EXHIBIT 2
Plan of acquisition, reorganization, arrangement, liquidation or succession
<PAGE>
Gerrit M. Pronske
State Bar No. 16351640
Kevin Thomason
State Bar No. 19890500
Pamela Dunlop Gates
State Bar No. 06239800
THOMPSON, COE, COUSINS & IRONS, L.L.P.
200 Crescent Court, Eleventh Floor
Dallas, TX 75201
214/871-8288 - Telephone
214/871-8209 - Telecopier
COUNSEL FOR THE DEBTORS
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
IN RE: ss.
ss.
GIBBS CONSTRUCTION, INC. ss. CASE NO. 00-32653-BJH
ss. (Chapter 11)
BRONCO BOWL HOLDING, INC. ss. CASE NO. 00-32651-BJH
ss. (Chapter 11)
Debtors. ss.
ss. Hearing Date: July 28, 2000
ss. Hearing Time: 11:00 a.m.
DEBTORS' SECOND AMENDED JOINT DISCLOSURE STATEMENT
TO: Creditors and Equity Security Holders of Gibbs Construction, Inc.
("Gibbs") and Bronco Bowl Holding, Inc. ("Bronco Bowl") (Gibbs is
referred to herein as the "Debtor"; Gibbs and Bronco Bowl are
collectively referred to herein as "Debtors").
Contained in the packet of documents which has been sent to you by the
Debtors are the Debtors' Second Amended Joint Disclosure Statement (the
"Disclosure Statement"), the Debtors' Second Amended Joint Plan of
Reorganization (the "Plan"), the Ballot for Voting on the Joint Plan of
Reorganization and the Order Approving Disclosure Statement and Fixing Time for
Filing Acceptance or Rejection of Plan, Combined with Notice Thereof. Please
read all of these materials carefully. Please note that in order for your vote
to be counted, you must include your name and address, fill in, date, and sign
the enclosed Ballot and return it to the Bankruptcy Court and the attorney for
the Debtor by the date specified on the Ballot.
<PAGE>
Gerrit M. Pronske
State Bar No. 16351640
Kevin Thomason
State Bar No. 19890500
Pamela Dunlop Gates
State Bar No. 06239800
THOMPSON, COE, COUSINS & IRONS, L.L.P.
200 Crescent Court, Eleventh Floor
Dallas, TX 75201
214/871-8288 - Telephone
214/871-8209 - Telecopier
COUNSEL FOR THE DEBTORS
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
IN RE: ss.
ss.
GIBBS CONSTRUCTION, INC. ss. CASE NO. 00-32653-BJH
ss. (Chapter 11)
BRONCO BOWL HOLDING, INC. ss. CASE NO. 00-32651-BJH
ss. (Chapter 11)
Debtors. ss.
ss. Hearing Date: July 28, 2000
Hearing Time: 11:00 a.m.
DEBTORS' SECOND AMENDED JOINT DISCLOSURE STATEMENT
ARTICLE I
INTRODUCTORY STATEMENT
Debtors filed with the United States Bankruptcy Court for the Northern
District of Texas, Dallas Division, their Second Amended Joint Plan of
Reorganization (the "Plan") in the above-captioned case on July 28, 2000.
Pursuant to the terms of the United States Bankruptcy Code, this Second Amended
Joint Disclosure Statement (the "Disclosure Statement") has been presented to
and approved by the Bankruptcy Court. Such approval is required by statute and
does not constitute a judgment by the Court as to the desirability of the Plan
or as to the value or suitability of any consideration offered thereby.
Interested parties are referred to 11 U.S.C. section 1125, which reads, in part:
"(b) An acceptance or rejection of a plan may not be solicited
after the commencement of the case under this Title from a holder of a
claim or interest with respect to such claim or interest unless, at the
time or before such solicitation, there was transmitted to such holder
the plan or a summary of the plan, and a written disclosure statement
approved, after notice and a hearing, by the Court as containing
adequate information. The Court may approve a disclosure statement
without a valuation of the debtor or an appraisal of the debtor's
assets.
. . . .
<PAGE>
(d) Whether a disclosure statement contains adequate
information is not governed by any otherwise applicable non-bankruptcy
law, rule or regulation, but an agency or official whose duty is to
administer or enforce such a law, rule or regulation may be heard on
the issue of whether a disclosure statement contains adequate
information. Such an agency or official may not appeal from an order
approving a disclosure statement.
(e) A person that solicits, in good faith and in compliance
with, the applicable provisions of this Title, or that participates, in
good faith and in compliance with the applicable provisions of this
Title, in the offer, issuance, sale, or purchase of a security, offered
or sold under the plan of the debtor, of an affiliate participating in
a joint plan with the debtor, or of a newly organized successor to the
debtor under the plan, is not liable, on account of such solicitation
or participation, for violation of any applicable law, rule, or
regulation governing the offer, issuance, sale, or purchase of
securities."
The Debtors have prepared this Disclosure Statement to disclose that
information which, in its opinion, is material, important and necessary to an
evaluation of the Plan. The material herein contained is intended solely for
that purpose, and solely for the use of known creditors and interest holders of
the Debtors and, accordingly, may not be relied upon for any purpose other than
determination of how to vote on the Plan. In addition, materials contained in
this Disclosure Statement are not necessarily sufficient for the formation of a
judgment by any creditor of the preferability of any alternative to the Plan.
This Disclosure Statement has not necessarily been reviewed nor has it been
approved by the Securities and Exchange Commission or any other agency of the
state or federal government.
THE APPROVAL BY THE BANKRUPTCY COURT OF THE DISCLOSURE STATEMENT DOES
NOT GUARANTEE AN ENDORSEMENT BY THE BANKRUPTCY COURT OF THE PLAN OR GUARANTEE
THE ACCURACY OR COMPLETENESS OF THE INFORMATION CONTAINED HEREIN.
