<PAGE> 1
EXHIBIT 2(A)
CRAIG M. PRIM (077820)
JANICE M. MURRAY (099996)
DIANA L. DONABEDIAN (191384) [FILED 00 JUN 15 AM 10:01]
MURRAY & MURRAY
A Professional Corporation
3030 Hansen Way, Suite 200
Palo Alto, CA 94304-1009
(650) 852-9000
Attorneys for Debtor
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
In re: )Case No. 99-50736-JRG-11
)
Site Technologies, Inc., )Chapter 11
dba DeltaPoint, Inc. )
)Date: June 12, 2000
Debtor. )Time: 2:00 p.m.
)Place: Courtroom 3020
EIN No.: 77-0212760 )Judge: Hon. James R. Grube
)
--------
ORDER CONFIRMING DEBTOR'S
FIRST AMENDED PLAN OF REORGANIZATION
The Debtor's First Amended Plan of Reorganization dated April 25, 2000
(the "First Amended Plan") filed by Site Technologies, Inc. (the "Debtor") on
April 25, 2000 having been transmitted to creditors, equity security holders
and other parties in interest;
Confirmation of the First Amended Plan having come on for hearing before
this Court on June 12, 2000; Janice M. Murray of Murray & Murray, A Professional
Corporation appearing on behalf of the Debtor; other appearances are as noted in
the record; the Court having reviewed all of the pleadings filed in connection
with confirmation of the First Amended Plan; the Court having considered the
representations and arguments of counsel; and good cause appearing;
It having been determined after hearing on notice, upon the submission
of competent and admissible evidence, that:
A. The Debtor filed its Voluntary Petition under Chapter 11 of
Title 11, the United States Code (the "Bankruptcy Code") on February 2, 1999;
and
B. The Debtor's First Amended Plan and the Debtor's First Amended
Disclosure Statement (the "Disclosure Statement") were filed on April 25, 2000;
and
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3. The Court entered its Order Approving First Amended Disclosure
Statement, Fixing Time For Filing Acceptances or Rejections of Plan, Fixing
Time for Confirmation Hearing, Combined with Notice Thereof (the "Order") on
April 26, 2000; and
4. Service of the First Amended Plan, the Disclosure Statement, the
Order and a Ballot for Accepting or Rejecting Plan was duly and properly made
on all known holders of claims against and interests in the Debtor, as well as
to other parties in interest entitled to such notice; and
5. No plan other than the First Amended Plan has been filed by any party
in interest in this case; and
6. No timely objections to confirmation of the First Amended Plan have
been asserted; and
7. The Debtor has complied with the provisions of 11 U.S.C. Section 1127;
and
8. The requirements for confirmation set forth in 11 U.S.C. Section
1129(a) and Section 1129(b) have been satisfied; and
9. The First Amended Plan does not discriminate unfairly and is fair and
equitable; and
10. The provisions of Chapter 11 of the Bankruptcy Code have been
complied with, and the First Amended Plan has been proposed in good faith and
not by any means forbidden by
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<PAGE> 3
law; and
11. All payments made or promised by the Debtor for services or for
costs and expenses in, or in connection with the First Amended Plan and
incident to the case, have either (i) been fully disclosed to the Court and are
reasonable; or (ii) will be subject to the approval of the Court; and
12. The identity, qualifications and affiliations of the person who is
to be the Responsible Person of the Debtor after confirmation of the First
Amended Plan, have been fully disclosed, and the appointment of such person is
equitable and consistent with the interests of creditors and equity security
holders and with public policy; and
13. The identity of any insider that will be retained by the Debtor
and such person's compensation have been fully disclosed; and
14. Each holder of a claim or interest will receive or retain under
the First Amended Plan property of a value, as of the Effective Date of the
First Amended Plan, that is not less than the amount that such holder would
receive or retain if the Debtor were liquidated under Chapter 7 of the
Bankruptcy Code on such date; and
15. The First Amended Plan has been accepted in writing by the
creditors and equity security holders whose acceptance is required by law; and
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<PAGE> 4
16. At least one class of claims that is impaired under the First
Amended Plan has accepted the First Amended Plan, determined without including
any acceptance of the First Amended Plan by any insider; and
17. Confirmation of the First Amended Plan is not likely to be
followed by the need for further financial reorganization of the Debtor; and
18. The Debtor and Savoir Technology Group, Inc. ("Savoir") having
agreed to the allowance of Savoir's secured claim in the approximate amount of
$233,698.14 as of June 12, 2000 with interest to continue to accrue at the rate
of $54.79 per day thereafter until paid;
IT IS HEREBY ORDERED that:
1. The Debtor's First Amended Plan of Reorganization dated April
25, 2000 is hereby confirmed. A copy of the First Amended Plan is attached
hereto as Exhibit "A" and incorporated herein by reference.
2. The Debtor is hereby authorized and directed to take such
action, make such decisions and execute such instruments as it shall reasonably
deem necessary to effect the implementation and consummation of the First
Amended Plan provided that such acts, decisions and instruments are not
inconsistent with applicable law or the First Amended Plan.
3. The First Amended Plan and the Confirmation Order bind the
Debtor, any other
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entity acquiring property under the First Amended Plan, any creditor of and any
equity security holder in the Debtor, whether or not the claim or interest of
such creditor or equity security holder is impaired under the First Amended
Plan, whether or not such claim or interest arose before or after the
commencement of the Debtor's Chapter 11 case, and whether or not any such
creditor or equity security holder has accepted the First Amended Plan.
4. All property of the Bankruptcy Estate hereby vests in the Debtor
subject to the terms and conditions of the First Amended Plan. All property of
the Debtor is hereby free and clear of any liens, encumbrances, claims of
creditors and interests of equity security holders, except as otherwise
provided in the First Amended Plan.
5. The Court reserves jurisdiction with regard to the matters and
proceedings set forth in Article 13 of the First Amended Plan.
6. The Debtor shall submit its application for final decree on or before
December 29, 2000, unless for good cause shown, the Court grants an extension of
time.
7. Savoir's secured claim shall be allowed in the approximate amount of
$233,698.14 as of June 12, 2000 with interest to continue to accrue at the rate
of $54.79 per day thereafter until paid.
Dated: June 15, 2000 /s/ JAMES R. GRUBE
----------------------------------
United States Bankruptcy Judge
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UNITED STATES BANKRUPTCY JUDGE
APPROVED AS TO FORM AND CONTENT:
UNITED STATES TRUSTEE
By: /s/ NANETTE DUMAS
------------------------------------
Nanette Dumas, Esq.
PILLSBURY, MADISON & SUTRO
By: /s/ JOHN S. WESOLOWSKI
------------------------------------
John S. Wesolowski, Esq.
