UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
In re:
Case No.: 2:1 1-bk-13454-PC
CONTESSA LIQUIDATING CO.,
INC. (f/k/a Contessa Premium
Foods, Inc., a California
corporation),
Chapter 11
Debtor.
CLASS 3 -- GENERAL UNSECURED CLAIM BALLOT FOR
ACCEPTING OR REJECTING DEBTOR'S CHAPTER 11 PLAN OF LIQUIDATION
RECORD DATE FOR VOTING: OCTOBER 11, 2011
PLEASE READ AND FOLLOW THE ENCLOSED VOTING INSTRUCTIONS
CAREFULLY BEFORE COMPLETING THIS BALLOT
PLEASE CHECK THE APPROPRIATE BOXES BELOW TO INDICATE YOUR
ACCEPTANCE OR REJECTION OF THE PLAN AND ELECTION OF A CLASS 3a
CLAIM OR CLASS 3b CLAIM
THIS BALLOT IS ACCOMPANIED BY A RETURN ENVELOPE THAT IS
ADDRESSED TO THE VOTING AGENT AT THE ADDRESS BELOW. THIS BALLOT
MUST BE ENCLOSED IN THE ENVELOPE WITH POSTAGE AFFIXED AND
MAILED OR OTHERWISE DELIVERED SO AS TO BE RECEIVED BY THE VOTING
AGENT ON OR BEFORE THE VOTING DEADLINE, I.E., DECEMBER 9, 2011. IF
YOUR BALLOT IS NOT RECEIVED BY THE VOTING DEADLINE, THE VOTING
AGENT SHALL REJECT SUCH BALLOT AS INVALID. IF THE PLAN IS
CONFIRMED BY THE COURT, IT WILL BE BINDING ON YOU WHETHER OR NOT
YOU VOTE.
Except as otherwise provided herein, such delivery will be deemed made only when the original
executed Ballot is ACTUALLY RECEIVED by the Voting Agent. Sufficient time should be
allowed to assure timely delivery. Delivery of a Ballot by facsimile transmission, email or any
other electronic means will not constitute valid delivery.
Contessa Liquidating Co., Inc. (f/k/a Contessa Premium Foods, Inc.), as debtor and
debtor-in-possession herein (the "Debtor"), filed the Debtor's Second Amended Chapter 11 Plan
of Liquidation (Dated November 3, 2011) (as amended, modified or supplemented from time to
time, the "Plan"). The United States Bankruptcy Court for the Central District of California (the
"Court") has approved the Second Amended Disclosure Statement Describing Debtor's Chapter
I1 Plan of Liquidation (Dated November 3, 2011) (as amended, modified or supplemented from
time to time, "Disclosure Statement"), which provides information to assist you in whether to
accept or reject the Plan, and whether to elect to receive a Class 3a Claim or Class 3b Claim.
The Debtor is formerly known as Contessa Premium Foods, Inc. The Debtor is a California corporation,
Fed. Tax I.D. No. 33-0020606. The Debtor's address is 222 West 6 11' Street, 8 rh Floor, San Pedro,
California 90731.
Capitalized terms used in the Ballot or in these instructions but not otherwise defined
herein shall have the meaning ascribed to such terms in the Order (A) Approving Disclosure
Statement, (B) Fixing the Voting Record Date, (C) Approving Solicitation and Voting
Procedures, (D) Approving Form of Solicitation Package and Notices, and (E) Scheduling
Certain Dates in Connection Therewith, as may be modified (the "Disclosure Statement Order"),
the Disclosure Statement, or the Plan, as the case may be. This Ballot is being sent to you
because our records indicate that you are a Holder of a Class 3 General Unsecured Claim as of
October 11, 2011(the "Voting Record Date"), and, accordingly, you have a right to vote to
accept or reject the Plan.
The Court has approved the Disclosure Statement as containing adequate information
pursuant to section 1125 of the Bankruptcy Code. Court approval of the Disclosure Statement
does not indicate approval of the Plan by the Court. If you believe you have received this Ballot
in error, please contact the Voting Agent at Kelley Drye and Warren, LLP, Attn.: Catherine
Thompson, Esq., 101 Park Avenue, New York, NY 10178.