ONLY THOSE REPRESENTATIONS SET FORTH IN THIS DISCLOSURE STATEMENT ARE
AUTHORIZED BY THE DEBTOR. ANY REPRESENTATIONS OR INDUCEMENTS MADE TO SECURE YOUR
ACCEPTANCE OR REJECTION OF THE PLAN OTHER THAN AS SET FORTH IN THIS DISCLOSURE
STATEMENT SHOULD NOT BE RELIED UPON BY YOU IN ARRIVING AT YOUR DECISION.
THE STATEMENTS CONTAINED HEREIN ARE MADE AS OF THE DATE OF THIS
DISCLOSURE STATEMENT UNLESS ANOTHER DATE IS SPECIFIED. THE DELIVERY OF THIS
DISCLOSURE STATEMENT SHALL NOT UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH HEREIN SINCE THE DATE
HEREOF. THE DEBTOR IS UNABLE TO GUARANTEE THAT THE INFORMATION CONTAINED IN THE
PLAN AND THIS DISCLOSURE STATEMENT IS ENTIRELY WITHOUT ERROR, BUT ALL REASONABLE
EFFORTS HAVE BEEN MADE TO ENSURE THAT ALL REPRESENTATIONS ARE AS ACCURATE AS
POSSIBLE.
THE SOURCE OF INFORMATION CONTAINED IN THIS DISCLOSURE STATEMENT IS THE
DEBTOR OR ITS AGENTS AND EMPLOYEES AND HAS NOT BEEN SUBJECT TO AN AUDIT UNLESS
OTHERWISE SPECIFICALLY NOTED. THE STATEMENTS MADE HEREIN LIKEWISE HAVE NOT BEEN
VERIFIED BY THE DEBTOR'S COUNSEL, ALTHOUGH AN ATTEMPT HAS BEEN MADE TO BE
CONSERVATIVE AND REALISTIC. NEITHER THE DEBTOR NOR THEIR COUNSEL REPRESENT OR
WARRANT THE ACCURACY OF DISCUSSIONS CONTAINED HEREIN REGARDING EVENTS.
<PAGE>
AS STATED PREVIOUSLY, YOU ARE URGED TO REVIEW THE PLAN AND THIS
DISCLOSURE STATEMENT IN THEIR ENTIRETY PRIOR TO VOTING TO ACCEPT OR REJECT THE
PLAN TO ENSURE A COMPLETE UNDERSTANDING OF THE TRANSACTIONS CONTEMPLATED UNDER
THE PLAN AND HOW THOSE TRANSACTIONS WILL AFFECT YOUR CLAIM AGAINST, OR INTEREST
IN THE DEBTOR.
The Debtors have proposed the Plan hereinafter described and favor it,
and materials referring to alternatives to the Plan are limited by both
practical considerations of space and the opinions of the Debtor regarding same.
A creditor or interest holder, in order to vote on the Plan, must have
filed a proof of claim or interest on or before the Bar Date, unless scheduled
by the Debtors as not disputed, liquidated or contingent. Any creditor scheduled
as not disputed, liquidated and not contingent is, to the extent scheduled,
deemed to have filed a claim and, absent objection, such claim is deemed
allowed. A creditor or interest holder may vote to accept or reject the Plan by
filling out and mailing to the Bankruptcy Court the ballot which has been
provided in this package of information.
The Court has fixed August ____, 2000, as the last date by which
ballots must be filed with the Court and served on the attorney for the Debtors.
No vote received by the Court and the attorney for the Debtors after such time
will be counted. Whether a creditor or interest holder votes on the Plan or not,
such person will be bound by the terms and treatment set forth in the Plan if
the Plan is accepted by the requisite majority of classes of creditors and
interest holders and/or is confirmed by the Court. Absent some affirmative act
constituting a vote, such creditor or interest holder will not be included in
the tally. Allowance of a claim or interest for voting purposes does not
necessarily mean that all or a portion of the claim or interest will be allowed
or disallowed for distribution purposes.
In order for the Plan to be accepted by a class of creditors, more than
one half in number and at least two-thirds in amount of such class of claims
must vote to accept the Plan. Only those claim holders that actually vote are
considered in the calculations. In order for the Plan to be accepted by interest
holders, at least two-thirds in amount of interests must vote to accept the
plan. Again, only voting interest holders are considered in the calculation. You
are, therefore, urged to fill in, date, sign and promptly mail the enclosed
ballot which has been furnished you. Please be sure to complete properly the
form and identify legibly the name of the claimant or interest holder.
The Debtors, creditors or others may solicit your vote. The cost of any
solicitation by the Debtors will be borne by the Debtors. No representative of
the Debtors shall receive any additional compensation for any solicitation.
No representations concerning the Debtors or the Plan are authorized by
the Debtors other than as set forth in this Disclosure Statement. Any
representation or inducements made by any person to secure your vote which are
other than herein contained should not be relied upon, and such representations
or inducements should be reported to counsel for the Debtors, who shall deliver
such information to the Bankruptcy Court.
Certain of the materials contained in this Disclosure Statement are
taken directly from other, readily accessible instruments or are digests of
other instruments. While the Debtors have made every effort to retain the
meaning of such other instruments or the portions transposed, the Debtors urge
that any reliance on the contents of such other instrument should depend on a
thorough review of the instruments themselves.
Terms used in this Disclosure Statement are defined in Article I of the
Plan, and those terms should be read together with those definitions.
<PAGE>
ARTICLE II
NATURE AND HISTORY OF THE BUSINESS AND
EVENTS LEADING UP TO BANKRUPTCY
<PAGE>
Nature of the Business
Gibbs is a full service, national commercial construction company
acquired by Danny and Tony Gibbs, the Debtor's two executives, in 1985. Gibbs is
headquartered in Garland, Texas, a suburb of Dallas. Gibbs is a full-service
national commercial construction company which provides "ground up" and "finish
out" construction services principally to national retail chains that are
engaged in aggressive expansion programs. These programs usually call for the
erection of stand-alone facilities or "power centers", which typically have
stores that range in size from 10,000 to 75,000 square feet. The Gibbs' clients
include Best Buy, Oshmans Super Sports, Barnes & Noble, Office Max, Petstuff,
Just for Feet, Copy Max and Petsmart. A smaller part of Gibbs' construction
services have been directed to the construction of small hotels.