Attorneys for Savoir Technology Group
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<PAGE> 7
EXHIBIT "A"
Attach First Amended Plan of Reorganization
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<PAGE> 8
CRAIG M. PRIM (077820) [FILED APR 25, 2000]
JANICE M. MURRAY (099996)
STEPHEN T. O'NEILL (115132)
MURRAY & MURRAY
A Professional Corporation
3030 Hansen Way, Suite 200
Palo Alto, CA 94304-1009
(650) 852-9000
Attorneys for Debtor
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
In re: )Case No. 99-50736-JRG-11
)
Site Technologies, Inc., )Chapter 11
dba DeltaPoint, Inc., )
)
Debtor. )
)
EIN No.: 77-0212760 )
)
)
--------
DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION
DATED APRIL 25, 2000
<PAGE> 9
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C>
1. INTRODUCTION........................................................................... 1
2. DEFINITIONS............................................................................ 2
3. DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS......................................... 9
3.1 Class 1.......................................................................... 9
3.2 Class 2.......................................................................... 9
3.3 Class 3.......................................................................... 9
3.4 Class 4.......................................................................... 9
3.5 Class 5.......................................................................... 10
4. TREATMENT OF UNCLASSIFIED CLAIMS 10
4.1 Allowed Administrative Claims.................................................... 10
4.2 Tax Claims....................................................................... 10
5. CLASSES OF CLAIMS AND INTERESTS NOT IMPAIRED UNDER THE PLAN............................ 11
6. TREATMENT OF CLASSES OF CLAIMS AND INTERESTS...........................................
THAT ARE IMPAIRED UNDER THE PLAN....................................................... 11
6.1 Class 1 Claims (Priority Claims)................................................. 11
6.2 Class 2 Claim (Savoir Technology Group, Inc.).................................... 11
6.3 Class 3 Claims (Unsecured Creditors)............................................. 11
6.4 Class 4 Interests (Common Stock)................................................. 11
6.5 Class 5 Interests (Options and Warrants)......................................... 12
7. MEANS FOR IMPLEMENTATION OF THE PLAN................................................... 12
7.1 Liquidation Proceeds; Remaining Assets........................................... 12
7.2 Disbursement of Funds............................................................ 12
7.3 Responsible Person............................................................... 12
7.4 Expedited Procedure for Compromise of Controversy, Sale or Abandonment........... 14
7.5 Corporate Formalities............................................................ 14
7.6 Compensation and Reimbursement of Professionals.................................. 15
7.7 Amendment of Charter to Prohibit the Issuance of Non-Voting Equity Securities.... 15
7.8 Unclaimed Property............................................................... 15
7.9 Dissolution of Corporation....................................................... 15
8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES............................................... 16
8.1 Assumption of Executory Contracts................................................ 16
8.2 Rejection of Executory Contracts and Unexpired Leases............................ 16
8.3 Treatment of Executory Contracts and Unexpired Leases............................ 16
8.4 Rejection Claims................................................................. 16
9. PROOFS OF CLAIM; EVIDENCE OF EQUITY SECURITY; OBJECTIONS............................... 17
9.1 Time for Filing Proofs of Claim.................................................. 17
9.2 Evidence of Claim or Interest.................................................... 17
9.3 Time for Filing Objections....................................................... 18
9.4 Disputed Claims and Disputed Interests; Reserve Accounts......................... 18
10. RESERVATION OF POWERS.................................................................. 18
11. WAIVER................................................................................. 18
12. REQUEST FOR CONFIRMATION............................................................... 18
13. RETENTION OF JURISDICTION.............................................................. 18
14. EFFECT OF CONFIRMATION................................................................. 20
14.1 Binding Effect................................................................... 20
14.2 Vesting of Property.............................................................. 20
14.3 Discharge........................................................................ 20
15. CHAPTER 11 POST-CONFIRMATION REPORTS AND FINAL DECREE.................................. 20
15.1 Post-Confirmation Reports........................................................ 20
15.2 Service of Reports............................................................... 21
15.3 Final Decree..................................................................... 21
16. MISCELLANEOUS.......................................................................... 21
16.1 Headings......................................................................... 21
16.2 Singular/Plural.................................................................. 21
</TABLE>
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<TABLE>
<S> <C>
16.3 Gender.......................................................................... 21
16.4 Revocation and Withdrawal....................................................... 21
16.5 Notices......................................................................... 22
16.6 Reservation of Rights........................................................... 22
16.7 Computation of Time Periods..................................................... 23
</TABLE>
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Site Technologies, Inc., a California corporation ("Site", the
"Debtor" or the "Company") proposes this Plan of Reorganization (the "Plan")
pursuant to the provisions of Chapter 11 of the Bankruptcy Code.
1. INTRODUCTION
1.1 On February 2, 1999, the Debtor filed its Voluntary Petition under Chapter
11 of the Bankruptcy Code. Chapter 11 sets forth the rules and procedures under
which financially distressed entities may be reorganized or liquidated pursuant
to a plan of reorganization presented to creditors and stockholders for
consideration and approval. Confirmation of the Plan is the culmination of that
process.
1.2 The Plan sets forth a proposal for the satisfaction, discharge and/or
cancellation of all Claims against and Interests in the Debtor. With the Plan,
Creditors and Equity Security Holders will receive a Ballot for voting on the
Plan, and a Disclosure Statement that provides information concerning the Debtor
and the Plan. The Disclosure Statement includes a summary of the Debtor's
history, a summary of significant events during the Chapter 11 case, an estimate
of what certain Creditors and Interest holders will receive under the Plan and a
summary of the procedures and voting requirements necessary for confirmation of
the Plan. You should thoroughly review both the Plan and the Disclosure
Statement before deciding whether you will accept or reject the Plan.
1.3 CREDITORS AND EQUITY SECURITY HOLDERS WISHING TO VOTE ON THE PLAN SHOULD
COMPLETE THE BALLOT PROVIDED AND RETURN IT NO LATER THAN MAY 30, 2000 TO:
MURRAY & MURRAY
A PROFESSIONAL CORPORATION
ATTN: JANICE M. MURRAY, ESQ.
3030 HANSEN WAY, SUITE 200
PALO ALTO, CALIFORNIA 94304-1009
IF YOUR BALLOT IS NOT RETURNED BY MAY 30, 2000, IT MAY NOT BE CONSIDERED.
BALLOTS WHICH ARE RETURNED BUT NOT PROPERLY EXECUTED WILL NOT BE CONSIDERED.
BALLOTS WHICH ARE EXECUTED BUT WHICH FAIL TO INDICATE
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EITHER ACCEPTANCE OR REJECTION OF THE PLAN WILL BE CONSIDERED AS ACCEPTING THE
PLAN.
2. DEFINITIONS
The following terms used in this Plan shall, unless the context
otherwise clearly requires, have the meanings specified below, and such meanings
shall be equally applicable to both the singular and plural forms of such terms.
