and assignments of the Debtors’ or Reorganized Eagle Foods’ owned and leased real property pursuant to this Plan or otherwise or (d) any transfers from the Debtors to Reorganized Eagle Foods pursuant to this Plan or otherwise will not be subject to any document recording tax, stamp tax, conveyance fee, personal property tax, real estate transfer tax, intangibles or similar tax, mortgage lax, stamp act, mortgage recording tax, or other similar tax or governmental assessment, and the Confirmation Order shall direct the appropriate state or local governmental officials or agents to forgo the collection of any such tax or governmental assessment and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or; govern-mental assessment. Unless the Court Orders, all sales, transfers and assignments of owned and leased real and personal, approved by the Court on or prior to the Effective Date shall be deemed to have been in futherance of, or in connection with, this Plan.
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FIRST AMENDED JOINT PLAN OF LIQUIDATION OF EAGLE FOOD CENTERS, INC. AND ITS AFFILIATED DEBTORS AND DEBTORS IN POSSESSION
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[EDITORS’ NOTE: THIS PAGE CONTAINED TABLES OF CONTENTS]
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EXHIBITS
Exhibit A Form of Amended Charter of Reorganized Eagle Foods Exhibit B Form of Amended By-Jaws of Reorganized Eagle Foods
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PLAN SCHEDULES
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INTRODUCTION
Eagle Food Centers, Inc. (“Eagle Foods”) and four of its subsidiaries and affiliates (the “Affiliate Debtors”), the debtors and debtors-in-possession in the above-captioned jointly administered chapter 11 cases (collectively the “Debtors”), hereby propose the following first amended joint plan providing for the liquidation of the Debtors and the distribution of the proceeds thereof in resolution of the outstanding claims against and interests in the Debtors, Capitalized terms used herein shall have the meanings ascribed to such terms in Article 1.
At this time, these chapter 11 cases have been consolidated for procedural purposes only and are being jointly administered pursuant to an order of the Bankruptcy Court. As set forth in Sections 7.1
and 7.2 of this Plan (as defined in Section 1.7.5
below), however, this Plan contemplates the substantive consolidation of the Affiliate Debtors into Eagle Foods. Each Debtor is a proponent of this Plan within the meaning of section 1129 of the Bankruptcy Code.
A complete list of the Debtors is set forth below. The list identifies each Debtor by its case number in these chapter 11 cases.
The Debtors
Under section 1125(b) of the Bankruptcy Code, a vote to accept or reject this Plan cannot be solicited from the Holder (as defined inSection 1.55 below) of a claim or interest until such time as the Disclosure Statement has been approved by the Bankruptcy Court and distributed to claim and interest Holders. The Disclosure Statement was approved by the Bankruptcy Court by order entered on January 29, 2004, and has been distributed simultaneously with this Plan to all parties whose votes are being solicited. The Disclosure Statement contains, among other things, a discussion of the Debtors’ history, business, properties and former and current operations, a summary and analysis of this Plan, and certain related matters. ALL HOLDERS OF CLAIMS AND INTERESTS ARE ENCOURAGED TO READ THIS PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT ORREJECT THIS PLAN.
Subject to certain restrictions and requirements set forth in section 1127 of the Bankruptcy Code and F.R.Bankr.P. 3019 and those restrictions on modifications set forth in Article XV of this Plan, each of the Debtors expressly reserves its respective rights to alter, amend, modify, revoke or withdraw this Plan with respect to such Debtor, one or more times, prior to its substantial consummation.
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ARTICLE I DEFINED TERMS AND RULES OF INTERPRETATION A. Definitions
For purposes of this Plan, except as otherwise provided or unless the context otherwise requires, all capitalized terms not otherwise defined shall have the meanings set forth below. Any term that is not otherwise defined herein, but that is used in the Bankruptcy Code or the Bankruptcy Rules, will have the meaning given to that term in the Bankruptcy Code or the Bankruptcy Rules, as applicable.
1.1 “Administrative Claim” means a Claim for payment of an administrative expense of a kind specified in section 503(b) of the Bankruptcy Code and entitled to priority pursuant to section 507(a)(1) of the Bankruptcy Code, including, but not limited to, (a) any actual and necessary costs and expenses, incurred after the Petition Date, of preserving the Estates and operating and liquidating the business of the Debtors (including wages, salaries, or commissions for services rendered after the Petition Date), (b) Professional Fee Claims, (c) all fees and charges assessed against the Estates under chapter 123 of title 28, United States Code, (d) Reclamation Claims to the extent not already paid, and (e) DTP Facility Claims to the extent not already paid.
1.2 “Administrative Claims Bar Date” means, except as modified by Section 11.1 of this Plan, the deadline for filing proofs of Administrative Claims which shall be forty-five (45) days after the date on which the Debtors mail written notice of the occurrence of the Effective Date as specified in Section 11.3
of this Plan, unless otherwise ordered by the Bankruptcy Court.
1.3 “Administrative Claims Reserve” means the reserve established to pay Administrative Claims, Priority Tax Claims, Secured Claims, Non-Tax Priority Claims, Cure Claims and other payments required under this Plan.
1.4 “Affiliate Debtors” means, individually or collectively, a Debtor or Debtors other than Eagle Foods, as applicable.
1.5 “Affiliate Interest” means the rights of any current or former Holder or owner of any shares of Old Equity of any of the Affiliate Debtors authorized and issued prior to the Confirmation Date.
1.6 “Affiliates” has the meaning given such term by section 101(2) of the Bankruptcy Code.
1.7 “Allowed” means, with respect to a Claim, an Allowed Claim in a particular Class or category specified.
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1.8 “Allowed Claim” means a Claim or any portion thereof:
(a) that has been allowed by a Final Order, or
(b) as to which no proof of claim has been timely filed with the Bankruptcy Court and (i) the liquidated and noncontingent amount of which is Scheduled other than at zero, in an unknown amount, or as disputed and (ii) no objection to its allowance has been filed, or is intended to be filed by the Debtors or Reorganized Eagle Foods, within the periods of limitation fixed by this Plan, the Bankruptcy Code or by any order of the Bankruptcy Court, or
(c) as to which a proof of claim has been timely filed with the Bankruptcy Court pursuant to the Bankruptcy Code, any Final Order of the Bankruptcy Court or other applicable bankruptcy law but only to the extent that such claim is identified in such proof of claim in a liquidated and noncontingent amount, and either (i) no objection to its allowance has been filed, or is intended to be filed, within the periods of limitation fixed by this Plan, the Bankruptcy Code or by any order of the Bankruptcy Court or (ii) any objection to its allowance has been settled or withdrawn, or has been denied by a Final Order, or
(d) that is expressly allowed in a liquidated amount in this Plan.
1.9 “Amended Charter and By-Laws” means the amended charter and by-laws of Reorganized Eagle Foods in substantially the form attached to this Plan as Exhibits A and B.
1.10 “Avoidance Actions” means Causes of Action arising under sections 502, 510, 541, 542, 544, 545, 547 through 551 or 553 of the Bankruptcy Code, or under similar or related state or federal statutes and common law, including fraudulent transfer laws, whether or not litigation is commenced to prosecute such Causes of Action and whether or not such Avoidance Action is listed on Plan Schedule1.20 attached hereto.
1.11 “Ballot” means each of the ballot form or forms distributed to each Holder of an Impaired Claim, on which the Holder is to indicate acceptance or rejection of this Plan.
1.12 “Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as amended and codified in title 11 of the United States Code, 11 U.S.C. § 101-1330.
1.13 “Bankruptcy Court” means the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division, or any other court with jurisdiction over the Chapter 11 Cases,
1.14 “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure and the local rules of the Bankruptcy Court, as now in effect or hereafter amended.
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1.15 “Bar Date” means the deadline for filing proofs of claim established by Bankruptcy Court as September 8, 2003, pursuant to the Bar Date Order and any supplemental bar dates established by the Bankruptcy Court pursuant to the Bar Date Order or other Final Order.
1.16 “Bar Date Order” means the order entered by the Bankruptcy Court on June 27, 2003, which established the Bar Date.
1.17 “Business Day” means any day, other than a Saturday, Sunday or “legal holiday” (as defined in Bankruptcy Rule 9006(a)). thereof.
1.18 “Cash” means legal tender of the United States of America and equivalents
1.19 “Cash Reserve” means the cash reserved, as determined by the Debtors or Reorganized Eagle Foods, after consultation with the Creditors’ Committee, for the funding of the Administrative Claims Reserve and the Operating Reserve.
1.20 “Causes of Action” means any and all actions, causes of action, suits, accounts, controversies, agreements, promises, rights to legal remedies, rights to equitable remedies, rights to payment and claims, whether known, unknown, reduced to judgment, not reduced to judgments liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured and whether asserted or assertable directly or derivatively, in law, equity or otherwise, including the Avoidance Actions, and whether or not such Causes of Action is listed on Plan Schedule 1.20 attached hereto.
1.21 “Chapter 11 Cases” means (a) when used with reference to a particular Debtor, the chapter 11 case pending for that Debtor in the Bankruptcy Court and (b) when used with reference to all Debtors, the chapter 11 cases pending for the Debtors in the Bankruptcy Court.
1.22 “Chief Wind Down Officer” means the Person designated by the Debtors on or prior to the Exhibit Filing Date, or any successor thereto appointed by the board of directors of Reorganized Eagle Foods, who shall be the sole officer of Reorganized Eagle Foods and shall be charged with the duty to administer this Plan in accordance with its terms and to take such other actions as may be authorized under the Plan and Confirmation Order, Code.
1.23 “Claim” means a “claim,” as defined in section 101(5) of the Bankruptcy
1.24 “Claims Objection Deadline” means as applicable (except for Administrative Claims) (a) the day that is the later of (i) the first Business Day that is one hundred eighty (180) days after the Effective Date, and (ii) as to proofs of claim filed after the Bar Date, the first Business Day that is one hundred eighty (180) days after a Final Order is entered deeming the late filed claim to
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be treated as timely filed, or (b) such later date as may be established by the Bankruptcy Court as may be requested by Reorganized Eagle Foods.
1.25 “Class” means a category of Holders of Claims or Interests, as described in Articles II and III of this Plan.
1.26 “Collateral” means any property or interest in property of the Debtors’ Estates that is subject to a valid, enforceable and unavoidable lien to secure a Claim.
1.27 “Confirmation Date” means the date on which the Clerk of the Bankruptcy Court enters the Confirmation Order on the docket of the Bankruptcy Court.
1.28 “Confirmation Hearing” means the healing held by the Bankruptcy Court pursuant to section 1128 of the Bankruptcy Code to consider confirmation of this Plan, as such hearing may be adjourned or continued from time to time.
1.29 “Confirmation Order” means the order of the Bankruptcy Court confirming this Plan pursuant to section 1129 of the Bankruptcy Code.
1.30 “Creditors’ Committee” means the statutory committee of unsecured creditors appointed in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code, as reconstituted from time to time.
1.31 “Cure” means the distribution within a reasonable period of time following the Effective Date of Cash, or such other property as maybe agreed upon by the parties or ordered by the Bankruptcy Court, with respect to the assumption or assumption and assignment of an executory contract or unexpired lease, pursuant to section 365(b) of the Bankruptcy Code, in an amount equal to all unpaid monetary obligations, without interest, or such other amount as may be agreed upon by the parties under such executory contract or unexpired lease, to the extent such obligations are enforceable under the Bankruptcy Code and applicable bankruptcy law,
1.32 “Debtor(s)” means, individually, Eagle Foods or any of the Affiliate Debtors and, collectively, all of the above-captioned debtors and debtors in possession,
1.33 “DIP Credit Agreement” means that certain Postpetition Credit Agreement approved by the Bankruptcy Court pursuant to the DIP Facility Order, which agreement is among Eagle Foods, as borrower, the Affiliate Debtors, as guarantors, and the DIP Lender, as such agreement may have been amended, supplemented or modified from time to time.
1.34 “DIP Facility” means the £40 million debtor-in-possession secured financing facility provided to the Debtors by the DIP Lenders pursuant to the DIP Credit Agreement as authorized by the DIP Facility Order,
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1.35 “DIP Facility Claim” means all Administrative Claims of the DIP Agent and the DIP Lender arising under the DIP Facility or the DIP Facility Order.
1.36 “DIP Facility Order” means the final order that was entered by the Bankruptcy Court on May 20, 2003, authorizing and approving the DIP Facility, the DIP Credit Agreement and related agreements thereto,
1.37 “DIP Lender” means the entity identified as the “Lender” in the DIP Credit Agreement and its respective successors and assigns.
1.38 “Disallowed Claim” means a Claim, or any portion thereof, that (a) has been disallowed by either a Final Order or pursuant to a settlement, or (b)(i) is Scheduled at zero or as contingent, disputed or unliquidated and (ii) as to which a Bar Date has been established but no proof of claim has been filed or deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or otherwise deemed timely filed under applicable law.
1.39 “Disbursing Agent” means Reorganized Eagle Foods or any party designated by Reorganized Eagle Foods to serve as disbursing agent under this Plan.
1.40 “Disclosure Statement” means the written disclosure statement (including all schedules thereto or referenced therein) that relates to this Plan, as approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code, as the same may he amended, modified or supplemented.
1.41 “Disclosure Statement Hearing” means the hearing before the Bankruptcy Court held to consider the adequacy of the Disclosure Statement as such hearing may be adjourned or continued from time to time.
1.42 “Disputed Claim” means a Claim, or any portion thereof, that is neither an Allowed Claim nor a Disallowed Claim, and includes, without limitation, Claims that (a) have not been Scheduled by the Debtors or have been Scheduled at zero, or as contingent, unliquidated or disputed or (b) are the subject of an objection filed in the Bankruptcy Court and which objection has not been withdrawn or overruled by a Final Order of the Bankruptcy Court.
1.43 “Disputed Claims Reserve” means one or more reserves of Cash established and maintained by Reorganized Eagle Foods for Holders of Classes 3 and 4 Claims on account of Disputed Class 3 and 4 Claims.
1.44 “Eagle Foods” means Eagle Food Centers, Inc., a Delaware corporation.
1.45 “Effective Date” means the Business Day this Plan becomes effective as provided in Section 12.2 of this Plan.
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1.46 “Estate(s)” means, individually, the estate of Eagle Foods or any of the Affiliate Debtors and, collectively, the estates of all of the Debtors created under section 541 of the Bankruptcy Code,
1.47 “Exhibit” means an exhibit annexed to either this Plan or as an appendix to the Disclosure Statement,
1.48 “Exhibit Filing Date” means the date by which all Exhibits and Plan Schedules shall be filed with the Bankruptcy Court, which date shall be at least seven (7) days prior to the deadline for filing objections to confirmation of this Plan
1.49 “Existing Securities” means, collectively, the Prepetition Notes and Old Equity, including any such securities that have been authorized but not issued.
1.50 “Face Amount” means (a) when used in reference to a Disputed Claim or
Disallowed Claim, the full stated amount of the Claim claimed by the Holder in any proof of claim timely filed with the Bankruptcy Court or otherwise deemed timely filed by any Final Order of the Bankruptcy Court or other applicable bankruptcy law, and (b) when used in reference to an Allowed Claim, the allowed amount of such Claim.
1.51 “File, Filed or Filing” means file, filed or filing with the Bankruptcy Court or its authorized designee in the Chapter 11 Cases.
1.52 “Final Order” means an order or judgment, the operation or effect of which has not been stayed, reversed or amended and as to which order or judgment (or any revision, modification or amendment thereof) the time to appeal or seek review or rehearing has expired and as to which no appeal or petition for review or rehearing was filed or, if filed, remains pending,
1.53 “General Unsecured Claim” means a Claim that is not an Administrative Claim, Priority Tax Claim, Non-Tax Priority Claim, Secured Claim, General Unsecured Convenience Claim or Intercompany Claim.
1.54 “General Unsecured Convenience Claim” means a Claim other than a Claim asserted on account of the Prepetition Notes, (i) equal to or less than $5,000 for which the Holder thereof has not made an irrevocable written election to opt out of the classification of Class 4 on a validly executed and timely delivered ballot which election would have caused such Holder to instead be deemed a Holder of a Class 3 General Unsecured Claim for all purposes (including voting and distribution) or (ii) in excess of $5,000 for which the Holder thereof has made an irrevocable written election to opt into the classification of Class 4 on a validly executed and timely delivered ballot which election would have reduced such Claim to $5,000 and have caused such Holder to instead be deemed a Holder of a Class 4 General Unsecured Convenience Claim for all purposes (including voting and distribution).
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1.55 “Holder” means an entity holding a Claim or Interest and, with respect to the Existing Securities, the beneficial holder as of the Voting Record Date or Record Date, as appropriate, or any authorized agent who has completed and executed a Ballot or on whose behalf a Master Ballot has been completed and executed in accordance with the voting instructions.
1.56 “Impaired” means, when used in reference to a Claim or Interest, a Claim or Interest that is impaired within the meaning of section 1124 of the Bankruptcy Code,
1.57 “Indemnification Rights” means any obligations or rights of any of the Debtors to indemnify or contribute to the losses, liabilities or expenses of an Indemnitee pursuant to such Debtor’s charter, by-laws or policy of providing employee indemnification, or applicable state law or specific agreement in respect of any claims, demands, suits, causes of action or proceedings against an Indemnitee based upon any act or omission related to an Indemnitee’s service with, for or on behalf of such Debtor.
1.58 “Indemnitee” means all present and former directors, officers, employees, agents or representatives of a Debtor who are entitled to assert Indemnification Rights.
1.59 “Initial Distribution” means the distribution occurring on the Initial Distribution Date.
1.60 “Initial Distribution Date” means the date occurring as soon as possible after the Administrative Claims Bar Date as determined by Reorganized Eagle Foods upon which distributions are made with respect to Allowed Claims in Classes 3 and 4,
1.61 “Intercompany Claim” means (a) any account reflecting intercom any book entries by one (1) Debtor with respect to any other Debtor or (b) any Claim that is not reflected in such book entries and is held by a Debtor against any other Debtor.
1.62 “Interest” means the legal, equitable, contractual and other rights of the Holders of Old Equity,
1.63 “IRC” means the Internal Revenue Code of 1986, as amended.
1.64 “IRS” means Internal Revenue Service of the United States of America.
1.65 “Lien” means a charge against or interest in property to secure payment of a debt or performance of an obligation,
1.66 “Litigation Claims” means the Causes of Action, claims, rights of action, suits, or proceedings for which the applicable statute of limitations has not expired, whether in law or in equity, whether known or unknown, that any or all of the Debtors or their Estates may hold against any Person, including, without limitation, the Avoidance Actions.
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1.67 “Master Ballot” means the ballot distributed to nominees or Holders of record of the Prepetition Notes to record the votes, if any, of the beneficial Holders of such instruments.