History of the Businesses
In 1996, Gibbs completed its Initial Public Offering and its stock
since has traded since then on the Nasdaq Exchange. In April 2000, the Company's
stock was de-listed from the Nasdaq Exchange for failure to maintain the minimum
trading value of $ 1.00 per share. Gibbs, however, remains a reporting public
company and its stock trades through broker arranged transactions.
Gibbs acts as a general contractor for both "ground up" and interior
"finish out" construction. By 1999, approximately 65% of Gibbs' revenues were
derived from "ground up" work, and 35% from "finish out" work. Historically,
Gibbs' construction business focused on a clientele of publicly-held companies.
The specifically-targeted companies are national retail chains that conduct
operations in stand-alone facilities or "power-centers." However, in 1998, Gibbs
began to bid on non-retail projects, including small hotels. Most work comes by
referral or reputation, with a large amount of repeat business from existing
customers. During 1999, approximately 40% of the Company business was repeat
business from existing clients. In 1999, the Company was engaged in over 120
projects for approximately 40 different clients. Two of its clients, Office Max
(17%) and Just for Feet (18%), accounted for approximately 35% of Gibbs'
revenues during 1999. One shopping center development amounted to approximately
20% of Gibbs' revenues.
Gibbs' business is subject to a variety of state and local governmental
regulations and licensing requirements relating to construction activities.
Gibbs has general contractor licenses in numerous large states and major
metropolitan areas.
Gibbs maintains general liability and excess liability insurance
covering its construction equipment in amounts consistent with industry
practices. Although not required by some clients, occasionally Gibbs is required
to provide various types of surety bonds guaranteeing its performance under
certain contracts. Gibbs' ability to obtain surety bonds depends upon its
capitalization, working capital, past performance, management expertise and
other factors. Currently, the Company has no sources for surety bonds.
The Company operates from a 10,000 square foot office and warehouse
facility in Garland, Texas, which it owns. The Company has entered into a
contract to sell the facility for $ 380,000 that is subject to Court approval.
First and second lien mortgages exist on the facility.
In July 1996, Gibbs sold the assets of its wholly owned-subsidiary,
Bronco Bowl Holding, Inc., which operated a 136,000 square foot entertainment
complex - the Bronco Bowl- on approximately 20 acres near downtown Dallas. Gibbs
acquired the property in 1994 and performed extensive renovations on the
complex, opening it in January of 1996. Operating losses caused the Company to
sell the facility near year-end in 1996.
<PAGE>
Events Leading to the Filing of Chapter 11
During 1999, the Company began to experience difficulty completing five
hotel projects. Cost over-runs and completion schedule penalties created serious
losses for the Company expected to exceed $3,000,000. The extent of losses
cannot be determined until litigation and disputes are settled. In addition, its
largest and most profitable client, Just for Feet, filed for bankruptcy owing
the company in excess of $300,000 and canceling all new work. These factors
coupled with the Company's inability to collect its full contract amount on an
$11,000,000-shopping center project, created serious cash flow problems for the
Company and a depletion of its net worth resulting in insolvency.
In January, 2000, the Company and two of its principal stockholders,
Danny and Tony Gibbs, entered into a joint control and escrow agreement whereby
Liberty Mutual Bond Services, one of the Company's principal sureties, agreed to
provide funds to complete contract obligations. As part of the agreement, the
Company agreed to grant the surety a security interest in Company assets, and
Danny and Tony Gibbs granted Liberty Mutual Bond Services the surety a security
interest in their ownership of 2,000,000 shares of the Company's stock. Without
this funding by the surety, the Company could not have continued to operate.
ARTICLE III
THE PLAN OF REORGANIZATION
The Plan has been provided to all creditors or possible creditors and
all interest holders of the Debtors known to the Debtors. The Plan should be
read carefully and independently of this Disclosure Statement. The following
analysis of the plan is intended to provide a context for understanding the
remainder of this Disclosure Statement.
Overview. The Joint Plan essentially provides for the purchase of the
assets of Thacker Asset Management, L.L.C. ("Thacker") by the Debtor in exchange
for the issuance and delivery of four million (4,000,000) shares of common stock
of the Reorganized Debtor to Thacker in connection with the Joint Plan. In
connection with the purchase of the Thacker assets, the Reorganized Debtor shall
further assume the notes and accounts payable of Thacker. The assumption of the
notes and accounts payable of Thacker by the Reorganized Debtor will not impact
the Creditors of the Debtor because of the creation of the liquidating trust
further described in the Plan.
Payments to Creditors. Allowed Administrative Claims, Priority Claims,
and Unsecured Claims of $200 or less will be paid in full from cash on hand.
Secured Creditors, with the exception of Liberty Mutual Insurance Company
("Liberty"), if any, whose claims have been approved and Allowed by the Court or
are listed as undisputed by the Debtors on the Debtor's schedules will be paid
the replacement value of their collateral or have their collateral returned to
them. The transaction contemplated by the Joint Plan will further provide that
Liberty, the Debtor's largest creditor, secured with a blanket lien on the
Debtor's assets, will release its non-real estate collateral, and forgive its
outstanding Allowed Claims whether secured or unsecured, in exchange for one
million (1,000,000) shares of preferred stock of the Reorganized Debtor.
Unsecured Creditors with Allowed Claims in excess of $200 who have not elected
to reduce their Claim to $200 will be paid, to the extent of available funds in
the Trust, as described herein, on a Pro Rata basis. Certain Unsecured Creditors
will also receive Stock.
Payments to Interest Holders. Equity Security Holders (other than
warrant holders and stock option holders) of the Debtor shall retain their
Interests pursuant to this Join Plan. However, such Interests are subject to
dilution with the additional stock that will be issued in accordance with this
Joint Plan. Any warrants or stock options that exist as of the Effective Date
shall be canceled.