2.1 "ADMINISTRATIVE CLAIM" means a Claim for any cost or expense of
administration of a kind specified in Section 503(b) of the Bankruptcy Code that
is entitled to priority under Section 507(a)(1) of the Bankruptcy Code,
including, without limitation, any actual and necessary costs and expenses of
preserving the Bankruptcy Estate incurred on or after the Petition Date and
through and including the Effective Date, any cure amounts that must be paid in
connection with the assumption of any executory contract or unexpired lease of
the Debtor under Section 365 of the Bankruptcy Code, Bankruptcy Fees, and
allowance of compensation for legal or other services and reimbursement of
expenses under Sections 330 and 331 of the Bankruptcy Code or otherwise allowed
by the Bankruptcy Court.
2.2 "ALLOWED ADMINISTRATIVE CLAIM" means all or any portion of an Administrative
Claim that has either been (i) allowed by a Final Order or (ii) has not been
objected to within the time period established by the Plan or by an order of the
Bankruptcy Court.
2.3 "ALLOWED CLAIM" means a Claim (a) which is an Allowed Claim pursuant to the
terms of the Plan; (b) with respect to which a Proof of Claim has been filed
with the Bankruptcy Court within the time ordered by the Bankruptcy Court, or if
no time is ordered by the Bankruptcy Court, within the time prescribed by the
Plan, the Bankruptcy Code, the Bankruptcy Rules or by Local Rules, and to which
no objection has been filed within the time fixed by the Plan or the Bankruptcy
Court; (c) which has been listed on Schedule D, E or F of the Debtor's Schedules
filed with the Bankruptcy Court pursuant to Section 521(1) of the Bankruptcy
Code and Bankruptcy Rule 1007(b), as may be amended, (the "Schedules"), and is
not listed as disputed, contingent, unliquidated or unknown as to amount; or (d)
which is allowed by a Final
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Order of the Bankruptcy Court. Except for a Claim which is allowed pursuant to
the terms of the Plan, no Claim shall be considered an Allowed Claim if an
objection to the allowance thereof is interposed by the Debtor or other party in
interest within the time fixed by the Plan or the Bankruptcy Court, and such
objection has not been denied by a Final Order of the Bankruptcy Court.
2.4 "ALLOWED INTEREST" means the Interest of an Equity Security Holder (a) which
is an Allowed Interest pursuant to the terms of the Plan; (b) in respect to
which a Proof of Interest has been filed with the Bankruptcy Court within the
time ordered by the Bankruptcy Court, or if no time is ordered by the Bankruptcy
Court, within the time prescribed by the Plan, the Bankruptcy Code, the
Bankruptcy Rules or by Local Rules, and to which no objection has been filed
within the time fixed by the Plan or the Bankruptcy Court; or (c) which has been
listed on the Debtor's List of Equity Security Holders filed with the Bankruptcy
Court pursuant to Bankruptcy Rule 1007(a)(3), as may be amended, (the "List of
Equity Security Holders"), and is not listed as disputed, contingent,
unliquidated or unknown as to class or amount. Except for an Interest which is
allowed pursuant to the terms of the Plan, no Interest shall be considered an
Allowed Interest if an objection to the allowance thereof is interposed by the
Debtor or other party in interest within the time fixed by the Plan or the
Bankruptcy Court, and such objection has not been denied by a Final Order of the
Bankruptcy Court. Pursuant to Bankruptcy Rule 3021, only Allowed Class 4
Interests of Equity Security Holders as of the Distribution Date shall be
entitled to receive a Distribution under this Plan.
2.5 "ALLOWED SECURED CLAIM" means an Allowed Claim secured by a lien, security
interest, or other charge against or interest in property in which the Debtor
has an interest or that is subject to setoff under Section 553 of the Bankruptcy
Code, to the extent of the value (as specified in the Plan, or if no value is
specified, as determined in accordance with Section 506(a) of the Bankruptcy
Code) of the interest of a holder of such Allowed Claim in the Debtor's interest
in such property or to the extent of the amount subject to setoff, as the case
may be.
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2.6 "ALLOWED UNSECURED CLAIM" means any Allowed Claim, including a Rejection
Claim, but excluding Allowed Secured Claims, Allowed Administrative Claims,
Priority Claims, and Tax Claims.
2.7 "AVOIDANCE CLAIMS" means any claims for relief of the Debtor arising under
(i) any of Sections 542, 543, 544, 545, 546, 547, 548, 549, 550 and 553 of the
Code; or (ii) law or equity by virtue of decisional law, rule, regulation or
statute under any other applicable state or federal law.
2.8 "BALLOT" means the form distributed to holders of Claims and Interests on
which an acceptance or rejection of the Plan is to be stated.
2.9 "BANKRUPTCY CASE" or "CASE" means the bankruptcy case commenced by the
Debtor's filing with the Bankruptcy Court of a Voluntary Petition under Chapter
11 of the Bankruptcy Code.
2.10 "BANKRUPTCY CODE" OR "CODE" means Title 11 of the United States Code and
also includes Sections 157, 158, 1334, 1408-1412, and 1452 of Title 28 of the
United States Code.
2.11 "BANKRUPTCY COURT" OR "COURT" means the United States Bankruptcy Court for
the Northern District of California, San Jose Division, having jurisdiction over
the Bankruptcy Case and, to the extent of any reference made pursuant to 28
U.S.C. Section 157(a) and Local Rule 5011-1, the unit of such District Court
constituted pursuant to 28 U.S.C. Section 151, commonly referred to as the
United States Bankruptcy Court for the Northern District of California, San Jose
Division, and any other courts or panels having competent jurisdiction to hear
the Bankruptcy Case or appeals from orders entered therein.
2.12 "BANKRUPTCY ESTATE" means the estate created by the commencement of the
Bankruptcy Case and comprised of the property described in Section 541 of the
Bankruptcy Code.
2.13 "BANKRUPTCY FEES" mean the quarterly fees payable under Section 1930 of
Title 28 of the United States Code.
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2.14 "BANKRUPTCY RULES" means the Federal Rules of Bankruptcy Procedure
promulgated under 28 U.S.C. Section 2075, as amended, as applicable to this
Bankruptcy Case.
2.15 "CLAIM" means any right to payment, or right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, from the
Debtor, whether or not such right to payment or right to an equitable remedy is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured.
2.16 "CLAIMS BAR DATE" means June 1, 1999, the date established by order of the
Bankruptcy Court pursuant to Bankruptcy Rule 3003(c) as the deadline for filing
proofs of Claim in the Bankruptcy Case.
2.17 "CLASS" means a category or group of holders of Claims or Interests as
designated pursuant to the Plan.
2.18 "COMPANY" or "DEBTOR" means Site Technologies, Inc., a California
corporation.
2.19 "CONFIRMATION" means the entry by the Bankruptcy Court of the Confirmation
Order.
2.20 "CONFIRMATION DATE" means the date on which the Bankruptcy Court enters the
Confirmation Order.
2.21 "CONFIRMATION HEARING" means the hearing held before the Bankruptcy Court
in which the Debtor will seek Confirmation of this Plan, including any and all
adjournments thereof.
