SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) December 5, 2000
Dynacore Holdings Corporation
(formerly Datapoint Corporation)
(Exact name of registrant as specified in its charter)
Delaware 001-07636 74-1605174
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
8410 Datapoint Drive, San Antonio, Texas 78229-8500
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 210-593-7000
<PAGE>
Item 3.Bankruptcy or Receivership.
The Amended Plan of Reorganization under Chapter 11 of the
United States Bankruptcy Code (the "Plan") proposed by Dynacore Holdings
Corporation (the "Company") was confirmed by the United States Bankruptcy Court
for the District of Delaware by order dated December 5, 2000. The Plan is
annexed hereto as Exhibit 99.1 and incorporated herein by reference. The Press
Release of the Company dated December 8, 2000, is annexed hereto as Exhibit 99.2
and incorporated by reference.
Reference is made to the Quarterly Report on Form 10-Q filed
by the Company on November 14, 2000, with respect to the number of shares issued
and outstanding and the assets and liabilities of the Company. Upon the
Effective Date (as defined in the Plan), such shares and those liabilities
subject to compromise, as described in the Plan, will be cancelled and
10,000,000 shares of common stock, par value $.01, of the Company and 10,000,000
Beneficial Interests representing interests in the Patent Litigation Trust (as
defined in the Plan) will be issued to certain creditors, shareholders and
current management of the Company in respect of their claims and equity
interests, as more fully set forth in the Plan.
Item 4.Changes in the Company's Certifying Accountant
(a) Previous independent accountants
(i) On December 7, 2000, Ernst & Young LLP resigned as auditors of the
Company.
(ii) The reports of Ernst & Young LLP on the Company's financial
statements for the past two fiscal years did not contain an
adverse opinion or disclaimer of opinion and were not
qualified or modified as to audit scope or accounting
principles. The report of Ernst & Young LLP for the fiscal
year ended July 31, 1999 was modified as to uncertainty
regarding the ability of the Company to continue as a going
concern.
(iii) In connection with the audits of the Company's financial
statements for each of the fiscal years ended July 1, 1999 and
August 1, 1998, and in the subsequent interim periods, there
were no disagreements with Ernst & Young LLP on any matters of
accounting principles or practices, financial statement
disclosure, or auditing scope or procedures, which if not
resolved to the satisfaction of Ernst & Young LLP would have
caused Ernst & Young LLP to make reference to the matter in
their report. The Company has requested Ernst & Young LLP to
furnish it a letter addressed to the Commission stating
whether it agrees with the above statements. A copy of that
letter, dated December 8, 2000 is filed as Exhibit 99.3 to
this Form 8-K.
(iv) The Company is currently in the process of searching for a new
independent public accountant.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
99.1 Amended Plan of Reorganization of the Company dated October 11, 2000.
99.2 Press Release of the Company dated December 8, 2000.
99.3 Letter addressed to the Commission from Ernst & Young dated
December 8, 2000
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dynacore Holdings Corporation
(Registrant)
Date: December 11, 2000
By: /s/ Phillip P. Krumb
------------------------------
Phillip P. Krumb
Acting Chief Financial Officer
<PAGE>
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re: ) Chapter 11
)
DYNACORE HOLDINGS CORPORATION f/k/a DATAPOINT CORPORATION, ) Case No.
00-1853 (PJW)
)
Debtor. )
)
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AMENDED PLAN OF REORGANIZATION OF DYNACORE HOLDINGS CORPORATION, FORMERLY
KNOWN AS DATAPOINT CORPORATION, UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY
CODE
Dated: October 11, 2000
<PAGE>
Dynacore Holdings Corporation, formerly known as Datapoint Corporation,
a debtor and debtor-in-possession in the above-referenced Chapter 11 Case,
hereby proposes the following plan of reorganization dated August 28, 2000
pursuant to Chapter 11 of the Bankruptcy Code, 11 U.S.C. ss. 101 et seq.:
ARTICLE I
DEFINITIONS
The capitalized terms used herein shall have the respective meanings
set forth below. Terms utilized herein and not otherwise defined shall have the
meanings given to them in the Bankruptcy Code or the Bankruptcy Rules, unless
the context requires otherwise.
I.1 "Ad Hoc Committee" shall mean that informal committee of Debenture
Holders formed prior to the Filing Date, comprising of The GMS Group,
Asiel & Co., Kann & Company, Lonestar Partners, L.P., OTA Limited
Partnership, Lloyd Miller, Charles Pluff, BMI Capital Corp., Robert
Strougo, Gramercy Capital Partnership LLP and Roger Smith.
I.2 "Ad Hoc Committee of Preferred Shareholders" shall mean Trendex Capital
Management, Inc., LIM Inc. and certain of their respective affiliates.
I.3 "Administrative Expense" or "Administrative Expense Claim" shall mean a
Claim for a cost or expense of administration of the Chapter 11 Case allowable
under Section 503(b) of the Bankruptcy Code and referred to in Section 507(a)(1)
of the Bankruptcy Code, including: (a) the actual, necessary costs and expenses
incurred after the commencement of the Chapter 11 Case of preserving the Estate
and operating the business of the Debtor; (b) wages, salaries or commissions for
services; (c) Claims for reclamation of goods as provided for under Section
546(c) of the Bankruptcy Code for which a timely proof of, or request for
payment of, an Administrative Expense Claim was filed; (d) reimbursement of
expenses awarded under Sections 330(a) or 331 of the Bankruptcy Code; and (e)
all fees and charges assessed against the Estate of the Debtor under Chapter 123
of title 28, United States Code.
I.4 "Allowed" shall mean, except as may be otherwise ordered by the Court,
a Claim (and where applicable, an Equity Interest), including by way of example
and not limitation, an Administrative Expense, Priority Tax Claim, Non-Tax
Priority Claim or Unsecured Claim that portion (i) which has been scheduled
(other than Claims scheduled by the Debtor as contingent, unliquidated or
disputed) or timely filed with the Court as to which no objection to the
allowance thereof has been interposed within the period of time fixed by the
Bankruptcy Code, the Bankruptcy Rules, this Plan or an order of the Court, or
(ii) as to which any objection has been determined by a Final Order of the Court
allowing such Claim or Equity Interest or portion thereof. Unless otherwise
specified in this Plan or in a Final Order of the Bankruptcy Court allowing such
Claim or Equity Interest, an Allowed Claim or Equity Interest shall not include
interest on the amount of such Claim or Allowed Equity Interest.
I.5 "Ballot" shall mean the forms mailed to holders in Classes 2, 3 and 4
of Allowed Claims and Allowed Interests for the purpose of voting to accept or
reject the Plan.
<PAGE>
27
I.6 "Balloting Agent" shall mean such entity appointed by the Court to receive
and tabulate the Ballots.
I.7 "Bankruptcy Code" shall mean title 11 of the Bankruptcy Reform Act of 1978,
as amended.
I.8 "Bankruptcy Court" or "Court" shall mean the Bankruptcy Court unit of
the United States District Court for the District of Delaware or such
other court having jurisdiction over the Chapter 11 Case of the Debtor.
I.9 "Bankruptcy Rules" shall mean the Federal Rules of Bankruptcy Procedure
under Title 11 of the United States Code, 28 U.S.C. ss. 2075 (1978), as
amended.
I.10 "Bar Date" shall mean, unless otherwise provided in an order of the
Court, the date fixed by order of the Bankruptcy Court by which a proof
of Claim or Interest must be filed against the Debtor, which date was
August 10, 2000.
I.11 "Beneficial Trust Interest(s)" shall mean those ownership interests in
the PL Trust to be distributed to the Reorganized Debtor, holders of
Allowed Unsecured Claims and holders of Exchangeable Preferred Stock
under this Plan.
I.12 "Bonds" or "Debentures" shall mean those 8 7/8% Convertible
Subordinated Debentures due 2006, originally issued by the Debtor in
the aggregate principal amount of $100 million pursuant to the
Indenture which are still outstanding as of the Petition Date.
I.13 "Business Day" shall mean any day except Saturday, Sunday, or any day
on which commercial banks in the State of Delaware are authorized by
law to be closed.
I.14 "Cash" means cash and cash equivalents, including bank deposits, checks and
other similar items.
I.15 "Certificate of Incorporation" shall mean the certificate of
incorporation of Dynacore, as amended from time to time, including any
amendments necessary or appropriate to the implementation of this Plan.
I.16 "Chapter 11 Case" shall mean the case commenced under Chapter 11,
Title 11 of the Bankruptcy Code by the Debtor on the Petition Date.
<PAGE>
I.17 "Claim" or "Claims" shall have the meaning set forth in Section 101(5)
of the Bankruptcy Code, including, without limitation, any right to
receive payment from the Debtor, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, contested, uncontested, legal, equitable, secured, or
unsecured; or any right to an equitable remedy for breach of
performance if such breach gives rise to a right to receive payment
from the Debtor, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, contested,
uncontested, secured, or unsecured.
I.18 "Claimant" shall mean a Person who holds a Claim.
I.19 "Class" shall mean any group of substantially similar Claims or
Interests classified by this Plan as a Class pursuant to Section
1129(a)(1) of the Bankruptcy Code.
I.20 "Code" shall have the meaning set forth in Section 1.07.
I.21 "Common Stock" shall mean all shares of the Debtor's common stock, par
value 25 cents, which were issued and outstanding immediately prior to
the Effective Date of this Plan.