<PAGE>
ARTICLE IV
DIVISION OF CREDITORS AND INTEREST HOLDERS INTO CLASSES
The Plan classifies and treats various classes of creditors of the
Debtor's estate. The following is a summary of classification and treatment of
creditors' claims under the Plan:
For the purpose of satisfaction of all Claims against and Interests in
the Debtor, the Claims and Equity Interests are divided into the following
classes:
Gibbs Creditors and Interests:
-----------------------------
A. PRIORITY CLAIMS
Class 1: All Allowed Administrative Claims of Gibbs
(Unimpaired).
Class 2: All Allowed Tax Priority Claims of Gibbs (Impaired).
Class 3: All Priority Non-Tax Claims of Gibbs (Unimpaired).
B. SECURED CLAIMS
Class 4: All Allowed Secured Claims of Gibbs, except Liberty
(Unimpaired).
Class 8: Allowed Claim of Liberty (Impaired).
C. UNSECURED CLAIMS
Class 5: All Allowed Unsecured Claims of Gibbs of $200 or less
(Unimpaired).
Class 6: All Allowed Unsecured Claims of Gibbs Over $200
(Impaired).
Class 7: All Allowed Affiliate Claims of Gibbs (Impaired).
D. EQUITY INTERESTS
Class 9: All Holders of Warrants or Options of Gibbs (Impaired).
Class 10: All Common Shareholders of Gibbs (Impaired).
Bronco Bowl Creditors and Interests:
-----------------------------------
Class 11: Unsecured Creditors of Bronco Bowl (Impaired).
Class 12: Allowed Claim of Gibbs against Bronco Bowl (Unimpaired)
Class 13: Allowed Interest of Gibbs in Bronco Bowl (Unimpaired).
<PAGE>
ARTICLE V
TREATMENT OF CLAIMS AND INTERESTS.
---------------------------------
A. TREATMENT OF CLAIMS AND INTERESTS
1. Treatment of Administrative and Priority Claims.
Administrative Claims: (Class 1) - Administrative Claims shall be paid
from the Trust, to the extent allowed by the Court, in full in cash on or before
the later of (a) ten (10) days following the Effective Date or (b) ten (10) days
following the date on which the Administrative Claims are Allowed by a Final
Order of the Court. For purposes of payment of administrative expenses, any
administrative claimant desiring to be paid under the Joint Plan must file an
application for allowance of Administrative Claim on or before thirty (30) days
after the entry of an Order confirming the Joint Plan.
Professional Fee Claims. Each Professional employed pursuant to Section
330 of the Code shall file their final Fee Application with the Court within
thirty (30) days after Confirmation. Such fees shall be paid from the Trust.
Service of a final Fee Application or notice related to a final Fee Application
shall be promptly made to the Reorganized Debtor, the Trustee and parties
requesting notice in this case. Objections to any Professional Fee Claims by any
party in interest shall be filed and served not later than twenty (20) days
after filing and service of a Final Fee Application or service of a notice
related to a Final Fee Application.
Priority Tax Claims: (Class 2) Priority Tax Claims shall be paid, from
funds available in the Trust up to the Allowed amount of such Claim, on or
before the later of (a) ten (10) days after the Effective Date or (b) ten (10)
days after the date on which the priority tax claims are allowed by a Final
Order of the Court, except to the extent that the Holder of an Allowed Priority
Tax Claim agrees to different treatment, provided however, at the option of the
Trustee, the Trustee may pay Allowed Priority Tax Claims plus interest (at a
rate to be agreed upon between the Debtors and the holder of the Claim, or in
the absence of such agreement, as determined by the Bankruptcy Court) accrued
thereon over a period not exceeding six (6) years after the date of assessment
of the Claims, as provided in section 1129(a)(9)(C) of the Bankruptcy Code.
Priority Non-Tax Claims (Class 3) - Priority Wage Claims, if any, to
the extent allowed up to $4,000.00 each, shall be paid, to the extent of
available funds, as soon as practicable after the Effective Date or within ten
(10) days after entry of a Final Order Allowing such Claim if Allowed after the
Effective Date.
2) Treatment of Creditors and Equity Security Holders
Secured Claims other than Liberty: (Class 4) - Consists of Secured
Claims against the Debtor held by any entity to the extent of the value of any
interest in property of the Debtor's Estate securing such Claim. At the option
of the Reorganized Debtor, the Holders of any Secured Claims, if any, shall
either (a) be paid the replacement value of their collateral or (b) have their
collateral returned to them. Any deficiency amount shall be classified as an
unsecured claim. To the extent the Reorganized Debtor makes payments required by
section 1124(2) of the Bankruptcy Code to Holders of Claims in Class 4 on the
Effective Date, any defaults of such Claims of Class 4 which existed immediately
prior to the Petition Date shall be deemed cured upon the Effective Date. Class
4 is unimpaired and the holders of Claims in Class 4 are not entitled to vote to
accept or reject the Joint Plan.
Administrative Convenience Class: (Class 5) - Consists of Allowed
Unsecured Claims of $200 or less, including any unsecured creditors with Allowed
Claims in excess of $200 that elect to reduce their Claim to $200. Claims in
Class 5 will be paid from the Trust 100% of their Allowed Unsecured Claim within
ten (10) days after the Effective Date if allowed prior to the Effective Date or
within ten (10) days after entry of a final order allowing such claim if allowed
after the Effective Date. Class 5 is unimpaired and the holders of Claims in
Class 5 are not entitled to vote to accept or reject the Joint Plan.
<PAGE>
Unsecured Claims: (Class 6) - The Allowed Claims of the unsecured
creditors with Allowed Claims exceeding $200 who have not elected to reduce
their Claim to $200 are impaired under this Joint Plan. A Class 6 unsecured
creditor holding an Allowed Claim will be paid on a Pro Rata basis from the
funds available in the Trust until each is paid in full. Class 6 is impaired.
Affiliate Claims: (Class 7) - The Allowed Affiliate Claims are impaired
under this Joint Plan. All Affiliate Claims owing by Gibbs to Bronco Bowl, if
any, will be extinguished and Holders of Class 7 Claims will receive no
distribution under the Joint Plan.