1.68 “Net Available Cash” means the net cash of Reorganized Eagle Foods available after funding the Cash Reserve,
1.69 “Net Proceeds” means all proceeds from the sale or other disposition of an asset minus all reasonable out-of-pocket direct costs, fees and expenses incurred in connection with such sale or other disposition, provisions for any sales or other tax due and owing as a consequence of such sale or other disposition, and other customary prorations in connection with such sale or other disposition,
1.70 “Non-Tax Priority Claim” means a Claim, other than an Administrative Claim or Priority Tax Claim, that is entitled to priority in payment pursuant to section 507(a) of the Bankruptcy Code.
1.71 “Old Equity” means, collectively, the common stock, preferred stock or other equity interest of Eagle Foods and the Affiliate Debtors outstanding immediately prior to the Petition Date, including treasury stock and all options, warrants, calls, rights, puts, awards, commitments or any other agreements of any character to acquire such common stock, preferred stock or other equity interest.
1.72 “Operating Reserve” means the cash reserved to fund the administration and liquidation of the Debtors and Reorganized Eagle Foods and includes, among other things, the fees and expenses of Reorganized Eagle Foods and the Professionals,
1.73 “Person” means an individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, limited liability partnership, trust, estate, unincorporated organization or other entity,
1.74 “Petition Date” means April 7, 2003, with respect to Eagle Foods and its Affiliate Debtors.
1.75 “Plan” means this joint chapter 11 plan for the Debtors as herein proposed, including all supplements, appendices and schedules thereto, either in its present form or as the same may be further altered, amended or modified from time to lime in accordance with the Bankruptcy Code.
1.76 “Plan Schedules” means a schedule annexed to either this Plan or as an appendix to the Disclosure Statement.
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1.77 “Prepetition Credit Agreement” means that certain secured, $50 million credit facility dated August 24, 2001, by and between Eagle Foods and Prepetition Lender.
1.78 “Prepetition Indenture” means that certain Indenture dated as of August 7, 2000 (and any supplements thereto), between Eagle Foods and U.S. Bank Trust National Association, as trustee, governing the terms and conditions of the Prepetition Notes.
1.79 “Prepetition Indenture Trustee” means U.S. Bank Trust National Association, and any predecessor or successor trustee, as trustee pursuant to the terms of the Prepetition Notes Indenture
1.80 “Prepetition Lender” means Congress Financial Corporation (Central).
1.81 “Prepetition Noteholders” means the Holders of the Prepetition Notes.
1.82 “Prepetition Notes” means the 11% Senior Notes due April 15, 2005, dated as of August 7, 2000, as amended, between Eagle Foods and the Prepetition Indenture Trustee.
1.83 “Prepetition Notes Claims” means the Claims of the Prepetition Indenture Trustee (and those claiming through it pursuant to any applicable notes or otherwise) pursuant to the Prepetition Indenture.
1.84 “Priority Tax Claim” means a Claim of a governmental unit of the kind specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.85 “Pro Rata” means, with respect to a distribution regarding a particular Class, the proportion that (a) the Face Amount of a Claim in a particular Class bears to (b) the aggregate Face Amount of all Claims in such Class, unless this Plan provides otherwise.
1.86 “Professional” means (a) any professional employed in the Chapter 11 Cases pursuant to section 327 or 1103 of the Bankruptcy Code or otherwise and (b) any professional or other entity seeking compensation or reimbursement of expenses in connection with the Chapter 11 Cases pursuant to section 503(b)(4) of the Bankruptcy Code and supported by both the (i) Debtors or Reorganized Eagle Foods and (ii) Creditors’ Committee.
1.87 “Professional Fee Claim” means an Administrative Claim under section 330(a), 331, 503 or 1103 of the Bankruptcy Code for compensation of a Professional or other entity for services rendered or expenses incurred in the Chapter 11 Cases on or prior to the Effective Date (including expenses of the members of the Creditors’ Committee incurred as members of the Creditors’ Committee in discharge of their duties as such).
1.88 “Professional Fee Escrow” means an escrow account, authorized by the Bankruptcy Court pursuant to the Order Pursuant to 11 U.S.C. § 105, 363 and 364 Authorizing
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Debtors to Terminate Their Postpetition Credit Agreement and Granting Related Relief, in the amount of $2 million, which funds shall be held in escrow to secure payment of fees and expenses of the Professionals.
1.89 “Professional Fee Order” means the order under 11 U.S.C. § 1 OS(a) and 331 Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals, dated April 7, 2003,
1.90 “Reclamation Claims” means Claims for reclamation Allowed in accordance with section 546(c)(2) of the Bankruptcy Code and the Order Providing for Administrative Expense Treatment for Certain Holders of Valid Reclamation Claims and Prohibiting Third Parties from Interfering with the Debtors’ Delivery of Goods, entered by the Bankruptcy Court on April 25, 2003, as the same may have been or may hereafter be amended or modified, which Claims shall not include interest on any portion thereof,
1.91 “Record Date” means the record date for purposes of making distributions under the Plan on account of Allowed Claims, which date shall be the Confirmation Date.
1.92 “Released Party” means, collectively, pursuant to section 1123(b)(3) of the Bankruptcy Code, effective as of the Effective Date: (i) all officers of each of the Debtors, all directors of each of the Debtors, and all employees of each of the Debtors serving as such as of the Petition Date, (ii) the Creditors’ Committee and all members of the Creditors’ Committee in their representative capacity, (iii) the Professionals, (i v) the Prepetition Indenture Trustee, and (v) the DIP Lender.
1.93 “Reorganized Eagle Foods” means Eagle Food Centers, Inc., a Delaware corporation, as reorganized pursuant to this Plan on or after the Effective Date.
1.94 “Scheduled” means, with respect to any Claim, the status and amount, if any, of such Claim as set forth in the Schedules.
1.95 “Schedules” means the schedules of assets and liabilities and the statements of financial affairs Filed by the Debtors on June 6, 2003, as such schedules have been or may be farther modified, amended or supplemented in accordance with F.R.Bankr.P. 1009 or Orders of the Bankruptcy Court.
1.96 “Secured Claim” means a Claim that is secured by a Lien on property in which an Estate has an interest or that is subject to sctoff under section 553 of the Bankruptcy Code, to the extent of the value of the Claim Holder’s interest in the Estate’s interest in such property or to the extent of the amount subject to setoff, as applicable, as determined pursuant to section 506(a) of the Bankruptcy Code.
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1.97 “Solicitation Order” means the order entered by the Bankruptcy Court establishing procedures with respect to the solicitation and tabulation of votes to accept or reject this Plan.
1.98 “Subordinated Claims” means any Claim subordinated pursuant to section 510 of the Bankruptcy Code, or otherwise.
1.99 “Subsequent Distribution” means any distribution after the Initial Distribution,
1.100 “Subsequent Distribution Date” means the date upon which Reorganized Eagle Foods determines, in accordance with this Plan, to conduct a Subsequent Distribution,
1.101 “Substantive Consolidation Order” means the order, which may be the Confirmation Order, substantively consolidating the Chapter 11 Cases and the Estates, as provided inArticle VII of this Plan.
1.102 “Supplemental Distribution Account” means, collectively, (a) the Cash remaining in the applicable Disputed Claim Reserve, if any, to the extent that a Disputed Claim is Disallowed or is Allowed in an amount less than the amount reserved for such Disputed Claim, (b) the portion of the Net Proceeds from any and all sales or other dispositions of Reorganized Eagle Foods’ non-Cash assets occurring subsequent to the Initial Distribution Date that Reorganized Eagle Foods determines to constitute Net Available Cash (with the remaining portion of the Net Proceeds being deposited into the Cash Reserves by Reorganized Eagle Foods), and (c) any remaining Cash Reserves after all obligations for which such reserves were established are satisfied and the Chapter 11 Cases are closed.
1.103 “Talon” means Talon Insurance Company, Inc., Eagle Foods’ captive insurance company, a Vermont corporation, which is not a debtor in these cases.
1.104 “Unimpaired Claim” means a Claim that is not impaired within the meaning of section 1124 of the Bankruptcy Code.
1.105 “Unsecured Claim” means collectively the Prepetition Notes Claims, General Unsecured Claims and General Unsecured Convenience Claims.
1.106 “Voluntary Petition” means the voluntary petitions for reorganization relief under chapter 11 of the Bankruptcy Code filed by Eagle Foods and the Affiliate Debtors on April 7, 2003, in the Bankruptcy Court.
1.107 “Voting Deadline” means March 15, 2004 at 4:00 p.m. (Prevailing Central Time), as the last day and time for submitting Ballots to accept or reject this Plan in accordance with section 1126 of the Bankruptcy Code as specified in the Solicitation Order,
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1.108 “Voting Record Date” means the date and time established by the Bankruptcy Court in the Solicitation Order for determining those Holders of Claims against the Debtors entitled to vote on the Plan.
B. Rules of Interpretation.
For purposes of this Plan, unless otherwise provided herein: (a) whenever it appears appropriate for the context, each term stated in the singular or the plural includes the singular and the plural, and each pronoun stated in the masculine, feminine or neuter includes the masculine, feminine and neuter; (b) unless otherwise provided in this Plan, any reference in this Plan to a contract, instrument, release or other agreement or document being in a particular form or on particular terms and conditions means that such document will be substantially in such form or substantially on such terms and conditions; (c) any reference in this Plan to an existing document or schedule filed or to be filed means such document or schedule, as it may have been or may be amended, modified or supplemented pursuant to this Plan; (d) any reference to an entity as a Holder of a Claim or Interest includes that entity’s successors and assigns; (e) all references in this Plan to Sections, Articles and Plan Schedules are references to Sections, Articles and Plan Schedules of or to this Plan; (f) the words “herein,” “hereunder” and “hereto” refer to this Plan in its entirety rather than to a particular portion of this Plan; (g) 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 Plan; (h) subject to the provisions of any contract, Certificates of Incorporation, By-Jaws, instrument, release or other agreement or document entered into in connection with this Plan, the rights and obligations arising under this Plan shall be governed by, and construed and enforced in accordance with, federal law, including the Bankruptcy Code and Bankruptcy Rules; and (i) the rules of construction set forth in section 102 of the Bankruptcy Code will apply.
C. Computation of Time.
In computing any period of time prescribed or allowed by this Plan, unless otherwise expressly provided for, the provisions of Bankruptcy Rule 9006(a) shall apply.
D. Exhibits and Flan Schedules.
All Exhibits and Plan Schedules are incorporated into and are a part of this Plan as if set forth in full herein and, to the extent not annexed hereto, such Exhibits and Plan Schedules shall be filed with the Bankruptcy Court on or before the Exhibit Filing Date.
ARTICLE II ADMINISTRATIVE EXPENSES AND PRIORITY TAX CLAIMS 2.1 Administrative Claims. Subject to the provisions of Article XI of this Plan, on, or as soon as reasonably practicable after, the later of (a) the Effective Date, or (b) the date on which an Administrative Claim becomes an Allowed Administrative Claim, each Holder of an
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Allowed Administrative Claim shall receive, in full satisfaction, settlement, release and discharge of, and in exchange for, such Allowed Administrative Claim, (i) Cash equal to the unpaid portion of such Allowed Administrative Claim or (ii) such other less favorable treatment to the Holders of an Allowed Administrative Claim as to which the Debtors or Reorganized Eagle Foods and the Holder of such Allowed Administrative Claim shall have agreed upon in writing: provided,however, that Allowed Administrative Claims against a Debtor with respect to liabilities incurred in the ordinary course of business during the Chapter 11 Cases may be paid in the ordinary course of business in accordance with the terms and conditions of any agreements relating thereto at the discretion of the Debtors or Reorganized Eagle Foods.
2.2 Priority Tax Claims. On, or as soon as reasonably practicable after, the later of (a) the Effective Date, or (b) the date on which a Priority Tax Claim becomes an Allowed Priority Tax Claim, each Holder of an Allowed Priority Tax Claim against a Debtor shall receive in full satisfaction, settlement, release and discharge of, and in exchange for, such Allowed Priority Tax Claim, (i) Cash equal to the amount of such Allowed Priority Tax Claim, or (ii) such other less favorable treatment to the Holders of an Allowed Priority Tax Claim as to which the Debtors or Reorganized Eagle Foods and the Holder of such Allowed Priority Tax Claims shall have agreed upon in writing;provided, however, that any Priority Tax Claim that is not an Allowed Claim, including any Allowed Priority Tax Claim not due and owing on the Effective Date, will be paid in accordance with this section when such Claim becomes Allowed and due and owing;further, provided, however, that any Claim or demand for payment of a penalty (other than a penalty of the type specified in section 507(a)(8)(G) of the Bankruptcy Code) shall be disallowed pursuant to the Plan, and the Holder of an Allowed Priority Tax Claim shall not be allowed to assess or attempt to collect such penalty from the Debtors or their Estates, Reorganized Eagle Foods or their property.
ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS
Pursuant to section 1122 of the Bankruptcy Code, set forth below is a designation of classes of Claims against and Interests in each of the Debtors. All Claims and Interests, except Administrative Claims and Priority Tax Claims, are placed in the Classes set forth below. In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority Tax Claims have not been classified and their treatment is set forth in Article II above.
This Plan constitutes a single plan for all Debtors. A Claim or Interest is placed in a particular Class only to the extent that the Claim or Interest falls within the description of that Class, and is classified in other Classes to the extent that any portion of the Claim or Interest falls within the description of such other Classes. A Claim is also placed in a particular Class for the purpose of voting on, and receiving distributions pursuant to, this Plan only to the extent that such Claim is an Allowed Claim in that Class and such Claim has not been paid, released or otherwise settled prior to the Effective Date.
3.1 Classification of Claims Against and Interests in theDebtors.
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(a) Class 1: Class 1 consists of all Secured Claims that may exist against the Debtors.
(b) Class 2: Class 2 consists of all Non-Tax Priority Claims.
(c) Class 3: Class 3 consists of all General Unsecured Claims and Prepetition Notes Claims,
(d) Class 4: Class 4 consists of all General Unsecured Convenience Claims.
(e) Class 5: Class 5 consists of all Old Equity Interests and any Subordinated Claims.
ARTICLE IV IDENTIFICATION OF CLASSES OF CLAIMS AND INTERESTS IMPAIRED AND NOT IMPAIRED BY THE PLAN 4.1 Unimpaired Classes of Claims. The Classes listed below are Unimpaired by this Plan:
Class 1 (Secured Claims) Class 2 (Non-Tax Priority Claims)
4.2 Impaired Classes of Claims and Interests. The Classes listed below are Impaired by this Plan:
Class 3 (General Unsecured Claims and Prepetition Notes Claims) Class 4 (General Unsecured Convenience Claims) Class 5 (Old Equity Interests and Subordinated Claims)
ARTICLE V PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS 5.1 Unimpaired Classes of Claims Against the Debtors.
(a) Class 1 (Secured Claims). The legal, equitable and contractual rights of the Holders of Allowed Class 1 Claims against the Debtors, if any, are unaltered by this Plan. On, or as soon as reasonably practicable after, the later of (i) the Effective Date, or (ii) the date on which such Class 1 Claim becomes an Allowed Class 1 Claim, each Holder of an Allowed Class 1 Claim
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shall receive, in full satisfaction, settlement, release and discharge of, and in exchange for, such Allowed Class 1 Claim, at the election of the Debtors or Reorganized Eagle Foods, (x) Cash equal to the amount of such Allowed Class 1 Claim or (y) such other less favorable treatment that will not impair the Holder of such Allowed Class 1 Claim pursuant to section 1124 of the Bankruptcy Code; provided,however, that any Class 1 Claim not due and owing on the Effective Date will be paid in accordance with this section if and when such Claim becomes Allowed and is due and owing. Any default with respect to any Allowed Class 1 Claim that existed immediately prior to the Petition Date will be deemed cured on the Effective Date.
(b) Class 2 (Non-Tax Priority Claims). The legal and equitable rights of the Holders of Class 2 Claims against, the Debtors are unaltered by this Plan. On, or as soon as reasonably practicable after, the later of (i) the Effective Date, or (ii) the date on which such Class 2 Claim becomes an Allowed Class 2 Claim, each Holder of an Allowed Class 2 Claim shall receive, in full satisfaction, settlement, release and discharge of, and in exchange for, such Allowed Class 2 Claim, at the election of the Debtors or Reorganized Eagle Foods, (x) Cash equal to the amount of such Allowed Class 2 Claim or (y) such other less favorable treatment that will not impair the Holder of such Allowed Class 2 Claim pursuant to section 1124 of the Bankruptcy Code;provided, however, that any Class 2 Claim not due and owing on the Effective Date will be paid in accordance with this section when such Claim becomes due and owing. Any default with respect to any Allowed Class 2 Claim that existed immediately prior to the Petition Date will be deemed cured on the Effective Date,
5.2 Impaired Classes of Claims Against and Interests in theDebtors.
(a) Class 3 (General Unsecured Claims and Prepetition NotesClaims). On the Initial Distribution Date, or as soon thereafter as is reasonably practicable, and on each Subsequent Distribution Date, the Disbursing Agent shall receive on behalf of each and every Holder of an Allowed Class 3 Claim against the Debtors, in full satisfaction, settlement, release and discharge of, and in exchange for, each and every Class 3 Claim against the Debtors, the Net Available Cash, and Cash held in the Supplemental Distribution Account as to Subsequent Distributions, which the Disbursing Agent will distribute Pro Rata to or for the benefit of Holders of Allowed Class 3 Claims. Holders of General Unsecured Claims equal to or in excess of $5,000 (other than Holders of Prepetition Notes Claims) may make an irrevocable written election to opt-into the classification of Class 4 on a validly executed and timely delivered ballot which election will thereby cause the reduction of such Claim to $5,000 and cause such Holder to instead be deemed a Holder of a Class 4 General Unsecured Convenience Claim for all purposes (including voting and distribution, if such Claim is ultimately Allowed).
(b) Class 4 (General Unsecured Convenience Claims). On, or as soon as reasonably practicable after, the later of (i) the Initial Distribution Date, or (ii) the date on which a Class 4 Claim becomes an Allowed Class 4 Claim, each Holder of an Allowed Class 4 Claim against the Debtors shall receive, in full satisfaction, settlement, release and discharge of, and in exchange for, such Allowed Class 4 Claim, (x) Cash in an amount equal to 9.9% (the estimated mid-point recovery) of such Allowed Class 4 Claim if the amount of such Allowed Claim is less than
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or equal to $5,000, (y) $495 if the amount of such Allowed Claim is greater than $5,000 (i.e., 9.9% of $5,000) and the Holder of such Allowed Class 3 General Unsecured Claim elects to reduce such Allowed Claim to $5,000, or (z) the same treatment as is afforded to Holders of Allowed Class 3 Claims if the Holder of such General Unsecured Convenience Claim makes an irrevocable written election made on a validly executed and timely delivered ballot. If such election is made, the Holder of such General Unsecured Convenience Claim shall be deemed a Holder of a Class 3 Claim for all purposes (including voting and distribution). By remaining, or voting to be treated as, a Class 4 Claim, the Holder of such Class 4 Claim will forever waive and release any rights to a Subsequent Distribution under this Plan.
(c) Class 5 (Old Equity Interests and Subordinated Claims). On the Effective Date, the Old Equity will be cancelled and neither the Holders of Old Equity nor the Holders of Subordinated Claims shall receive or retain any distribution on account of such Old Equity Interests or Subordinated Claims.