I.22 "Confirmation Date" shall mean the date upon which the Court enters an
order confirming this Plan in accordance with Section 1129 of the
Bankruptcy Code.
I.23 "Confirmation Hearing" shall mean the hearing held by the Bankruptcy
Court, as it may be continued from time to time, at which the Debtor
shall seek confirmation of this Plan.
I.24 "Confirmation Order" shall mean the order of the Bankruptcy Court or
any other court of competent jurisdiction confirming this Plan pursuant
to Section 1129 of the Bankruptcy Code.
I.25 "Contested" when used: (a) with respect to a Claim or Interest, shall
mean the portion (including where appropriate, the whole) of any Claim or
Interest which is scheduled by the Debtor as disputed, contingent or
unliquidated and has not been Allowed, or which scheduled Claim is the subject
of a claims objection motion which has not been determined as Allowed or
Disallowed by a Final Order; or a Claim or Interest which has been filed
pursuant to Section 501(a) of the Bankruptcy Code and as to which an objection
to the allowance thereof has been filed with the Court, whether by separate
motion or as part of this Plan, within the time limitation fixed by the
Bankruptcy Code, the Bankruptcy Rules, this Plan or an order of the Court, which
Claim or Interest has not been determined as Allowed or Disallowed, by a Final
Order, or (b) with respect to an Administrative Expense, shall mean the portion
(including where appropriate the whole) of an Administrative Expense for which
an objection to the allowance thereof has been interposed, by separate motion or
as part of this Plan, within the time limitation fixed by the Bankruptcy Code,
Bankruptcy Rules, this Plan or an order of the Court, which Administrative
Expense has not been determined as Allowed or Disallowed by a Final Order.
I.26 "Contingent Claim" shall mean a Claim which is dependent upon a future
event that may or may not occur.
I.27 "Court" shall have the meaning set forth in Section 1.08.
<PAGE>
I.28 "Creditors' Committee" shall mean the Official Unsecured Creditors'
Committee in the Chapter 11 Case appointed pursuant to Section 1102 of
the Bankruptcy Code, as the same may be reconstituted from time to time
through and including the Effective Date.
I.29 "Debentures" shall have the meaning set forth in Section 1.12.
I.30 "Debenture Holder(s)" shall mean the record owner(s) of the Debentures
as of (i) the date set forth in the order approving the Disclosure
Statement for purposes of voting on this Plan; and (ii) the
Confirmation Date for purposes of receiving a Distribution under this
Plan.
I.31 "Debtor" or "Debtor-in-Possession" shall mean Dynacore Holdings
Corporation, formerly known as Datapoint Corporation, and sometimes
referred to herein as Dynacore.
I.32 "Disallowed" shall mean when used with respect to a Claim,
Administrative Expense or Interest, the whole or portion thereof, that
has been disallowed by the Court pursuant to a Final Order, or which is
withdrawn by or on behalf of the Claimant or holder for which such
Claim, Administrative Expense or Interest was filed.
I.33 "Disbursing Agent(s)" shall mean the Indenture Trustee and the Debtor,
or any other Person designated to make distributions to Claimants and
Equity Interest holders under this Plan including, without limitation,
a financial institution of recognized standing, or such other
disbursing agent or agents as may be selected by the Debtor with the
concurrence of the Creditors' Committee.
I.34 "Disclosure Statement" shall mean the amended disclosure statement
pursuant to Section 1125 of the Bankruptcy Code with respect to this
Plan under Chapter 11 of the Bankruptcy Code for Dynacore, as approved
by a Final Order.
I.35 "Disputed" shall have the same meaning as "Contested".
I.36 "Distribution(s)" shall mean a payment of Cash, a distribution of New
Common Stock and/or a distribution of Beneficial Trust Interests to be
made under this Plan.
I.37 "Dynacore" shall have the meaning set forth in Section 1.30.
I.38 "Effective Date" shall mean the first Business Day after all of the
conditions precedent set forth in Section 11.01 of this Plan have been
satisfied or waived as provided in Section 11.02 hereof.
I.39 "Entity" shall have the meaning set forth in Section 101(15) the
Bankruptcy Code including, without limitation, any Person, estate,
trust, governmental unit and the United States Trustee.
<PAGE>
I.40 "Equity Interest" shall mean those interests and rights represented by
Common Stock, Exchangeable Preferred Stock and Options.
I.41 "Estate" shall mean the estate of the Debtor created pursuant to
Section 541 of the Bankruptcy Code upon the commencement of its Chapter
11 Case.
I.42 "Exchangeable Preferred PLT Interest" shall mean the 3 1/2%, in the
aggregate, Beneficial Trust Interests allocated to holders of $1.00 par
value Exchangeable Preferred Stock.
I.43 "Exchangeable Preferred Stock" shall mean all shares of the Debtor's
exchangeable preferred stock which were issued and outstanding
immediately prior to the Effective Date of this Plan.
I.44 "Executory Contract" shall mean any contract, including, without
limitation, any unexpired lease, to which the Debtor is a party, which
is capable of being assumed or rejected pursuant to Section 365 of the
Bankruptcy Code.
I.45 "Final Order" shall mean an order or judgment of a court as to which
order or judgment (or any revision, modification or amendment thereof):
(a) the time to appeal or seek review or certiorari has expired and if an
appeal or petition for
review, rehearing, reargument or certiorari proceeding is pending, no stay
exists;
(b) an order or judgment which has been appealed, has been
affirmed on appeal and as to which appeal the time for further
appeal has expired.
I.46 "General Unsecured Claim" shall have the same meaning as Unsecured Claim.
I.47 "Governmental Unit" shall have the meaning ascribed to such term under
Section 101 (27) of the Bankruptcy Code.
I.48 "Indenture" or "Trust Indenture" shall mean that certain Indenture
dated as of June 1, 1981 between the Debtor and the Indenture Trustee
pursuant to which the Debentures were issued.
I.49 "Indenture Trustee" shall mean U.S. Bank Trust, National Association
(the successor by acquisition of Continental Illinois National Bank and
Trust Company of Chicago) as trustee under the Indenture or any other
successor trustee under the Indenture.
I.50 "Interest" shall have the meaning set forth in Section 1.40.
I.51 "Initial PLT Trustees" shall mean Asher B. Edelman, Gerald N. Agranoff
and Fred Ehrman, who shall be appointed trustees of the PL Trust
pursuant to the Confirmation Order, or such other individuals who shall
have been appointed trustees for the PL Trust as set forth in the
Confirmation Order.
<PAGE>
I.52 "New Common Stock" shall mean the ten million (10,000,000) shares of
Datapoint common stock to be issued under this Plan.
I.53 "Non-Tax Priority Claim" shall mean a Claim entitled to priority
pursuant to Section 507(a) other than Claims under Section 507(a)(8) of
the Bankruptcy Code.
I.54 "Officer Administrative Claim(s)" shall mean the Administrative
Claim(s) of Messrs. Phillip P. Krumb, Gerald N. Agranoff and Asher B. Edelman
for severance and performance bonuses arising under their employment agreements
with Dynacore and/or the termination of said agreements.
I.55 "Officer Claim Holders" shall mean Messrs. Phillip P. Krumb, Gerald N.
Agranoff and Asher B. Edelman.
I.56 "Officer Settlement Agreement" shall mean the agreement between the
Officer Claim Holders and Dynacore settling the Officer Administrative
Claims and contract rejection claims, a copy of which is attached to
the Disclosure Statement.
I.57 "Options" shall mean all rights, entitlements, options, warrants or
similar instruments or contracts permitting the holder thereof the
right to acquire Common Stock, Exchangeable Preferred Stock or the
right to acquire Options.
I.58 "Patent Litigations" shall mean all pre-Effective Date claims, rights
and causes of action which Dynacore has arising out of any pre-Effective Date
infringement and any continuing infringements occurring post Effective Date of
Patent Numbers 5,008,879 and 5,077,732 issued to Dynacore whether such claims,
rights and causes of action are or have been asserted or unasserted, including,
but not limited to, claims asserted in the following litigations:
(1) Datapoint Corporation v. Intel Corporation, No. 97-CV-2581 (N.D. Tex.);
(2) Datapoint Corporation v. Standard Micro-Systems, Inc. and Intel
Corporation, No. CV 96-1685 (E.D.N.Y.);
(3) Datapoint Corporation v. Cisco Systems, Inc. et. al., No. CV 96-4534
(E.D.N.Y.);
(4) Datapoint Corporation v. Dayna Communications, Inc., et. al., No. CV 96-6334
(E.D.N.Y.); and
(5) Datapoint Corporation v. Standard Microsystems Corp.,
No. CV 96-03819 (E.D.N.Y.).
I.59 "Patent Litigation Trust" shall mean the trust established by Dynacore
pursuant to the PLT Agreement.
I.60 "Person" shall have the meaning ascribed to such term under Section
101(41) of the Bankruptcy Code.
I.61 "Petition Date" shall mean May 3, 2000.
<PAGE>
I.62 "Plan" shall mean this Chapter 11 plan of reorganization under the
Bankruptcy Code for Dynacore, as may be modified from time to time.
I.63 "Plan Documents" shall mean the documents that aid in effectuating this
Plan including but not limited to those documents attached as exhibits
hereto or to the Disclosure Statement.
I.64 "PLT Beneficial Interests" shall have the same meaning as Beneficial Trust
Interests.