Allowed Claims of Liberty: (Class 8) - The Allowed Claim of Liberty
shall be discharged on the Effective Date in exchange for issuance and delivery
of one million (1,000,000) shares of preferred stock of the Reorganized Debtor,
under the safe harbor provisions of Section 1145 of the Bankruptcy Code. All
security interests in any collateral securing the Allowed Claim of Liberty shall
be canceled and extinguished on the Effective Date. The discharge of Liberty's
Claim, as provided herein, shall not be a discharge, cancellation or
extinguishment of Liberty's claims against any other persons liable on such
claims, as provided in section 524(e) of the Bankruptcy Code; provided, however,
that such claims of Liberty against any other persons liable on the debts of the
Debtor shall be assigned and transferred, together with any collateral securing
claims of Liberty against such persons, to the Reorganized Debtor. Class 8 is
impaired.
Holders of Warrants: (Class 9) - The holders of a warrant or option to
purchase common stock of the Debtor shall have such warrants or options
cancelled on the Effective Date and shall not receive a distribution under this
Joint Plan. Class 9 interests are impaired.
Common Shareholders: (Class 10) - The holders of an Equity Interest in
this Class shall retain their stock as to the Reorganized Debtor, subject to
dilution of their Interests by issuance of the new stock in the Reorganized
Debtor as provided in this Plan. However, notwithstanding anything to the
contrary provided herein, the Equity Interests owned by Danny Gibbs shall be
retained by Danny Gibbs as outlined in this paragraph subject to any forfeiture
of such Equity Interest provided in any employment agreements reached between
Danny Gibbs and Reorganized Debtor, as required by the Reorganized Debtor. The
Class 10 Interests are unimpaired.
Unsecured Creditors of Bronco Bowl: (Class 11) - The Allowed Claims of
the unsecured creditors of Bronco Bowl are impaired under this Joint Plan. A
Class 11 unsecured creditor holding an Allowed Claim against Bronco Bowl will be
issued and delivered, under the safe harbor provisions of Section 1145 of the
Code, their Pro Rata share of One Thousand (1,000) share of common stock of the
Reorganized Debtor.
Allowed Claim of Gibbs against Bronco Bowl: (Class 12) - The holder of
an Allowed Class 12 Claim shall retain its debt and legal rights against Bronco
Bowl. Class 12 is unimpaired.
Allowed Interest of Gibbs in Bronco Bowl: (Class 13) - The holders of
an Equity Interest in this Class shall retain their stock as to Bronco Bowl. The
Class 13 Interests are unimpaired.
Payments to the United States Trustee: The Debtor shall pay all
quarterly fees of the United States Trustee until the Case is closed.
B. FUNDING OF THE PLAN
<PAGE>
Debtors shall execute and deliver such documents, agreements and
instruments reasonably necessary to carry forward the intents and purposes of
this Plan. The funding of the indebtedness created by and through this Plan will
be from the cash generated by the business. This Disclosure Statement shall be
amended to provide information regarding Thacker Asset Management.
C. RETENTION OF JURISDICTION
The Plan includes provisions regarding the retention of jurisdiction by
the Bankruptcy Court over a variety of matters as may be pending as of
Confirmation or as may arise subsequent thereto.
D. FINANCIAL PROJECTIONS OF REORGANIZED DEBTOR
The Reorganized Debtor's Financial Projections are attached hereto as
Exhibit "D", and are incorporated by reference herein.
E. DISCLOSURES RELATING TO THACKER ASSET MANAGEMENT
Thacker Asset Management, LLC ("Thacker"), a Texas limited liability
company, is based in Atlanta, Georgia. Thacker provides construction services
and contracts to the public and private sectors primarily in the S.E. United
States. Its ownership and management is 51% minority owned, which qualifies
Thicker as a minority certified enterprise.
Thacker, formed in February 1998, forms strategic alliances and joint
ventures with major engineering and construction services providers which
produced a steady growth in gross revenues and profits. Thacker continues to
attract new joint venture partners from giants in the industry such as Ellis Don
Construction, LTD of Canada and Johnson Controls, Inc. (NYSE). From a modest
beginning the company now employs 32 and expects to generate gross revenues of
approximately $4,300,000 for the calendar year 2000 from its construction
services activities primarily in the Public Sector. Its expertise ranges from
engineering, construction management, design/build, to general contracting. The
company has been extremely successful in attracting public sector clients who
find Thacker a competent, financially stable, and responsible minority
contractor, Thacker's alliances with entities such as The Benham Companies W.S.
Atkins, PLC of the United Kingdom, and other nationally recognized firms have
enabled the company to augment its staff as needed to provide its services in a
timely and professional manner.
TOC, Inc., an African American and Woman owned business, hold 51% of
Thacker. F. Gary Thacker and Jan Prisby Bryson are the formation shareholders of
TOC. Mr. Thacker's background and experience with his father's (Floyd Thicker)
large and successful construction company and Ms. Bryson's expertise in
marketing and business development, have resulted in a successful working
relationship with the City of Atlanta and such major airport construction
projects as Hartsfield in Atlanta and New Orleans International Airport.
An additional investor, Word Shop Inc.. a 100% woman owned business
joined the ownership of TOC in 1997 by purchasing a 33% interest from Mr.
Thacker and Ms Bryson Shortly thereafter, TOC was awarded an Architectural and
Engineering General Scrvices Agreement for the City of Atlanta through its Joint
Venture with CH2M Hill, Inc., the largest pure engineering firm in the world.
<PAGE>
The Benham Group ("TBG") holds 49% of Thacker, Inc. TBG is
headquartered in Oklahoma City TBG is large engineering and construction
services firm with a staff of approximately 750 providing services throughout
the US TBG advanced working capital to Thacker in the form of loans in 1998. In
early 2000, Benham was acquired by the publicly held British engineering firm
W.S. Atkins that employs 11,000 and operates in 60 countries.