2.22 "CONFIRMATION ORDER" means the order entered by the Bankruptcy Court
approving and confirming the Plan in accordance with the provisions of Chapter
11 of the Bankruptcy Code.
2.23 "CREDITOR" means any entity holding a Claim against the Debtor.
2.24 "DEBTOR'S PROFESSIONALS" collectively means Murray & Murray, A Professional
Corporation, Wilson, Sonsini, Goodrich & Rosati, PricewaterhouseCoopers and/or
their successors, if any; such other professionals whose employment by the
Debtor is approved by order of the Bankruptcy Court; and, following the
Effective Date, any professionals engaged by
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the Debtor to represent or assist it in fulfilling the duties and obligations of
the Debtor under the Plan after the Effective Date, and administering the Plan,
the Bankruptcy Case and the Bankruptcy Estate, reviewing Claims and Interests,
objecting to Disputed Claims and Disputed Interests as appropriate, supervising
the preparation and filing of the Debtor's final tax returns, and closing the
Bankruptcy Case.
2.25 "DISCLOSURE STATEMENT" means that informational disclosure statement issued
by the Debtor pursuant to Section 1125 of the Bankruptcy Code and accompanying
this Plan, and which has heretofore been approved by the Bankruptcy Court
pursuant to the Order Approving Disclosure Statement.
2.26 "DISPUTED CLAIM" means a Claim against the Debtor (a) that has been listed
in the Debtor's Schedules as disputed, contingent or unliquidated, or; (b) as to
which an objection or adversary proceeding has been filed within the time fixed
by the Bankruptcy Court and which objection or adversary proceeding has not been
withdrawn or disposed of by a Final Order of the Bankruptcy Court.
2.27 "DISPUTED CLAIMS RESERVE ACCOUNT" means a segregated interest-bearing
account maintained and administered by the Debtor at a depository approved by
the Office of the United States Trustee for the purpose of holding cash payments
attributable to Disputed Claims.
2.28 "DISPUTED INTERESTS" means an Interest in the Debtor (a) that has been
listed on the List of Equity Security Holders (as may be amended) as disputed,
contingent or unliquidated, or (b) as to which an objection or adversary
proceeding has been filed within the time fixed by the Bankruptcy Court and
which objection or adversary proceeding has not been withdrawn or disposed of by
a Final Order of the Bankruptcy Court.
2.29 "DISPUTED INTERESTS RESERVE ACCOUNT" means a segregated interest-bearing
account maintained and administered by the Debtor at a depository approved by
the Office of the United States Trustee for the purpose of holding cash payments
attributable to Disputed Interests.
2.30 "DISTRIBUTION(s)" means the monies to be distributed under the Plan to
holders of Allowed Claims and Allowed Interests.
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2.31 "DISTRIBUTION DATE" means the date of commencement of Distribution(s) under
the Plan.
2.32 "EFFECTIVE DATE" means: the first business day which is eleven (11)
calendar days after the Confirmation Date, provided the Confirmation Order has
become a Final Order.
2.33 "EMPLOYMENT AGREEMENT(s)" means (i) as to Jeffrey F. Ait, that certain
employment letter dated March 24, 1997 by and between Jeffrey F. Ait and the
Debtor, and (ii) as to Sharon Fugitt, that certain Employment Agreement dated
June 1, 1998 by and between Sharon Fugitt and the Debtor.
2.34 "EQUITY SECURITY" means (a) a share in the Debtor, whether or not
transferable or denominated "stock", or similar security; or (b) a warrant or
right (other than a right to convert) to purchase, sell, or subscribe to a
share, security, or interest of a kind specified in subparagraph (a) of this
section.
2.35 "EQUITY SECURITY HOLDER" means a holder of record, or if appropriate, the
beneficial owner, of any Equity Security of the Debtor as of (a) the Petition
Date, (b) the date the Order Approving Disclosure Statement is entered, or (c)
the Distribution Date, as the context requires.
2.36 "FINAL ORDER" means an order entered on the docket by the Bankruptcy Court
which is no longer subject to appeal, certiorari proceedings or other
proceedings for review or rehearing, and as to which no appeal, certiorari
proceedings, or other proceedings for review or rehearing are pending.
2.37 "INTEREST" means the rights and property interests represented by an Equity
Security of the Debtor.
2.38 "LOCAL RULES" means the Local Rules of the United States District Court for
the Northern District of California, as amended, as applicable to this
Bankruptcy Case.
2.39 "ORDER APPROVING DISCLOSURE STATEMENT" means the Order Approving Disclosure
Statement, Fixing Time for Filing Acceptances or Rejections of Plan, Fixing Time
for Confirmation, Combined with Notice Thereof entered by the Bankruptcy Court
with respect to the Debtor's Disclosure Statement, a copy of which accompanies
this Plan.
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2.40 "PETITION DATE" means February 2, 1999, the date on which this Bankruptcy
Case was commenced.
2.41 "PLAN" means this Plan of Reorganization, including any modification(s)
hereof and/or amendment(s) hereto that comply with Section 1127 of the
Bankruptcy Code and Bankruptcy Rule 3019.
2.42 "POST-PETITION INTEREST" means interest at the federal statutory rate set
by 28 U.S.C. Section 1961, accruing from the Petition Date. As of the Petition
Date, said interest rate was 4.584%.
2.43 "PRIORITY CLAIM" means any Allowed Claim entitled to priority pursuant to
Section 507(a) of the Bankruptcy Code, but not including Administrative Claims
and Tax Claims.
2.44 "PRO RATA" means the ratio that an Allowed Claim or Allowed Interest in a
particular Class bears to the aggregate amount of all Allowed Claims or Allowed
Interests in such Class.
2.45 "REJECTION CLAIM" means an Allowed Unsecured Claim arising from the
Debtor's rejection of an unexpired lease or executory contract pursuant to the
Plan or pursuant to an order of the Bankruptcy Court.
2.46 "RESPONSIBLE PERSON" means the individual designated by the Debtor under
the Plan, or as otherwise designated by order of the Bankruptcy Court, to assist
the Debtor in (a) fulfilling the duties and obligations of the Debtor under the
Plan, and (b) fully administering the Bankruptcy Estate as required by the Plan,
the Confirmation Order, the Bankruptcy Code and the Bankruptcy Rules, which
duties and obligations include, without limitation, the facilitation of
Distributions pursuant to the Plan, reviewing Claims and Interests, objecting to
Disputed Claims and Disputed Interests, supervising the preparation and filing
of the Debtor's final tax returns and closing the Bankruptcy Case.
2.47 "SAVOIR" means Savoir Technology Group, Inc.
2.48 "STARBASE" means StarBase Corporation, a Delaware corporation.
2.49 "STARBASE AGREEMENT" means that certain Asset Purchase and Sale Agreement
by and between the Debtor and StarBase dated as of December 18, 1998, which sets
forth the terms
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<PAGE> 19
and conditions of the StarBase Sale and which was approved by order of the
Bankruptcy Court entered March 11, 1999.