I.65 "PLT Agreement" shall mean that agreement executed by Dynacore, a copy
of which is annexed as an exhibit to the Disclosure Statement, pursuant
to which Dynacore established the PL Trust.
I.66 "PLT Certificates" shall mean the certificates distributed to holders
of PLT Beneficial Interests evidencing their equitable ownership in the
PL Trust which certificates shall not be registered under the
Securities Act of 1933.
I.67 "PL Trust" shall have the same meaning as "Patent Litigation Trust."
I.68 "Priority Tax Claim" shall mean a Claim entitled to priority pursuant
to Sections 502(i) and 507(a)(8) of the Bankruptcy Code.
I.69 "Professional Persons" shall mean Persons retained or to be compensated
pursuant to Sections 327, 328, 330, 331, 503(b) and 1103 of the
Bankruptcy Code.
I.70 "Pro Rata" or "Pro Rata Share" shall mean the proportion that the
amount of an Allowed Claim or Allowed Interest in a particular Class
bears to the aggregate amount of all Claims or Interests in such Class,
including Contested Claims or Contested Interests, but not including
Disallowed Claims or Disallowed Interests, as calculated by the Debtor
as of a date which shall be not more than ten (10) days preceding the
Effective Date.
I.71 "Released Party" shall have the meaning set forth in Section 12.07 of this
Plan.
I.72 "Reorganized Debtor" or "Reorganized Dynacore" shall mean the Debtor,
as reorganized, on and after the Effective Date.
I.73 "Sale Order" shall mean that order of the Bankruptcy Court, dated June
15, 2000, pursuant to which the Debtor was authorized and directed to
sell, and to cause certain of its subsidiaries to sell, significant
portions of their assets to Datapoint Newco 1 Limited.
I.74 "Schedules" shall mean the schedules of assets and liabilities and
statement of financial affairs filed by the Debtor as required by
Section 521 of the Bankruptcy Code and the Bankruptcy Rules, as amended
or modified.
<PAGE>
I.75 "Secured Claim" shall mean any Claim secured by property of the Debtor,
but only to the extent of the value of the collateral securing such
Claim.
I.76 "Transfer Agent" shall mean Continental Stock Transfer & Trust Company,
the Debtor's current stock transfer agent.
I.77 "Trust Indenture" shall have the same meaning as Indenture.
I.78 "UC Beneficial Interests" shall mean the 40% of the Beneficial Trust
Interests in the PL Trust to be distributed, Pro Rata, to holders of
Class 2 Claims under this Plan.
I.79 "UC Cash Distribution" shall mean $34.8 million, which is the aggregate
amount of Cash to be distributed to holders of Class 2 Claims under
this Plan, provided, however, that this amount shall, if necessary, be
increased by an amount sufficient to provide for an aggregate Cash
Distribution to Debenture Holders under this Plan of not less than $33
million such that the Debenture Holders will receive not less than 60%
of the outstanding principal amount of the Debentures.
I.80 "UC New Common Stock Distribution" shall mean the 2,500,000 shares of
New Common Stock to be distributed to holders of Class 2 Claims under
this Plan which amount is equal to 25% of the New Common Stock issued
under this Plan.
I.81 "Unsecured Claim" shall mean a Claim, including, without limitation, a
Claim arising from the rejection of an executory contract pursuant to
Section 365 of the Bankruptcy Code, other than a Non-Tax Priority
Claim, Tax Priority Claim, an Administrative Claim or a Secured Claim.
I.82 "Voting Deadline" shall mean the date by which the Ballots that
accompany this Plan must be received by the Balloting Agent, which date
is set forth in the Disclosure Statement pursuant to Section 1125 of
the Bankruptcy Code with respect to this Plan.
I.83 "Wage Payment Amount" shall mean the amount paid to a Claimant pursuant to
the Wage Priority Order.
I.84 "Wage Payment Order" shall mean the order of the Bankruptcy Court,
dated May 4, 2000, pursuant to which, inter alia, the Bankruptcy Court
authorized the Debtor to pay Claims entitled to priority pursuant to
Sections 507(a)(3) and 507(a)(4) of the Bankruptcy Code.
I.85 "Wage Priority Amount" shall have the meaning set forth in Section 4.01 of
this Plan.
<PAGE>
ARTICLE II
NON-CLASSIFIED CLAIMS AND ADMINISTRATIVE EXPENSES
II.1 Allowed Administrative Expense Claims
Except as may otherwise be provided below, Allowed Administrative
Expenses (other than Claims for compensation and reimbursement of
expenses of Professional Persons) will be paid on the Effective Date,
or soon thereafter as is practicable, or in accordance with such other
terms as may have been agreed to by the Debtor and the holder of an
Allowed Administrative Expense. If such Claim becomes Allowed after the
Effective Date, it shall be paid within five (5) Business Days after
allowance. Each Professional Person retained or requesting compensation
in the Chapter 11 Case shall be required to file an application for
allowance of final compensation and reimbursement of expenses in the
Chapter 11 Case on or before thirty (30) days after the Effective Date.
Objections to any application made under this Section 2.01 shall be
filed on or before a date to be fixed and determined by the Bankruptcy
Court in the Confirmation Order or such other order. All payments for
services rendered and reimbursement of expenses incurred by
Professional Persons subsequent to the Confirmation Date shall be paid
by the Debtor in accordance with ordinary business terms and without
the need for further Court order. The Debtor acknowledges that the Ad
Hoc Committee has made a substantial contribution in the Chapter 11
Case and has been of benefit to the Debtor's Estate. The Debtor shall
not object to the payment of the reasonable fees and expenses of the Ad
Hoc Committee (as determined in accordance with Section 503(b) of the
Bankruptcy Code) including without limitation, the reasonable fees and
expenses of counsel to the Ad Hoc Committee.
II.2 Officer Administrative Claims
The Confirmation Order shall constitute an order, pursuant to
Bankruptcy Rule 9019, settling the Officer Administrative Claims,
approving the Officer Settlement Agreement and authorizing the Debtor
to enter into the Officer Settlement Agreement. In return for
relinquishing and settling the Officer Administrative Claims, the
holders of such claims shall receive, on the Effective Date or as soon
thereafter as is practicable, $1.2 million in Cash and 1,000,000 shares
of New Common Stock in the aggregate. The Officer Claim Holders shall
have the right to allocate the Cash and New Common Stock to be received
by them under the Plan as they shall mutually agree, provided that they
jointly advise the Debtor, no later than five (5) Business Days prior
to the Effective Date, as to such allocation. In the event the Officer
Claim Holders do not timely notify the Debtor as to this allocation,
the Debtor shall distribute the Cash and Common Stock, Pro Rata. As
more fully set forth in Section 5.02 and in the Officer Settlement
Agreement, Messrs. Gerald N. Agranoff, Asher B. Edelman and Phillip P.
Krumb shall execute new employment agreements as of the Effective Date,
copies of which are annexed to the Disclosure Statement.
II.3 Administrative Expense Bar Date for Disputed Expenses
<PAGE>
Unless a payment date is otherwise established by an order of the
Bankruptcy Court, and other than Administrative Expense Claims of
Professional Persons, motions for payment of Administrative Expenses
subject to dispute by the Debtor shall be served on the Debtor's
counsel and filed with the Court within twenty (20) days of the entry
of the Confirmation Order. Any Person or Governmental Unit that is
required to file and serve a motion for payment of an Administrative
Expense that fails to do so timely shall be forever barred, estopped
and enjoined from asserting such Administrative Expense against the
Debtor and its estate.
II.4 Priority Tax Claims
At the option of the Debtor, each holder of a Priority Tax Claim will
receive Cash equal to the full Allowed amount of its Claim either (i)
on the later of the Effective Date, and the date such Priority Tax
Claim becomes an Allowed Priority Tax Claim, or as soon thereafter as
is practicable; or (ii) in equal quarterly Cash installments of
principal and interest, over a period not exceeding six (6) years after
the date of assessment of such Claim of a value, as of the Effective
Date, equal to the Allowed amount of such Claim, with interest (a) with
respect to federal taxes, at a fixed annual rate equal to the federal
statutory rate as provided in 26 U.S.C. ss. 6621 over a period through
the sixth anniversary of the date of assessment of such Allowed
Priority Tax Claim and (b) with respect to state and city taxes, at the
rate applicable under state or local law or if no such rate is
provided, at 6% per annum.
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
III.1 Unclassified Claims
As provided in Article II, Administrative Expenses, Priority Tax Claims
of the kinds specified in Sections 507(a)(1) and 507(a)(8) of the
Bankruptcy Code and the Officer Administrative Claims have not been
classified and are excluded from the following Classes in accordance
with Section 1123(a)(1) of the Bankruptcy Code.
III.2 Classified Claims and Interests
The Plan provides for the following Classes of Claims and Interests:
(a) Class 1 - Non-Tax Priority Claims
----------------------------------
This Class includes all priority Claims under Section 507(a)
of the Bankruptcy Code other than Claims under Section
507(a)(8) of the Bankruptcy Code. This Class is unimpaired
within the meaning of Section 1124 of the Bankruptcy Code.
(b) Class 2 - Unsecured Claims
This Class consists of Unsecured Claims not included in any
other Class, and includes all Claims arising out of ownership
of the Debentures. This Class is impaired within the meaning
of Section 1124 of the Bankruptcy Code.
(c) Class 3 - Exchangeable Preferred Shareholders
This Class of Interests consists of holders of the Debtor's
Exchangeable Preferred Stock. This Class is impaired within
the meaning of Section 1124 of the Bankruptcy Code.