5.3 Special Provision Regarding Unimpaired Claims. Except as otherwise provided in this Plan, nothing shall affect the Debtors’ or Reorganized Eagle Foods’ rights and defenses, both legal and equitable, with respect to any Unimpaired Claims, including, but not limited to, all rights with respect to legal and equitable defenses to setoffs or recoupments against Unimpaired Claims.
ARTICLE VI ACCEPTANCE OR REJECTION OF THE PLAN 6.1 Classes Entitled to Vote. Subject to Sections6.3 and 6.4 of this Plan, Claim Holders in Impaired Classes of Claims are entitled to vole as a class to accept or reject this Plan.
6.2 Acceptance by Impaired Classes In accordance with section 1126(c) of the Bankruptcy Code and except as provided in section 1126(e) of the Bankruptcy Code, an Impaired Class of Claims shall have accepted this Plan if this Plan is accepted by the Holders of at least two-thirds (2/3 in dollar amount and more than one-half (1/2) in number of the Allowed Claims of such Class that have timely and properly voted to accept or reject this Plan. In accordance with section 1126(d) of the Bankruptcy Code and except as provided in section 1126(e) of the Bankruptcy Code, an Impaired Class of Interests entitled to vote shall have accepted this Plan if this Plan is accepted by Holders of at least two-thirds (2/3) in amount of the Allowed Interests in such Class that have timely and properly voted to accept or reject this Plan.
6.3 Presumed Acceptances by Unimpaired Classes. Classes 1 and 2 are Unimpaired by this Plan. Under section 1I26(f) of the Bankruptcy Code, such Claim Holders are conclusively presumed to accept this Plan, and the votes of such Claim Holders will not be solicited.
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6.4 Classes Deemed to Reject Plan. Class 5 is not entitled to receive or retain any property under this Plan, Under section 1126(g) of the Bankruptcy Code, Holders of Claims and Interests in this Class are deemed to reject this Plan and their votes will not be solicited.
6.5 Summary of Classes Voting on the Plan. As a result of the provisions of Sections 6.1 6.3 and 6.4 of this Plan, the votes of Holders of Claims in Classes 3 and 4 will be solicited with respect to this Plan.
6.6 Confirmation Pursuant to Section 1129(b) of the BankruptcyCode. To the extent that any Impaired Class entitled to vote rejects this Plan or is deemed to have rejected this Plan, the Debtors will request confirmation of this Plan, as it may be modified from time to time, under section 1129(b) of the Bankruptcy Code-6.7 Cunfirmability and Severability of a Plan. Due to the fact that this Plan requests and contemplates the substantive consolidation of the Affiliate Debtors into Eagle Foods, the confirmation requirements of section 1129 of the Bankruptcy Code must be satisfied with respect to Eagle Foods only. The Debtors, after consultation with the Creditors’ Committee, reserve the right to alter, amend, modify, revoke or withdraw this Plan as it applies to Eagle Foods or any particular Debtor or any Exhibit or Plan Schedule. A determination by the Bankruptcy Court that this Plan is not confirmable pursuant to section 1129 of the Bankruptcy Code shall not limit or affect the Debtors’ ability to modify this Plan to satisfy the confirmation requirements of section 1129 of the Bankruptcy Code,
ARTICLE VII MEANS FOR IMPLEMENTATION OF THE PLAN 7.1 Substantive Consolidation. This Plan contemplates and is predicated upon entry of the Substantive Consolidation Order (which may be the Confirmation Order) which shall substantively consolidate the Debtors’ Estates and Chapter 11 Cases for the purposes of all actions associated with confirmation and consummation of this Plan. This Plan constitutes a request to approve such substantive consolidation such that on the Effective Date, (i) all Intercompany Claims by, between and among the Debtors shall be eliminated, (ii) all assets and liabilities of the Affiliate Debtors shall be merged or treated as if they were merged with the assets and liabilities of Eagle Foods, (iii) any obligation of a Debtor and all guarantees thereof by one (1) or more of the other Debtors shall be deemed to be one (1) obligation of Eagle Foods, (iv) the Affiliate Interests shall be cancelled, and (v) each Claim filed or to be filed against any Debtor shall be deemed filed only against Eagle Foods and shall be deemed a single Claim against and a single obligation of Eagle Foods. On the Effective Date, and in accordance with the terms of this Plan and the consolidation of the assets and liabilities of the Debtors, all Claims based upon guarantees of collection, payment or performance made by the Debtors as to the obligations of another Debtor shall be released and of no further force and effect. If the Substantive Consolidation Order is not the Confirmation Order, then such order shall only be entered if the Bankruptcy Court enters the Confirmation Order.
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7.2 Merger of Affiliate Debtors into Eagle Foods. On the Effective Date or as soon thereafter as practicable, (a) the members of the board of directors of each of the Affiliate Debtors shall be deemed to have resigned, (b) each of the Affiliate Debtors shall be merged with and into Eagle Foods and (c) the Chapter 11 Cases of the Affiliate Debtors shall be closed, following which any and all Causes of Action or other proceedings that were or could have been brought or otherwise commenced in the Chapter 11 Case of any Affiliate Debtor, whether or not actually brought or commenced and whether or not such Cause of Action or other proceeding is listed on Plan Schedule 7.2 or any other plan schedule attached hereto, may be continued, brought or otherwise commenced in Eagle Foods’ Chapter 11 Case.
7.3 Continued Corporate Existence; Amended and Restated Charterand By-laws; Dissolution of Reorganized Eagle Foods.
(a) Continued Corporate Existence and Amended and Restated Charterand By-laws. Eagle Foods shall continue to exist as Reorganized Eagle Foods after the Effective Date in accordance with the laws of the State of Delaware and pursuant to the Amended Charter and By-Laws to be filed with the Bankruptcy Court on or before the Exhibit Filing Date, The charter and by-laws of Eagle Foods shall be amended and restated as necessary to satisfy the provisions of this Plan and the Bankruptcy Code and shall be amended to, among Other things: (i) authorize three (3) shares of common stock, $0.01 par value per share, ownership of which shall. be restricted to directors of Reorganized Eagle Foods, one (1) share to be owned by each appointed director (ii) provide, pursuant to section 1123(a)(6) of the Bankruptcy Code, for a provision prohibiting the issuance of non voting equity securities, and (iii) limit the activities of Reorganized Eagle Foods to matters related to the implementation of this Plan. The proposed Amended Charter and By-laws of Reorganized Eagle Foods will be filed with the Bankruptcy Court on or prior to the Exhibit Filing Date. Any amendment or modification to the Amended Charter and By-laws following the Confirmation Date, to the extent such modification or amendment changes the fundamental purpose of the corporation, (x) must be approved either (A) to the extent there are still three directors sitting on the board of Reorganized Eagle Foods, through the unanimous written vote of all those directors of Reorganized Eagle Foods or (B) by authority granted by order of the Bankruptcy Court and (y) no shareholder vote shall be required in accordance with section 303 of General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code.
(b) Dissolution of Reorganized Eagle Foods. As soon as practicable after the Chief Wind Down Officer exhausts the assets of the Debtors’ Estates by making the final distribution of Cash under this Plan, (i) the Chief Wind Down Officer shall (A) effectuate the dissolution of Reorganized Eagle Foods without a vote of the shareholders of Reorganized Eagle Foods in accordance with section 303 of General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code, but subject to the approval of the board of directors of Reorganized Eagle Foods, and may file appropriate documentation with the State of Delaware in order to carry out such dissolution, including, without limitation, a certificate of dissolution and take all such other action in order to carry out such dissolution in accordance with section 275 of General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code, and (B) resign
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as the sole officer of Reorganized Eagle Foods and (ii) the directors shall resign from the board of directors of Reorganized Eagle Foods,
7.4 Directors and Officer; Effectuating Documents; FurtherTransactions.
(a) Directors. Upon the Effective Date, the three (3) directors of Reorganized Eagle Foods shall be (i) Robert J, Kelly; (ii) a Person to be appointed by the Creditors’ Committee, and reasonably acceptable to the Debtors, no later than the Exhibit Filing Date; and (iii) a. Person to be appointed by the Debtors, and reasonably acceptable to the Creditors’ Committee, no later than the Exhibit Filing Date. Each aforementioned director shall be issued one share of common stock of Reorganized Eagle Foods, transferable only to a current or successor director of Reorganized Eagle Foods, Compensation awarded to the directors of Reorganized Eagle Foods shall be (i) $7,500 per fiscal quarter and such payment shall he pro rated, as appropriate, for the time period between the Effective Date and the last day of the fiscal quarter in which the Effective Date occurs; (ii) $1,500 per in-person meeting; and (iii) $750 per telephonic meeting. On the second anniversary following the Effective Date, if appropriate, the directors of Reorganized Eagle Foods shall meet to vote on and implement a reduction of their compensation. All reasonable out-of-pocket expenses incurred by such directors in fulfilling their responsibilities as a member of the board, will be reimbursed by Reorganized Eagle Foods, In addition, the Prepetition Indenture Trustee shall have the revocable privilege to attend meetings of the Rcorganized Eagle Foods’ board of directors as an ex officio non-voting member for purposes of observing resolution of the Disputed Claims and the Litigation Claims, which privilege shall at all times be subject to the approval of the board of directors of Reorganized Eagle Foods in its sole discretion.
(b) Officer; Effectuating Documents; Further Transactions. From and after the Effective Date, the Chief Wind Down Officer shall serve as the sole officer of Reorganized Eagle Foods. The Chief Wind Down Officer shall be authorized to execute, deliver, file or record such documents, instruments, releases and other agreements and to take such actions as may be necessary or appropriate to effectuate and further evidence the terms and conditions of this Plan, including, without limitation, the dissolution of Reorganized Eagle Foods.
7.5 Appointment and Role of the Chief Wind Down Officer andResponsibility of Reorganized Eagle Foods.
(a) Appointment of Chief Wind Down Officer. Upon the Effective Date, the Reorganized Eagle Foods shall appoint the Chief Wind Down Officer, which Person shall be Randall D. McMurray or such other Person designated by the Debtors on or prior to the Exhibit Filing Date or by the board of directors of Eagle Foods following the Confirmation Date until the Effective Date. Following the Effective Date, the board of directors of Reorganized Eagle Foods shall have the right to replace the Chief Wind Down Officer with another party or agent, without need for further Bankruptcy Court approval and thereafter such successor Chief Wind Down Officer shall fulfill the role of Chief Wind Down Officer and administer this Plan.
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(b) Sole Officer of Reorganized Eagle Foods. The Chief Wind Down Officer shall he the sole officer of Reorganized Eagle Foods and shall be charged with the duty to administer this Plan in accordance with its terms and to take such other actions as may be authorized under the Plan and Confirmation Order, which actions shall be subject to the direction of the board of directors of Reorganized Eagle Foods.
(c) Rights, Powers and Duties of Reorganized Eagle Foods and theChief Wind Down Officer. Reorganized Eagle Foods shall retain and have all the rights, powers and duties necessary to carry out its responsibilities under this Plan, Such rights, powers and duties, which shall be exercisable by the Chief Wind Down Officer on behalf of Reorganized Eagle Foods pursuant to this Plan shall include, among others:
(i) investing Reorganized Eagle Foods’ Cash, including, but not limited to, the. Cash held in the Cash Reserves in (1) direct obligations of the United States of America or obligations of any agency or instrumentality thereof which are guaranteed by the full faith and credit of the United States of America; (2) money market deposit accounts, checking accounts, savings accounts or certificates of deposit, or other time deposit accounts that are issued by a commercial bank or savings institution organized under the laws of the United States of America or any state thereof; or (C) any other investments that may be permissible under (1) section 345 of the Bankruptcy Code or (II) any order of the Bankruptcy Court entered in the Debtors’ Chapter 11 cases;
(ii) calculating and paying, or causing to be paid, all distributions to be made under this Plan and other orders of the Bankruptcy Court to Holders of Allowed Administrative Claims and Allowed Claims as provided in this Plan;
(iii) calculating and paying all fees payable pursuant to section 1930 of title 28, United States Code;
(iv) objecting to Claims or Interests filed against any of the Debtors’ Estates on any basis;
(v) selling or otherwise disposing of any remaining non-Cash assets of the Debtors or Reorganized Eagle Foods and thereafter determining in accordance with this Plan what portion of the Net Proceeds from any and all such sales occurring subsequent to the Initial Distribution Date constitutes Net Available Cash and depositing such Net Available Cash into the Supplemental Distribution Account (with the remaining portion of the Net Proceeds being deposited into the Cash Reserves by Reorganized Eagle Foods);
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(vi) removing any and all Cash remaining in the applicable Disputed Claims Reserve to the extent that a Disputed Claim is Disallowed or is Allowed in an amount, less than the amount reserved for such Disputed Claim and depositing such Cash into the Supplemental Distribution Account;
(vii) funding the Cash Reserves and Supplemental Distribution Account;
(viii) determining in accordance with this Plan when to conduct a Subsequent Distribution based on the amount of Cash currently available in the Supplemental Distribution Account;
(ix) settling, allowing or otherwise disposing of any Claims filed against any of the Debtors’ Estates;
(x) seeking estimation of contingent or unliquidated claims under section 502(c) of the Bankruptcy Code or otherwise;
(xi) employing, supervising and compensating professionals retained to represent the interests of and serve on behalf of Reorganized Eagle Foods;
(xii) prosecuting, settling, dismissing or other wise disposing of the Litigation Claims, including the Avoidance Actions and Causes of Action;
(xiii) using, selling, assigning, transferring, abandoning or otherwise disposing of at a public or private sale any of the Debtors’ or Reorganized Eagle Foods’ remaining assets without further order of the Court for the purpose of liquidating and converting such assets to Cash;
(xiv) making and filing lax returns for any of the Debtors or Reorganized Eagle Foods, and responding to or taking any and all actions as are necessary and appropriate in order to comply with any tax audit;
(xv) seeking determination of tax liability under section 505 of the Bankruptcy Code;
(xvi) prosecuting turnover actions under sections 542 and 543 of the Bankruptcy Code;
(xvii) exercising all power and authority that may be exercised, and take all proceedings and acts that may be taken, by any officer or shareholder of Reorganized Eagle Foods;
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(xviii) exercising all powers and rights, and taking all actions, contemplated by or provided for in this Plan; and
(xix) taking any and all other actions necessary or appropriate to implement or consummate this Plan.
(d) Compensation Awarded to Chief Wind Down Officer.
(i) Compensation Generally. The Chief Wind Down Officer will be compensated from the Operating Reserve pursuant to the terms of the Plan. Any professionals retained or other employees hired by the Chief Wind Down Officer will be entitled to reasonable compensation for services rendered and reimbursement of expenses incurred from the Operating Reserve, The payment of the fees and expenses of the Chief Wind Down Officer and professionals retained by Reorganized Eagle Foods to assist the Chief Wind Down Officer will he made in the ordinary course of business and will not be subject to the approval of the Bankruptcy Court.
(ii) Randall D, McMurray as Chief Wind Down Officer. Unless otherwise announced prior to the Exhibit Filing Date, Mr. Randall D. McMurray shall he the Chief Wind Down Officer and in serving in such capacity, his annual compensation shall be consistent with past practices and he shall also (i) receive a $10,000 payment upon the Effective Date, (ii) receive a $10,000 quarterly stay bonus, to be paid on the last business day (or as soon as practicable thereafter) of Reorganized Eagle Foods’ fiscal quarter following the Effective Date and each fiscal quarter thereafter until such time as Rand all D. McMurray is no longer acting as Chief Wind Down Officer and (iii) participate in the Recovery Bonus Plan, as more fully set forth in Section 7.6 of this Plan below.
(iii) Third Party Agent as Chief Wind Down Officer. In the event a third-party agent is appointed as successor Chief Wind Down Officer by the board of directors of Reorganized Eagle Foods, and such third-party agent is already retained by Reorganized Eagle Foods in the capacity of a wind down advisor, such party shall be compensated in accordance with the terms of its retention or plan administration agreement, consistent with the terms of this Plan. In the event that a successor Chief Wind Down Officer is appointed that has no prior retention agreement, the terms of compensation will be subject to approval of the board of directors of Reorganized Eagle Foods and will be presented for Bankruptcy Court approval.
(e) indemnification. Reorganized Eagle Foods and the Estates shall, to the fullest extent permitted by the laws of the State of Delaware, indemnify and hold harmless its directors and the Chief Wind Down Officer and Reorganized Eagle Foods’ agents, representatives,
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professionals and employees (in their capacity as such) (collectively the “Indemnified Parties”) from and against and with respect to any and all liabilities, losses, damages, claims, costs and expenses, including, but not limited to, reasonable attorneys’ fees, arising out of or due to their actions or omissions, or consequences of such actions or omissions with respect to Reorganized Eagle Foods and the Estates or the implementation or administration of this Plan. To the extent Reorganized Eagle Foods and the Estates indemnify and hold harmless the indemnified Parties as provided above, the reasonable legal fees and related costs incurred by counsel to Chief Wind Down Officer and/or the directors of Reorganized Eagle Foods in monitoring and participating in the defense of such claims giving rise to the right of indemnification shall be paid out of the Operating Reserve. The indemnification provisions of this Plan shall remain available to and be binding upon any former Chief Wind Down Officer or the estate of any decedent Chief Wind Down Officer. In addition, the indemnification provisions of the charter and by-laws of Reorganized Eagle Foods shall remain available to and be binding upon any current and former director of Reorganized Eagle Foods or the estate of any decedent of such directors and shall survive the dissolution of Reorganized Eagle Foods.
(f) Insurance. Reorganized Eagle Foods shall be authorized to obtain all reasonably necessary insurance coverage for itself, its directors, its agents, representatives, and employees or independent contractors, including, but not limited to, coverage with respect to (i) any property that is or may in the future become the property of Reorganized Eagle Foods and (ii) the liabilities, duties and obligations of the directors of Reorganized Eagle Foods and their agents, representatives, employees, independent contractors and professionals under the Plan and the charters and by-laws of Reorganized Eagle Foods (in the form of an errors and omissions policy or otherwise), the latter of which insurance coverage may, at the sole option of Reorganized Eagle Foods, acting through its Chief Wind Down Officer, after consultation with the directors of Reorganized Eagle Foods, remain in effect for a reasonable period (not to exceed seven (7) years) after the dissolution of Reorganized Eagle Foods.
(g) Authority to Compromise and Settle Disputed Claims andAvoidance Actions.
(i) Disputed Claims.
(A) From and after the Effective Date, Reorganized Eagle Foods shall be authorized, with respect to those Claims or Interests which are not Allowed hereunder or by Court order, (I) to object to any Claims or Interests Filed against any of the Debtors’ Estates and (II) to compromise and settle Disputed Claims after the Effective Date, and such compromise or settlement shall not be subject to the further approval of the Bankruptcy Court, Except as modified herein, all such compromises and settlements, whenever occurring, shall be in accordance with the existing settlement parameters and service and notice procedures previously established by Final Order of the Bankruptcy Court (or such other subsequent broader settlement parameters and/or less restrictive service and notice procedures as maybe approved by the Bankruptcy Court after consultation with the Creditors’ Committee or the board of directors of Reorganized Eagle Foods.).