Solely for purposes of voting to accept or reject the Plan, and not for the purpose of the
allowance of, or distribution on account of, a Claim (except for the election of a Class 3a Claim)
and without prejudice to the rights of the Debtor in any other context, your Claim may be
temporarily allowed in accordance with the following rules ("Resolution for Voting Purposes"):
•
Unless otherwise provided below, a Claim shall be temporarily allowed for voting
purposes in an amount equal to (a) the amount of such Claim as set forth in the
Schedules or, if a timely Proof of Claim was filed, (b) the amount set forth in the
timely-filed Proof of Claim;
•
If a Claim is listed in the Schedules as contingent, unliquidated, or disputed, and a
Proof of Claim was not timely filed, such Claim will be disallowed for voting
purposes; and
•
If a Claim is subject to the Debtor's amendment to its Schedule F [Creditors
Holding Unsecured Non-Priority Claims] filed on October 24, 2011 (Dkt. No.
558) ("Amended Schedule F"), or the Debtor has served and filed an objection to
a Claim no later than as November 9, 2011, such Claim shall be disallowed for
voting purposes unless either (a) the Holder of such Claim elects to receive a
Class 3a Claim (if applicable); (b) such Claim is temporarily allowed for voting
purposes by Order of the Court; or (c) no later than 7 days prior to the Voting
Deadline, (i) the amount of such Claim is allowed for voting purposes by
stipulation with the Debtor; or (ii) the objection is withdrawn.
YOU SHOULD CAREFULLY AND THOROUGHLY REVIEW THE
DISCLOSURE STATEMENT (INCLUDING, BUT NOT LIMITED TO, ARTICLE X OF
THE DISCLOSURE STATEMENT ENTITLED "CERTAIN RISK FACTORS TO BE
CONSIDERED") AND THE PLAN BEFORE YOU VOTE. YOU MAY WISH TO SEEK
LEGAL ADVICE CONCERNING THE PLAN AND CLASSIFICATION AND
TREATMENT OF YOUR CLAIM UNDER THE PLAN.
Holders of General Unsecured Claims in Class 3 have the option of having their
Class 3 Claim treated as either a Class 3a Claim or Class 3b Claim:
Impact of Electing to Receive a Class 3a Claim. Each Holder of a General
Unsecured Claim in Class 3 that affirmatively elects to be treated as a Class 3a
Claim and votes to accept the Plan shall be deemed to have an Allowed Claim in
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the amount set forth on the Class 3 Ballot sent to such Holder, which shall be,
with respect to such Claim, the lesser of (a) the Proof of Claim amount, (b) the
amount set forth in the Schedules, and (c) the amount indicated in the Debtor's
books and records, and shall receive in full satisfaction, settlement, release and
discharge of all General Unsecured Claims against the Debtor, on account of such
Allowed Class 3a Claim, (I) a single Cash payment equal to least 75% (or such
greater amount if and as agreed to by each the Debtor and the Committee or as
directed by Court Order) of such Allowed Class 3a Claim on the Effective Date
(which the Debtor anticipates occurring in December 201 1) in full and complete
satisfaction of such Allowed Class 3a Claim, and (II) a full and complete waiver
and release by the Debtor of all Causes of Action as may exist against such
Holder.
Impact of Electing to Receive a Class 3b Claim. Each Holder of a General
Unsecured Claim in Class 3 that is deemed to be a Class 3b Claim and that
ultimately becomes an Allowed Claim shall receive, in full satisfaction,
settlement, release and discharge of such Allowed Claim, Cash payments in an
amount equal to such Holder's Pro Rata share of Distributable Cash, with an
initial payment (estimated to be 35% of such Holder's Allowed Class 3b Claim)
on the later of (x) fourteen (14) days after the Effective Date and (y) thirty (30)
days after such Class 3 Claim becomes an Allowed Class 3b Claim (or as soon
thereafter as is practicable), followed by additional Pro Rata payments of
Distributable Cash on a quarterly basis no later than ten (10) Business Days after
the end of each calendar quarter, commencing with the first full calendar quarter
in 2012 (unless the Disbursing Agent reasonably believes, following consultation
with the Post-Effective Date Committee, that there is insufficient Distributable
Cash to justify such quarterly payment), and continuing thereafter until either all
Allowed Class 3b Claims are paid in full or no additional Distributable Cash is
available to pay Allowed Class 3b Claims. The aggregate payments to Holders of
General Unsecured Claims in Class 3b are projected to total between 51.3% and
100% of the amount of their Allowed Class 3b Claims.