2.50 "STARBASE SALE" means the transaction contemplated by the StarBase
Agreement.
2.51 "TAX CLAIM" means any Allowed Claim entitled to priority pursuant to
section 507(a)(8) of the Bankruptcy Code.
2.52 "TRANSFER AGENT" means U.S. Stock Transfer Corporation.
2.53 "UNCLAIMED PROPERTY" means any Distribution that cannot be delivered to, or
is not accepted by (i) the holder of an Allowed Claim and/or (ii) the holder of
an Allowed Interest of an Equity Security Holder as of the Distribution Date,
and shall include, without limitation, checks (and the funds represented
thereby) that are returned as undeliverable without a proper forwarding address,
are not cashed, or not delivered because of the absence of a proper address to
which to deliver the Distribution together with any interest on said funds.
2.54 "U.S. TRUSTEE" means the office of the United States Trustee for Region 17
of the United States.
A term used in the Plan that is not herein defined but is used in the
Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to such
term in the Bankruptcy Code or the Bankruptcy Rules.
3. DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS
The Allowed Claims against and Allowed Interests in the Debtor are
designated and classified below for purposes of the Plan. Except to the extent
the Plan provides otherwise, a Claim or Interest that is properly includable in
more than one Class is classified in a particular Class only to the extent that
it qualifies within the description of that Class, and is placed in a different
Class to the extent it qualifies within the description of such different Class.
3.1 Class 1. Priority Claims.
3.2 Class 2. Allowed Secured Claim of Savoir Technology Group, Inc.
3.3 Class 3. Allowed Unsecured Claims.
3.4 Class 4. Allowed Interests (common stock) of Equity Security Holders as
of the Distribution Date.
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3.5 Class 5. Allowed Interests of the holders of outstanding, unterminated
options, warrants and/or other rights to acquire any Equity
Security of the Debtor.
4. TREATMENT OF UNCLASSIFIED CLAIMS
Unclassified Claims shall be treated as follows:
4.1 Allowed Administrative Claims . Each holder of an Allowed Administrative
Claim shall receive payment of such Claim, in cash, in full, upon the latest of
(i) the Effective Date, (ii) if such Claim is a Disputed Claim, upon allowance
of such Claim by a Final Order of the Bankruptcy Court, (iii) if such Claim is
incurred after the Petition Date in the ordinary course of the Debtor's
business, within such time as payment is due pursuant to the terms giving rise
to such Claim, or (iv) such other time as may be agreed to by the holder of such
Claim. Any request for allowance of an Administrative Claim pursuant to Section
503(a) of the Bankruptcy Code, other than by the Debtor's Professionals and the
U.S. Trustee, must be filed within ten (10) days following the Effective Date or
the holder of such Claim will be forever barred from asserting such Claim or
receiving any payment on account of such Claim. Bankruptcy Fees shall be paid by
the Debtor to the U.S. Trustee, for deposit into the Treasury, for each quarter
(including any fraction thereof) until this Case is converted, dismissed or
closed pursuant to a final decree, as required by 28 U.S.C. Section 1930(a)(6).
4.2 Tax Claims. Each holder of a Tax Claim will be paid in full on the latest of
(i) the Effective Date of the Plan, (ii) upon allowance by the Bankruptcy Court,
or (iii) such other time as may be agreed to by the holder of such claim;
provided, however, the Debtor may elect to pay Tax Claims in deferred cash
payments, over a period not exceeding six (6) years after date of assessment.
However, in no event shall the holder of a Tax Claim be paid prior to the
payment in full or reservation for Allowed Secured Claims and Allowed Claims
entitled to priority pursuant to Section 507(a)(1) through (a)(7) of the
Bankruptcy Code.
5. CLASSES OF CLAIMS AND INTERESTS NOT IMPAIRED UNDER THE PLAN.
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There are no classes of Claims and Interests which are not impaired
under the Plan.
6. TREATMENT OF CLASSES OF CLAIMS AND INTERESTS THAT ARE IMPAIRED UNDER THE PLAN
The following classes of Claims and Interests are impaired under the
Plan, and shall be treated as follows:
6.1 Class 1 Claims (Priority Claims). Each holder of a Claim in Class 1 shall
receive payment in cash in full, plus Post-Petition Interest, on the Effective
Date.
6.2 Class 2 Claim (Savoir Technology Group, Inc.). The Class 2 Claim of Savoir
is based on prepetition loans and advances, in the principal amount of
approximately $200,000, plus interest, as evidenced by certain notes, security
agreements and UCC-1 financing statements. Savoir shall retain its lien to the
extent not avoidable, which lien will attach to the proceeds from the sale of
its collateral. Savoir's Allowed Secured Claim will be paid in full on the
latest of (i) the Effective Date, (ii) ten (10) days following entry of a Final
Order allowing its Class 2 Claim or (iii) such date as otherwise agreed between
the Debtor and Savoir. The balance of any Claim by Savoir will be treated as a
Class 3 Claim.
6.3 Class 3 Claims (Unsecured Creditors). The holders of Class 3 Allowed
Unsecured Claims shall receive payment in cash in full, including Post-Petition
Interest, as soon as practicable after the Effective Date, but in no event later
than the later of (i) thirty (30) days after the Effective Date or (ii) upon
resolution of all Disputed Claims, including Rejection Claims; provided,
however, no payment shall be made to members of Class 3 until after the payment
of or reservation for all Allowed Administrative Claims, Allowed Secured Claims,
Tax Claims, Priority Claims, any other senior Claims, and post-Confirmation
expenses of implementing the Plan, winding up the affairs of the Debtor and
closing the Bankruptcy Case. In the unlikely event there are insufficient funds
available to pay Class 3 Claims in full with Post-Petition Interest as described
herein, holders of Class 3 Allowed Unsecured Claims shall be paid pro rata from
the funds available for the payment of Class 3 Claims.
6.4 Class 4 Interests (Common Stock). Each Equity Security Holder with an
Allowed
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Class 4 Interest as of the Distribution Date shall receive a pro rata
distribution from available funds, as soon as practicable after (i) the payment
of or reservation for all Allowed Administrative Claims, Allowed Secured Claims,
Tax Claims, Priority Claims, Allowed Unsecured Claims, any other senior Claims,
and post-Confirmation expenses of implementing the Plan, winding up the affairs
of the Debtor and closing the Bankruptcy Case and (ii) resolution of or
reservation for all Disputed Claims and Disputed Interests. All Class 4
Interests shall otherwise be canceled and extinguished on the Distribution Date.
6.5 Class 5 Interests (Options and Warrants). The holders, as of the Effective
Date, of outstanding unterminated options and warrants to acquire the Debtor's
common stock shall receive nothing under the Plan and their respective interests
shall otherwise be canceled and extinguished on the Effective Date.