<PAGE>
(d) Class 4 - Common Shareholders
This Class of Interests consists of holders of the Debtor's
Common Stock. This Class is impaired within the meaning of
Section 1124 of the Bankruptcy Code.
(e) Class 5 - Option Holders
This Class of Interests consists of the holders of all
unexpired Options. This Class is impaired within the meaning
of Section 1124 of the Bankruptcy Code.
III.3 Class Acceptance Requirements
Class 2 Unsecured Claims shall have accepted the Plan if it is accepted
by at least two-thirds (2/3) in amount and more than one-half (1/2) in
number of the Allowed Claims that have voted on the Plan. Classes 3 and
4, holders of Exchangeable Preferred Stock and Common Stock, shall have
accepted the Plan if it is accepted by more than two-thirds (2/3) of
the Allowed Interests in each Class that have voted on the Plan.
ARTICLE IV
TREATMENT OF CLAIMS AND INTERESTS
IV.1 Non-Tax Priority Claims (Class 1)
On the Effective Date, or as soon thereafter as is practicable, each
holder of an Allowed Non-Tax Priority Claim as of the Confirmation Date
shall receive on account of such Claim the Allowed amount of such Claim
in Cash. All Allowed Priority Non-Tax Claims which are not due and
payable on or before the Effective Date shall be paid in the ordinary
course of business in accordance with the terms thereof. To the extent
that a holder of an Allowed Claim in this Class entitled to priority
treatment pursuant to Sections 507(a)(3) or 507(a)(4) of the Bankruptcy
Code has received payment pursuant to the Wage Payment Order up to the
maximum priority amount permitted by said sections ("Wage Priority
Amount"), the Claimant shall not receive any further Distribution on
account of his/her Allowed Non-Tax Priority Claim. To the extent the
holder has a Claim which would have otherwise been entitled to priority
under Sections 507(a)(3) or 507(a)(4) of the Bankruptcy Code except
that it exceeds the Wage Priority Amount, such excess shall be treated
as an Unsecured Claim.
IV.2 Unsecured Claims (Class 2)
<PAGE>
On the Effective Date, or as soon thereafter as is practicable, each
holder of an Allowed Unsecured Claim as of the Confirmation Date shall
receive its Pro Rata Share of (i) the UC Cash Distribution; (ii) the UC
New Common Stock Distribution and (iii) the UC Beneficial Interests. If
the UC Cash Distribution is not distributed to holders of Allowed
Unsecured Claims on or before January 31, 2001 due to reasons solely
within the control of the Debtor, the holders of Class 2 Allowed
Unsecured Claims shall be entitled to receive any interest or other
income earned on the UC Cash Distribution from March 1, 2001 forward.
Such interest shall be distributed to holders of Class 2 Allowed
Unsecured Claims at the time they receive the UC Cash Distribution. All
reasonable unpaid fees, costs, charges and any other expenses incurred
under the Indenture prior to the Petition Date and through October 2,
2000 not to exceed $38,500 in the aggregate, which amount includes any
reasonable fees and expenses of professionals retained by the Indenture
Trustee incurred through October 2, 2000, shall be paid by the Debtor
to the Indenture Trustee on the Effective Date, without Court approval.
All reasonable fees, costs, charges and expenses payable to the
Indenture Trustee under the Indenture not to exceed $27,500 in the
aggregate (which includes the sum of $10,000 to act as a Disbursing
Agent under the Plan), including any such items incurred by the
Indenture Trustee in its capacity as a Disbursing Agent under this Plan
incurred by the Indenture Trustee after October 2, 2000, shall be paid
by the Reorganized Debtor in accordance with the Indenture, without
further Court approval. In addition, Debtor shall indemnify the
Indenture Trustee for its activities in connection with balloting and
Distributions under this Plan in accordance with, and to the same
extent provided in, the Indenture. In the event the Debtor disagrees
with any fee, cost, charge or expense of the Indenture Trustee incurred
after September 29, 2000 and other than its capacity as a Disbursing
Agent, it shall pay the undisputed portion as provided in this section
and promptly move in the Bankruptcy Court for a determination as to the
propriety of any disputed fee, cost, charge or expense.
IV.3 Exchangeable Preferred Shareholders (Class 3)
On the Effective Date, or as soon thereafter as is practicable, each
record holder of Exchangeable Preferred Stock as of the Confirmation
Date shall receive the holder's Pro Rata Share of (i) 2,350,000 shares
of New Common Stock and (ii) a certificate evidencing the holder's Pro
Rata Share of the Exchangeable Preferred PLT Interest. On the Effective
Date, all shares of Exchangeable Preferred Stock shall be cancelled and
extinguished and all certificates representing the Exchangeable
Preferred Stock shall become void without the need for further action.
IV.4 Common Shareholders (Class 4)
On the Effective Date, or as soon thereafter as is practicable, each
record holder of Common Stock as of the Confirmation Date shall receive
the holder's Pro Rata Share of 4,150,000 shares of New Common Stock. On
the Effective Date all shares of Common Stock shall be cancelled and
extinguished and all certificates representing the Common Stock shall
become void without the need for further action.
IV.5 Option Holders (Class 5)
On the Effective Date, all Options issued by the Debtor shall be
cancelled and the holders thereof shall receive no Distributions under
this Plan on account of the Options and all such holders shall be
deemed to have rejected this Plan.
<PAGE>
ARTICLE V
PROVISIONS REGARDING CORPORATE GOVERNANCE
AND MANAGEMENT OF THE REORGANIZED DEBTOR
AND THE ISSUANCE OF NEW COMMON STOCK
V.1 Board of Directors
As of the Effective Date, the board of directors of Reorganized
Dynacore shall initially consist of seven (7) members, three (3) of
whom shall be designated by the Creditors' Committee in writing prior
to the Confirmation Hearing and the remainder of whom shall be
designated by the Debtor in writing prior to the Confirmation Hearing.
The board of directors of Reorganized Dynacore will select a chairman
of the board of directors of Reorganized Dynacore at its initial
meeting to be held no later than five (5) Business Days after the
Effective Date. Such initial board of directors shall be deemed
appointed pursuant to the Confirmation Order, such appointment shall be
deemed ratified by the initial holders of New Common Stock and the
board of directors shall be fully authorized to take such actions
necessary to consummate this Plan and to operate Reorganized Dynacore's
business.
V.2 Officers of Reorganized Datapoint
The officers of the Debtor immediately prior to the Effective Date
shall serve as the initial officers of Reorganized Dynacore on and
after the Effective Date. Such officers shall serve in accordance with
their new employment agreements attached as exhibits to the Disclosure
Statement, or with respect to any officer who does not have an
employment agreement, at the pleasure of the board of directors.
V.3 Amended Certificate of Incorporation and Amended Dynacore By-Laws
The adoption of the proposed amended Certificate of Incorporation and
amended by-laws attached to the Disclosure Statement will be deemed to
have occurred and be effective as of the Effective Date without any
further action by the directors or stockholders of the Debtor or the
Reorganized Debtor. On the Effective Date or as soon thereafter as is
practicable, Dynacore will file with the Secretary of State of the
State of Delaware, in accordance with Sections 103 and 303 of the
Delaware General Corporation Law, the amended and restated Certificate
of Incorporation and such shall be the certificate of incorporation for
Reorganized Dynacore. The amendment shall include a provision
prohibiting the issuance of non-voting equity securities.
V.4 Securities to be Issued Pursuant to this Plan: New Common Stock
----------------------------------------------------------------
On the Effective Date, pursuant to this Plan, the issuance by
Reorganized Dynacore of 10,000,000 shares of New Common Stock shall be
authorized without further act or action under applicable laws,
regulations, rules or orders. Holders of New Common Stock will have the
right to participate proportionately in any dividends distributed by
Reorganized Dynacore. Reorganized Dynacore will use reasonable efforts
to have the New Common Stock listed on a nationally recognized market
or exchange provided that the costs of doing so are reasonable as
determined by Dynacore's board of directors.
<PAGE>
V.5 Cancellation of Existing Equity Interests
As of the Effective Date, all existing Equity Interests shall, without
any further action, be cancelled, annulled and extinguished and all
certificates representing such Equity Interests shall be void.
ARTICLE VI
ESTABLISHMENT OF THE PL TRUST
VI.1 Creation of the PL Trust
-------------------------
On the Effective Date, and pursuant to the terms of the Confirmation
Order, or such other applicable order of the Bankruptcy Court
authorizing and approving the establishment of the PL Trust, the
Reorganized Debtor shall execute the PLT Agreement and shall be deemed
to have transferred to the PL Trust all of its right, title and
interest in the Patent Litigations. On the Effective Date, or as soon
thereafter as is practicable, the Initial PLT Trustees may cause the PL
Trust to issue and distribute PLT Certificates in accordance with
provisions of Article III of this Plan or to otherwise reflect
ownership of Beneficial Trust Interests as set forth in Section 7.03.
ARTICLE VII
MEANS OF DISTRIBUTION AND IMPLEMENTATION
VII.1 Cash Distributions
On the Effective Date, Reorganized Dynacore shall deposit Cash with the
Indenture Trustee in the amount equal to the aggregate Pro Rata Share
of Cash to which Debenture Holders are entitled under this Plan and the
Indenture Trustee shall act as Disbursing Agent and shall distribute
the Cash Pro Rata to each Debenture Holder as of the Confirmation Date.