•
Class 3b Claim Treatment by Default. All other Holders of General
Unsecured Claims in Class 3, including each Holder of a Class 3 Claim that (a)
does not vote for or against the Plan, (b) is deemed to have rejected the Plan, or
(c) has rejected the Plan or has not made the election to be treated as a Class 3a
Claim, shall be deemed to be a Class 3b Claim. Holders of Class 3b Claims shall
remain subject to the Disputed Claim Process, and any Causes of Action as may
exist against such Holder.
General Unsecured Claims in Class 3 who affirmatively vote to reject the Plan
will not be eligible to receive a Class 3a Claim and its accompanying treatment
after the Voting Deadline unless the Court Orders otherwise.
•
Receiving a Class 3a Claim Through Settlement. On or before a Claim is
Allowed pursuant to an Order of the Court or otherwise, any Holder of a Class 3
Claim who fails to elect the treatment provided for Allowed Class 3a Claims by
the Voting Deadline, may — in the sole discretion of the Debtor (or the
Reorganized Debtor, as applicable) in consultation with the Committee (or the
Post-Effective Date Committee, as applicable) enter into a settlement agreement
providing for such Allowed Class 3a Claim treatment.
Increases (if any) in the Allowed Class 3a Claim Settlement and
Determination of the Actual Initial Payment to Allowed Class 3b Claims.
Each of the Allowed Class 3a Claim settlement amount (currently 75%), and the
Allowed Class 3b Claim initial payment of Distributable Cash (currently
estimated to be 35%) may be increased if and as agreed to by each the Debtor and
the Committee based on available Distributable Cash after appropriate Reserves,
and outstanding, actual, projected, and/or potential Claims set forth in the then
current Liquidation Analysis, which amount of the potential Allowed Class 3a
Claim settlement increase (if any) and the actual amount of the Allowed Class 3b
Claim initial payment of Distributable Cash shall be agreed to by the Committee
and the Debtor no later than, or determined by the Court at, the Confirmation
Hearing.
The Debtor will file with the Court (and serve solely on the Limited Service List)
and post on the Website notice of any agreed-upon or Court Ordered (i) increase
in the Allowed Class 3a Claim settlement amount, and (ii) determination of the
actual initial payment of Distributable Cash to Allowed Class 3b Claims.
Holders of Class 3 Claims are encouraged to visit the Website prior to voting for
any updates in the Chapter 11 Case. The Website may be accessed at:
https://kellevdrye.securespsites.com/Contessa public/default.aspx.
Non-Debtor Releases. Each Holder of a Allowed Claim that votes to accept the Plan
and to the fullest extent permissible under applicable law shall be deemed to have released
the Released Parties. The Disclosure Statement provides additional information on the
scope of such releases that will (if the Plan is confirmed) prevent you from bring any action
against the Released Parties. If you disagree with the non-Debtor releases, you must object
to the Plan.
PART I.
WHO SHOULD USE THIS BALLOT; HOW TO USE THIS BALLOT
This Ballot is to be used by the Holders of General Unsecured Claims in Class 3. This Ballot
may not be used for any purpose other than casting votes to accept or reject the Plan. This Ballot
does not constitute, and shall not be deemed to be, a proof of claim or an assertion or admission
of a Claim.
PLEASE READ AND FOLLOW THE INSTRUCTIONS ON THE BALLOT
CAREFULLY. THIS BALLOT IS ACCOMPANIED BY A RETURN ENVELOPE THAT
IS ADDRESSED TO THE VOTING AGENT AT THE ADDRESS BELOW. THIS
BALLOT MUST BE ENCLOSED IN THE ENVELOPE WITH POSTAGE AFFIXED
AND MAILED OR OTHERWISE DELIVERED SO AS TO RECEIVED BY THE
VOTING AGENT BY THE VOTING DEADLINE.
PART II.
ITEMS ON THE BALLOT
Item 1. Amount of General Unsecured Claim.
The undersigned certifies that as of the Voting Record Date, i.e., October 11, 2011, the
undersigned was the Holder of a General Unsecured Claim, subject to Resolution for Voting
Purposes, in the amount of $
4
Item 2. Claim Vote.