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(B) The existing claims settlement parameters and service and notice procedures established by Final Order of the Bankruptcy Court entered on January 29, 2004 (Docket No. 870), shall be modified such that except with respect to the settlement of a Disputed Claim of an insider (as defined in section 101(31) of the Bankruptcy Code), (1) written notice of any and all settlements, to the extent required, must only be provided to the board of directors of Reorganized Eagle Foods; and (II) notice shall only be required with respect to the settlement of (1) any administrative, priority or secured Disputed Claim where the discrepancy between the allowed amount and the Debtors’ books and records exceeds $75,000, and (2) any general unsecured Disputed Claim where the discrepancy between the allowed amount and the Debtors’ books and records exceeds $750,000, The settlement of any Disputed Claim of an insider shall require notice to the United States Trustee and the board of directors of Reorganized Eagle Foods. Except as modified herein, the remaining aspects of the existing Claims settlement parameters and service and notice procedures shall remain in full force and effect.
(ii) Avoidance Actions. In addition to Reorganized Eagle Foods’ authority to prosecute the Litigation Claims, including the Avoidance Actions and Causes of Action, as set forth in Section 7.5(c)(xii) hereof, Reorganized Eagle Foods shall be authorized to compromise and settle the Litigation Claims, including the Avoidance Actions and Causes of Action, after the Effective Date without further approval of the Bankruptcy Court.
(b) Periodic Reports. Reorganized Eagle Foods shall file written quarterly reports with the Bankruptcy Court regarding the claims resolution process, status of adversary proceedings and Avoidance Actions and Cash activity.
7.6 Employment, Indemnification and Other Agreements, and RecoveryBonus Plan Awarded to Management.
(a) Employment, Indemnification and Other Agreements, includingEmployee Compensation. The Debtors or Reorganized Eagle Foods are authorized to pay the Administrative Claims of employees who remain employed after the Effective Date which arise out of or relate to (i) their employment with the Debtors or Reorganized Eagle Foods in the ordinary course of business including, without limitation, the Recovery Bonus Plan (as defined below) or (ii) Continuing Indemnification Claims, in both cases without the requirement that such employees file an Administrative Claim by the Administrative Claim Bar Date, to the extent of Cash in the Cash Reserves. In addition, the board of directors of Reorganized Eagle Foods shall have the right to provide additional compensation to the employees of Reorganized Eagle Foods; providedthat material enhancements to an employee’s compensation shall require Bankruptcy Court approval,
(b) Recovery Bonus Plan Awarded to Management. The Recovery Bonus Plan shall provide those employees specified on Plan Schedule7.6 with additional compensation on account of achieving recovery rates near and in excess of the midpoint of the
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expected recovery range, i.e., the expected cumulative dividend distributed to Holders of Allowed General Unsecured Claims,provided that (unless otherwise stated in thisSection 7.6) such employees are employed by Reorganized Eagle Foods as of the Effective Date through the substantial completion of the Debtors’ wind down process, as determined by the board of directors of Reorganized Eagle Foods (the “Recovery Bonus Plan”). The participants in the Recovery Bonus Plan shall receive a target award opportunity based upon a percentage of annual base salary. The specific percentages and target awards for each employee are set forth on Plan Schedule7.6. In the event a participant to the Recovery Bonus Plan is terminated without cause or resigns prior to substantial completion of the Debtors’ wind down process, such participant shall still be eligible for the Recovery Bonus Plan, provided that such participant makes himself/herself reasonably available to cooperate with the Reorganized Debtors and to provide assistance with the resolution of Claims filed against the Debtor. In such event, the participant shall be paid an hourly rate consistent with such participant’s annual base salary, or such other amount as approved by the board of directors of Reorganized Eagle Foods, for their time in connection with the resolution of Claims, including any reasonable (ravel time involving intercity travel, but shall not include any intra-city travel, including, without limitations, travel from locations within the Quad City area and all reasonable out-of-pocket expenses suffered by such participant shall be reimbursed by Reorganized Eagle Foods.
7.7 Dissolution of Creditors’ Committee. The Creditors’ Committee shall continue in existence until the Effective Date to exercise those powers and perform those duties specified in section 1103
of the Bankruptcy Code and shall perform such other duties as it may have been assigned by the Bankruptcy Court prior to the Effective Date. On the Effective Date, the Creditors’ Committee shall be dissolved and its members shall be deemed released of all their duties, responsibilities and obligations in connection with the Chapter 11 Cases or this Plan and its implementation, and the retention or employment of the Creditors’ Committee’s attorneys, accountants, financial advisors, and other agents shall terminate. All expenses of Creditors’ Committee members and the fees and expenses of their professionals through the Effective Date shall be paid in accordance with the terms and conditions of the Professional Fee Order and the Plan,
7.8 Vesting of Assets. Except as otherwise provided herein, all property of the Debtors’ Estates shall remain property of, and be consolidated into, the Estate of Eagle Foods and continue to be subject to the jurisdiction of the Bankruptcy Court following confirmation of this Plan and shall not be vested in Reorganized Eagle Foods on or following the Confirmation Date or the Effective Date. From and after the Effective Date, all such property shall be distributed in accordance with the provisions of the Plan and the Confirmation Order. Reorganized Eagle Foods shall retain the equity interest in Talon, and to the extent such interest is monetized, either through a sale, transfer, conveyance, dividend or otherwise, Reorganized Foods shall deposit those funds into the Estate of Eagle Foods for distribution, unless otherwise ordered by the Bankruptcy Court,
7.9 Funding of Cash Reserves. On or before the Effective Date, the Debtors shall fund the Cash Reserve in such amounts as determined by the Debtors as necessary in order to be able to make the required future payments under the Administrative Claims Reserve and Operating Reserve.
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7.10 Funding of Supplemental Distribution Account.
(a) Resolution of Disputed Claims. Reorganized Eagle Foods shall remove any and all Cash remaining in the applicable Disputed Claims Reserve to the extent that a Disputed Claim is Disallowed or is Allowed in an amount less than the amount reserved for such Disputed Claim and deposit such Cash into the Supplemental Distribution Account.
(b) Disposition of Remaining Non-Cash Assets. Reorganized Eagle Foods may sell or otherwise dispose of any and all non-Cash assets in accordance with the provisions of this Plan. As soon as reasonably practicable thereafter, the Chief Wind Down Officer shall determine what portion of the Net Proceeds from any and all such sales occurring subsequent to the Initial Distribution Date constitute Net Available Cash and deposit such Net Available Cash into the Supplemental Distribution Account (with the remaining portion of the Net Proceeds being deposited into the Cash Reserves by Reorganized Eagle Foods) to be used and distributed in accordance with the provisions of this Plan and Confirmation Order,
7.11 Preservation of Rights of Action.
(a) Retention of Litigation Claims. Except as otherwise provided in this Plan, the Confirmation Order, or in any document, instrument, release or other agreement entered into in connection with this Plan, in accordance with section 1123(b) of the Bankruptcy Code, the Debtors and their Estates shall retain the Litigation Claims. Subject to the provisions of this Article VII. Reorganized Eagle Foods, as the successor in interest to the Debtors, may enforce, sue on, settle or compromise (or decline to do any of the foregoing) any or all of the Litigation Claims, including, without limitation, those Litigation Claims listed on Plan Schedule 1.20.
(b) Retention of Subsequent Actions on Litigation Claims. Except as is otherwise expressly provided herein or in the Confirmation Order, nothing in this Plan or the Confirmation Order shall preclude or estop Reorganized Eagle Foods or its privies, as successors in interest to the Debtors and their privies, from bringing a subsequent action in any court or adjudicative body of competent jurisdiction, to enforce any or all of its or their rights in connection with the Litigation Claims, irrespective of the identity of any interest, cause of action, or nexus of fact, issues, or events which is now or which could have been asserted in these Chapter 11 Cases, the present litigation, and those which may be asserted in any subsequent litigation brought by Reorganized Eagle Foods or its privies. Moreover, the failure to commence any Litigation Claim prior to the Confirmation Date shall not constitute res judicata, judicial or collateral estoppel.
7.12 Cancellation of Existing Securities. Except as otherwise provided in this Plan and in any contract, instrument or other agreement or document created in connection with this Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to Article IX of this Flan, the Existing Securities, promissory notes, share certificates (including treasury stock), other instruments evidencing any Claims or Interests, and all options, warrants, calls, rights, puts, awards, commitments or any other agreements of any character to acquire such Existing Securities shall be deemed canceled and of no further force and effect, without any further act or
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action under any applicable agreement, law, regulation, order or rule, and the obligations of the Debtors, and the Prepetition Indenture Trustee to its noteholders, under the Prepetition Notes and/or the Prepetition Indenture together with the obligations of the Debtors under any other notes, share certificates and other agreements and instruments governing such Claims and Interests shall be discharged. The Holders of or parties to such canceled notes, share certificates and other agreements and instruments shall have no rights arising from or relating to such notes, share certificates and other agreements and instruments or the cancellation thereof, except the rights provided pursuant to this Plan. Notwithstanding the foregoing, subject to the terms and provisions of this Plan, the Prepetition Indenture shall continue in effect solely for the purposes of (a) allowing the Prepetition Indenture Trustee, its agent or servicer to act as the Disbursing Agent for purposes of making the Initial Distribution and all Subsequent Distributions on account of the Prepetition Notes and (b) preserving the Prepetition Indenture Trustee’s right to payment, reimbursement and indemnification from the Holders of the Prepetition Notes for all services rendered by it under the Prepetition Indenture, including the fees and expenses of its agents, and preserving any priority and lien rights for payment thereof.
7.13 Closing of Chapter 11 Cases. When all Disputed Claims filed against the Debtors have become Allowed Claims or have been disallowed by Final Order, and all remaining assets of Reorganized Eagle Foods have been liquidated and converted into Cash (other than those assets abandoned by Reorganized Eagle Foods), and such Cash has been distributed in accordance with this Plan, or at such earlier time as the Chief Wind Down Officer deems appropriate, the Chief Wind Down Officer shall seek authority from the Bankruptcy Court to close the Chapter 11 Cases in accordance with the Bankruptcy Code and the Bankruptcy Rules,
ARTICLE VIII TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 8.1 Generally. Except as otherwise provided in thisArticle VIII, pursuant to sections 365 and 1123(b) of the Bankruptcy Code, all prepetition executory contracts and unexpired leases that exist between the Debtors and any Person shall be deemed rejected by the Debtors effective as of the Effective Date or such other date as listed on Plan Schedule 8.1, subject to the occurrence of the Effective Date, except for executory contracts and unexpired leases which:
(a) have been assumed, assumed and assigned, or rejected as applicable, pursuant to an order of the Court entered prior to the Effective Date; or
(b) as of the Effective Date, are subject to a pending motion for approval of the assumption, assumption and assignment, or rejection, as applicable; or
(c) are otherwise being assumed or assumed and assigned as set forth in Plan Schedule 8.2. The listing of a document onPlan Schedule 8.2 shall not constitute an admission by the Debtors that such document is an executory contract or an unexpired lease or that the Debtors have any liability under such contract or lease.
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8.2 Approval of Assumption and Assignment or Rejection ofExecutory Contracts and Unexpired Leases. Subject to the Effective Date, entry of the Confirmation Order shall constitute, as of the Confirmation Date (or such other date listed on Plan Schedule8.1). the approval, pursuant to sections 365 and 1123(b) of the Bankruptcy Code, of the assumption, assumption and assignment, or rejection, as applicable, of the executory contracts and unexpired leases assumed, assumed and assigned, or rejected pursuant to thisArticle VIII.
Each executory contract and unexpired lease that is assumed and relates to the use, ability to acquire or occupancy of real property, if any, shall include (a) all modifications, amendments, supplements, restatements, assignments, subleases or other agreements made directly or indirectly by any agreement, instrument or other document that in any manner affect such executory contract or unexpired lease and (b) all executory contracts or unexpired leases appurtenant to the premises, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, powers, uses, reciprocal easement agreements and any other interests in real estate or rights in rem related to such premises, unless any of the foregoing agreements has been rejected pursuant to a Final Order of the Bankruptcy Court, or is otherwise rejected as a part of this Plan,
8.3 Cure of Defaults of Assumed Executory Contracts and UnexpiredLeases. Any monetary amounts by which each executory contract and unexpired lease to be assumed pursuant to the Plan is in default, if any, shall be satisfied, under section 365(b)(1) of the Bankruptcy Code, by Cure, with such Cure being provided by, at the option of the Debtor-party to such contract or lease, either (x) the Debtor-party to such contract or lease or (y) the assignee of such Debtor-party to whom such contract or lease is being assigned. If there is a dispute regarding (a) the nature or amount of any Cure, (b) the ability of Reorganized Eagle Foods or any assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the contract or lease to be assumed, or (c) any other matter pertaining to assumption, Cure shall occur following the entry of a Final Order resolving the dispute and approving the assumption or assumption and assignment, as the case maybe; provided that if there is a dispute as to the amount of Cure that cannot be resolved consensually among the parties, the Debtors or Reorganized Eagle Foods shall have the right to reject the contract or lease for a period of five (5) days after entry of a final order establishing a Cure amount in excess of that provided by the Debtors. The Confirmation Order, if applicable, shall contain provisions providing for notices of proposed assumptions and proposed cure amounts to be sent to applicable third panics and for procedures for objecting thereto (which shall provide not less than twenty (20) days’ notice of such procedures and any deadlines pursuant thereto) and resolution of disputes by the Bankruptcy Court. To the extent the Debtor who is party to the executory contract or unexpired lease is to be merged with Eagle Foods as part of the Substantive Consolidation Order, the nondebtor parties to such executory contract or unexpired lease shall, upon assumption as contemplated herein, be deemed to have consented to the assignment of such executory contract or unexpired lease to Eagle Foods that is the surviving entity after entry of the Substantive Consolidation Order.
8.4 Rejection Damages Bar Date. If the rejection by a Debtor or Reorganized Eagle Foods of an executory contract or unexpired lease pursuant to the Plan results in a Claim, then
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such Claim shall be forever barred and shall not be enforceable against any Debtor or Reorganized Eagle Foods or the properties of any of them unless a proof of claim is filed with the Debtors’ Claims agent, Logan Company, Inc., and served upon counsel to Reorganized Eagle Foods, and counsel to the Creditors’ Committee, within thirty (30) days after service of the earlier of (a) notice of the effective date of rejection of such executory contract or unexpired lease as determined in accordance with Section 8.1. of this Plan or (b) other notice that the executory contract or unexpired lease has been rejected. Nothing in this Section 8.4 shall revive or deem to revive a previously Disallowed Claim or extend a previously established bar date, if applicable. The bar date for filing a Claim with respect to an executory contract or unexpired lease other than pursuant to this Plan shall be as set forth in the Bar Date Order or the Final Order approving such rejection,
8.5 Postpetition Executory Contracts and Unexpired Leases. All rights in connection with all executory contracts and unexpired leases assumed by the Debtors or entered into after the Petition Date and that have not been assigned to a third party shall remain property of the Estate of Eagle Foods.
8.6 Miscellaneous. Notwithstanding any other provision of this Plan, the Debtors shall retain the right to, at any time prior to the Effective Date, modify or supplement Plan Schedule 8.1 or Plan Schedule 8.2 including, without limitation., the right to add any executory contract or unexpired lease to, or delete any executory contract or unexpired lease from such Plan Schedules. Listing an executory contract or unexpired lease on Plan Schedule 8.1 orPlan Schedule 8.2 shall not constitute an admission by any of the Debtors or Reorganized Eagle Foods that such contract or lease (including any related agreements that may exist) is an executory contract or unexpired lease or that the applicable Debtor or Reorganized Eagle Foods has any liability thereunder.
ARTICLE IX PROVISIONS GOVERNING DISTRIBUTIONS 9.1 Distributions for Claims Allowed as of the EffectiveDate. Except as otherwise provided herein or as ordered by the Bankruptcy Court, distributions to be made on account of Claims that are Allowed Claims as of the Effective Date shall be made on the Initial Distribution Date or as soon thereafter as is practicable. Any distribution to be made on the Effective Date pursuant to this Plan shall be deemed as having been made on the Effective Date if such distribution is made on the Effective Date or as soon thereafter as is practicable. Any payment or distribution required to be made under this Plan on a day other than a Business Day shall be made on the next succeeding Business Day, Distributions on account of Claims that first become Allowed Claims after the Effective Date shall be made pursuant to Articles IX
and X of this Plan.
9.2 Disbursing Agent. The Disbursing Agent shall make all distributions required under this Plan. Distributions on account of Allowed Prepetition Notes Claims shall be delivered to the Prepetition Indenture Trustee, its agent or servicer, who shall then make distributions to the Prepetition Noteholders in accordance with the Prepetition Indenture and the provisions of this Plan. The Disbursing Agent shall reasonably cooperate with the Prepetition Indenture Trustee, its agent or
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servicer, in making distributions in accordance with this Plan. Upon request by the Prepetition Indenture Trustee, Reorganized Eagle Foods shall pay to it in Cash all reasonable and necessary fees and expenses incurred by the Prepetition Indenture Trustee, its agent or servicer, after the Effective Date in connection with the services performed by them and any indemnification amounts under the Prepetition Indenture arising in connection with the performance of such services as contemplated in this Plan,
9.3 Subsequent Distributions. Reorganized Eagle Foods shall determine, in accordance with this Plan, when to make a Subsequent Distribution based on the amount of Cash currently available in the Supplemental Distribution Account.
9.4 Interest on Claims. Unless otherwise specifically provided for in this Plan, the Confirmation Order, or required by applicable bankruptcy law, postpetition interest shall not accrue or be paid on Claims, and no Claim Holder shall be entitled to interest accruing on or after the Petition Date on any Claim. To the extent otherwise provided for in this Plan, the Confirmation Order, or required by applicable bankruptcy law, postpetition interest shall accrue on Claims at the applicable non-default rate. Unless otherwise specifically provided for in this Plan, the Confirmation Order, or required by applicable bankruptcy law, interest shall not accrue or be paid upon any Disputed Claim in respect of the period from the Petition Date to the date a final distribution is made thereon if and after such Disputed Claim becomes an Allowed Claim. Until the Effective Date, nothing herein shall waive the right of any creditor to seek postpetition interest.
