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Title: |
Put/Call Agreement |
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Entities: |
Congoleum Corp. |
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Date: |
2008 |
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Size: |
Preview shows 21KB of 74KB total |
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Price: |
$53 |
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ID: |
#3271518 |
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Start of
Preview |
PUT/CALL AGREEMENT
This PUT/CALL AGREEMENT (the ?Agreement?), dated as of _____________ (the ?Agreement Date?), is made and entered into by and between Congoleum Corporation, a Delaware corporation (as a debtor in possession and a reorganized debtor, as applicable, the ?Company?), [Congoleum Plan Trust to be formed on Effective Date of Plan] (the ?Trust?), Plainfield Special Situations Master Fund Limited (?Plainfield?), DWS High Income Fund, DWS High Income VIP and DWS High Income Plus Fund, DWS High Income Trust, DWS Balanced Fund, DWS Strategic Income Fund, DWS Multi Market Income Trust, DWS Balanced VIP, DWS Strategic Income VIP and DWS Strategic Income Trust (collectively, ?DWS? and each an ?Initial Backstop Participant? and collectively, the ?Initial Backstop Participants?), and any other Eligible Bondholder (as defined below) that elects to become a party hereto prior to the Election Deadline (as defined below), if any, by executing a counterpart signature page in the form of Exhibit A attached hereto (each an ?Additional Backstop Participant? and collectively, the ?Additional Backstop Participants? and together with the Initial Backstop Participants, the ?Backstop Participants?).
W I T N E S S E T H
WHEREAS, pursuant to the Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code of the Futures Representative, the Debtors, the Official Asbestos Claimants? Committee and the Official Committee of Bondholders for Congoleum Corporation et al. dated as of February 5, 2008 (the ?Plan?), which is subject to the approval by the Court the ?Bankruptcy Court?) administering the Company?s proceedings under the United States Bankruptcy Code, 11 U.S.C, ?? 101, et seq. (the ?Bankruptcy Code?), the Trust will be issued shares of the Company?s Common Stock, $.001 par value per share (the ?New Common Stock?), which when issued by the Company to the Trust will represent 50.1% of the outstanding Common Stock of the Company (all such shares issued to the Trust being referred to herein as the ?Trust Shares?);
WHEREAS, pursuant to the Plan, the Trust will be given the opportunity to elect to cause the Backstop Participants to purchase the Trust Shares on the terms and subject to the conditions set forth herein;
WHEREAS, pursuant to the Plan, the Backstop Participants will be given the opportunity to elect to cause the Trust to sell the Trust Shares on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, it is hereby agreed as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. As used in the Agreement the following terms shall have the meanings set forth below:
?ABC? shall have the meaning ascribed to such term in the Preamble hereto.
?Additional Backstop Participant? shall have the meaning ascribed to such term in the Preamble hereto.
?Agreement? shall have the meaning ascribed to such term in the Preamble hereto.
?Agreement Date? shall have the meaning ascribed to such term in the Preamble hereto.
?Agreement Motion? shall have the meaning ascribed to such term in Section 8.01(b) hereof.
?Agreement Order? the order of the Bankruptcy Court approving this Agreement, together with the exhibits attached hereto, and authorizing and directing the Company to execute and deliver it and to pay the Commitment Fee as provided hereunder.
?Backstop Participant? shall have the meaning ascribed to such term in the Preamble hereto.
?Bankruptcy Code? shall have the meaning ascribed to such term in the Preamble hereto.
?Bankruptcy Court? shall have the meaning ascribed to such term in the Preamble hereto.
?Bondholders? means each holder of the 8.625% Senior Notes Due 2008 issued by Congoleum Corporation, as of the Effective Date of the Plan.
?Bondholders Committee? shall have the meaning ascribed to such term in the Preamble hereto.
?Business Day? means a day other than Saturday, Sunday or any day on which commercial banks located in New York are authorized or obligated by Law to close.
?Call Backstop Participants? shall have the meaning ascribed to such term in Section 3.02(b) hereof.
?Call Closing Date? shall have the meaning ascribed to such term in Section 3.03 hereof.
?Call Participant? means an Exercising Bondholder and each other Electing Participant.
?Call Period? means the period beginning on the Effective Date and ending at 5:00 p.m., Eastern Standard Time, on the date that is 90 days after the Effective Date.
?Call Purchase Price? shall have the meaning ascribed to such term in Section 3.01(a) hereof.
?Call Right? shall have the meaning ascribed to such term in Section 3.01(a) hereof.
?Company? shall have the meaning ascribed to such term in the Preamble hereto.
?Commitment Fee? shall have the meaning ascribed to such term in Section 4.01 hereof.
?Confirmation Order? shall mean entry of an order confirming and approving the Plan pursuant to Section 1129 of the Bankruptcy Code by the Bankruptcy Court prior to any review by the District Court.
?Court Orders? means the Agreement Order and the Confirmation Order taken together.
?Disclosure Statement? means the disclosure statement relating to the Plan.
?Dispose? means any sale, assignment, transfer, exchange, mortgage, pledge, grant, hypothecation or other transfer, whether absolute or as security or encumbrance (including dispositions by operation of law).
?Effective Date of the Plan? shall have the same meaning ascribed to such term in the Plan.
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