F. PROPOSED CONTINUED OPERATIONS AND MANAGEMENT OF REORGANIZED DEBTOR
------------------------------------------------------------------
CONTINUED OPERATIONS:
--------------------
Gibbs Construction, Inc. intends to continue to operate its business as
a reporting public company and endeavor to have its stock trade on the Bulletin
Board (OTC) exchange. It also intends to actively market and promote public
participation in its stock. Gibbs holds licenses to provide construction
services in many states and intends to continue and expand its business of
contracting and construction services with greater emphasis on negotiated
contracts utilizing the expertise, staff, and marketing capability acquired with
the Thacker transaction, particularly in the Public Sector of the Southeast
United States.
Purchase of the assets and assumption of the liabilities of Thacker
will effectively consolidate the existing service organization of Thacker into
Gibbs. Existing contracts and work in progress will be acquired along with
projects that are in the pipeline to start. This process should result in an
immediate cash flow and earnings resource for Gibbs in addition to Gibbs'
continuing business. Certain work currently being performed by Thacker (which
after acquisition will be performed by Gibbs) is pursuant to contracts that are
held by TOC. It is anticipated that Gibbs and TOC will enter into formal
agreements relevant to Gibbs performance of work pursuant to TOC contracts.
PROPOSED DIRECTORS:
------------------
Walter R. Huntley, Jr.
Mr. Huntley, 51, has a diverse background in community and economic
development and served for 10 years as President of the Atlanta
Development authority. He has provided consulting services to such
projects as the Sam Nunn Federal Center, 1996 Olympic Gaines,
Revitalization of Atlanta's historic Fairlie-Popular District, and
Hartsfield Center. His expertise, diversity, and experience in the
public/private development and community linkage programs of the
Southeast US are well recognized. A graduate of Trinity University with
a M A in Urban Studies, he now serves on the Universities' Board of
Trustees, as well as the Boards of Directors of Atlanta Convention &
Visitors Bureau, Atlanta Downtown Partnership, Georgia Dept of
Community Affairs, Fox Theatre, and many others.
Danny L Gibbs
Mr. Gibbs has served as president, general manager and a director of
the Debtor since its inception in 1984. Mr. Gibbs has acted as the
Debtor's Chief Financial Officer throughout the Company's existence.
Mr. Gibbs received a Bachelor of Arts degree in History with a minor in
Architecture from Texas Tech University.
<PAGE>
L. W. (Bud) Reynolds
Mr. Reynolds is president of Reynolds Financial and Management
Services, Inc., a financial and management consulting firm that
provides services to the real estate, wholesale distribution, retail,
environmental services, assisted living and construction industries.
Mr. Reynolds formed the firm in 1990. He is also chairman of Elder
Living Centers, Inc., a Company Mr. Reynolds formed in 1996 that
develops and finances assisted living facilities in New Mexico and
Texas. Also in 1996, Mr. Reynolds fanned Davis Covenant Corporation, a
general contractor engaged in the development of apartments and
assisted living facilities and asbestos statement. Mr. Reynolds, a
certified public accountant, worked for Peat Marwick Mitchell and
Company from 1959 to 1966 and the Maloof Companies from 1966 through
1984, becoming an Executive Vice President and Chief Financial Officer
in 1980. From 1984 to 1986, he was President and Chief Executive
Officer of American Federal Savings and Loan Association and from 1986
through 1989 was Vice President of Market Development for Public
Service Company of New Mexico. Mr. Reynolds is a graduate of McMuny
University and holds a Masters of Business Administration from the
University of Texas at Austin.
PROPOSED OFFICERS:
-----------------
Walter R. Huntley. Jr.. President
---------------------------------
(See Directors for details)
Danny G. Gibbs Vice President
-----------------------------
(See Directors for details)
Mr. Gibbs shall enter into an Employment Contract with the Reorganized
Debtor that shall provide for a salary, together with the granting of
stock options in the Reorganized Debtor or Thacker or a related entity,
based on future performance. Mr. Gibbs shall retain stock of the Debtor
that he currently owns. However, such stock is the subject of a
security interest in favor of Liberty that will not be released
pursuant to the terms of the Plan. Instead, Liberty shall transfer its
lien against Mr. Gibbs stock to the Reorganized Debtor on the Effective
Date. Based on the Liberty encumbrance against the stock, which far
exceeds the current market value of the stock, the stock is not
believed to have any value.
Thomas A Medart, Jr.. Vice President-Chief Financial Officer
Mr. Medart, 57, has served as the company's CFO since November 1999 He
joined the company from his private consulting practice. Medart has a
diverse background in accounting, finance, banking, and real estate,
having served as Chief Lending and Land Development Officer of a Dallas
Financial Institution, and for 10 years as CFO of Folsom Companies. a
major real estate development company owned by former Dallas Mayor
Robert S. Folsom Medart. Medart, a Texas native, was educated at the
University of Texas, University of Oklahoma, and American Institute of
Banking. He has served on the faculty of Austin Community College, and
Eastfield College of Dallas. Tom was instrumental in the development of
the Prestonwood and Willow Bend areas of Dallas and Plano.
G. THE LIQUIDATING TRUST
---------------------
The Plan of Reorganization fully describes the Liquidating Trust
to be established to satisfy Claims of Creditors. The description of the Trust,
including its creation, the appointment and powers of the Trustee, the assets to
be transferred to the Trust, liquidation of such assets, compensation of Trustee
and persons employed by the trust, and distributions to be made from the Trust,
are contained in paragraph 7 of the Plan.
<PAGE>
H. PUBLIC REPORTING REQUIREMENTS
As a publicly traded company, the Debtor is required to file
certain reports with the Securities Exchange Commission, including 10-K and 10-Q
reports. The filing of a bankruptcy petition does not exempt a debtor from its
reporting requirements. The Debtor is current with its reporting requirements,
and intends to meet its obligations under the federal securities laws.
I. SECURITIES EXCHANGE COMMISSION DISCLAIMER
THIS DISCLOSURE STATEMENT HAS NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THE STATEMENTS CONTAINED HEREIN.