With respect to all other Cash Distributions required under this Plan,
the Debtor shall act as its own Disbursing Agent.
VII.2 Stock Distributions
On the Effective Date, Reorganized Dynacore shall issue 10,000,000
shares of New Common Stock of which (i) 6,500,000 shares shall be
deposited with the Transfer Agent, who shall as soon as practicable
thereafter distribute 2.35 million shares of the New Common Stock Pro
Rata to the record holders of Exchangeable Preferred Stock and 4.15
million shares of New Common Stock Pro Rata to the record holders of
Common Stock as of the Confirmation Date, in accordance with the terms
of this Plan; (ii) the Pro Rata Share of the 2,500,000 shares to be
distributed to Debenture Holders shall be deposited with the Indenture
Trustee for Distribution to Debenture Holders as of the Confirmation
Date, Pro Rata, with the Distribution of Cash under Section 7.01
hereof; and (iii) the remaining shares shall be distributed by the
Debtor to all non-Debenture Holder Class 2 Claimants and to the Officer
Claim Holders in accordance with the terms of this Plan.
<PAGE>
VII.3 PLT Certificate Distributions
On the Effective Date, or as soon thereafter as is practicable, the
Initial Trustees shall deliver a PLT Certificate to Reorganized
Dynacore evidencing its fifty-six and one-half percent (56- 1/2 %)
ownership interest in the PL Trust. In lieu of actual Distribution of
PLT Certificates to Class 2 Claimants and holders of Class 3
Exchangeable Preferred Stock, the Initial Trustees may, in their sole
discretion, reflect the ownership of the Beneficial Interests by Class
2 Claimants and Class 3 Interest holders by a recordation in the PL
Trust's books and records in such manner as the Initial Trustees, in
their sole discretion, deem appropriate. In the event the Initial
Trustees determine to issue PLT Certificates to Class 2 Claimants and
Class 3 Interest holders, they shall make appropriate arrangements for
the Distribution of the PLT Certificates.
VII.4 Distributions by Indenture Trustee as Disbursing Agent
As soon as reasonably practicable after distribution to the Indenture
Trustee of the property to be distributed to the Indenture Trustee
under Section 4.02 of this Plan, the Indenture Trustee shall make Pro
Rata Distribution to holders of Allowed Unsecured Claims whose Claims
arise out of ownership of the Debentures in the manner set forth in the
Indenture and this Article VII, provided, however, that upon request of
the Indenture Trustee, holders of such Claims shall be required, prior
to receiving Distributions pursuant to this section, to (a) surrender
to the Indenture Trustee the Debentures representing such Claims, or
(b) provide an affidavit certifying that such Debentures are lost, with
an appropriate indemnification of the Debtor, the Estate and the
Reorganized Debtor. The Indenture Trustee's obligations to act as a
Disbursing Agent shall expire as six months from the Expiration Date.
VII.5 Distribution by Reorganized Debtor of Recoveries from PL Trust
--------------------------------------------------------------
After reimbursement of all expenses, costs and repayment of any
advances made or incurred in connection with the PL Trust, and payment
of all taxes due as a result of any distribution to it ("Net
Distributions"), the Reorganized Debtor shall distribute seventy-five
percent (75%) of any Net Distribution from the first $100 million in
total distributions that it actually receives from the PL Trust on
account of its Beneficial Trust Interests therein, to the holders of
New Common Stock. These distributions shall be made at such time, and
on such dates as the Board of Directors of Reorganized Dynacore deems
appropriate, provided, however, that all such amounts to be distributed
hereunder shall be distributed no later than forty-five (45) days after
receipt by Reorganized Dynacore of its final distribution from the PL
Trust.
VII.6 Miscellaneous Distribution Provisions
(a) Date of Distributions
<PAGE>
Unless otherwise provided herein, any Distributions to be made
hereunder shall be made on the Effective Date or as soon as
practicable thereafter and deemed made on the Effective Date.
In the event that any Distribution or act under this Plan is
required to be made or performed on a date that is not a
Business Day, then the making of such Distribution or the
performance of such act may be completed on the next
succeeding Business Day, but shall be deemed to have been
completed as of the required date.
(b) Delivery of Distributions
Subject to Bankruptcy Rule 9010, all Distributions to any
holder of an Allowed Claim or Allowed Equity Interest shall be
to the address of such holder as set forth on the Schedules,
or the books of the Debtor, the Indenture Trustee or the
Transfer Agent unless the Debtor has been notified in writing
of a change of address, including, without limitation, by
filing of a proof of Claim by such holder that contains an
address for such holder different from the address reflected
in the Schedules or records of the Debtor, the Indenture
Trustee or the Transfer Agent. In the event that any
Distribution to any holder is returned as undeliverable, the
appropriate Disbursing Agent shall use reasonable efforts to
determine the current address of such holder, but no
Distribution to such holder shall be made unless and until the
Disbursing Agent has determined the then current address of
such holder, at which time such Distribution shall be made to
such holder without interest provided that such Distributions
shall be deemed unclaimed property under Section 347(b) of the
Bankruptcy Code at the expiration of one year from the
Effective Date. After such date, all unclaimed property or
interests in property shall revert to the Debtor, and the
Claim of any other holder of such property or interest in
property shall be discharged and forever barred. All unclaimed
shares of New Common Stock shall be cancelled by the
Reorganized Debtor or added to treasury, in the Reorganized
Debtor's discretion.
(c) Fractional Shares
No fractional shares of New Common Stock shall be distributed.
For purposes of Distribution, fractional shares of New Common
Stock shall be rounded down to the previous whole number.
(d) Setoffs and Recoupment
The Debtor may, but shall not be required to, set off against,
or recoup from, any Claim and the payments to be made pursuant
to the Plan in respect of such Claim, any Claims of any nature
whatsoever that the Debtor may have against the Claimant, but
neither the failure to do so nor allowance of any Claim
hereunder shall constitute a waiver or release by the Debtor
of any such Claim it may have against the Claimant.
(e) Distributions After Effective Date
Distributions made after the Effective Date to holders of
Disputed Claims that are not Allowed Claims as of the
Effective Date but which later become Allowed shall be deemed
to have been made on the Effective Date.
<PAGE>
ARTICLE VIII
RIGHTS AND OBLIGATIONS OF THE DISBURSING AGENTS
VIII.1 Exculpation
The Disbursing Agents, from and after the Effective Date, are hereby
exculpated by all Persons, holders of Claims and Equity Interests,
entities, and parties in interest receiving Distributions under this
Plan, from any and all claims, causes of action, and other assertions
of liability (including breach of fiduciary duty) arising out of such
Disbursing Agent's discharge of the powers and duties conferred upon it
by this Plan or any order of the Bankruptcy Court entered pursuant to
or in furtherance of this Plan, or applicable law, except for actions
or omissions arising out of each Disbursing Agent's gross negligence or
willful misconduct. No current holder of a Claim or an Equity Interest,
or representative thereof, shall have the right to pursue any claim or
cause of action (i) against any Disbursing Agent for making payments in
accordance with this Plan, or for implementing the provisions of this
Plan, or (ii) against any holder of a Claim for receiving or retaining
payments or other Distributions as provided for by this Plan.
VIII.2 Powers of the Disbursing Agents
The Disbursing Agents shall be empowered to (i) take all steps and
execute all instruments and documents necessary to effectuate this
Plan; (ii) make Distributions contemplated by this Plan; (iii) comply
with this Plan and the obligations thereunder; (iv) employ, retain, or
replace professionals to represent them with respect to their
responsibilities; and (v) exercise such other powers as may be vested
in them pursuant to order of the Court or pursuant to this Plan, or as
they reasonably deem to be necessary and proper to carry out the
provisions of this Plan.
VIII.3 Duties of the Disbursing Agents
The Disbursing Agents shall have the duties of carrying out the
provisions of this Plan, which shall include taking or not taking any
action which the Disbursing Agents deem to be in furtherance of this
Plan, including, from the date of a Disbursing Agent's appointment,
making payments and conveyances and effecting other transfers necessary
in furtherance of this Plan.
VIII.4 Fees of Disbursing Agents
The Reorganized Debtor shall promptly pay all reasonable fees, costs,
charges and expenses incurred by the Disbursing Agents in connection
with their services as Disbursing Agents without Court order.
<PAGE>
ARTICLE IX
PROCEDURES FOR TREATING DISPUTED CLAIMS UNDER THE PLAN
IX.1 Disputed Claims
Except as to applications for allowances of compensation and
reimbursement of expenses under Sections 330 and 503 of the Bankruptcy
Code, the Debtor and the Creditors' Committee each shall have the
exclusive right to make and file objections to Administrative Expense
Claims, Claims and Equity Interests subsequent to the Confirmation
Date. All objections shall be litigated to Final Order, provided,
however, that the Debtor, with the consent of the Creditors' Committee,
shall have the authority to compromise, settle, otherwise resolve or
withdraw any objections without approval of the Bankruptcy Court.
Unless otherwise ordered by the Bankruptcy Court, the Debtor and the
Creditors' Committee each may file all objections to Administrative
Expense Claims that are the subject of proofs of Claim or requests for
payment filed with the Bankruptcy Court (other than applications for
allowances of compensation and reimbursement of expenses), Claims and
Equity Interests and serve such objections upon the holder of the
Administrative Expense Claim, Claim or Equity Interest as to which the
objection is made.