7. MEANS FOR IMPLEMENTATION OF THE PLAN
7.1 Liquidation Proceeds; Remaining Assets. Proceeds from the sale of the
StarBase stock, the auction and the Blum compromise will be the primary source
of funds for execution of the Plan. Any other assets of the Debtor (e.g.,
Avoidance Claims) shall be liquidated as appropriate, except for those assets
which the Responsible Person determines to be burdensome or of inconsequential
value, which assets will be abandoned.
7.2 Disbursement of Funds. The Debtor shall make the payments to all creditors
with Allowed Claims. The Debtor shall wire transfer the balance of funds
designated for shareholders to the Transfer Agent with appropriate instructions
from the Responsible Person directing the Transfer Agent to make a pro rata
distribution to shareholders of record as of the Distribution Date.
7.3 Responsible Person.
A. Jeffrey F. Ait ("Ait"), the Debtor's Chief Executive Officer and Chief
Financial Officer, shall be designated as the Responsible Person. The
Responsible Person shall be compensated on an hourly basis at an hourly rate not
to exceed $200.00 from and after the Effective Date. The Responsible Person may,
in his discretion, employ such other persons as
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may be necessary to assist him in this Case. In the event that Ait is unable to
serve as the Responsible Person, the Debtor's Board of Directors will appoint an
individual to serve as the Responsible Person.
B. The Responsible Person, on behalf of the Debtor, is authorized to liquidate
the remaining assets of the Bankruptcy Estate and/or abandon such assets as the
Responsible Person determines to be burdensome or of inconsequential value to
the Bankruptcy Estate. The Responsible Person may enforce any claims and
prosecute any causes of action in favor of the Bankruptcy Estate, including,
without limitation, any actions under Sections 510, 542, 543, 544, 545, 547, 548
and 549 of the Bankruptcy Code.
C. The Responsible Person may review and object to Claims and Interests, enter
into compromises to allow and satisfy Disputed Claims and Disputed Interests and
settle and liquidate any claim or cause of action that the Debtor may have
against a third party.
D. The Responsible Person is authorized to retain, employ and utilize such
professionals as may be necessary without further approval of the Bankruptcy
Court.
E. The Responsible Person shall review and approve the Distribution amounts to
Creditors and to the Transfer Agent (on behalf of shareholders of record as of
the Distribution Date) and shall be responsible for making, or causing to be
made, Distributions pursuant to the Plan.
F. The Responsible Person shall be responsible for moving for the entry of a
final decree in this case and preparing and filing status reports as may be
required by the Bankruptcy Court in connection with the final decree. The
Responsible Person shall be discharged from all duties and responsibilities of
the Plan upon the issuance of the final decree. The Responsible Person shall be
entitled to destroy all records in his possession upon entry of the final
decree, except such corporate formation documents, minutes and other records as
the Responsible Person considers to be material and original executed copies of
documents filed with the Securities and Exchange Commission, all of which shall
be retained for five (5) years, and tax returns and related records, which shall
be retained for six (6) years; provided, however,
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that in any event, such records as required by the Internal Revenue Service
shall be retained at least until April 15, 2004.
G. The Responsible Person shall do all things necessary and appropriate to
assist the Debtor in fulfilling the duties and obligations of the Debtor under
the Plan and fully administering the Bankruptcy Estate as required by the Plan,
the Confirmation Order, the Bankruptcy Code and the Bankruptcy Rules.
7.4 Expedited Procedure for Compromise of Controversy, Sale or Abandonment.
Subject to the notice procedures set forth in this Section, the Responsible
Person is authorized to (i) enter into binding compromises to allow and satisfy
Disputed Claims and Disputed Interests or settle and liquidate any claim or
cause of action of the Debtor, (ii) sell the Debtor's remaining assets, and/or
(iii) abandon property of the Bankruptcy Estate which the Responsible Person
determines to be burdensome or of inconsequential benefit to the Bankruptcy
Estate. The Responsible Person shall mail written notice of any such compromise,
disposition, or abandonment to the twenty (20) largest unsecured creditors, the
U.S. Trustee and those parties who have filed a written request that all notices
be mailed to them. If no party serves on the Responsible Person and Debtor's
counsel a written objection or demand for a hearing on the compromise,
disposition, or abandonment within ten (10) days of mailing of such notice, the
compromise, disposition or abandonment shall be effective, final and binding on
all Creditors, Equity Security Holders, and other parties in interest in this
Case without further approval or action by the Court. The time for serving
written objections shall not be extended pursuant to Rule 9006(f) of the
Bankruptcy Rules. If timely notice of an objection to the compromise,
disposition or abandonment is served on the Responsible Person and Debtor's
counsel, the Responsible Person shall (i) withdraw the proposed compromise,
disposition or abandonment wherein it will be without force and effect, or (ii)
move for the approval of the compromise, disposition or abandonment on notice to
the twenty (20) largest unsecured creditors, the U.S. Trustee and those parties
who have filed a written request that all notices be mailed to them.
7.5 Corporate Formalities. The Responsible Person is authorized on behalf of the
Debtor
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to execute all instruments, agreements and documents and to take all action by
the Debtor necessary to effectuate the provisions of the Plan without further
action by the Debtor's board of directors or shareholders.
7.6 Compensation and Reimbursement of Professionals. All professionals shall
be entitled to payment of their post-Confirmation fees and reimbursement of
expenses on a monthly basis. Professionals shall serve a detailed statement of
unpaid fees and expenses on the Responsible Person. If there is no objection to
the requested fees and expenses within ten (10) days of service by the
professional, the Responsible Person shall pay the requested amount in full. If
the Responsible Person objects to a portion of the fees or expenses submitted by
any professional, the Responsible Person shall timely pay the undisputed portion
of such fees and expenses and shall reserve monies in the amount of the disputed
fees and expenses pending resolution of said objection by (i) written agreement
between the party requesting such fees and expenses and the disputing party, or
(ii) resolution of the disputed amount by the Bankruptcy Court pursuant to a
Final Order. Professionals shall not otherwise be required to file applications
for Court approval of post-Confirmation fees and expenses.
7.7 Amendment of Charter to Prohibit the Issuance of Non-Voting Equity
Securities. Pursuant to the requirements of Section 1123(a)(6) of the
Bankruptcy Code, the Certificate of Incorporation of the Debtor shall be, and it
hereby is deemed amended as of the Effective Date to conform to the Bankruptcy
Code provision which prohibits the issuance of non-voting equity securities and
requires, among other things, the distribution of voting power equitably among
the classes of voting securities.
7.8 Unclaimed Property. With respect to each Allowed Claim and Allowed
Interest, the existence of Unclaimed Property on the 90th day following a
Distribution shall cause the respective Allowed Claim or Allowed Interest to be
disallowed, and the amount of the Unclaimed Property shall become available for
distribution pursuant to the Plan.
7.9 Dissolution of Corporation. Pursuant to authority contained in Section
1400 of the California Corporations Code, the Debtor shall be dissolved and its
corporate existence
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terminated without further corporate action upon the entry of a final decree in
this case pursuant to Rule 3022 of the Bankruptcy Rules. The Confirmation Order
shall be deemed an order authorizing and directing the Responsible Person to
file a certificate of dissolution as required by Section 1401 of the California
Corporations Code and the Responsible Person shall file such certificate
concurrently with the request for entry of a final decree.
