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Title: |
Reorganization Agreement |
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Entities: |
Ableco Finance LLC; Anchor Glass Container Corp.; Merrill Lynch, Pierce, Fenner & Smith Inc.; Owens-Illinois, Inc.; Cahill Gordon & Reindel LLP; Schulte Roth & Zabel LLP; Cerberus Capital Management, L.P. |
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Date: |
2002 |
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Size: |
Preview shows 15KB of 130KB total |
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Price: |
$46 |
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ID: |
#206643 |
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REORGANIZATION AGREEMENT
dated March 15, 2002,
between
ANCHOR GLASS CONTAINER CORPORATION
and
CERBERUS CAPITAL MANAGEMENT, L.P.
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I
THE PURCHASE AND SALE OF SERIES C PARTICIPATING PREFERRED
STOCK AND NEW COMMON STOCK
1.1 The Purchase of the Preferred Stock and the New Common Stock.........2
1.2 Use of Proceeds......................................................2
1.3 The Closing..........................................................2
1.4 Additional Actions at the Closing....................................2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.1 Organization, Qualification, Corporate Power and Authority...........3
2.2 Capitalization.......................................................3
2.3 Noncontravention.....................................................4
2.4 SEC Documents; Financial Statement; Undisclosed Liabilities..........4
2.5 Absence or Changes of Events.........................................5
2.6 Contracts............................................................7
2.7 Tax Matters..........................................................8
2.8 Tangible Assets......................................................9
2.9 Properties...........................................................9
2.10 Copyrights, Patents, Trademarks and Licenses, Etc...................11
2.11 Licenses and Authorizations.........................................12
2.12 Litigation..........................................................12
2.13 Collective Bargaining Agreements; Labor Disputes....................13
2.14 Employee Benefits...................................................13
2.15 Environmental Laws..................................................15
2.16 Legal Compliance....................................................15
2.17 Insurance Coverage..................................................16
2.18 Brokers' Fees.......................................................16
2.19 Settlement Agreement................................................16
-i-
{PAGE}
Page
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CCM
3.1 Organization, Qualification, Corporate Power and Authority..........16
3.2 Noncontravention....................................................17
3.3 Brokers' Fees.......................................................17
3.4 Investment Intent...................................................17
3.5 Available Funds.....................................................17
ARTICLE IV
COVENANTS
4.1 Reasonable Best Efforts.............................................18
4.2 Approvals; Consents.................................................18
4.3 Bankruptcy Covenants................................................18
4.4 Operation of Business...............................................19
4.5 Notice of Breaches..................................................21
4.6 Exclusivity.........................................................21
4.7 Full Access.........................................................22
4.8 Disclosure Statement................................................22
4.9 Restrictions on Transfer of Securities..............................22
4.10 Insurance Policies..................................................23
4.11 Directors' and Officers' Insurance..................................23
4.12 Payment of Subsequent Equity Fee....................................25
ARTICLE V
CONDITIONS TO CLOSING
5.1 Conditions to Obligations of Each Party.............................25
5.2 Conditions to Obligations of the Investors..........................26
5.3 Conditions to Obligations of the Company............................27
5.4 Frustrations of Conditions..........................................27
ARTICLE VI
TERMINATION
6.1 Termination.........................................................27
6.2 Effect of Termination; Investor Breakup Fee.........................29
-ii-
{PAGE}
Page
ARTICLE VII
DEFINITIONS
ARTICLE VIII
GENERAL PROVISIONS
8.1 Press Releases and Announcements....................................33
8.2 No Third Party Beneficiaries........................................33
8.3 Entire Agreement....................................................33
8.4 Succession and Assignment...........................................33
8.5 Counterparts........................................................33
8.6 Headings............................................................33
8.7 Notices.............................................................34
8.8 Governing Law.......................................................34
8.9 Amendments and Waivers..............................................35
8.10 Severability........................................................35
8.11 Expenses............................................................35
8.12 Construction........................................................35
Schedule 2.2 - Capitalization
Schedule 2.4 - Undisclosed Liabilities
Schedule 2.5 - Absence of Changes or Events
Schedule 2.6 - Contracts
Schedule 2.9 - Properties
Schedule 2.10 - Intellectual Property
Schedule 2.12 - Litigation
Schedule 1.13 - Collective Bargaining Agreements
Schedule 2.14 - Employee Benefits
Schedule 2.15 - Environmental Laws
Schedule 2.17 - Insurance Coverage
Exhibit A - Series C Participating Preferred Stock Certificate of Designations
Exhibit B - Term Sheet for Tranche B Term Loan
Exhibit C - Reorganization Plan
Exhibit D - Amended and Restated Certificate of Incorporation of the Company
Exhibit E - Amended and Restated By-laws of the Company
Exhibit F - Settlement Agreement
-iii-
{PAGE}
REORGANIZATION AGREEMENT
This Reorganization Agreement (this "Agreement") is dated as of March 15,
2002 between Anchor Glass Container Corporation, a Delaware corporation (the
"Company"), and Cerberus Capital Management, L.P. ("CCM"), on behalf of one or
more funds or affiliates to be designated by it (each, an "Investor" and,
collectively, the "Investors" and together with the Company, the "Parties").