BOTH THE DEBTOR AND THE OFFICIAL COMMITTEE OF UNSECURED
CREDITORS RECOMMEND THAT YOU VOTE TO ACCEPT THE PLAN.
BY SUPPORTING THE PLAN, NEITHER THE DEBTOR NOR THE OFFICIAL
COMMITTEE OF UNSECURED CREDITORS IS MAKING ANY
RECOMMENDATION TO YOU WITH RESPECT TO THE RELATIVE MERITS OF
CLASS 3a OR 3b CLAIM TREATMENT. YOU SHOULD CAREFULLY EVALUATE
YOUR OWN CLASS 3 CLAIM AND INDIVIDUAL CIRCUMSTANCES, AND THE
RELATIVE TREATMENT PROVIDED BY CLASS 3a AND 3b AND, IF
APPROPRIATE, CONSULT WITH YOUR OWN ADVISORS IN MAKING THE CLASS
3a OR CLASS 3b ELECTION.
YOU ARE NOT ELIGIBLE TO MAKE THE CLASS 3a ELECTION IF THE CLASS 3a
CLAIM FIELDS IN ITEM 3 OF THIS BALLOT BELOW CONTAIN "N/A" AND/OR
YOU ARE NOT LISTED ON THE CURRENT CLASS 3a CLAIM SCHEDULE THAT IS
ATTACHED TO THE DISCLOSURE STATEMENT AS EXHIBIT D. IF YOU ARE
INTERESTED IN MAKING THE CLASS 3a ELECTION, BUT ARE CURRENTLY
INELIGIBLE TO DO SO, THE DEBTOR AND OFFICIAL COMMITTEE OF
UNSECURED CREDITORS RECOMMEND THAT AS SOON AS POSSIBLE PRIOR
TO THE VOTING DEADLINE, YOU CONTACT DEBTOR'S COUNSEL, JASON
ALDERSON (212-808-7911, jalderson(dkellevdrve.com ) AND/OR THE COMMITTEE'S
COUNSEL, METTE H. KURTH (213-443-7547; kurth.mette(darentfox.com ) TO
DISCUSS THE POTENTIAL RESOLUTION OF YOUR CLAIM AND ELIGIBILITY
FOR CLASS 3a TREATMENT.
The undersigned, the Holder of a General Unsecured Claim set forth in Item 1 votes to (please
check one):
❑
ACCEPT (votes FOR) the Plan. A vote to accept the Plan is required to
receive a Class 3a Claim.
REJECT (votes AGAINST) the Plan. General Unsecured Claims in Class
3 who affirmatively vote to reject the Plan will not be eligible to receive a
Class 3a Claim and its accompanying treatment after the Voting Deadline
unless the Court Orders otherwise.
Item 3. Class 3a Claim or Class 3b Claim Election.
The undersigned, the Holder of a General Unsecured Claim set forth in Item 1 elects to receive a
(please check one):
❑
Class 3a Claim. Such Holder of a General Unsecured Claim shall receive
(the lesser of the
an Allowed Class 3a Claim in the amount of $
(a) the Proof of Claim amount, (b) the amount set forth in the Schedules,
and (c) the amount indicated in the Debtor's books and records); and shall
receive on account of such Allowed Class 3a Claim $
(75% of
such Allowed Class 3a Claim) on the Effective Date in full and complete
satisfaction of such Allowed Class 3a Claim, plus a full and complete
waiver and release by the Debtor of all Causes of Action against such
Holder.
5
Class 3b Claim. If Allowed, such Holder of a General Unsecured Claim
shall receive Cash payments in an amount equal to such Holder's Pro Rata
Share of Distributable Cash as described in the Plan. The aggregate
payments to Holders of General Unsecured Claims in Class 3b are
projected 1 total between 51.3% and 100% of the unnunt fth ir
Allowed Class 3b Claims.
Item 4. Disclosures and Certifications.