ARTICLE VI
CONSIDERATIONS IN
VOTING ON THE CHAPTER 11 PLAN
A. OPERATION OF CHAPTER 11
-----------------------
In a Chapter 11 case, unless a trustee has been appointed the Debtor is
the only possible proponent of a plan of reorganization during the initial 120
days of the proceedings after an order for relief has been entered.
Chapter 11 of the Bankruptcy Code permits the adjustment of secured
debts, unsecured debts and equity interests. A Chapter 11 plan may provide less
than full satisfaction of senior indebtedness or junior indebtedness or may
provide for a return to equity owners absent full satisfaction of indebtedness
so long as no impaired class votes against the plan.
In the event a class is unimpaired, it is automatically deemed to
accept the plan. A class is unimpaired, in essence, if: (1) its rights at
confirmation are the same as what existed (or would have existed absent
defaults) before the date of the filing of the petition commencing the Chapter
11 case and any existing defaults are cured or provided for and the class is
reimbursed actual damages; or (2) the allowed claims of the class are paid in
full in cash as though matured.
If an impaired class votes against the Plan, this does not necessarily
make implementation of the Plan impossible so long as the Plan is fair and
equitable and that class is afforded certain treatment defined by the Bankruptcy
Code and at least one other impaired class votes for the Plan. The required
treatment may be very broadly defined as providing to a creditor the face value
of its claim. If the treatment afforded the dissenting class of creditors is
equal to or greater than the face value of the claims of such class, the Plan
may be confirmed over the dissent of that class. The Plan may also be confirmed
over dissent if classes junior to the dissenting class receive no consideration
under the Plan.
If there is no dissenting class, the basic tests for approval by a
Court of a Chapter 11 plan (i.e., confirmation) are whether the Plan is in the
best interests of creditors and interest holders and is feasible. A court will
find a Plan to be in the best interests of creditors and interest holders if the
plan will provide a recovery to the creditors and interest holders at least
equal to that which they would obtain if the Debtor were liquidated and the
proceeds of liquidation were distributed in accordance with bankruptcy
liquidation (Chapter 7) priorities. In other words, if the plan provides each
class of creditors and interest holders with money or other property of a value
equaling or exceeding the probable dividend in liquidation bankruptcy, then the
Plan is in the best interests of creditors and interest holders. The Court, in
considering whether the Plan is in the best interest of creditors and interest
holders, is not required to consider any alternative to the Plan other than
liquidation bankruptcy.
<PAGE>
In considering feasibility (i.e., that confirmation is not likely to be
followed by liquidation or further reorganization), the Court is only required
to determine whether the Plan can be performed by the Debtor.
This entails determining:
(1) The availability of cash for payments required at
confirmation;
(2) The ability of the Debtor to generate future cash flow
sufficient to make payments called for under the Plan and
to continue in business; and
(3) The absence of any other factor which would make it
impossible for the Debtor to accomplish that which it
promises to accomplish in the Plan or continue its
existence as contemplated in the Plan.
In addition, in order to confirm a Plan, the Court must find among
other things that the Plan was proposed in good faith and that the Plan and its
proponents are in compliance with the applicable provisions of the Bankruptcy
Code.
These determinations by the Court occur at the hearing on a
confirmation after a Plan has been accepted by vote of the creditors and
interest holders. The Court's judgment on these matters does not constitute an
expression of the Court's opinion as to whether the Plan is a good one or an
opinion by the Court regarding any debt instrument or equity interest or
securities issued to or for the benefit of the creditors under the Plan.
B. ALTERNATIVES TO THE PLAN
Although the Disclosure Statement is intended to provide information to
assist in the formation of a judgment as to whether to vote for or against the
Plan and although creditors are not being offered through that vote an
opportunity to express an opinion concerning alternatives to the Plan, a brief
discussion of alternatives to the Plan may be useful. The Debtors, of course,
believe the proposed Plan to be in the best interests of creditors and the
Debtors. Thus the Debtors do not favor any alternative to the proposed Plan. In
arriving at that conclusion, Debtors assess the alternatives as follows:
1) Chapter 7 Liquidation Analysis. Debtors could convert the Cases to
Chapter 7 and allow a bankruptcy trustee to be appointed to liquidate and
distribute assets. Debtors believe this alternative to be unsatisfactory, and
that Unsecured Creditors would receive significantly less money than proposed in
the Plan in the event that the Debtors were liquidated under Chapter 7 of the
Bankruptcy Code.
<PAGE>
LIQUIDATION ANALYSIS
<TABLE>
<CAPTION>
ASSETS
Real Property
Book Value 1 Claim Net Liquidated
Value
<S> <C> <C> <C>
Frame Residential and .37 acreage, located 20,000 In excess 0
at 1018 Centerville, Garland, TX of 20,000
Lot in South Dallas 13,732 0 13,732
Office Building, 1855 Wall Street, 380,000 In excess 0
Garland, TX of 380,000 2
Personal Property
Cash 400,000 In excess 0
of 400,000 3
Accounts Receivable 2,795,648 In excess of 0
2,795,648 4
Note Receivable of S.W. 139,000 0 139,000
Properties
Automobiles/Trucks 95,384 8,201 87,182
Office Equipment/Computers 50,703 25,660 25,043
Machinery, Fixtures, Equipment 131,092 47,214
29,660 54,217
------
NET ASSETS 319,174
</TABLE>
--------
1 Debtor has not hired any professional persons to appraise its assets.
Debtor's use of book value, although such value does not precisely equal fair
market or liquidation value, is sufficient for purposes of this Liquidation
Value because liquidation value will be less than the book value stated, and
because the size of the projected secured claim held by Liberty Insurance
Company, in excess of $5 million, is sufficiently large to eliminate the
Debtor's equity in any of its secured assets.
2 The first lien against the property is in the approximate amount of
$233,320. Liberty Insurance Company has a second lien against the property to
secure its debt in the projected amount of in excess of $5 million.