9.5 Surrender of Securities and Instruments. On or before the date that distributions are first made by the Disbursing Agent, or the Prepetition Indenture Trustee (as agent or servicer as described inSection 9.2 of this Plan), each Holder of an instrument evidencing a Claim, if any (a “Certificate”), shall surrender such Certificate to the Disbursing Agent, or, with respect to indebtedness that is governed by an agreement and administered by a Prepetition Indenture Trustee (including the Prepetition Notes) to the respective Prepetition Indenture Trustee, and such Certificates shall be cancelled in accordance with .Section 7.12 of this Plan and delivered to the Disbursing Agent. No distribution of property hereunder shall be made to or on behalf of any such Holder unless and until such Certificate is received by the Disbursing Agent or the Prepetition Indenture Trustee or the unavailability of such Certificate is reasonably established to the satisfaction of the Disbursing Agent or the Prepetition Indenture Trustee. Any Holder who fails to surrender or cause to be surrendered such Certificate, or fails to execute and deliver an affidavit of loss and indemnity reasonably satisfactory to the Disbursing Agent or the Prepetition Indenture Trustee prior to the first (1st) anniversary of the Effective Date, shall be deemed to have forfeited all rights and Claims in respect of such Certificate and shall not participate in any distribution here under, and all property in respect of such forfeited distribution, including any interest attributable thereto, shall revert to Reorganized Eagle Foods notwithstanding any federal or state escheat laws to the contrary. Upon compliance with this Section 9.5 by a Holder of a Claim evidenced by a Certificate, such Holder shall, for all purposes under the Plan, be deemed to have surrendered such note or other security.
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9.6 Delivery of Distributions and Undeliverable or UnclaimedDistributions.
(a) Distributions to Holders of Allowed Claims shall be made by the Disbursing Agent, or the Prepetition Indenture Trustee (as agent or servicer as described in Section 9.2 of this Plan) (for purposes of this paragraph, the “applicable disbursing agent”) (i) at the addresses set forth on the proofs of claim filed by such Claim Holders (or at the address set forth in any applicable notice of assignment of claim or notice of change of address), (ii) at the addresses set forth in any written notices of address changes delivered to the applicable disbursing agent after the date of any related proof of claim, (iii) at the addresses reflected in the Schedules if no proof of claim has been filed and the applicable disbursing agent has not received a written notice of a change of address, (iv) in the case of a Claim Holder whose Claim is governed by the Prepetition Indenture or other agreement and is administered by the Prepetition Indenture Trustee, at the addresses contained in the official records of the Prepetition Indenture Trustee, including as set forth in its register or in any letter of transmittal provided with the surrender of the certificates in the sole discretion of the Prepetition Indenture Trustee, or (v) as to any defendant to a Litigation Claim who has not otherwise filed a proof of claim, at the address of such defendant’s counsel of record or to such party as counsel of record directs or specifies. Distributions made to Holders of Claims by the Prepetition Indenture Trustee shall be subject to the rights of the Prepetition Indenture Trustee under the Prepetition Indenture or similar contract or agreement to enforce any changes or expenses thereunder,
(b) If any Claim Holder’s distribution is returned as undeliverable, no further distributions to such Claim Holder shall be made unless and until the applicable disbursing agent is notified of such Claim Holder’s then current address, at which time all missed distributions shall be made to such Claim Holder without interest. Amounts in respect of undeliverable distributions shall be returned to (x) the Prepetition Indenture Trustee with respect 10 the Repetition Indenture or (y) the Disbursing Agent with respect to all other claims, until such distributions are claimed. All claims for undeliverable distributions shall be made on the later of the first (1st) anniversary of the Effective Date or ninety (90) days from the date the Claim becomes an Allowed Claim. Alter such dale, all unclaimed property relating to distributions to be made on account of such Claims (including, without limitations, undeliverable or unclaimed property on account of the Beneficial Owners of the Prepetition Notes) shall revert to the Estate of Eagle Foods, free of any restrictions thereon or Claims of such Holder and notwithstanding any federal or state escheat laws to the contrary. Nothing contained in the Plan shall require any of the applicable disbursing agents to attempt to locate any Holder of an Allowed Claim.
9.7 Record Date for Distributions. Reorganized Eagle Foods, the Disbursing Agent, or the Prepetition Indenture Trustee (as agent or servicer as described in Section 9.2 of this Plan) shall have no obligation to recognize the transfer of, or the sale of any participation in, any Allowed Claim or Interest that occurs after the Record Date, and will be entitled for all purposes herein to recognize and distribute only to those Holders of Allowed Claims who are Holders of such Claims, or participants therein, as of the Record Date. Reorganized Eagle Foods, the Disbursing Agent, or the Prepetition Indenture Trustee (as agent or servicer as described in Section 9.2 of this Plan) shall instead be entitled to recognize and deal with for all purposes under the Plan with only those record Holders stated on the official claims register or the official transfer ledger, as the case
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may be, as of the Record Date. On the Record Date, the transfer ledgers of the Prepetition Indenture Trustee, or other agents and servicers of the Prepetition Notes and the transfer registers of the Old Equity shall be closed, and there shall be no further changes in the record Holders of securities. Reorganized Eagle Foods, the Disbursing Agent, or the Prepetition Indenture Trustee (as agent or servicer as described in Section 9.2 of this Plan) shall have no obligation to recognize any transfer of the Prepetition Notes or the Old Equity occurring after the Record Date. Reorganized Eagle Foods, the Disbursing Agent, or the Prepetition Indenture Trustee (as agent or servicer as described in Section 9.2 of this Plan) shall be entitled instead to recognize and deal for all purposes hereunder with only those record Holders stated on the transfer ledgers as of the Record Date,provided that with respect to deceased record holders of the Prepetition Notes the Prepetition Indenture Trustee (as agent or servicer as described in Section 9.2 of this Plan) shall he authorized, but not directed, to recognize transfers to the appropriate heir, executor, or otherwise, following provision of notice together with such evidence of the transfer to the appropriate Prepetition Indenture Trustee as reasonably satisfactory to the applicable Prepetition Indenture Trustee. Such notice shall be effective only as to distributions due at least sixty (60) days after such notice is accepted as satisfactory by the applicable Prepetition Indenture Trustee.
9.8 Allocation of Plan Distributions Between Principal andInterest. To the extent that any Allowed Claim entitled to a distribution under this Plan is composed of indebtedness and accrued but unpaid interest thereon, such distribution shall, to the extent permitted by applicable law, be allocated to the principal amount of the Claim first and then, to the extent the consideration exceeds the principal amount of the claim, to the portion of such Claim representing accrued but unpaid interest,
9.9 Means of Cash Payment. Payments of Cash made pursuant to this Plan shall be in U.S. dollars and shall be made, at the option and in the discretion of Reorganized Eagle Foods, by (a) checks drawn on or (b) wire transfer from a domestic bank selected by Reorganized Eagle Foods.
9.10 Setoffs. The Debtors and Reorganized Eagle Foods may, but shall not be required to, set off against any Claim and the payments or other distributions to be made pursuant to the Plan in respect of such Claim, claims of any nature whatsoever that the Debtors, Reorganized Eagle Foods, may have against the Holder of such Claim; provided,however, that neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtors or Reorganized Eagle Foods of any such claim that the Debtors or the Reorganized Eagle Foods may have against such Holder.
9.11 De-Minimis Distributions. Notwithstanding any other provision of this Plan, Reorganized Eagle Foods and the Disbursing Agent shall have no obligation to make a distribution on account of an Allowed Claim from any Cash Reserve or account to a specific Holder of an Allowed Claim if the amount to be distributed to that Holder on the Initial Distribution Date or Subsequent Distribution Date (1) docs not constitute a final distribution to such Holder and (2) is less than $50. In addition, the Debtors and Reorganized Eagle Foods reserve the right to request subsequent relief from the Bankruptcy Court to exclude Holders of smaller claims from the final
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distribution under this Plan to the extent that the amounts otherwise distributable to such claimholders in connection with such final distribution would be de-minimis or create undue administrative expense.
9.12 Release of Liens. Except as otherwise provided in this Plan or in any contract, instrument, release or other agreement or document created or assumed in connection with this Plan, on the Effective Date and concurrently with the applicable disiributions made pursuant to Articles IX and X of this Plan, all mortgages, deeds of trust, liens, pledges or other security interests against the property of any Debtor’s Estate shall be fully released and discharged, and all of the right, title and interest, of any Holder of such mortgages, deeds of trust, liens, pledges or other security interests shall revert to the Estate of Eagle Foods and its successors and assigns. To the extent that any termination statements, instruments of satisfaction, or other similar releases of interests necessary to terminate or otherwise remove from title or record any filed financing statements, mortgages, or other documents or agreements evidencing a security interest in the Debtors’ assets shall not have been delivered to Reorganized Eagle Foods in proper form for filing and executed by the appropriate parties prior to, or in connection with, the satisfaction of the Secured Claims, then Reorganized Eagle Foods is hereby authorized to (a) execute and file such statements, instruments, releases or other documents on behalf of the Holder of the Secured Claim with respect to the encumbered assets and (b) to file, register, or otherwise record a certified copy of the Confirmation Order, which, once filed, registered or otherwise recorded, shall constitute conclusive evidence of the release of all security interests in the Debtors’ assets of any kind or nature whatsoever.
ARTICLE X PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS 10.1 Objection Deadline; Prosecution of Objections. Reorganized Eagle Foods shall retain responsibility for administering, disputing, objecting to, compromising or otherwise resolving and making distributions on account of the respective Claims against the Debtors. No later than the Claims Objection Deadline (unless extended by an order of the Bankruptcy Court), the Debtors and Reorganized Eagle Foods, as the case may be, shall file objections to Claims with the Bankruptcy Court and serve such objections upon the Holders of each of the Claims to which objections arc made. Nothing contained herein, however, shall limit Reorganized Eagle Foods’ right to object to Claims, if any, filed or amended after the Claims Objection Deadline, Moreover, notwithstanding the expiration of the Claims Objection Deadline and unless subsequently ordered for good cause shown to shorten time, Reorganized Eagle Foods shall continue to have the right to amend any objections and to file and prosecute supplemental objections and counterclaims to a Disputed Claim until such Disputed Claim is Allowed. Subject to the limitations set forth in Article VII of this Plan, Reorganized Eagle Foods shall be authorized to, and shall, resolve all Disputed Claims by withdrawing or settling such objections thereto, or by litigating to judgment in the Bankruptcy Court or such other court having jurisdiction on the validity, nature and/or amount thereof.
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10.2 No Distributions Pending Allowance. Notwithstanding any other provision of this Plan, no payments or distributions shall be made with respect to all or any portion of a Disputed Claim unless and until all objections to such Disputed Claim have been settled or withdrawn or have been determined by Final Order, and the Disputed Claim, or some portion thereof, has become an Allowed Claim and the remainder has become a Disallowed Claim.
10.3 Disputed Claims Reserve. The Disbursing Agent shall withhold the Disputed Claims Reserve from the Net Available Cash to be distributed to particular classes under this Plan. The Disputed Claims Reserve shall be equal to 100% of distributions to which Holders of Disputed Claims in Classes 3 and 4 would be entitled under this Plan as of such date if such Disputed Claims in Classes 3 and 4 were Allowed Claims in their (a) Face Amount (or if a Disputed Claim is unliquidated with no Face Amount, then based upon the good faith estimate of such Disputed Claim as estimated by Reorganized Eagle Foods) or (b) estimated amount of such Disputed Claim in Classes 3 and 4 as approved in an Order by the Bankruptcy Court pursuant to section 506(c) of the Bankruptcy Code. Reorganized Eagle Foods may request estimation for any Disputed Claim including, without limitation, any Disputed Claim that is contingent or unliquidated. If practicable and as set forth inSection 7.5(c) of this Plan, Reorganized Eagle Foods will invest any Cash that is withheld as the applicable Disputed Claims Reserve in an appropriate manner to insure the safely of the investment. Nothing in this Plan or the Disclosure Statement shall be deemed to entitle the holder of a Disputed Claim to postpetition interest on such Claim.
10.4 Distributions After Allowance. Payments and distributions from the Disputed Claims Reserve shall be made as appropriate to the Holder of any Disputed Claim that has become an Allowed Claim, as soon thereafter as is reasonably practicable after the date such Disputed Claim becomes an Allowed Claim. Such distributions shall be based upon the cumulative distributions that would have been made to the Holder of such Claim under the Plan if the Disputed Claim had been Allowed on the Effective Date (excluding any present value calculations) and shall not be limited by the Disputed Claim amounts previously reserved with respect to such Disputed Claim to the extent that additional amounts are available therefor, but only to the extent that such additional amounts have not yet been distributed to Holders of Allowed Claims. Upon such distribution, the reserve shall be reduced by an amount equal to the amount reserved with respect to such Disputed Claim. To the extent the amount reserved for such Disputed Claim exceeds the Allowed Amount, if any, of such Claim, the remainder shall be deposited in the Supplemental Distribution Account and distributed to Holders of Allowed Class 3 Claims in accordance with the provisions ofArticle V of this Plan.
ARTICLE XI ALLOWANCE AND PAYMENT OF CERTAIN ADMINISTRATIVE CLAIMS 11.1 Professional Fee Claims. (a) On the Effective Date, the Debtors shall pay all amounts owing to Professionals for all outstanding amounts relating to prior periods through the Effective Date
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approved by the Bankruptcy Court in accordance with the Professional Fee Order; provided, however, that Professionals shall continue to prepare fee applications in accordance with the Professional Fee Order up to the Effective Date. No Inter than fifteen (15) days prior to the Confirmation Hearing, each Professional shall estimate’ fees and expenses due for periods that have not been billed as of the anticipated Effective Date. Parties in interest shall have until three (3) days prior to the Confirmation Hearing to object to such estimate and any such objection shall be heard at the Confirmation Hearing. On the Effective Dale, Reorganized Eagle Foods shall increase the amount held in the Professional Fee Escrow such that the funds therein are equal to the aggregate amount of outstanding fee applications not ruled upon by the Bankruptcy Court as of the Effective Date plus the aggregate amount of all estimated fees and expenses due for periods that have not been billed as of the Effective Dale. Such Professional Fee Escrow shall be used by the Reorganized Eagle Foods to pay the remaining Professional Fee Claims owing to the Professionals as and when Allowed by the Bankruptcy Court. When all Professional Fee Claims have been paid in full, amounts remaining in such escrow account, if any, shall be returned to Reorganized Eagle Foods to supplement the Operating Reserve or for distributions to Allowed Claims in Classes 3 and 4 in accordance with the provisions of Article V of this Plan.
(b) All Professionals or other entities requesting compensation or reimbursement of expenses pursuant to sections 327, 328, 330, 331, 503(b) and 1103 of the Bankruptcy Code for services rendered on or before the Effective Date (including compensation and expenses for making a substantial contribution in any of the Chapter 11 Cases) shall file with the Bankruptcy Court and serve such applications on counsel for the Debtors, the United States Trustee and as otherwise required by the Bankruptcy Court and the Bankruptcy Code, an application for final allowance of compensation and reimbursement of expenses no later than forty-five (45) days after the end of the month in which the Effective Date occurred. Objections to applications of Professionals and other entities for compensation and reimbursement of expenses must be filed with the Bankruptcy Court no later than twenty (20) days after the filing and service of a Professional’s application. All compensation and reimbursement of expenses allowed by the Bankruptcy Court shall be paid ten (10) days after the entry of an Order allowing such fees and expenses, or as soon thereafter as practicable. The Debtors and Reorganized Eagle Foods shall not object to the filing of any request for substantial contribution with respect to those entities listed onPlan Schedule 11.1(b), provided that in all instances (i) the Debtors and Reorganized Eagle Foods shall retain the right to review the reasonableness of the fees and expenses requested by any and all such entities alleging substantial contribution and (ii) such requesting entity complies with the filing requirements of this Plan or such other requirements as agreed to by and among the Debtors or Reorganized Eagle Foods, the Creditors’ Committee, the United States Trustee and such requesting entity.
(c) Notwithstanding the foregoing subsections of thisSection 11.1 of the Plan, on or within three (3) business days after the Confirmation Date, the Prepetition Indenture Trustee shall deliver an invoice for its fees and expenses to the Debtors, the Creditors’ Committee and the United States Trustee, each of whom shall have the right to file an objection with the Bankruptcy Court, which objection must be filed with ten (10) days of receipt. Absent any such objection, the Prepetition Indenture Trustee’s invoice for its fees and expenses shall be paid in Cash by the Debtors or Reorganized Eagle Foods, as applicable, on the Effective Date, or as soon thereafter as practicable,
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without need to file an application for the payment of its fees and without need for further order of the Bankruptcy Court.
11.2 Other Administrative Claims. All other requests for payment of an Administrative Claim (other than as set forth inSection 11.1 of this Plan), must be filed with the Bankruptcy Court and served on counsel for the Debtors and/or Reorganized Eagle Foods no later than the Administrative Claims Bar Date. Unless the Debtors object to an Administrative Claim within one hundred twenty (120) days after the Administrative Claims Bar Date, such Administrative Claim shall be deemed allowed in the amount requested. In the event that the Debtors and/or Reorganized Eagle Foods object to an Administrative Claim and Reorganized Eagle Foods and such claimant are unable to resolve their dispute consensually, then Reorganized Eagle Foods shall file a motion for determination thirty (30) days following the request of such claimant. Thereafter, the Bankruptcy Court shall determine the Allowed amount of such Administrative Claim, Notwithstanding the foregoing, the Debtors or Reorganized Eagle Foods may pay, in their discretion, in accordance with the terms and conditions of any agreements relating thereto, any Administrative Claim as to which no request for payment has been timely filed but which is paid or payable by a Debtor in the ordinary course of business.
11.3 Administrative Claims Bar Date Notice. On the Effective Date, or as soon thereafter as is reasonably practicable, Reorganized Eagle Foods shall provide written notice of the Administrative Claims Bar Date in substantially the same manner and fashion as the Debtors provided written notice of the Bar Dale as approved by Final Order of the Bankruptcy Court on June 27, 2003,
ARTICLE XII CONFIRMATION AND CONSUMMATION OF THE PLAN 12.1 Conditions to Confirmation. The following are conditions precedent to confirmation of the Plan that may be satisfied or waived in accordance with Section 12.3 of the Plan:
(a) The Bankruptcy Court shall have approved by Final Order a Disclosure Statement with respect to the Plan in form and substance reasonably acceptable to the Debtors after consultation with the Creditors’ Committee,
(b) The Confirmation Order shall determine the approval of the substantive consolidation of the Chapter 11 Cases and Estates and shall in all other respects be in form and substance reasonably acceptable to the Debtors after consultation with the Creditors’ Committee.
12.2 Conditions to Effective Date. The following are conditions precedent to the occurrence of the Effective Date:
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(a) The Debtors or Reorganized Eagle Foods shall have Cash on hand sufficient to fund the Cash Reserves and make any other payments required to be paid under this Plan by the Debtors or Reorganized Eagle Foods on or as soon as practicable after the Effective Date.
(b) The Confirmation Order shall be in form and substance acceptable to the Debtors and shall have been entered by the Bankruptcy Court and shall be a Final Order, and no request for revocation of the Confirmation Order under section 1144 of the Bankruptcy Code shall have been made, or, if made, shall remain pending.
(c) All relevant transactions set forth inArticle VII of this Plan shall have been entered into and all conditions precedent to the consummation thereof shall have been satisfied.
(d) Any order necessary to satisfy any condition to the effectiveness of the Plan shall have become a Final Order and all documents provided for under the Plan shall have been executed and delivered by the parties thereto.