DISCLOSURES
(i)
A Holder of a General Unsecured Claim is required to cast the same vote on every Ballot
pertaining to General Unsecured Claims;
(ii)
Whenever two or more Ballots are cast voting the same claim prior to the Voting
Deadline, the Ballot last-in-time received, but received prior to the Voting Deadline, shall
be deemed to reflect the voter's intent, and, thus, to supersede any prior Ballots, without
prejudice to the Debtor's right to object to the validity of the latest Ballot, including
under Bankruptcy Rule 3018(a) and, if the objection is sustained, to count the first Ballot
for all purposes;
(iii)
The Debtor has made available to all Creditors entitled to vote on the Plan or their
authorized agents all of the Solicitation Package materials. The Solicitation Package
materials are the only materials that creditors are entitled to rely on with respect to the
Plan; and
(iv)
All authority conferred or agreed to be conferred pursuant to this Ballot, and every
obligation of the undersigned hereunder shall be binding upon the transferees, successors,
assigns, heirs, executors, administrators, and legal representatives of the undersigned and
shall not be affected by, and shall survive, the death or incapacity of the undersigned.
CERTIFICATIONS
Upon execution of this Ballot, the Holder of the General Unsecured Claim identified in Item 1
above certifies that:
(I)
As of the Voting Record Date, either (a) such Person or entity is the Holder of the
General Unsecured Claim in the aggregate amount indicated in Item 1 or (b) such Person
or entity is an authorized signatory for the Person or entity which is the Holder of the
General Unsecured Claim in the aggregate amount indicated in Item I;
(ii)
Such Person or entity (or in the case of an authorized signatory, the Holder) is eligible to
be treated as the Holder of such General Unsecured Claim in Item 1 for the purposes of
voting on the Plan; and
Such person or entity (or in the case of an authorized signatory, the holder) has reviewed
and understands the disclosures in the section titled - Disclosures" immediately above.
6
Name of Creditor:
(Print or Type)
Signature:
By (If Other Than Creditor):
Title (If Appropriate):
Social Security or Federal Tax I.D. No. Required):
(
Date Completed:
Telephone Number:
Street Address:
City, State and ZIP Code:
El Please check here if the above address is a Change of Address
that you would like reflected in the master mailing list for the chapter 11 case.
PLEASE COMPLETE, SIGN, AND DATE THE
BALLOT AND RETURN IT PROMPTLY VIA U.S. MAIL, OVERNIGHT COURIER OR
HAND DELIVERY TO THE VOTING AGENT, AS FOLLOWS:
Kelley Drye & Warren LLP
101 Park Avenue
New York, NY 10178
Attn.: Catherine Thompson, Esq.
THIS BALLOT MUST BE ENCLOSED IN THE ENVELOPE WITH POSTAGE
AFFIXED AND MAILED OR OTHERWISE DELIVERED SO AS TO RECEIVED BY
THE VOTING AGENT BY THE VOTING DEADLINE. BY 5:00 P.M. (Pacific Time) ON
OR BEFORE DECEMBER 9, 2011, OR YOUR VOTE WILL NOT BE COUNTED.
PLEASE MAKE SURE YOU HAVE PROVIDED
ALL INFORMATION REQUESTED BY THIS BALLOT.
VOTING INSTRUCTIONS
The Debtor is soliciting the votes of Holders of General Unsecured Claims in Class 3 as
described in the Disclosure Statement and Plan. The Disclosure Statement, the Disclosure
Statement Order, the Plan and certain other materials contained in the Solicitation
Package are included in the packet you are receiving with this Ballot. These materials, and
all other Solicitation Package materials, are also available by (i) contacting Kelley Drye &
Warren LLP, 101 Park Avenue, New York, NY 10178, Attn: Catherine Thompson, Tel:
(212) 808-7800, or (ii) by downloading the same (free of charge) by accessing the Debtor's
chapter 11 case website maintained by Kelley Drye & Warren LLP at:
https://kedevdrve.securespsites.cmn/Contessa puhlic/default.aspx.
Capitalized terms used in this Ballot or in these instructions but not otherwise defined herein
shall have the meaning ascribed to them in the Disclosure Statement, Disclosure Statement
Order, and the Plan, as the case may be.
The Plan can be Confirmed by the Court, and therefore made binding on all Holders, if it is
accepted by the Holders of two-thirds (2/3) in amount and more than one-half (1/2) in number of
Claims in each impaired Class voting on the Plan.