8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1 Assumption of Executory Contracts. Except as previously provided by
Bankruptcy Court order, no other executory contract or unexpired lease will be
assumed by the Debtor.
8.2 Rejection of Executory Contracts and Unexpired Leases. Without admitting
the validity of any other executory contract or unexpired lease, any executory
contract or unexpired lease not expressly assumed under the Plan or otherwise
assumed (and assigned, where applicable) pursuant to prior Bankruptcy Court
order, shall be rejected as of the Effective Date, subject to Section 8.3.
8.3 Treatment of Executory Contracts and Unexpired Leases. The Debtor reserves
the right to apply to the Bankruptcy Court prior to Confirmation to assume,
assume and assign, or reject, pursuant to Bankruptcy Code Section 365, any and
all contracts that are executory and leases that are unexpired. All executory
contracts and unexpired leases of the Debtor that are not (a) assumed or assumed
and assigned prior to Confirmation, (b) the subject of a pending motion to
assume or assume and assign filed prior to Confirmation, or (c) assumed or
assumed and assigned pursuant to the terms of the Plan are hereby rejected by
the Debtor. Confirmation of the Plan shall be deemed to constitute Bankruptcy
Court approval of such rejection.
8.4 Rejection Claims. Rejection Claims shall be classified as Class 3 Claims.
A. In connection with the Debtor's rejection of the Lease, the Sublease and
the Equipment Leases, the Court entered its orders requiring these parties to
submit their Rejection Claims, if any, on or before June 1, 1999.
B. With respect to the rejection of any other executory contracts or
unexpired leases under the Plan, within thirty (30) days following the Effective
Date, the holder
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of a Rejection Claim (not subject to Section 8.4.A above) shall file with the
Bankruptcy Court, and serve on the Debtor's counsel, a proof of Claim evidencing
such Rejection Claim or be forever barred from asserting any such Claim or
receiving any payment on account of such Claim.
9. PROOFS OF CLAIM; EVIDENCE OF EQUITY SECURITY; OBJECTIONS
9.1 Time for Filing Proofs of Claim. Proofs of Claim shall be filed with the
Bankruptcy Court no later than the Claims Bar Date.
9.2 Evidence of Claim or Interest.
A. As soon as practicable after the Distribution Date, the Debtor shall
obtain from the Transfer Agent a list of all Equity Security Holders of record
and their respective Interests as of the Distribution Date. Said list shall be
conclusively presumed to be complete and accurate in all respects. The Debtor,
its professionals and the Responsible Person shall be entitled to rely on said
list in connection with any Distributions to be made to Class 4 Interests.
B. For purposes of any Distribution under the Plan, the Debtor and the
Responsible Person shall have no obligation to recognize any transfer of Claims
or Interests occurring on or after the Distribution Date. The Debtor, its
professionals and the Responsible Person shall be entitled to recognize and deal
for all purposes with only those claimholders of record stated on the claims
docket maintained by the Bankruptcy Court and those stockholders of record
stated on the stock records maintained by the Transfer Agent as of the
Distribution Date.
C. The Responsible Person shall cause the Debtor to make the payments to all
creditors with Allowed Claims. The Responsible Person shall also cause the
Debtor to wire transfer the balance of funds designated for shareholders to the
Transfer Agent who will be instructed by the Responsible Person to make a pro
rata distribution to shareholders of record as of the Distribution Date.
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9.3 Time for Filing Objections. Any objection to any Claim or Interest shall be
filed no later than ninety (90) days after the Effective Date.
9.4 Disputed Claims and Disputed Interests; Reserve Accounts. Only Allowed
Claims and Allowed Interests shall be entitled to a Distribution under the Plan.
If appropriate, the Debtor shall maintain and administer a Disputed Claims
Reserve Account and a Disputed Interests Reserve Account. Cash payments
attributable to Disputed Claims and Disputed Interests shall be maintained in
the appropriate reserve account until such time as such Claim or Interest is
allowed or disallowed pursuant to a Final Order.
10. RESERVATION OF POWERS
10.1 Nothing in the Plan shall be deemed to constitute a waiver of the powers of
the Debtor as a debtor in possession under the Bankruptcy Code, the Bankruptcy
Rules or the Local Rules, and the Debtor shall retain after Confirmation and
after the Effective Date, all powers granted by the Bankruptcy Code, the
Bankruptcy Rules and the Local Rules.
11. WAIVER
11.1 After the entry of the Order of Confirmation by the Bankruptcy Court and
except as otherwise specifically set forth in the Plan, any term of the Plan may
be waived only by the party or parties entitled to the benefit of the term to be
waived.
12. REQUEST FOR CONFIRMATION
12.1 The Debtor, as proponent of the Plan, requests Confirmation of the Plan.
12.2 In the event any impaired Class shall fail to accept this Plan in
accordance with Section 1129(a)(8) of the Bankruptcy Code, the Debtor requests
that the Bankruptcy Court confirm the Plan in accordance with the provisions of
Section 1129(b) of the Bankruptcy Code.
13. RETENTION OF JURISDICTION
13.1 After Confirmation, the Bankruptcy Court shall retain and have all
authority and jurisdiction as is allowed under the Bankruptcy Code and other
applicable law to enforce the provisions, purposes, and intent of this Plan
including, without limitation, matters or proceedings that relate to:
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A. The StarBase Sale.
B. Allowance, disallowance, adjustment, treatment, or liquidation of Claims and
Interests and objections thereto;
C. The assumption, assignment, or rejection of any executory contract or
unexpired lease, or any agreement, lease, contract, sale, purchase, assignment,
or other action taken with regard to property of the Debtor;
D. The title, rights, or interests of the Debtor in any property;
E. Any right, power, action, or duty of the Debtor under this Plan;
F. Any determination or estimation necessary or appropriate under Section 505 of
the Bankruptcy Code or other determination or estimation relating to tax returns
filed or to be filed by the Debtor for periods through the end of the fiscal
year in which the Effective Date occurs, including, without limitation, the
determination of the amount of taxes, net operating losses, tax attributes, tax
benefits, tax refunds, and related matters of the Debtor;
G. Requests for payment of Claims entitled to priority under Section 507(a) of
the Bankruptcy Code, including compensation and reimbursement of expenses for
professionals, to the extent Bankruptcy Court approval therefor is required
under this Plan or the Confirmation Order;
H. Resolution of controversies and disputes, including the correction of any
mistake, defect, or omission regarding interpretation or enforcement of this
Plan, the Confirmation Order, and any agreements referred to herein or executed
in contemplation of or to implement this Plan;
I. Implementation of the provisions of this Plan and entry of orders in aid of
Confirmation of this Plan, including, without limitation, appropriate orders to
protect the Debtor from actions by holders of Claims and Interests;
J. Modification of this Plan pursuant to the Bankruptcy Code;
K. Adjudication of any causes of action brought by the Debtor;
L. The entry of an order, including injunctions, necessary to enforce the
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title, rights, and powers of the Debtor and the purposes and intent of this
Plan, and to impose such limitations, restrictions, terms and conditions of such
title, rights, and powers as the Court may deem necessary;
M. Such other matters as may be provided under the Bankruptcy Code, this Plan,
the Confirmation Order, or other applicable law; and
N. Entry of a final decree closing this Chapter 11 Case, including provisions
for injunctive relief as may be equitable, consistent with Bankruptcy Rule 3022.