12.3 Waiver of Conditions. The conditions set forth inSections 12, 1 and 12.2 of this Plan may he waived, in whole or in part, by the Debtors with the consent of the Creditors’ Committee, which consent shall not be unreasonably withheld, without notice or a hearing. The failure to satisfy or waive any condition to the Confirmation Date or the Effective Dale may be asserted by the Debtors in their reasonable discretion based on the circumstances giving rise to the failure of such condition to be satisfied. The failure of the Debtors to exercise any of the foregoing rights shall not be deemed a waiver of any other rights, and each such right shall be deemed an ongoing right, which may be asserted at any time.
ARTICLE XIII EFFECT OF PLAN CONFIRMATION ON CLAIMS AND INTERESTS 13.1 No Discharge of Claims Against Debtors. Pursuant to section 1141(d)(3) of the Bankruptcy Code, Confirmation willnot discharge Claims against the Debtors; provided,however, that no Holder of a Claim against any Debtor may, on account of such Claim, seek or receive any payment or other distribution from, or seek recourse against, any Debtor, Reorganized Eagle Foods, their respective successors or their respective property, except as expressly provided herein.
13.2 Termination of Subordination Rights and Settlement ofRelated Claims and Controversies. The classification and manner of satisfying all Claims and Interests under the Plan take into consideration all subordination rights, arising under section 510 of the Bankruptcy Code, or otherwise. Except as provided in this Plan, all such subordination rights that a Holder of a Claim or Interest may have with respect to any distribution to be made pursuant to the Plan will be cancelled and terminated, and all actions related to the enforcement of such subordination rights will be permanently enjoined. Accordingly, distributions pursuant to the Plan to Holders of Allowed
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Claims or Allowed Interests will not be subject to payment to a beneficiary of such terminated subordination rights, or to levy, garnishment, attachment or other legal process by a beneficiary of such terminated subordination rights. Nothing in this Section shall be deemed to release the rights, if any, that the Debtors, the Creditors’ Committee, or any creditor may have to seek to equitably subordinate any Claim pursuant to section 510 of the Bankruptcy Code or otherwise,
13.3 Exculpation and Limitation of Liability. The Debtors, Reorganized Eagle Foods, the Creditors’ Committee, the members of the Creditors’ Committee in their representative capacity, and any of such parties’ respective present or former members, officers, directors, employees, advisors, representatives, Professionals or agents, the Prepetition Indenture Trustee and its agents and professionals, and DIP Lender and its agents and professionals, including the Released Parties, and any of all such parties’ predecessors, successors and assigns, and all of their respective officers, directors, agents, employees and attorneys, shall not have or incur, and are hereby released from, any claim, obligation, Cause of Action or liability to one another or to any Holder of any Claim or Interest, or any other party in interest, or any of their respective agents, employees, representatives, financial advisors, attorneys or affiliates, or any of their successors or assigns, for any act or omission in connection with, or arising out of the Chapter 11 Cases, the pursuit of confirmation of the Plan, the consummation of the Plan, the administration of the Plan or the property to be distributed under the Plan except for their gross negligence or willful misconduct and in all respects shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities under the Plan.
Notwithstanding any other provision of this Plan, no Claim Holder or Interest Holder, or other party in interest, none of their respective agents, employees, representatives, financial advisors, attorneys or affiliates, and no successors or assigns of the foregoing, shall have any right of action against the Debtors, Reorganized Eagle Foods, the Creditors’ Committee, the members of the Creditors’ Committee in their representative capacity, and any of such parties’ respective present or former members, officers, directors, employees, advisors, representatives, Professionals or agents, the Prepetition Indenture Trustee and its agents and professionals, and DTP Lender and its agents and professionals and any of such parties’ predecessors, successors and assigns, and all of their respective officers, directors, agents, employees and attorneys, for any act or omission in connection with, relating to or arising out of the Chapter 11 Cases, the pursuit of confirmation of the Plan, the consummation of the Plan, the administration of the Plan or the property to be distributed under the Plan except for their gross negligence or willful misconduct.
13.4 Indemnification Obligations. In satisfaction and compromise of any obligations or rights of any of the Indemnitees’ Indemnification Rights, (a) all Indemnification Rights except (i) all Indemnification Rights of an Indemnitee who is also a Released Party, (ii) the indemnification rights of the Prepetition Indenture Trustee under the Prepetition Indenture and (iii) those based solely upon any act or omission arising out of or relating to any Indemnitee’s service with, for or on behalf of a Debtor on or after the Petition Date (collectively, the “Continuing Indemnification Rights”), shall be released and terminated on and as of the Effective Date; provided that the Continuing Indemnification Rights shall remain in full force and effect on and after the Effective Date and shall not be modified, reduced, terminated or otherwise affected in any way by the Chapter 11
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Cases, (b) the Debtors or Reorganized Eagle Foods, as the case may be, are authorized to purchase and maintain director and officer insurance providing coverage for those Indemnitees with Continuing Indemnification Rights for such period of time after the Effective Date that Reorganized Eagle Foods determines to be reasonable insuring such parties in respect of any claims, demands, suits, causes of action or proceedings against such Indemnitees based upon any act or omission related to such Indemnitee’s service with, for or on behalf of the Debtors in the scope and amount as Reorganized Eagle Foods determines to be reasonable (the “Insurance Coverage”), (c) the insurers arc authorized to pay any professional fees and expenses incurred in connection with any action relating to any Continuing Indemnification Rights and (d) the Debtors or Reorganized Eagle Foods, as the case may be, hereby indemnify Indemnitees with Continuing Indemnification Rights and agree to pay for any deductible or retention amount that may be payable in connection with any claim covered by either under the foregoing Insurance Coverage or any prior similar policy.
13.5 Releases by Debtors and Debtors in Possession.
(a) Pursuant to section 1123(b)(3) of the Bankruptcy Code, effective as of the Effective Date, each Debtor, in its individual capacity and as a Debtor in Possession, for and on behalf of its Estate, shall release and forever unconditionally release all Released Parties for and from any and all claims or Causes of Action existing as of the Effective Date in any manner arising from, based on or relating to, in whole or in part, the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor or any Released Party, the restructuring of Claims and Interests prior to or in the Chapter 11 Cases, or any act, omission, occurrence or event in any manner related to any such Claims, Interest, restructuring or the Chapter 11 Cases.
(b) No provision of this Plan or of the Confirmation Order, including without limitation, any release or exculpation provision, shall modify, release or otherwise limit the liability of any Person not specifically released hereunder, including without limitation, any Person that is a co-obligor or joint tortfcasor of a Released Party or that otherwise is liable under theories of vicarious or other derivative liability.
(c) Reorganized Eagle Foods and any newly-formed entities that will be liquidating the Debtors’ businesses after the Effective Date shall be bound, to the same extent the Debtors are bound, by all of the releases set forth above,
13.6 Release by Holders of Claims. On the Effective Date (a) eachPerson that votes to accept this Plan, and (b) to the fullest extentpermissible under applicable law, as such law may be extended orinterpreted subsequent to the Effective Date, all Holders of Claims, inconsideration for the obligations of the Debtors and Reorganized EagleFoods under the Plan and the Cash and other contracts, instruments,releases, agreements or documents to be delivered in connection with thePlan, each entity (other than a Debtor) that has held, holds or may holda Claim, as applicable, (each, a “Release Obligor”) shall haveconclusively, absolutely, unconditionally, irrevocably and forever,released each Released Party from any claim or Cause of Action existingas of the Effective Date arising from, based on or relating to, in wholeor in
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part, the subject matter of, or the transaction or event giving rise to, the Claim of such Release Obligor, and any act, omission, occurrence or event in any manner related to such subject matter, transaction or obligation; provided, however,that this Section 13.6 shall not release any Released Party from any Cause of Action existing as of the Effective Date, based on (i) the Internal Revenue Code or other domestic state, city or municipal tax code, (ii) the environmental laws of the United States or any domestic state, city or municipality, (iii) any criminal laws of the United States or any domestic state, city or municipality, (iv) the Securities Exchange Act of 1934, as now in effect or hereafter amended, the Securities Act of 1933, as now in effect or hereafter amended, or other securities laws of the United States or any domestic state, city, or municipality, or (v) Sections 1104-1109 and 1342(d) of the Employee Retirement Income Security Act of 1974, as amended.
13.7 Injunction. The satisfaction and release pursuant to this Article XIII of this Plan shall also act as a permanent injunction against any Person commencing or continuing any action, employment of process, or act to collect, offset or recover any Claim or Cause of Action satisfied or released under this Plan to the fullest extent authorized or provided by the Bankruptcy Code, including, without limitation, to the extent provided for or authorized by sections 524 and 1141 thereof,
ARTICLE XIV RETENTION OF JURISDICTION
Pursuant to sections 105(c) and 1142 of the Bankruptcy Code and notwithstanding entry of the Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court will retain exclusive jurisdiction over all matters arising out of, and related to, the Chapter 11 Cases and this Plan to the fullest extent permitted by law, including, among other things, jurisdiction to:
(a) Allow, disallow, determine, liquidate, classify, estimate or establish the priority or secured or unsecured status of any Claim or Interest, including the resolution of any request for payment of any Administrative Claim and the resolution of any objections to the allowance or priority of Claims or Interests;
(b) Grant or deny any applications for allowance of compensation or reimbursement of expenses authorized pursuant to the Bankruptcy Code or this Plan for periods ending on or before the Effective Date;
(c) Resolve any matters related to the assumption, assumption and assignment, or rejection of any executory contract or unexpired lease to which any Debtor is a party or with respect to which any Debtor or Reorganized Eagle Foods may be liable and to hear, determine and, if necessary, liquidate any Claims arising therefrom;
(d) Resolve any matters relating to the pre-and post-confirmation sales of the Debtors’ assets, including, without limitation, the Debtors’ owned real property;
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(e) Enforce, implement or clarify all orders, judgments, injunctions, and rulings entered by the Bankruptcy Court;
(f) Ensure that distributions to Holders of Allowed Claims are accomplished pursuant to the provisions of this Plan;
(g) 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;
(h) Enter such orders as may be necessary or appropriate to implement or consummate the provisions of this Plan and all contracts, instruments, releases and other agreements or documents created in connection with this Plan, the Disclosure Statement or the Confirmation Order;
(i) Resolve any cases, controversies, suits or disputes that may arise in connection with the consummation, interpretation or enforcement of this Plan or any contract, instrument, release or other agreement or document that is executed or created pursuant to this Plan, or any entity’s rights arising from or obligations incurred in connection with this Plan or such documents;
(j) Modify this Plan before or after the Effective Date pursuant to section 1127 of the Bankruptcy Code or modify the Disclosure Statement, the Confirmation Order or any contract, instrument, release or other agreement or document created in connection with this Plan, the Disclosure Statement or the Confirmation Order, or remedy any defect or omission or reconcile any inconsistency in any Bankruptcy Court order, this Plan, the Disclosure Statement, the Confirmation Order or any contract, instrument, release or other agreement or document created in connection with this Plan, the Disclosure Statement or the Confirmation Order, in such manner as may be necessary or appropriate to consummate this Plan;
(k) Hear and determine all applications for compensation and reimbursement of expenses of Professionals under this Plan or under sections 330, 331, 503(b), 1103 and 1129(c)(9) of the Bankruptcy Code,provided, however, that from and after the Effective Date the payment of fees and expenses of Reorganized Eagle Foods shall be made as set forth in Article VII of this Plan.
(1) Issue injunctions, enter and implement other orders or take such other actions as may be necessary or appropriate to restrain interference by any entity with consummation, implementation or enforcement of this Plan or the Confirmation Order;
(m) Hear and determine the Litigation Claims and any other Causes of Action by or on behalf of the Debtors or Reorganized Eagle Foods;
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(n) Hear and determine matters concerning state, local and federal taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy Code;
(o) Enter and implement such orders as are necessary or appropriate if the Confirmation Order is for any reason or in any respect modified, stayed, reversed, revoked or vacated or distributions pursuant to this Plan are enjoined or stayed;
(p) Determine any other matters that may arise in connection with or relate to this Plan, the Disclosure Statement, the Confirmation Order or any contract, instrument, release or other agreement or document created in connection with this Plan, the Disclosure Statement or the Confirmation Order;
(q) Enforce all orders, judgments, injunctions, releases, exculpations, indemnifications and rulings entered in connection with the Chapter 11 Cases;
(r) Hear and determine all matters related to (i) the properly of the Estates from and after the Confirmation Date, (ii) the winding up of the Debtors’ or Reorganized Eagle Foods’ affairs and (iii) the activities of Reorganized Eagle Foods, including (A) challenges to or approvals of Reorganized Eagle Foods’ activities, (B) resignation, incapacity or removal of the Chief Wind Down Officer and selection of a successor Chief Wind Down Officer, (C) reporting by, termination of and accounting by Reorganized Eagle Foods and (D) release of the Chief Wind Down Officer from its duties;
(s) Hear and determine disputes with respect to compensation of Reorganized Eagle Foods’ professional advisors;
(t) Hear and determine such other matters as may be provided in the Confirmation Order or as may be authorized under the Bankruptcy Code;
(u) Adjudicate any and all Causes of Action, adversary proceedings, applications and contested matters that have been or hereafter are commenced or maintained in or in connection with the Chapter 11 Cases or this Plan, including, without limitation, any adversary proceeding or contested matter, proceedings to adjudicate the allowance of Disputed Claims, and all controversies and issues arising from or relating to any of the foregoing;
(v) Hear and determine all matters involving Claims or Causes of Action involving any of the Debtors or their property;
(w) Hear and determine all matters relating to the enforcement and interpretation of Section 13.6 of this Plan; and
(x) Enter an order closing the Chapter 11 Cases.
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Notwithstanding anything contained herein to the contrary, the Bankruptcy Court retains exclusive jurisdiction to hear and determine disputes concerning (i) Claims or (ii) Causes of Action and any motions to compromise or settle such disputes. Despite the foregoing, if the Bankruptcy Court is determined not to have jurisdiction with respect to the foregoing, or if Reorganized Eagle Foods chooses to pursue any Claim or Cause of Action (as applicable) in another court of competent jurisdiction, Reorganized Eagle Foods will have authority to bring such action in any other court of competent jurisdiction.
ARTICLE XV MISCELLANEOUS PROVISIONS 15.1 Binding Effect. This Plan shall be binding upon and inure to the benefit of the Debtors, Reorganized Eagle Foods, all present and former Holders of Claims and Interests, other parties in interest and their respective successors and assigns as of the entry of the Confirmation Order.
15.2 Payment of Statutory Fees. All fees payable pursuant to section 1930 of title 28, United States Code, as determined by the Bankruptcy Court at the Confirmation Hearing, shall be paid on, or as soon as reasonably practicable after, the Effective Date, and neither the Debtors, their Estates nor Reorganized Eagle Foods shall thereafter be liable for the payment of any additional fees under 28 U.S.C. § 1930
other than with respect to Eagle Foods’ Chapter 11 Case.
15.3 Amendment or Modification of this Plan. Subject to section 1127 of the Bankruptcy Code and, to the extent applicable, sections 1122, 1123 and 1125 of the Bankruptcy Code, alterations, amendments or modifications of this Plan or Exhibits thereto may be proposed in writing by the Debtors or Reorganized Eagle Foods at any time prior to or after the Confirmation Date but prior to the substantial consummation of this Plan. A Holder of a Claim or Interest that has accepted this Plan shall be deemed to have accepted this Plan, as altered, amended or modified, if the proposed alteration, amendment or modification does not materially and adversely change the treatment of the Claim or Interest of such Holder.
15.4 Revocation, Withdrawal or Non-Consummation. The Debtors reserve the right to revoke or withdraw this Plan as to any or all of the Debtors prior to the Effective Date and to file subsequent chapter 11 plans. If the Debtors revoke or withdraw this Plan as to any or all of the Debtors, or if Confirmation or Consummation as to any or all of the Debtors does not occur, then, with respect to such Debtors, (a) this Plan shall be null and void in all respects, (b) any settlement or compromise embodied in this Plan (including the fixing or limiting to an amount certain any Claim or Class of Claims), assumption or rejection of executory contracts or leases affected by this Plan, and any document or agreement executed pursuant to this Plan, shall be deemed null and void, and (c) nothing contained in this Plan shall (i) constitute a waiver or release of any Claims by or against, or any Interests in, such Debtors or any other Person, (ii) prejudice in any manner the rights of such Debtors or any other Person, or (iii) constitute an admission of any sort by the Debtors or any other Person.
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15.5 Effectuating Documents and Further Transactions. Each of the Debtors or Reorganized Eagle Foods is authorized to execute, deliver, file or record such contracts, instruments, releases and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement and further evidence the terms and conditions of this Plan and any notes or securities issued pursuant to this Plan.
15.6 Corporate Action. Prior to, on or after the Effective Date (as appropriate), all matters provided for under this Plan that would otherwise require approval of the stockholders or directors of one (1) or more of the Debtors or Reorganized Eagle Foods 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 the states in which the Debtors or Reorganized Eagle Foods are incorporated without any requirement of further action by the stockholders or directors of the Debtors or Reorganized Eagle Foods.
15.7 Exemption from Transfer Taxes. Pursuant to section 1146(c) of the Bankruptcy Code: (a) the creation of any mortgage, deed of trust, lien, pledge, or other security interest; (b) the making or assignment of any lease or sublease; (c) the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with, this Plan, including, without limitation, any restructuring, disposition, liquidation, or dissolution, deeds, bills of sale, transfers of tangible property or the transfers, sales, and assignments of the Debtors’ or Reorganized Eagle Foods’ owned and leased real properly pursuant to this Plan or otherwise or (d) any transfers from the Debtors to Reorganized Eagle Foods pursuant to this Plan or otherwise will not be subject to any document recording tax, stamp tax, conveyance fee, personal property tax, real estate transfer tax, intangibles or similar tax, mortgage tax, stamp act, mortgage recording tax, or other similar tax or governmental assessment, and the Confirmation Order shall direct the appropriate state or local governmental officials or agents to forgo the collection of any such tax or governmental assessment and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment. Unless the Court ordersotherwise., all sales, transfers and assignments of owned and leased realand personal properly, approved by the court on or prior to the EffectiveDate shall be deemed to have been in furtherance of, in connection with,this Plain.
15.8 Severability of Plan Provisions. If, prior to the Confirmation Date, any term or provision of this Plan is determined by the Bankruptcy Court to be invalid, void or unenforceable, the Bankruptcy Court will have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void or unenforceable, and such term or provision will then be applicable as altered or interpreted. Notwithstanding any such holding, alteration or interpretation, but subject to Section 15 A
of this Plan, the remainder of the terms and provisions of this Plan will remain in full force and effect and will in no way be affected, impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order will constitute a judicial determination and will provide that each term and provision of this Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms.
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15.9 Successors and Assigns. This Plan shall be binding upon and inure to the benefit of the Debtors, and their respective successors and assigns, including, without limitation, Reorganized Eagle Foods. The rights, benefits and obligations of any entity named or referred to in this Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign of such entity.