IX.2 No Distributions Pending Allowance
Notwithstanding any other provision hereof, if any portion of a Claim
or Equity Interest is a Disputed Claim or Disputed Equity Interest, no
payment or Distribution provided hereunder shall be made on account of
such Claim or Interest unless and until such Disputed Claim or Disputed
Equity Interest is Allowed.
IX.3 Distributions After Allowance
To the extent that a Disputed Claim or Disputed Equity Interest
ultimately becomes an Allowed Claim or Allowed Equity Interest, a
Distribution shall be made to the holder of such Allowed Claim or
Allowed Equity Interest in accordance with the provisions of this Plan.
As soon as practicable after the date that the order or judgment of the
Bankruptcy Court allowing any Disputed Claim or Disputed Equity
Interest becomes a Final Order, the appropriate Disbursing Agent shall
provide to the holder of such Claim or Equity Interest the
Distributions to which such holder is entitled under this Plan.
IX.4 Voting Rights of Holders of Disputed Claims and Disputed Equity
Interests Pursuant to Bankruptcy Rule 3018(a), a Disputed Claim or Disputed
Equity Interest will not be counted for purposes of voting on this Plan to the
extent it is disputed, unless an order of the Bankruptcy Court is entered after
notice and a hearing temporarily allowing the Disputed Claim or Disputed Equity
Interest for voting purposes under Bankruptcy Rule 3018(a). Such disallowance
for voting purposes shall be without prejudice to the holders of such Disputed
Claim or Disputed Equity Interest seeking to have such Disputed Claim or
Disputed Equity Interest Allowed for purposes of Distribution under this Plan.
<PAGE>
ARTICLE X
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
X.1 Rejected If Not Assumed
This Plan constitutes and incorporates a motion by the Debtor to
reject, and the Confirmation Order shall be deemed to be an order
authorizing the rejection of, all executory contracts and unexpired
leases to which the Debtor is a party and which have not on or before
the Confirmation Date been (i) rejected by Bankruptcy Court order or by
operation of law, (ii) expressly assumed or rejected pursuant to an
order of the Bankruptcy Court prior to the Confirmation Date, or (iii)
included in a motion to assume or reject made by the Debtor which is
pending before the Bankruptcy Court on the Confirmation Date. Nothing
herein will be deemed to extend any deadline previously set by the
Court for filing proofs of Claims, including with regard to contracts
and leases heretofore rejected by Court order. If for any reason a
prior order of the Court setting a deadline for the filing of proofs of
Claims is found to be not applicable to the damages resulting from the
rejection of an executory contract, such Claim for damages shall
nevertheless be forever barred and shall not be enforceable against the
Debtor or its Estate unless a proof of Claim is filed with the
Bankruptcy Court not later than thirty (30) days after entry of the
Confirmation Order.
ARTICLE XI
CONDITIONS PRECEDENT
XI.1 Conditions Precedent to Effective Date
The occurrence of the Effective Date of this Plan is subject to the
following conditions precedent: (1) the Confirmation Order shall have
become a Final Order; (2) the Sale Order shall have become a Final
Order; (3) the Bankruptcy Court shall have approved the Officer
Settlement Agreement either as part of the Confirmation Order or by
separate order which shall become a Final Order; (4) the aggregate
amount of all Allowed Unsecured Claims and the estimated amounts (for
distribution purposes) of all other Unsecured Claims, including
Disputed Claims, if any, shall not exceed $64 million; (5) Reorganized
Dynacore shall have in place directors and officers liability insurance
in form, substance and amount reasonably acceptable to the Creditors'
Committee; (6) Reorganized Dynacore's charter and by-laws shall be
executed and delivered in form and substance reasonably acceptable to
the Creditors' Committee; and (7) all other actions and all agreements,
instruments or other documents necessary to implement the terms and
provisions of this Plan shall have been effected. In the event any of
the orders identified in this section have not become Final Orders,
except for an order approving the Officer Settlement Agreement, because
they are subject to a pending appeal or appeals, the conditions to the
Effective Date set forth in this section shall be deemed to have
occurred unless any of such orders is subject to a stay.
<PAGE>
XI.2 Waiver of Conditions Precedent
Except for condition "1", set forth in Section 11.01, each of the
conditions precedent in Section 11.01 may be waived, in whole or in
part, by the Debtor only with the written consent of the Creditors'
Committee except that the condition in Section 11.01(3) can only be
waived with the written consent of the Officer Claim Holders. Any such
waiver of a condition precedent in Section 11.01 hereof may be effected
at any time, without notice, without leave or order of the Bankruptcy
Court and without any formal action (other than by the Debtor and the
Creditors' Committee or with respect to Section 11.01(3), by the
Officer Claim Holders).
ARTICLE XII
EFFECT OF CONFIRMATION OF THIS PLAN
XII.1 Continued Corporate Existence
The Reorganized Debtor shall continue to exist after the Effective Date
with all powers of a corporation under the laws of the State of
Delaware and without prejudice to any right to alter or terminate such
existence (whether by merger or otherwise) under Delaware law; and the
Reorganized Debtor may operate its business free of any restrictions
imposed by the Bankruptcy Code, the Bankruptcy Rules or by the Court,
subject only to the terms and conditions of this Plan and the
Confirmation Order.
XII.2 Vesting of Assets
Except as otherwise expressly provided in this Plan, on the Effective
Date the Reorganized Debtor shall be vested with all of the property of
the Estate free and clear of all Claims, liens, encumbrances, charges
and other interests of Claimants and holders of Equity Interests.
XII.3 Discharge of the Debtor
The rights afforded herein and the treatment of all Claims and Equity
Interests herein shall be in exchange for and in complete satisfaction,
discharge, and release of all Claims and Equity Interests of any nature
whatsoever, including any interest accrued on such Claims from and
after the Petition Date against the Debtor, the Reorganized Debtor, or
any of its assets or properties, and the Released Parties, arising
prior to the Effective Date. Except as otherwise expressly specified in
this Plan, the Confirmation Order shall act, as of the Effective Date,
as a discharge of all debts of, Claims against, liens on, and Equity
Interests in the Debtor, its assets and properties, arising at any time
prior to the Effective Date, regardless of whether a proof of Claim or
Equity Interest with respect thereto was filed, whether the Claim or
Equity Interest is Allowed, or whether the holder thereof votes to
accept this Plan or is entitled to receive a Distribution hereunder.
Except as otherwise expressly specified in this Plan, after the
Effective Date, any holder of such discharged Claim or Equity Interest
shall be precluded from asserting against the Debtor, the Reorganized
Debtor, or any of its assets or properties, any other or further Claim
or Equity Interest based on any document, instrument, act, omission,
transaction, or other activity of any kind or nature that occurred
before the Effective Date.
<PAGE>
XII.4 Injunction
Except as otherwise expressly provided in this Plan, the Confirmation
Order, or a separate order of the Court, all Entities who have held,
hold, or may hold Claims against or Equity Interests in the Debtor
which arose before or were held as of the Effective Date, are
permanently enjoined, on and after the Effective Date, from (a)
commencing or continuing in any manner any action or other proceeding
of any kind against the Debtor or any Released Party, with respect to
any such Claim or Equity Interest, (b) the enforcement, attachment,
collection, or recovery by any manner or means of any judgment, award,
decree, or order against the Debtor or any Released Party on account of
any such Claim or Equity Interest, (c) creating, perfecting, or
enforcing any encumbrance of any kind against the Debtor or any
Released Party or against the property or interests in the Estate or
any Released Party on account of any such Claim or Equity Interest
and/or (d) asserting any right of setoff, subrogation, or recoupment of
any kind against any obligation due from the Debtor or any Released
Party or against the Estate or any Released Party on account of any
such Claim or Equity Interest. Such injunction shall extend to
successors of the Debtor (including, without limitation, the
Reorganized Debtor) and the Released Parties and their properties and
interests in property.
XII.5 Extinguishment of Causes of Action Under the Avoiding Power Provisions
On the Effective Date, all rights, claims, causes of action, avoiding
powers, suits and proceedings arising under Sections 544, 545, 547,
548, 549 and 553 of the Bankruptcy Code shall be extinguished whether
or not then pending. The Reorganized Debtor shall have, retain,
reserve, and be entitled to assert all other Claims, causes of action,
rights of setoff and other legal or equitable defenses which the Debtor
had immediately prior to the Petition Date as fully as if the Chapter
11 Case had not been commenced; and all of the Reorganized Debtor's
legal and equitable rights respecting any such Claim which is not
specifically waived, extinguished or relinquished by this Plan may be
asserted after the Effective Date to the same extent as if the Chapter
11 Case had not been commenced.
XII.6 Votes Solicited in Good Faith
The Released Parties have, and upon confirmation of this Plan shall be
deemed to have, solicited acceptances of this Plan in good faith and in
compliance with the applicable provisions of the Bankruptcy Code. The
Released Parties participated in good faith and in compliance with the
applicable provisions of the Bankruptcy Code in the issuance of the
securities offered under this Plan and therefore have not, and on
account of such issuance and solicitation will not, be liable at any
time for the violation of any applicable law, rule, or regulation
governing the solicitation of acceptances or rejections of this Plan or
the offer and issuance of the securities under this Plan.