To ensure that your vote is counted, you must complete and return this Ballot as follows: (a)
indicate your decision either to accept or reject the Plan in the boxes provided in Item 2 of the
Ballot, and (b) review the Disclosures and Certifications in Item 4 and sign and return the Ballot
in the enclosed pre-addressed envelope (affixing proper postage) so that it is ACTUALLY
RECEIVED by the Voting Agent by the Voting Deadline, December 9, 2011.
Further, Holders of General Unsecured Claims in Class 3 can elect between Class 3a Claim or
Class 3b Claim as described in the Ballot. A Holder of a General Unsecured Claim in Class 3
shall be deemed to a Class 3b Claim if such Holder (a) does not vote for or against the Plan, (b)
is deemed to have rejected the Plan, or (c) has rejected the Plan or has not made the election to
be treated as a Class 3a Claim. General Unsecured Claims in Class 3 who affirmatively vote to
reject the Plan will not be eligible to receive a Class 3a Claim and its accompanying treatment
after the Voting Deadline unless the Court Orders otherwise or as otherwise provided in the Plan.
If a Ballot is received after the Voting Deadline, it will not be counted. The method of delivery
of a Ballot to the Voting Agent is at the election and risk of each entity. Except as otherwise
provided herein, such delivery will be deemed made only when the original executed Ballot is
ACTUALLY RECEIVED by the Voting Agent. Sufficient time should be allowed to assure
timely delivery. Delivery of a Ballot by facsimile transmission, email or any other electronic
means will not constitute valid delivery.
You must vote all of your Claims within a particular Class either to accept or reject the Plan; you
may not split your vote. Accordingly, a Ballot that partially rejects and partially accepts the Plan
will not be counted.
Whenever two or more Ballots are cast voting the same claim prior to the Voting Deadline, the
Ballot last-in-time received, but received prior to the Voting Deadline, shall be deemed to reflect
the voter's intent, and, thus, to supersede any prior Ballots, without prejudice to the Debtor's
right to object to the validity of the latest Ballot, including under Bankruptcy Rule 3018(a) and,
if the objection is sustained, to count the first Ballot for all purposes.
The Ballot is not a letter of transmittal and may not be used for any purpose other than to vote to
accept or reject the Plan.
This Ballot does not constitute, and shall not be deemed to be, a proof of cla
assertion or admission of a Claim or Interest.
or interest or an
The following Ballots shall not be counted in determining the acceptance or rejection of the Plan:
(i) any Ballot received after the Voting Deadline, even if postmarked prior to the Voting
Deadline; (ii) any Ballot that is illegible or contains insufficient information to permit the
identification of the claimant; (iii) any Ballot that indicates neither acceptance nor rejection or
that indicates both acceptance and rejection of the Plan (as applicable); (iv) any Ballot cast by a
person or entity that holds a claim (1) in a class that is not entitled to vote to accept or reject the
Plan, or (2) that is not subject to Resolution for Voting Purposes (as applicable); (v) any
unsigned Ballot; (vi) any form of Ballot other than the official form sent by the Debtor or a copy
thereof; (viii) any copy of a Ballot without an original signature; and (ix) any Ballot that is sent
by facsimile transmission or via electronic mail.
Please be sure to sign and date your Ballot. If you are signing the Ballot as a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation, or acting in a fiduciary or
representative capacity, you must indicate such capacity when signing and, if required or
requested by the Debtor or the Court, must submit proper evidence satisfactory to the requesting
party to so act on behalf of the Holder of the Claim. In addition, please provide your name and
mailing address if different from that set forth on the attached mailing label or if no such mailing
label is attached, to the Ballot.
Unless otherwise directed by the Court, delivery of a defective or irregular Ballot will not be
deemed to have been made until such defect or irregularity has been cured or waived by the
Debtor. Any waiver by the Debtor of defects or irregularities in any Ballot will be detailed in the
Voting Report filed with the Court by the Debtor's counsel. Neither the Debtor, nor any other
person or entity, will be under any duty to provide notification of defects or irregularities with
respect to delivered Ballots, nor will any of them incur any liabili for failure to provide such
notification.
If you have any questions regarding the Ballot, please contact the Debtor's counsel immediately.
No fees or commissions or other remuneration will be payable to any broker, dealer or other
person for soliciting Ballots accepting the Plan.
PLEASE DELIVER YOUR BALLOT PROMPTLY.