15.10 Notice. All notices, requests and demands to or upon the Debtors or Reorganized Eagle Foods to be effective shall be in writing and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:
If to the Debtors or Reorganized Eagle Foods:
EAGLE FOOD CENTERS, INC. 801 First Street East Milan, Illinois 61264 Telephone: (309) 787-7730 Facsimile: (309) 787-7264 Attn: Chief Wind Down Officer
with copies to:
Counsel for the Debtors:
SKADDEN, ARTS, SLATE, MEAGHER FLOM LLP 333 West Wacker Drive, Suite 2100 Chicago, Illinois 60606-1285 Telephone: (312)407-0700 Facsimile: (312)407-0411 Attn: John Wm. Butler, Jr. George N. Panagakis Ron E. Meisler
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If to the Creditors’ Committee:
Foley Lardner 321 N. Clark Street Chicago, Illinois 60606 Telephone: (312)832-4500 Facsimile: (312)832-4700 Attn: William J. McKenna Jonathan E. Aberman
15.11 Governing Law. Except to the extent the Bankruptcy Code, the Bankruptcy Rules or other federal law is applicable, or to the extent an exhibit or schedule to this Plan provides otherwise, the rights and obligations arising under this Plan and any agreements, documents and instruments executed in connection with this Plan shall be governed by, and construed and enforced in accordance with, the laws of Delaware, without giving effect to the principles of conflicts of law of such jurisdiction,
15.12 Tax Reporting and Compliance. The Debtors, Reorganized Eagle Foods, the Disbursing Agent, or the Prepetition Indenture Trustee (as agent or servicer as described in Section 9.2 of this Plan), as the case may be, shall be authorized to take any and all actions that may be necessary or appropriate to comply with all withholding and reporting requirements imposed by any federal, state, local or foreign taxing authority, and all payments and distributions hereunder shall be made subject to such withholding and reporting requirements. All persons or entities holding and reporting Claims or Interests shall be required to provide any information necessary 10 effect the withholding of such taxes or establish a valid exemption. Reorganized Eagle Foods is hereby authorized, on behalf of each of the Debtors, to request an expedited determination under section 505(b) of the Bankruptcy Code of the tax liability of the Debtors for all taxable periods ending after the Petition Date through, and including, the Effective Date.
15.13 Filing of Additional Documents. On or before substantial consummation of this Plan, the Debtors shall File such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of this Plan.
15.14 Term of Bankruptcy Injunction or Stays. All injunctions or stays provided for in the Chapter 11 Cases under section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect until all property of the Estates of Reorganized Eagle Foods and the other Debtors has been distributed and Reorganized Eagle Foods has been dissolved.
15.15 No Waiver or Estoppel. Each Claim Holder or Interest Holder shall be deemed to have waived any right to assert that its Claim or Interest should be Allowed in a certain amount, in a certain priority, secured or not subordinated by virtue of an agreement made with the Debtors and/or their counsel, the Creditors’ Committee and/or its counsel, or any other party, if such
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agreement was not disclosed in this Plan, the Disclosure Statement or papers filed with the Bankruptcy Court.
15.16 Request for Court Hearing. Notwithstanding whether or not a matter requires the consultation of the Creditors’ Committee under this Plan, the Debtors, Reorganized Eagle Foods, and the Creditors’ Committee shall have the right to request a hearing before the Court on any and all matters raised in connection with or related to this Plan.
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EXHIBIT A Amended Charter of Reorganized Eagle Foods (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF EAGLE FOOD CENTERS, INC, Pursuant to Sections 242, 245 and 303 of the Delaware General Corporation Law
The undersigned, Randall D. McMurray, certifies that he is President of Eagle Food Centers, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), and does hereby further certify as follows:
1. The name of the Corporation is Eagle Food Centers, Inc.
2. The name under which the Corporation was originally incorporated was Eagle Food Centers, Inc., and the original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on September 22, 1987,
3. This Second Amended and Restated Certificate of Incorporation has been adopted and effected in conformity with Sections 242. 245 and 303 of the General Corporation Law of the State of Delaware pursuant to the order (the “Confirmation Order”), entered [-], 2004, of the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division (the “Bankruptcy Court”), confirming the First Amended Joint Plan Of Liquidation Of Eagle Food Centers, Inc., and its Affiliated Debtors, dated January 29, 2004, in Chapter 11 case numbers 03-15299 through 03-15303. The Bankruptcy Court has jurisdiction over the Corporation’s Chapter 11 case pursuant to 2SU.S.C. §; 157 and 1334,
4. The text of the Certificate of Incorporation is hereby amended and restated to read in its entirety as follows:
FIRST: The name of the Corporation is Eagle Food Centers, Inc. (hereinafter referred to as the “Corporation”).
SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
THIRD: The sole purpose of the Corporation is to implement the provisions of the First Amended Joint Plan Of Liquidation Of Eagle Food Centers, Inc., and its Affiliated Debtors, dated January 29, 2004, (the “Plan”), in accordance with the terms of the Plan.
FOURTH: The Corporation is authorized to issue three (3) shares (the “Shares”) of its common stock, par value of $0.01 per share (the “Common Stock”); provided that only directors of the Corporation shall own any such Shares, and each director may own no more than one (1) Share at any time; provided further that any transfer of any Share to any person other than a successor to a director, and any issuance of any Common Stock other than as set forth herein, shall be null and void and without effect; provided further
that at any time a director dies, resigns or is removed and a successor director is not immediately named, the Share held by the outgoing director shall be immediately cancelled.
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FIFTH: In accordance with section 1123(a)(6) of the United States Bankruptcy Code, 11 U.S.C. § 101-1330, as amended (the “Bankruptcy Code”), the Corporation shall not issue any non-voting equity securities.
SIXTH: The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation and for further definition, limitation, and regulation of the powers of the Corporation and of its directors, officers and stockholders:
1. The business and affairs of the Corporation shall be managed by or under the direction of the board of directors.
2. Subject to Article EIGHTH below, the directors shall have concurrent power with the stockholders to make, alter, amend, change, add to, or repeal the By-Laws of the Corporation.
3. No director shall be personally liable to the Corporation for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the Corporation, (b) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (c) pursuant to Section 174 of the General Corporation Law of the State of Delaware (the “GCL”), or (d) for any transaction from which the director derived an improper persona) benefit.
4. In addition to the powers and authority hereinbefore or by statute expressly conferred upon them and subject to the Plan, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the GCL, this Second Amended and Restated Certificate of Incorporation, and any By-Laws adopted by the stockholders; provided, however, that no By-Laws hereafter adopted by the stockholders shall invalidate any prior act of the directors, which prior act would have been valid if such By-Laws had not been adopted.
5. As soon as practicable after the Chief Wind Down Officer (as defined in the Plan) exhausts the assets of the Debtors’ Estates (as defined in the Plan) by making the final distribution of Cash (as defined in the Plan) under the Plan, (i) the Chief Wind Down Officer shall (A) effectuate the dissolution of the Corporation without a vote of the shareholders of the Corporation in accordance with section 303 of the GCL, but subject to the approval of the board of directors of the Corporation, and may file appropriate documentation with the State of Delaware in order to carry out such dissolution, including, without limitation, a certificate of dissolution and take all such other action in order to carry out such dissolution in accordance with section 275 of the GCL, and (B) resign as the sole officer of the Corporation and (ii) the directors shall resign from the board of directors of the Corporation.
SEVENTH: The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the By-Laws of the Corporation.
EIGHTH: The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Second Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute; provided that Article Three hereof, and this proviso,
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may, pursuant to the Plan and Section 303 of the GCL, be amended only by either (i) to the extent there are three (3) members of the board of directors, the unanimous written consent of the board of directors or (ii) by order of the Court, and no stock holder vote shall be required for any such amendment.
NINTH: The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by law, as now or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided,however, that, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer of the Corporation (or their heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the respective board of directors. The right to indemnification conferred by this Article NINTH shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition.
The rights to indemnification and to the advance of expenses conferred in this Article NINTH shall not be exclusive of any other right which any person may have or hereafter acquire under this Second Amended and Restated Certificate of Incorporation, the By-Laws of the Corporation, the Plan, any statute, agreement, vote of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article NINTH shall not adversely affect any rights to indemnification and to the advancement of expenses (i) of a director or officer of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification and (ii) provided under or by the Plan or any order of the Bankruptcy Court.
IN WITNESS WHEREOF, the Corporation has caused this Second Amended and Restated Certificate of Incorporation to be signed by Randall D. McMurray, President of the Corporation, this [-] day of [-], 2004.
EXHIBIT B Amended By-laws of Reorganized Eagle Foods (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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AMENDED AND RESTATED BY-LAWS OF EAGLE FOOD CENTERS, INC. (hereinafter referred to as the “Corporation”) ARTICLE I MEETINGS OF STOCKHOLDERS Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware as shall be designated from time to time by the board of directors. The board of directors may, in its sole discretion, determine that a meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by the General Corporation Law of the State of Delaware.
Section 2. Annual Meetings. The annual meetings of stockholders for the election of directors shall be held on such date and at such time as shall be designated from time to time by the board of directors. Any other proper business may be transacted at the annual meeting of stockholders.
Section 3. Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation, as amended and restated from time to time (the “Certificate of Incorporation”), special meetings of stockholders, for any purpose or purposes, maybe called by the board of directors. Such request shall state the purpose or purposes of the proposed meeting. At a special meeting of stockholders, only such business shall be conducted as shall be specified in the notice of meeting (or any supplement thereto).
Section 4. Quorum. Unless otherwise required by law or the Certificate of Incorporation, the holders of all the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section 5, until a quorum shall be present or represented.
Section 5. Voting. Unless otherwise required by law, the Certificate of Incorporation or these By-Laws, any question brought before any meeting of stockholders, other than the election of directors, shall be decided by the vote of the holders of all the capital stock represented and entitled to vole thereat, voting as a single class. Unless otherwise provided in the Certificate of Incorporation, each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy provides for a longer period.
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Section 6. Consent of Stockholders in Lieu ofMeeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered in the manner required by this Section 6 to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in the state of Delaware, its principal place of business, or an officer or agent of the Corporation haying custody of the book in which proceedings of meetings of stockholders are recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as provided above in this section.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 8. Conduct of Meetings. The board of directors of the Corporation may adopt by resolution such rules and regulations for the conduct of the meeting of the stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the board of directors, the chairman of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations, and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting.
ARTICLE II DIRECTORS Section 1. Number and Election of Directors. The board of directors shall initially consist of three (3) members who shall be appointed pursuant to the First Amended Joint Plan Of Liquidation Of Eagle Food Centers, Inc., and its Affiliated Debtors, dated January 29, 2004, (the “Plan”), provided that the number of members of the board of directors may be reduced to one (1) upon the unanimous written consent of the then-active members of the board of directors. The directors may resign at any time by giving notice in writing or by electronic transmission to the Corporation. Such resignation shall take effect at the time therein specified or, if no time is specified, immediately, and unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective.
Section 2. Vacancies. Any vacancy occurring on the board of directors with respect to a member originally selected to serve on the board of directors pursuant to the Plan shall be filled by a person designated by the remaining directors, even if less than a quorum, as a replacement to
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serve out the remainder of the applicable term.
Section 3. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the board of directors and in accordance with the Plan, which directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws required to be exercised or done by the stockholders.
Section 4. Meetings. The board of directors may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the board of directors may be held without notice at such time and at such place as may from time to time be determined by the board of directors. Special meetings of the board of directors may be called by a majority of the members of the board of directors. Notice thereof stating the place, date, and hour of the meeting shall be given to each director either by mail not less than forty-eight hours before the dale of the meeting, by telephone, telegram or electronic means on twenty-four hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as otherwise required by law or the Certificate of Incorporation, at all meetings of the board of directors, a majority of then-active members of the board of directors shall constitute a quorum for the transaction of business and the act of a major of the board of directors present at any meeting at which there is a quorum shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the members of the board of directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present.
Section 6. Actions by Written Consent. Unless otherwise provided in the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all the members of the board of directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board of directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
ARTICLE III OFFICERS Section 1. General The sole officer of the Corporation shall be appointed pursuant to the Plan, and such appointee shall serve as Chief Wind Down Officer (as defined in the Plan), president, secretary, and treasurer. The officer of the Corporation shall exercise such powers and perform such duties as set forth in the Plan and as set forth below and shall hold office until his or her successor is chosen and qualified, or until his or her earlier death, resignation, or removal. Any vacancy occurring in any office of the Corporation by death, resignation, removal, or otherwise shall be filled in accordance with the terms of the Plan.
Section 2. Voting Securities Owned by theCorporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the president or any
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other officer authorized to do so by the board of directors and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation or other entity in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The board of directors may, by resolution, from time to time confer like powers upon any other person or persons.
Section 3. Chairman of the Board of Directors. The Chairman of the board of directors, if there be one, shall preside at all meetings of the stockholders and of the board of directors. During the absence or disability of the President, the Chairman of the board of directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the board of directors shall also perform such other duties and may exercise such other powers as may from time to time be assigned by these By-Laws or by the board of directors.
Section 4. President. The president shall, subject to the control of the board of directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall execute all bonds, mortgages, contracts, and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these By-Laws. the board of directors, or the president. In the absence or disability of the Chairman of the board of directors, or if there be none, the President shall preside at all meetings of the stockholders and, provided the President is also a director, the board of directors. The President shall be the chief executive officer of the Corporation. The president shall also perform such other duties and may exercise such other powers as may from time to time be assigned to such officer by these By-Laws or by the board of directors.
Section 5. Secretary. The secretary shall attend all meetings of the board of directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose. The secretary shall perform such other duties as may be prescribed by the board of directors, under whose supervision the secretary shall be. The secretary shall have custody of the seal of the Corporation and shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the secretary. The board of directors may give general authority to any other officer, if any, to affix the seal of the Corporation and to attest to the affixing by such officer’s signature. The secretary shall see that all books, reports, statements, certificates, and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.
Section 6. Treasurer. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the board of directors. The treasurer shall disburse the funds of the Corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and, if requested, shall render to the board of directors, at its regular meetings, or when the board of directors so requires, an account of all transactions as treasurer and of the financial condition of the Corporation.
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ARTICLE IV STOCK Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation by the president and the treasurer or secretary of the Corporation, certifying the number of shares owned by such stockholder in the Corporation. Any or all the signatures on a certificate maybe a facsimile.
ARTICLE V GENERAL PROVISIONS Section 1. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate.
Section. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the board of directors.
Section 3. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization, and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise,
ARTICLE VI CONTROL OVER BY-LAWS Section 1. Amendments. These By-Laws may be altered, amended, or repealed, in whole or in part, or new By-Laws may be adopted by the stockholders or by the board of directors; provided, however, that notice of such alteration, amendment, repeal, or adoption of new By-Laws be contained in the notice of such meeting of stockholders or board of directors as the case may be. All such amendments must be approved by either (i) to the extent there are three (3) members of the board of directors, the unanimous written consent of the board of directors or (ii) by order of the Court, and no stock holder vote shall be required for any such amendment.
Section 2. By-Laws to be Subject to Plan. These By-Laws shall be consistent with the terms of the Plan, and any provision contained in these By-Laws shall be inoperative to the extent that it contravenes the Plan.
These Restated and Amended By-Laws are intended to amend and restate in their entirety, and supersede, any and all prior By-Laws of the Corporation.
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PLAN SCHEDULE 1.20 Non-Exclusive List of Causes of Action General Note to Plan Schedule 1.20
The following is a non-exclusive list of potential or actual parties, including their affiliates whether or not explicitly stated, against whom the Debtors could assert, have asserted or may potentially assert a claim or cause of action. The Debtors reserve their right to modify this list to amend parties or otherwise update this list, but disclaim any obligation to do so. In addition to possible causes of action and claims against the persons or entities listed herein, the Debtors may have, in the ordinary course of business, numerous causes of action, claims, or rights against vendors or others with whom they deal in the ordinary course of business (“Ordinary Course Claims”) to the extent such causes of action, claims or rights have not been assigned to a third party. The Debtors and Reorganized Eagle Foods reserve their right to enforce, sue on, settle or compromise (or decline to do any of the foregoing) the Ordinary Course Claims, as well as the claims and causes of action asserted against the parties listed herein.
Causes of Action arising under sections 502. 510. 541. 542. 544.545. 547 through 551 or 553 of the Bankruptcy Code, or under similar orrelated state or federal statutes and common law, including fraudulenttransfer laws:
The Debtors reserve their right to modify this list to amend parties or otherwise update this list, but disclaim any obligation to da so.
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The Debtors reserve their right to modify this list to amend parties or otherwise update this list, but disclaim any obligation to do so.
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The Debtors reserve their right to modify this list to amend parties or otherwise update this list, but disclaim any obligation to do so. PLAN SCHEDULE 7.2 List of Affiliate Debtors Causes of Action and Proceedings General Note to Plan Schedule 7.2
The following is a non-exclusive list of potential or actual parties, including their affiliates wether or not explicitly stated, against whom the Debtors could assert, have asserted or may potentially assert a claim or cause of action. The Debtors reserve their right to modify this list to amend parties or otherwise update this list, but disclaim any obligation to do so. In addition to possible causes of action and claims against the persons or entities listed herein, the Debtors may have, in the ordinary course of business, numerous causes of action, claims, or rights against vendors or others with whom they deal in the ordinary course of business (“Ordinary Course Claims”) to the extent such causes of action, claims or rights have not been assigned to a third party. The Debtors and Reorganized Eagle Foods reserve their right to enforce, sue on, settle or compromise (or decline to do any of the foregoing) the Ordinary Course Claims, as well as the claims and causes of action asserted against the parties listed herein,
Causes of Action:
1. UFCW Midwest Health Benefits Fund
2. UFCW Midwest Pension Fund
3. United Food and Commercial Workers Unions and Employers Midwest Health Benefits Funds
4. United Food and Commercial Workers Union Local 1540
PLAN SCHEDULE 7.6 List of Employees Eligible to Participate in Recovery Bonus Plan and Target Awards Recovery Bonus Plan
PLAN SCHEDULE 8.1 Executory Contracts or Unexpired Leases to be Rejected
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General Note to Plan Schedule 8.1
Except as otherwise provided below or as listed on Plan Schedule 8.2, all prepetition executory contracts or unexpired leases not already assumed or rejected shall be deemed rejected by the Debtors effective as of the Effective Date or such other date as set forth below. Neither the exclusion nor inclusion of a contract or lease by the Debtors on this Plan Schedule, nor anything contained herein, shall constitute an admission by the Debtors that any such lease or contract is an unexpired lease or executory contract or that any Debtor, or its respective Affiliates, has any liability thereunder.
Executory Contracts or Unexpired Leases for which the effectivedate of rejection shall be the earlier of (a) 10 days following thereceipt of written notice and (b) April 29. 2004, unlessotherwise authorized by the Bankruptcy Court or such other date asmutually agreed upon by the parties in interest.
1. Settlement Agreement, dated as of July 6, 2000, by and between Eagle Food Centers, Inc., a Delaware corporation, and Lucky Stores, Inc., a Delaware corporation, together with Lucky Stores, Inc., a California corporation, its predecessor by merger.