XII.7 The Debtor's Release
<PAGE>
On the Effective Date, the Debtor, on behalf of itself and the Estate,
shall be deemed to release unconditionally all of its respective
officers, directors, employees, advisors, attorneys, financial
advisors, accountants and other professionals, each of the Creditors'
Committee members, the Creditors' Committee's counsel and financial
advisor, each member of the Ad Hoc Committee, the Ad Hoc Committee's
counsel and financial advisor, each member of the Ad Hoc Committee of
Preferred Stockholders, the Ad Hoc Committee of Preferred Stockholders'
counsel and financial advisor, the Indenture Trustee and its counsel,
and each of their representatives and agents (including any
professionals retained by such Persons or Entities) (individually, a
"Released Party" and collectively, the "Released Parties") from any and
all claims, obligations, suits, judgments, damages, rights, causes of
action and liabilities whatsoever, whether known or unknown, foreseen
or unforeseen, existing or hereafter arising, in law, equity or
otherwise, based in whole or in part upon actions taken in their
respective capacities described above or any omission, transaction,
event or other occurrence taking place on or prior to the Effective
Date in any way relating to the Debtor, the Chapter 11 Case or this
Plan, except that (i) no individual shall be released from any act or
omission that constitutes gross negligence or willful misconduct as
determined by Final Order of the Bankruptcy Court, and (ii) the
Reorganized Debtor shall not relinquish or waive the right to assert
any of the foregoing as a legal or equitable defense or right of
set-off or recoupment against any claims of any such Persons or
Entities asserted against the Debtor.
XII.8 Exculpation, Release and Injunction of Released Parties
The Debtor, the Reorganized Debtor and the Released Parties (i) shall
have no liability whatsoever to any holder or purported holder of an
Administrative Expense Claim, Claim, or Equity Interest for any act or
omission in connection with, or arising out of, this Plan, the
Disclosure Statement, the negotiation of this Plan, the negotiation of
any Plan Document, the pursuit of approval of the Disclosure Statement
or the solicitation of votes for confirmation of this Plan, the Chapter
11 Case, the consummation of this Plan, the administration of this Plan
or the property to be distributed under this Plan, or any transaction
contemplated by this Plan or the Disclosure Statement or in furtherance
thereof, except for willful misconduct or gross negligence as
determined by a Final Order, and (ii) in all respects, shall be
entitled to rely upon the advice of counsel with respect to their
duties and responsibilities under this Plan. This exculpation shall be
in addition to, and not in limitation of, all other releases,
indemnities, exculpations and any other applicable laws or rules
protecting such Released Parties from liability.
XII.9 Term of Bankruptcy Injunction or Stays
All injunctions or stays provided for in the Chapter 11 Case under
Sections 105 or 362 of the Bankruptcy Code, or otherwise, and in
existence on the Confirmation Date, shall remain in full force and
effect until the Effective Date.
XII.10 Preservation of Insurance
The Debtor's discharge and release from all Claims as provided herein,
except as necessary to be consistent with this Plan, shall not diminish
or impair the enforceability of any insurance policy that may cover
Claims against the Debtor, the Reorganized Debtor (including, without
limitation, its officers and directors) or any other Person or Entity.
<PAGE>
XII.11 Officers' and Directors' Indemnification Rights and Insurance
Notwithstanding any other provision of this Plan, the obligations of
the Debtor to indemnify its present directors, officers, and employees
against any obligations, liabilities, costs or expenses pursuant to the
Certificate of Incorporation or by-laws of the Debtor, applicable state
law, specific agreement, or any combination of the foregoing, shall
survive the Effective Date.
ARTICLE XIII
RETENTION OF JURISDICTION
XIII.1 Scope of Jurisdiction
Pursuant to Sections 1334 and 157 of title 28 of the United States
Code, the Bankruptcy Court shall retain and have exclusive jurisdiction
of all matters arising in, arising under, and related to the Chapter 11
Case and this Plan pursuant to, and for the purpose of Sections 105(a)
and 1142 of the Bankruptcy Code and for, among other things, the
following purposes:
(a) To hear and determine pending applications for the assumption
or rejection of executory contracts or unexpired leases
pending on the Confirmation Date and the allowance of Claims
resulting therefrom;
(b) To hear and determine any and all adversary proceedings,
applications, and contested matters,
including any remands of appeals, pending on the Effective
Date;
(c) To ensure that Distributions to holders of Allowed
Claims and Allowed Interests are accomplished as provided
by this Plan;
(d) To resolve disputes as to the ownership of any Claim or
Equity Interest;
(e) To hear and determine any timely objections to or applications
concerning Claims or the allowance, classification, priority,
compromise, estimation, or payment of any Administrative
Expense, Claim, or Equity Interest.
(f) To enter and implement such orders as may be appropriate in
the event the Confirmation Order is for any reason stayed,
revoked, modified, reversed, or vacated;
(g) To enter and implement such orders as may be necessary or
appropriate to execute, interpret, implement, consummate, or
enforce this Plan and the transactions contemplated
thereunder;
(h) To consider any modification of this Plan pursuant to Section
1127 of the Bankruptcy Code, to cure any defect or omission,
or reconcile any inconsistency in any order of the Bankruptcy
Court, including, without limitation, the Confirmation Order;
(i) To hear and determine applications for compensation
and reimbursement of expenses of Professional Persons
under sections 330, 331 and 503(b) of the Bankruptcy Code;
(j) To hear and determine disputes arising in connection
with the execution, interpretation,
implementation, consummation, or enforcement of this Plan;
(k) To hear and determine any issue for which this Plan requires
a Final Order of the Court;
<PAGE>
(l) To enter and implement orders and to take such other actions
as may be necessary or appropriate to restrain interference by
any Person or Entity with the consummation or implementation
of this Plan, including, without limitation, to issue,
administer, and enforce injunctions, releases, assignments, or
indemnity obligations contained in this Plan and the
Confirmation Order;
(m) To hear and determine motions seeking a compromise,
settlement, release, or abandonment of any Contested Claim or
Designated Claim or any claim or cause of action arising on or
before the Effective Date by or against the Debtor;
(n) To recover all assets of the Debtor and property of the
Estate, wherever located;
(o) To hear and determine matters concerning state, local,
and federal taxes in accordance with
Sections 346, 505, and 1146 of the Bankruptcy Code;
(p) To hear and determine any other matter not inconsistent with
the Bankruptcy Code and title 28 of the United States Code
that may arise in connection with or related to this Plan; and
(q) To enter a final decree closing the Chapter 11 Case.
XIII.2 The PL Trust
The Bankruptcy Court shall have concurrent jurisdiction with any other
court of competent jurisdiction to hear all matters concerning the PL
Trust (other than the Patent Litigations) including, by way of example
and not limitation, matters pertaining to claims against,
administration of, and distributions from, the PL Trust.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
XIV.1 Creditors' Committee
The Creditors' Committee shall continue in existence after the
Effective Date for the following limited purposes: (a) to participate
in matters related to implementation and consummation of the Plan and
the enforcement of the provisions thereof for a period not to exceed
sixty (60) days after the Effective Date unless otherwise agreed to by
the Reorganized Debtor, and (b) to review, prepare, and prosecute fee
applications of Professional Persons. Except for these matters, after
the Effective Date the Creditors' Committee shall have no authority or
obligation to act as a committee or as a representative of holders of
Class 2 Claimants.
XIV.2 Compliance with Tax Requirements
In connection with this Plan, the Reorganized Debtor and the Disbursing
Agents shall comply with all withholding and reporting requirements
imposed by federal, state, local and foreign taxing authorities and all
Distributions hereunder shall be subject to such withholding and
reporting requirements.
XIV.3 Cancellation of Indenture
<PAGE>
As of the Effective Date, the Indenture shall be deemed cancelled,
terminated, and deemed null and void and of no further force and
effect, except as otherwise provided herein. The Debtor and the
Indenture Trustee shall be released from any and all obligations under
the Indenture except with respect to the payments required to be made
to the Indenture Trustee in respect of its Claims, or with respect to
such other rights of the Indenture Trustee that, pursuant to the terms
of the Indenture, survive the termination of the Indenture. Termination
of the Indenture shall not impair the rights of the holders of Claims
to receive Distributions on account of such Claims pursuant to this
Plan, and shall not impair the rights of the Indenture Trustee to
enforce its charging lien created by law or the Indenture against the
Distributions that are made to the Indenture Trustee for distribution
to Claimants.
XIV.4 Payment of Statutory Fees
All fees payable pursuant to Section 1930 of title 28 of the United
States Code, as determined by the Bankruptcy Court at the Confirmation
Hearing, shall be paid on or before the Effective Date and all such
fees payable after the Effective Date shall be paid by the Reorganized
Debtor.
XIV.5 Pre-Confirmation Modification
This Plan may be altered, amended or modified prior to the entry of the
Confirmation Order as provided in Section 1127 of the Bankruptcy Code.
XIV.6 Post-Confirmation Immaterial Modifications
The Debtor or the Reorganized Debtor may, with the consent of the
Creditors' Committee and without the approval of the Bankruptcy Court,
and without notice to all holders of Claims and Interests, insofar as
it does not materially adversely affect the interest of holders of
Claims and Interests, correct any defect, omission or inconsistency in
this Plan in such manner and to such extent as may be necessary to
expedite the execution of this Plan.
XIV.7 Governing Law
Unless a rule of law or procedure is supplied by federal law (including
the Bankruptcy Code or Bankruptcy Rules), the laws of the State of
Delaware (without reference to the conflicts of laws provisions
thereof) will govern the construction and implementation of the Plan
and any agreements, documents and instruments in connection with this
Plan.