14. EFFECT OF CONFIRMATION
As of the Effective Date, the effect of Confirmation shall be as
provided in Section 1141 of the Bankruptcy Code, and as follows:
14.1 Binding Effect. The provisions of the confirmed Plan shall bind the Debtor,
any entity acquiring property under the Plan, any Creditor, and any Equity
Security Holder, whether or not the Claim or Interest of such Creditor or Equity
Security Holder is impaired under the Plan and whether or not any such Creditor
or Equity Security Holder has accepted the Plan.
14.2 Vesting of Property. All property of the Bankruptcy Estate shall vest in
the Debtor subject to the terms and conditions of this Plan. All property of the
Debtor, except as otherwise provided in this Plan, shall be free and clear of
any liens, encumbrances, Claims of Creditors and Interests of Equity Security
Holders.
14.3 Discharge. Due to the liquidating nature of this Plan and pursuant to
Bankruptcy Code 1141(d)(3), the entry of the Confirmation Order shall not act as
a discharge of any debt of the Debtor that arose prior to Confirmation, except
to the extent that such debt is paid under the Plan.
15. CHAPTER 11 POST-CONFIRMATION REPORTS AND FINAL DECREE
15.1 Post-Confirmation Reports. Not later than 90 days after entry of the
Confirmation Order, the Debtor shall file a post-Confirmation status report, the
purpose of which is to explain the progress made toward substantial consummation
of the confirmed Plan. The report shall include a statement of receipts and
disbursements, with the ending cash balance, for the entire
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90 day period. The report shall also include information sufficiently
comprehensive to enable the Court to determine (1) whether the Confirmation
Order has become final; (2) whether deposits, if any, required by the Plan have
been distributed; (3) whether any property proposed by the Plan to be
transferred has been transferred; (4) whether the Debtor under the Plan has
assumed the business or the management of the property dealt with by the Plan;
(5) whether the payments under the Plan have commenced; (6) whether accrued fees
due to the U.S. Trustee under 28 U.S.C. Section 1930(a)(6) have been paid; and
(7) whether all motions, contested matters and adversary proceedings have been
finally resolved. Further reports must be filed every 90 days thereafter until
entry of a final decree, unless otherwise ordered by the Court.
15.2 Service of Reports. A copy of each report shall be served, no later than
the day upon which it is filed with the Court, upon the U.S. Trustee and such
other persons or entities as may request such reports in writing by special
notice filed with the Court.
15.3 Final Decree. After the Bankruptcy Estate is fully administered, the Debtor
shall file an application for a final decree, and shall serve the application on
the U.S. Trustee, together with a proposed final decree. The U.S. Trustee shall
have twenty (20) days within which to object or otherwise comment upon the
Court's entry of the final decree.
16. MISCELLANEOUS
16.1 Headings. The headings contained in the Plan are for convenience of
reference only and shall not limit or otherwise affect in any way the meaning or
interpretation of the Plan.
16.2 Singular/Plural. All references in the Plan to the singular shall be
construed to include references to the plural and vice versa.
16.3 Gender. All references in the Plan to any one of the masculine, feminine or
neuter genders shall be deemed to include references to both other such genders.
16.4 Revocation and Withdrawal. The Debtor reserves the right to revoke or
withdraw this Plan at any time before the Confirmation Date. If the Debtor
revokes or withdraws this Plan prior to the Confirmation Date, or if the
Confirmation Date or Effective Date does not occur, then this Plan shall be
deemed null and void. In such event, nothing contained herein or
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in the Disclosure Statement shall be deemed to constitute an admission of
validity, waiver or release of any Interests in, or any Claims by or against the
Debtor or any other person or prejudice in any manner the rights of the Debtor
or any person in any proceeding involving the Debtor.
16.5 Notices. All notices required or permitted to be made in accordance with
the Plan shall be in writing and shall be delivered personally or by first class
mail, as follows:
IF TO THE DEBTOR: Jeffrey F. Ait
Site Technologies, Inc.
1120 Forest Avenue, #301
Pacific Grove, CA 93950
WITH COPIES TO: Janice M. Murray, Esq.
Murray & Murray
A Professional Corporation
3030 Hansen Way, Suite 200
Palo Alto, CA 94304-1009
and if to a holder of an Allowed Claim or Allowed Interest, at the address set
forth in its proof of Claim or Interest filed with the Bankruptcy Court, or if
none, at its address set forth in the Schedules or List of Equity Security
Holders. Notices shall be deemed given when delivered or mailed. Any entity may
change the address at which such entity is to receive notices under the Plan by
(i) sending written notice, pursuant to the provisions of this section, to the
entity to be charged with knowledge of such change and (ii) filing such notice
with the Bankruptcy Court.
16.6 Reservation of Rights. Neither the filing of the Plan nor any statement or
provision contained in the Plan or in the Disclosure Statement, nor the taking
by any party in interest of any action with respect to the Plan, shall (a) be or
be deemed to be an admission against interest, and (b) until the Effective Date,
be or be deemed to be a waiver of any rights any party in interest may have (i)
against any other party in interest, or (ii) in any of the assets of any other
party in interest, and, until the Effective Date, all such rights are
specifically reserved. In the event that the Plan is not confirmed or fails to
become effective, neither the Plan nor the Disclosure Statement nor any
statement contained in the Plan or in the Disclosure Statement
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may be used or relied upon in any manner in any suit, action, proceeding or
controversy within or without this Bankruptcy Case involving the Debtor, except
with respect to Confirmation of the Plan.
16.7 Computation of Time Periods. In computing any period of time prescribed or
allowed by the Plan, the day of the act, event, or default from which the
designated period of time begins to run shall not be included. The last day of
the period so computed shall be included unless it is a Saturday, a Sunday, or a
legal holiday, or, when the act to be done is the filing of a paper in the
Bankruptcy Court, a day on which weather or other conditions have made the
clerk's office inaccessible, in which event the period runs until the end of the
next day which is not one of the aforementioned days.
Dated: April 25, 2000 SITE TECHNOLOGIES, INC.,
a California corporation
By: /s/ JEFFREY F. AIT
---------------------------
Jeffrey F. Ait
Chief Executive Officer
MURRAY & MURRAY
A PROFESSIONAL CORPORATION
By: /s/ JANICE M. MURRAY
-----------------------
Janice M. Murray
Attorneys for Debtor
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