3 Secured by claim of Liberty Insurance Company in the projected amount
of in excess of $5 million.
4 Secured by claim of Liberty Insurance Company in the projected amount
of in excess of $5 million.
<PAGE>
<TABLE>
<CAPTION>
LIQUIDATION LIABILITIES
<S> <C>
Chapter 7 Trustee's and Attorneys' Fees 5 50,000
State Sales, Excise and Use Taxes - State of Texas 303,000
State Sales, Excise and Use Texas - Other States 90,000
NET ASSETS 0
PROJECTED UNSECURED CLAIMS
Liberty Claim after foreclosure of security 6 2,184,352
Other Unsecured Claims 1,200,000
TOTAL PROJECTED UNSECURED CLAIMS 3,384,352
PROJECTED DIVIDEND TO UNSECURED CREDITORS
(0 divided by 3,384,352) 0%
</TABLE>
2) Dismissal of the Case. Dismissal of the Chapter 11 case would most
likely lead to the same unsatisfactory result as a Chapter 7 liquidation.
The Debtors have attempted to set forth alternatives to the proposed
Plan. However, the Debtors must caution creditors that a vote must be for or
against the Plan. The vote on the Plan does not include a vote on alternatives
to the Plan. There is no assurance what turn the proceedings will take if the
Plan fails to be accepted. If you believe one of the alternatives referred to is
preferable to the Plan and you wish to urge it upon the Court, you should
consult counsel.
C. SPECIFIC CONSIDERATIONS IN VOTING
All of the foregoing give rise in the instant case to the following
implications and risks concerning the Plan.
While the Plan provides for certain payments at confirmation, such
payments will only apply to Allowed Claims including Claims arising from
defaults. Under the Bankruptcy Code, a Claim may not be paid until it is
allowed. A Claim will be allowed in the absence of objection.
--------
5 Includes cost associated with liquidation of substantial liquidation
claims.
6 The amount of Liberty's claim is projected, for purposes of this
liquidation analysis, to be $5.5 million. The total claim will not be calculable
until such time as Liberty has completed the process of paying claims on Debtors
construction jobs that Liberty has bonded. The amount of net claim listed above
presupposes full realization of book value of Debtor's assets secured by
Liberty's claim, and a credit against its claim in that amount. Such an
assumption is not realistic. Therefore, it is likely that Liberty's unsecured
claim may be substantially larger than the amount stated above, which would have
the effect of reducing the projected dividend to unsecured creditors.
<PAGE>
A Claim, including a Claim arising from default, which has been
objected to will be heard by the Court at a regular, evidentiary hearing and
allowed in full or in part or disallowed. While the Debtor bears the principal
responsibility for Claim objections, any interested party, including creditors,
may file claim objections. Accordingly, payment on some Claims, including Claims
arising from defaults, may be delayed until objections to such Claims are
ultimately settled.
D. DISCLOSURES REQUIRED BY THE BANKRUPTCY CODE
-------------------------------------------
The Bankruptcy Code requires disclosure of certain facts:
(1) There are no payments made or promises of the kind specified in
section 1129(a)(4)(A) of the Bankruptcy Code which have not been disclosed to
the Court
(2) Counsel to the Debtors have advised the Debtors that the Debtors
will require legal services in connection with this case after confirmation
which will require reimbursement. Debtors may continue to use Thompson, Coe,
Cousins & Irons, L.L.P., as counsel after confirmation.
3) A listing and description of the management, officers and directors
of the Reorganized Debtor shall be provided prior to the hearing on this
Disclosure Statement.
ARTICLE VII
ANALYSIS OF CLAIMS, DESCRIPTION OF
LITIGATION, AND EXECUTORY CONTRACTS
A. Claims.
Under the Bankruptcy Code, a creditor may be able to participate in an
estate whether or not he has filed a proof of claim. Accordingly, the schedules
filed by Debtor will largely determine the claims against the funds to be
provided under the Plan. Attached hereto as Exhibit "A" and incorporated by
reference herein is a summary of the Schedules of the Debtor, showing the amount
of prepetition debt that the Debtors believes to exist.
B. Litigation.
Attached hereto as Exhibit "B", and incorporated by reference herein is a list
showing the litigation against the Debtors as of the Petition Date. Notices of
bankruptcy have been filed in the Court where the case is pending unless
otherwise noted.
C. Executory Contracts and Unexpired Leases.
Attached hereto as Exhibit "C" and incorporated by reference herein is
a list of the Executory Contracts and Unexpired Leases as of the Petition Date.
<PAGE>
ARTICLE VIII
FEASIBILITY, RISK ANALYSIS AND FINANCIAL PROJECTIONS
Under the test for feasibility under the Bankruptcy Code, the Court
must look to the Debtor's projected income, expenses, assets and liabilities to
determine whether the Plan will leave the estate financially stable. A finding
of financial stability is not a guarantee, but a reasonable expectation of
success. The Plan must provide the reorganized Debtor with the ability to
service any debt included in the Plan and with enough capital for continuation
of the business.
ARTICLE IX
CONCLUSION
The materials provided in this Disclosure Statement are intended to
assist you in voting on the Plan in an informed fashion. Since, if the Plan is
confirmed, you will be bound by its term, you are urged to review this material
and make such further inquiries as you may deem appropriate and then place an
informed vote on the Plan.
<PAGE>
GIBBS CONSTRUCTION COMPANY, INC.
By:
Danny Gibbs
President and CEO
BRONCO BOWL HOLDING, INC.
By:
Danny Gibbs
President and CEO
OF COUNSEL:
Gerrit M. Pronske
State Bar No. 16351640
Kevin Thomason
State Bar No. 19890500
Pamela Dunlop Gates
State Bar No. 06239800
THOMPSON, COE, COUSINS & IRONS, L.L.P.
200 Crescent Court, Eleventh Floor
Dallas, TX 75201
214/871-8288 - Telephone
214/871-8209 - Telecopier
COUNSEL FOR THE DEBTORS
Gerrit M. Pronske