PRELIMINARY STATEMENT
A. The Company wishes to sell to the Investors in the aggregate, and the
Investors wish to purchase in the aggregate from the Company, (i) 75,000 shares
of a new series of participating preferred stock, par value $.01 per share, of
the Company designated Series C Participating Preferred Stock of the Company
(the "Series C Preferred Stock"), the terms and conditions of which are
contained in the Certificate of Designations set forth on Exhibit A, and (ii)
9,000,000 shares of new common stock, par value $0.10 per share (the "New Common
Stock"), of the Company.
B. Ableco Finance, LLC, an affiliate of the Investors, has offered to
provide $100 million in the aggregate of debtor-in-possession credit facility
(the "DIP Facility"), subject to approval of the Bankruptcy Court (as defined
hereinafter).
C. The Investors will also provide a Tranche B Term Loan to the Company
(the "Tranche B Term Loan") in an aggregate principal amount of $20,000,000,
substantially in accordance with the term sheet set forth on Exhibit B hereto.
D. Concurrently with the execution of this Agreement, the Company is paying
the Investors an initial equity fee in the aggregate amount of $500,000 in
immediately available funds.
E. The purchase of the Series C Preferred Stock and New Common Stock
contemplated by this Agreement and the making of the Tranche B Term Loan will be
consummated under the Plan of Reorganization of the Company attached hereto as
Exhibit C (the "Reorganization Plan").
F. Upon consummation of the Reorganization Plan, the Amended and Restated
Certificate of Incorporation of the Company (the "Amended and Restated
Certificate of Incorporation") shall be as set forth on Exhibit D and the
Amended and Restated By-laws of the Company (the "Amended and Restated By-laws")
shall be as set forth on Exhibit E.
G. The transactions contemplated by this Agreement will be consummated
pursuant to the Reorganization Plan as confirmed by an order (the "Confirmation
Order") of the United States Bankruptcy Court for the Middle District of
Florida, Tampa Division (the "Bankruptcy Court"), in which the Company files the
petition (the "Petition") containing such plan.
H. Certain transactions contemplated by this Agreement will require prior
Bankruptcy Court approval pursuant to a separate order entered by the Bankruptcy
Court (the "Approval Order") as soon as practicable after the Petition has been
filed.
The Parties therefore agree as follows:
{PAGE}
ARTICLE I
THE PURCHASE AND SALE OF SERIES C participating
PREFERRED STOCK AND NEW COMMON STOCK
1.1 The Purchase of the Preferred Stock and the New Common Stock. Upon the
terms and subject to the conditions hereof as incorporated within the
Reorganization Plan, at the Closing (as defined below) the Company shall issue
and sell to each Investor, and each Investor shall purchase from the Company, a
number of shares of Series C Preferred Stock (such shares, the "Purchased Series
C Shares") and a number of shares of New Common Stock (such shares, the
"Purchased Common Shares" and together with the Purchased Series C Shares the
"Purchased Shares") set forth opposite the name of each Investor set forth on
Schedule 1 hereto, such Purchased Common Shares in the aggregate representing
all of the reorganized Company's fully diluted common equity, without taking
into account (a) the participation rights of the Series C Preferred Stock and
(b) stock-option plans to be instituted for the reorganized Company. At the
Closing (i) the Company shall issue to each Investor certificates for such
Investor's Purchased Series C Shares and Purchased Common Shares registered in
the names as directed by such Investor no less than one (1) Business Day prior
to the Closing and (ii) each Investor shall transfer and deliver to the Company
in immediately available funds its pro rata share of the payment for the
Purchased Series C Shares ($75,000,000 in the aggregate) and the Purchased
Common Shares ($5,000,000 in the aggregate) (collectively, the "Purchase
Price").
1.2 Use of Proceeds. The Company shall use the net proceeds of the Purchase
Price to satisfy partially the Company's obligations under the Reorganization
Plan and for general corporate purposes.
1.3 The Closing. Unless this Agreement is terminated pursuant to Article
VI, the Parties shall cause the closing of the transactions contemplated by this
Agreement (the "Closing") to take place at the offices of Schulte Roth & Zabel
LLP on a date to be agreed by the Company and the Investors within two Business
Days (or such other number of days not to exceed seven Business Days as the
Company and the Investors shall agree) after the date of satisfaction or waiver
of all the conditions to the obligations of the Parties to consummate the
transactions contemplated hereby set forth in Section 5.1 (the "Closing Date").
1.4 Additional Actions at the Closing. At the Closing, the Company shall
"substantially consummate" the Reorganization Plan (as such term is used in
Title 11 of the United States Code (the "Bankruptcy Code")). In addition, upon
the terms and subject to the conditions hereof, at the Closing, the Company
shall (a) deliver to the Investors the various certificates, instruments and
documents referred to in Section 5.2; (b) cause the Amended and Restated
Certificate of Incorporation to be filed with the Secretary of State of the
State of Delaware; and (c) cause the Board of Directors of the Company to adopt
the Amended and Restated By-laws. The Investors shall (a) fund the Tranche B
Term Loan; (b) deliver to the Company the Purchase Price in immediately
available funds; and (c) deliver to the Company the various certificates,
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