2. That certain lease made March 11, 1983, by and between Meadowdale Shopping Center, Inc., a corporation, and Lucky Stores, Inc., a California corporation and all amendments, modifications, assignments, subleases and any other documents related thereto, including but not limited to (a) that certain lease made October 15, 1997, by and between Eagle Food Centers, Inc., a Delaware corporation, and Consolidated Stores Corporation, an Ohio corporation and (b) that certain assignment of lease and agreement made November 10, 1987, by and between Lucky Stores, Inc. a Delaware corporation (as successor by merger to Lucky Stores, Inc., a California corporation) and Eagle Food Centers, L.P., a Delaware limited partnership.
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Executory Contracts or Unexpired Leases for which the effectivedate of rejection shall be 10 days following the receipt of writtennotice.
1. Services agreement, dated as of July 1, 2000, by and between Eagle Food Centers, Incorporated, a Delaware corporation, Electronic Data Systems Corporation, a Delaware corporation and EDS Information Services L.L.C., a Delaware limited liability company.
PLAN SCHEDULE 8.2 Executory Contracts or Unexpired Leases to be Assumed General Note to Flan Schedule 8.2
Neither the exclusion nor inclusion of a contract or lease by the Debtors on this Plan Schedule, nor anything contained herein, shall constitute an admission by the Debtors that any such lease or contract is an unexpired lease or executory contract or that any Debtor, or its respective Affiliates, has any liability thereunder,
None PLAN SCHEDULE 11.1(b) Substantial Contribution Claim
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EXHIBIT B 15.5 Effectuating Documents and Further Transactions. Each of the Debtors or Reorganized Eagle Foods is authorized to execute, deliver, file or record such contracts, instruments, releases and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement and further evidence the terms and conditions of this Plan and any notes or securities issued pursuant to this Plan.
15.6 Corporate Action. Prior to, on or after the Effective Date (as appropriate), all matters provided for under this Plan that would otherwise require approval of the stockholders or directors of one (1) or more of the Debtors or Reorganized Eagle Foods 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 the states in which the Debtors or Reorganized Eagle Foods are incorporated without any requirement of further action by the stockholders or directors of the Debtors or Reorganized Eagle Foods.
15.7 Exemption from Transfer Taxes. Pursuant to section 1146(c) of the Bankruptcy Code: (a) the creation of any mortgage, deed of trust, lien, pledge, or other security interest; (b) the making or assignment of any lease or sublease; (c) the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with, this Plan, including, without limitation, any restructuring, disposition, liquidation, or dissolution, deeds, bills of sale, transfers of tangible property or the transfers, sales, and assignments of the Debtors’ or Reorganized Eagle Foods’ owned and leased real property pursuant to this Plan or otherwise or (d) any transfers from the Debtors to Reorganized Eagle Foods pursuant to this Plan or otherwise will not be subject to any document recording tax, stamp tax, conveyance fee, personal property tax, real estate transfer tax, intangibles or similar tax, mortgage tax, stamp act, mortgage recording tax, or other similar tax or governmental assessment, and the Confirmation Order shall direct the appropriate state or local governmental officials or agents to forgo the collection of any such tax or governmental assessment and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment. Unless the Court ordersotherwise, all sales, transfers and assignments of owned and leased realand personal property, approved by the Court on or prior to the EffectiveDate shall be deemed to have been in furtherance of, or in connectionwith, this Plan.
15.8 Severability of Plan Provisions. If, prior to the Confirmation Date, any term or provision of this Plan is determined by the Bankruptcy Court to be invalid, void or unenforceable, the Bankruptcy Court will have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void or unenforceable, and such term or provision will then be applicable as altered or interpreted. Notwithstanding any such holding, alteration or interpretation, but subject to Section 1 5.4 of this Plan, the remainder of the terms and provisions of this Plan will remain in full force and effect and will in no way be affected, impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order will constitute a judicial determination and will provide that each term and provision of this Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms.
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EXHIBIT C NOTICE REGARDING (A) EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED OR ASSUMED AND ASSIGNED PURSUANT TO SECTION 365 OF THE BANKRUPTCY CODE, (B) AMOUNTS REQUIRED TO CURE DEFAULTS UNDER SUCH CONTRACTS AND LEASES AND (C) RELATED PROCEDURES PLEASE TAKE NOTICE OF THE FOLLOWING:
1. Executory Contracts and Unexpired Leases to Be Assumed orAssumed and Assigned. Pursuant to Section 8.2 of the First Amended Joint Plan of Liquidation of Eagle Food Centers, Inc. and Its Affiliated Debtors and Debtors in Possession, as modified, dated January 29, 2004 (the “Plan”),[1] section 365 of the Bankruptcy Code, 11 U.S.C. § 101-1330 (the “Bankruptcy Code”) and the Order of the Bankruptcy Court confirming the Plan (the “Confirmation Order”), the above-captioned debtors and the debtors-in-possession (collectively, the “Debtors”) have determined to assume or assume and assign each of the executory contracts (collectively, the “Contracts”) and unexpired leases (collectively, the “Leases”) listed on amended Schedule 8.2 of the Plan (filed with the Court on [, 2004]) as of the confirmation date of the Plan, which occurred on [___], 2004 (the “Confirmation Date”). The Contract(s) and/or Lease(s) to which you are a party and are being assumed or assumed and assigned pursuant to Section 8.2 of the Plan, are listed on the attached Exhibit A.
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2. Proposed Amounts Required to Cure Defaults. Section 365(b)(1)(A) of the Bankruptcy Code requires that the Debtors cure or provide adequate assurance that they will promptly cure defaults under the Contracts or Leases at the time of assumption. The Debtors have determined the amounts required to cure defaults under the Contracts and Leases based on the Debtors’ books and records (“Cure”). Cure for the Contracts or Leases to which you are a party are identified on the attached Exhibit A.
3. Adequate Assurance of Cure and Future Performance. Pursuant to 11 U.S.C. § 365 there is adequate assurance that the Cure shall be paid in accordance with the terms of the Plan and this notice. Further, to the extent that a Contract or Lease is being assumed and assigned, there is adequate assurance of the assignee’s future performance under the Contract or Lease to be assumed and assigned because of the significant resources of the assignee.
4. Deadline to Respond to Proposed Cure Amount Claims and AdequateAssurance of Future Performance. Pursuant to Section 8.3 of the Plan, the Debtors will first attempt to consensually resolve any dispute relating to the amount of Cure and/or adequate assurance. If the parties are unable to reach a consensual resolution, the amount of Cure and/or adequate assurance will be determined by the Court following appropriate notice and a hearing. Accordingly, if you disagree with (1) the Cure specified on the attached Exhibit A and/or (2) the assumption and assignment of the Contracts or Leases based upon adequate assurance of future performance, an objection must be filed with the Clerk of the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division, Everett McKinley Dirksen Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, and served by personal service, overnight delivery, or first class mail, so as to be RECEIVED no later than twenty (20) days from the date of this notice by (i) Eagle Food Centers, Inc., 801 First Street East, Milan, IL 61264 (Attn: Chief Wind Down Officer) and (ii) undersigned counsel to the Debtors, If you fail to properly and timely file and serve such objection, the Debtors’ calculation of Cure will be fixed, and you shall be forever barred from challenging the Cure amount or the adequate assurance of future performance.
5. Payment and Cure of Amount. Absent any pending disputes, Cure shall be satisfied, at the option of the Debtors or Reorganized Eagle Foods, (a) by payment of Cure in Cash within a reasonable period of time following the Effective Date or (b) on such other terms as agreed to by the parties to such Contract or Lease. If the parties are unable to consensually resolve the amount of Cure, the Bankruptcy Court shall determine the Cure and the propriety of the assumption or
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assignment in accordance with the Plan at the next scheduled omnibus hearing scheduled not earlier than five (5) business days after filing of such objection. If there is a dispute regarding the amount of Cure, the applicable Cure shall be paid as soon as practicable following the entry of a Final Order, or the filing of such agreement or other document, resolving the dispute. If there is a dispute as to the amount of Cure that cannot be resolved consensually among the parties, the Debtors or Reorganized Eagle Foods shall have the right to reject the Contract or Lease for a period of five (5) `days after entry of a Final Order establishing a Cure amount in excess of that provided by the Debtors. Notwithstanding the foregoing, if Reorganized Eagle Foods believes that a dispute may exist as to the ownership of a Cure Claim, Reorganized Eagle Foods reserves the right to require the potential claimant) to execute an agreement establishing the ownership of the Cure Claim prior to distributing payment on account of such claim. Until Cure becomes Allowed in accordance with the procedures set forth herein and the Plan, such Claim shall be treated as a Disputed Claim for purposes of making distributions under the Plan.
EXHIBIT D
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NOTICE OF (A) ENTRY OF ORDER CONFIRMING THE FIRST AMENDED JOINT PLAN OF LIQUIDATION OF EAGLE FOOD CENTERS, INC. AND ITS AFFILIATE DEBTORS AND DEBTORS IN POSSESSION, AS MODIFIED, (B) OCCURRENCE OF EFFECTIVE DATE. AND (C) BAR DATE FOR FILING ADMINISTRATIVE CLAIMS
1. Confirmation of the Plan. On J, 2004, the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division (the “Bankruptcy Court”) entered an order (the “Confirmation Order”) confirming the First Amended Joint Plan of Liquidation of Eagle Food Centers, Inc. and Its Affiliated Debtors and Debtors in Possession, dated January 29, 2004, (the “Plan”), in the chapter 11 cases of the above-captioned debtors and debtors-in-possession (collectively, the “Debtors”). Unless otherwise defined in this Notice, capitalized terms and. phrases used herein have the meanings given to them in the Plan and the Confirmation Order, A copy of the Plan and Confirmation Order can be obtained at your own expense at www.ilnb.uscourt5.iiov,www.loganandco.com or by written request to Logan Company, Inc., Attn: Eagle Food Centers, Inc., et al., 546 Valley Road, Upper Montclair, New Jersey 07043.’
2. Effective Dale. On [___], 2004, the Effective Date of thePlan occurred.
3. Releases by Debtors and Debtors in Possession.
a. In addition to Section 13.5 (Releases by Debtors and Debtors in Possession) of the Plan, pursuant to section 1123(b)(3) of the Bankruptcy Code, effective as of the Effective Date, each Debtor, in its individual capacity and as a Debtor in Possession, for and on behalf of its Estate, shall release and forever unconditionally release all Released Parties for and from any and all claims or Causes of Action existing as of the Effective Date in any manner arising from, based on or relating to, in whole or in part, the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor or any Released Party, the restructuring of Claims and Interests prior to or in the Chapter 11 Cases, or any act, omission, occurrence or event in any manner related to any such Claims, Interest, restructuring or the Chapter 11 Cases. “Released Parties” are defined to be, collectively, pursuant to section 1123(b)(3) of the Bankruptcy Code, effective as of the Effective Date: (i) all officers of each of the Debtors, all directors of each of the Debtors, and all employees of each of the Debtors serving as such as of the Petition Date, (ii) the Creditors’ Committee and all members of the Creditors’ Committee in their representative capacity, (iii) the Professionals, (iv) the Prepetition Indenture Trustee, and (v) the DIP Lender.
b. No provision of the Plan or of the Confirmation Order, including without limitation, any release or exculpation provision, shall modify, release or otherwise limit the liability of any Person not specifically released under the Plan, including without limitation, any Person that is a co-obligor or joint tortfeasor of a Released Party or that otherwise is liable under theories of vicarious or other derivative liability.
c. Reorganized Eagle Foods and any newly-formed entities that will be liquidating the Debtors’ businesses after the Effective Date shall be bound, to the same extent the Debtors are bound, by all of the releases set forth above.
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4. Releases by Holders of Claims and Interests. On the Effective Date (a) each Person that voted to accept the Plan, and (b) to the fullest extent permissible under applicable Jaw, as such law may be extended or interpreted subsequent to the Effective Date, all Holders of Claims and Interests, in consideration for the obligations of the Debtors and Reorganized Eagle Foods under the Plan and the Cash and other contracts, instruments, releases, agreements or documents to be delivered in connection with the Plan, each entity (other than a Debtor) that has held, holds or may hold a Claim, as applicable, (each, a “Release Obligor”) shall have conclusively, absolutely, uncondition ally, irrevocably and forever, released each Released Party from any claim or Cause of Action existing as of the Effective Date arising from, based on or relating to, in whole or in part, the subject matter of, or the transaction or event giving rise to, the Claim of such Release Obligor, and any act, omission, occurrence or event in any manner related to such subject mailer, transaction or obligation; provided, however, that Section 13.6 shall not release any Released Party from any Cause of Action existing as of the Effective Date, based on (i) the Internal Revenue Code or other domestic state, city or municipal tax code, (ii) the environmental laws of the United States or any domestic state, city or municipality, (iii) any criminal laws of the United States or any domestic state, city or municipality, or (iv) the Securities Exchange Act of 1934, as now in effect or hereafter amended, the Securities Act of 1933, as now in effect or hereafter amended, or other securities laws of the United States or any domestic state, city, or municipality, or (v) Sections 1104-1109 and 1342(d) of the Employee Retirement Income Security Act of 1974, as amended.
5. Injunction. Except to the extent otherwise provided by the Plan or the Confirmation Order, the satisfaction and release pursuant, to Article XIII of the Plan shall also act as a permanent injunction against any Person commencing or continuing any action, employment of process, or act to collect, offset or recover any Claim or Cause of Action satisfied or released under the Plan to the fullest extent authorized or provided by the Bankruptcy Code, including, without limitation, to the extent provided for or authorized by sections 524 and 1141 thereof.
6. Executory Contracts and Unexpired Leases to Be Rejected.
Pursuant to Section 8.1 of the Plan and the Confirmation Order, the Debtors rejected, as of [___], 2004, unless a different effective date of rejection is specified on Plan Schedule 8.1, each executory contract (collectively, the “Contracts”) and unexpired lease (collectively, the “Leases”) not listed on Schedule 8.2 to the Plan except for Contracts and Leases which (1) have been assumed, assumed and assigned, or rejected, as applicable, pursuant to an order of the Court entered prior to the Confirmation Date; or (2) as of the Effective Date, are subject to a pending motion for approval of the assumption, assumption and assignment, or rejection, as applicable. Copies of such Plan Exhibits may be obtained, at your own expense, atwww.ilnb.uscourts.gov. www.loganandco.eom or by written request to Logan Company, Inc., Attn: Eagle Food Centers, Inc., et al., 546 Valley Road, Upper Montclair, New Jersey 07043. If the Contracts) and/or Lease(s) to which you are a party are rejected, and such rejection gives rise to any claims against the Debtors, you must file a proof of claim in accordance with the procedures set forth in section 7(c) below.
7. Bar Dates.
a. Administrative Claims Bar Date. “Administrative Claims” are defined by the Plan as Claims for payment of an administrative expense of a kind specified in section 503(b) of the Bankruptcy Code and entitled to priority pursuant to section 507(a)(1) of the Bankruptcy Code, including, but not limited to, (a) any actual and necessary costs and expenses, incurred after the Petition Date, of preserving the Estates and operating and liquidating the business of the Debtors (including wages, salaries, or commissions for services rendered after the Petition Date), (b) Professional Fee Claims, (c) all fees and charges assessed against the Estates under chapter 123 of title 23, United States Code, (d) Reclamation Claims to the extent not already paid, and (e) DIP Facility Claims to the extent not already paid. Except as otherwise provided below, unless previously filed, requests for payment of Administrative Claims must be filed with the Clerk of the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division, Everett McKinley Dirksen Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, and served by personal service, overnight delivery, or first class mail, so as to be RECEIVED no later than [___], 2004 by (i) Eagle Food Centers, Inc., 801 First Street East, Milan, IL 61264 (Attn: Chief Wind Down Officer) and (ii) undersigned counsel to the Debtors, (iii) counsel to the Creditors’ Committee, Foley Lardner, 321 N. Clark Street, Suite 2100, Chicago, IL 60610 (Attn: William J. McKenna, Esq.), and (iv) the United States Trustee, 227 W. Monroe Street, Suite 3350, Chicago, IL 60606 (Attn: M. Gretchen Silver, Esq.) (collectively, the “Notice Parties”). Unless any Notice Party objects to an Administrative Claim on or before [___], 2004, such Administrative Claim shall be deemed allowed in the amount requested. In the event that the Notice Parties object to an Administrative Claim, the Bankruptcy Court shall determine the Allowed amount of such Administrative Claim. Notwithstanding the foregoing,
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the Debtors or Reorganized Eagle Foods may pay, in their discretion, in accordance with the terms and conditions of any agreements relating thereto, any Administrative Claim as to which no request for payment has been timely filed but which is paid or payable by a Debtor in the ordinary course of business,
b. Deadline for Submitting Professional Fee and SubstantialContribution Claims. All Professionals or other entities requesting compensation or reimbursement of expenses pursuant to sections 327, 328, 330, 331, 503(b) and 1103 of the Bankruptcy Code for services rendered on or before the Effective Date (including compensation and expenses for making a substantial contribution in any of the Chapter 11 Cases) shall file an application for final allowance of compensation and reimbursement of expenses with the Clerk of the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division, Everett McKinley Dirksen Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, and served by personal service, overnight delivery, or first class mail, $0 as to be RECEIVED no later than [___], 2004 by the Notice Parties, as defined in above in paragraph 7(a). Objections to applications of Professionals and other entities for compensation and reimbursement of expenses must be filed with the Bankruptcy Court no later than twenty (20) days after the filing and service of a Professional’s application. All compensation and reimbursement of expenses allowed by the Bankruptcy Court shall be paid ten (10) days after the entry of an Order allowing such fees and expenses, or as soon thereafter as practicable.
c. Bar Date for Proofs of Claim Relating To Rejectcd ExecutoryContracts Or Unexpired Leases. If the rejection by a Debtor or Reorganized Eagle Foods of an executory contract or unexpired lease pursuant to the Plan results in a Claim, then such Claim shall be forever barred and shall not be enforceable against any Debtor or Reorganized Eagle Foods or the properties of any of them unless a proof of claim is filed with the Debtors’ Claims agent, Logan Company, Inc., Attn: Eagle Food Centers, Inc., et al., 546 Valley Road, Upper Montclair, New Jersey 07043, and served on the Notice Parties, as defined above in paragraph 7(a), within thirty (30) days after service of the earlier of (a) notice of the effective date of rejection of such executory contract or unexpired lease as determined in accordance with Section 8.1 of the Plan or (b) other notice that the executory contract or unexpired lease has been rejected. Nothing in this section 7(c) or in Section 8.4 of the Plan shall revive or deem to revive a previously Disallowed Claim or extend a previously established bar date, if applicable. The bar date for filing a Claim with respect to an executory contract or unexpired lease other than pursuant to the Plan shall be as set forth in the Bar Date Order or the Final Order approving such rejection.
8. Record Date. The record dale for distributions provided for in the Plan shall be the Confirmation Date, which was [___], 2004.