XIV.8 Notices
All notices, requests or demands for payments shall be in writing and
shall be deemed to have been given when personally delivered by hand or
deposited in any depository under the control of the United States
Postal Service or when received by courier or facsimile transmission.
Notices shall be sent or delivered to:
-------------------------------------------------------------
Dynacore Holdings Corporation
717 Fifth Avenue
New York, NY 10022
Tel. No. (212) 371-7713
Fax No. (212) 750-9329
Attn: Gerald N. Agranoff, Esq.
-------------------------------------------------------------
<PAGE>
with a copy to:
-------------------------------------------------------------
Angel & Frankel, P.C.
460 Park Avenue
New York, NY 10022-1906
Tel. No. (212) 752-8000
Fax No. (212) 752-8393
Attn: Joshua J. Angel, Esq. or Laurence May, Esq.
-------------------------------------------------------------
-------------------------------------------------------------
and
Andrews & Kurth L.L.P.
805 Third Avenue
New York, NY 10022
Tel. No. (212) 850-2800
Fax No. (212) 850-2929
Attn: Paul N. Silverstein, Esq.
-------------------------------------------------------------
or to any other address designated by Reorganized Dynacore to
interested parties.
XIV.9 Post-Confirmation Date Service List
From and after the Confirmation Date, all notices of appearance and
demands for service of process filed with the Court prior to such date
shall no longer be effective. No further notices, other than notice of
entry of the Confirmation Order shall be required to be sent to such
Entities.
XIV.10 Exemption From Certain Transfer Taxes
Pursuant to Section 1146(c) of the Bankruptcy Code, the issuance,
transfer or exchange of any securities (including the New Common
Stock), instruments or documents, the making or assignment of any lease
or sublease, or the making or delivery of any deed or other instrument
of transfer under, pursuant to, in furtherance of or in connection
with, this Plan, including any deeds, bills of sale or assignments
executed in connection with this Plan or the Confirmation Order, shall
not be subject to any stamp tax, transfer tax, intangible tax,
recording fee, or similar tax, charge or expense to the fullest extent
provided for under Section 1146(c) of the Bankruptcy Code. The transfer
and sale of significant assets of the Debtor pursuant to the Sale Order
was a sale in contemplation of this Plan and therefore, all such
actions taken pursuant to such sale are entitled to the exemptions
provided for under Section 1146(c) of the Bankruptcy Code to the
fullest extent permitted by said section.
XIV.11 Filing or Execution of Additional Documents
On or before the Effective Date, the Debtor or the Reorganized Debtor
will file with the Court or execute, as appropriate, such agreements
and other documents as may be necessary or appropriate to effectuate
and further evidence the terms and conditions of this Plan.
<PAGE>
XIV.12 Section 1145 Exemption
Pursuant to, in accordance with, and to the extent provided under
section 1145 of the Bankruptcy Code, the issuance of the New Common
Stock under this Plan is exempt from the registration requirements of
Section 5 of the Securities Act, as amended, and any state or local law
requiring registration for offer or sale of a security or registration
or licensing of an issuer of, underwriter of, or broker or dealer in
such New Common Stock and is deemed to be a public offering of New
Common Stock.
Dated: October __, 2000
----------------------------------------------------------- -------------------
Respectfully Submitted,
DYNACORE HOLDINGS CORPORATION
By: /s/ Gerald N. Agranoff
----------------------
Title: _______________
----------------------------------------------------------- ------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS ........................................................1
1.01 "Ad Hoc Committee".................................................1
1.02 "Ad Hoc Committee of Preferred Shareholders".......................1
1.03 "Administrative Expense" or "Administrative Expense Claim".........1
1.04 "Allowed"..........................................................1
1.05 "Ballot"...........................................................1
1.06 "Balloting Agent"..................................................2
1.07 "Bankruptcy Code"..................................................2
1.08 "Bankruptcy Court" or "Court"......................................2
1.09 "Bankruptcy Rules".................................................2
1.10 "Bar Date".........................................................2
1.11 "Beneficial Trust Interest(s)".....................................2
1.12 "Bonds" or "Debentures"............................................2
1.13 "Business Day".....................................................2
1.14 "Cash".............................................................2
1.15 "Certificate of Incorporation".....................................2
1.16 "Chapter 11 Case"..................................................2
1.17 "Claim" or "Claims"................................................2
1.18 "Claimant".........................................................3
1.19 "Class"............................................................3
1.20 "Code".............................................................3
1.21 "Common Stock".....................................................3
1.22 "Confirmation Date"................................................3
1.23 "Confirmation Hearing".............................................3
1.24 "Confirmation Order"...............................................3
1.25 "Contested"........................................................3
1.26 "Contingent Claim".................................................3
1.27 "Court"............................................................3
1.28 "Creditors' Committee".............................................4
1.29 "Debentures".......................................................4
1.30 "Debenture Holder(s)"..............................................4
1.31 "Debtor" or "Debtor-in-Possession".................................4
1.32 "Disallowed".......................................................4
1.33 "Disbursing Agent(s)"..............................................4
1.34 "Disclosure Statement".............................................4
1.35 "Disputed".........................................................4
1.36 "Distribution(s)"..................................................4
1.37 "Dynacore".........................................................4
1.38 "Effective Date"...................................................4
1.39 "Entity"...........................................................4
1.40 "Equity Interest"..................................................5
1.41 "Estate"...........................................................5
1.42 "Exchangeable Preferred PLT Interest"..............................5
1.43 "Exchangeable Preferred Stock".....................................5
1.44 "Executory Contract"...............................................5
1.45 "Final Order"......................................................5
1.46 "General Unsecured Claim"..........................................5
1.47 "Governmental Unit"................................................5
1.48 "Indenture" or "Trust Indenture"...................................5
1.49 "Indenture Trustee"................................................5
1.50 "Interest".........................................................5
1.51 "Initial PLT Trustees".............................................5
1.52 "New Common Stock".................................................6
1.53 "Non-Tax Priority Claim"...........................................6
1.54 "Officer Administrative Claim(s)"..................................6
1.55 "Officer Claim Holders"............................................6
1.56 "Officer Settlement Agreement".....................................6
1.57 "Options"..........................................................6
1.58 "Patent Litigations"...............................................6
1.59 "Patent Litigation Trust"..........................................6
1.60 "Person"...........................................................6
1.61 "Petition Date"....................................................6
1.62 "Plan".............................................................7
1.63 "Plan Documents"...................................................7
1.64 "PLT Beneficial Interests".........................................7
1.65 "PLT Agreement"....................................................7
1.66 "PLT Certificates".................................................7
1.67 "PL Trust".........................................................7
1.68 "Priority Tax Claim"...............................................7
1.69 "Professional Persons".............................................7
1.70 "Pro Rata" or "Pro Rata Share".....................................7
1.71 "Released Party"...................................................7
1.72 "Reorganized Debtor" or "Reorganized Dynacore"....................7
1.73 "Sale Order".......................................................7
1.74 "Schedules"........................................................7
1.75 "Secured Claim"....................................................8
1.76 "Transfer Agent"...................................................8
1.77 "Trust Indenture"..................................................8
1.78 "UC Beneficial Interests"..........................................8
1.79 "UC Cash Distribution".............................................8
1.80 "UC New Common Stock Distribution".................................8
1.81 "Unsecured Claim"..................................................8
1.82 "Voting Deadline"..................................................8
1.83 "Wage Payment Amount"..............................................8
1.84 "Wage Payment Order"...............................................8
1.85 "Wage Priority Amount".............................................8
IINON-CLASSIFIED CLAIMS AND ADMINISTRATIVE EXPENSES..........................9
2.01 Allowed Administrative Expense Claims..............................9
2.02 Officer Administrative Claims......................................9
2.03 Administrative Expense Bar Date for Disputed Expenses..............9
2.04 Priority Tax Claims...............................................10
IIICLASSIFICATION OF CLAIMS AND INTERESTS...................................10
3.01 Unclassified Claims...............................................10
3.02 Classified Claims and Interests...................................10
(a) Class 1 - Non-Tax Priority Claims ......................10
(b) Class 2 - Unsecured Claims...............................10
(c) Class 3 - Exchangeable Preferred Shareholders............10
(d) Class 4 - Common Shareholders............................11
(e) Class 5 - Option Holders.................................11
3.03 Class Acceptance Requirements.....................................11
ARTICLE IVTREATMENT OF CLAIMS AND INTERESTS..................................11
4.01 Non-Tax Priority Claims (Class 1).................................11
4.02 Unsecured Claims (Class 2).........................................11
4.03 Exchangeable Preferred Shareholders (Class 3)......................12
4.04 Common Shareholders (Class 4)......................................12
4.05 Option Holders (Class 5)...........................................12
ARTICLE VPROVISIONS REGARDING CORPORATE GOVERNANCEAND MANAGEMENT OF THE
REORGANIZED DEBTORAND THE ISSUANCE OF NEW COMMON STOCK......................13
5.01 Board of Directors ................................................13
5.02 Officers of Reorganized Datapoint..................................13
5.03 Amended Certificate of Incorporation and Amended Dynacore By-Laws..13
5.04 Securities to be Issued Pursuant to this Plan: New Common Stock..13
5.05 Cancellation of Existing Equity Interests..........................14
ARTICLE VIESTABLISHMENT OF THE PL TRUST......................................14
6.01 Creation of the PL Trust ........ ................................14
ARTICLE VII MEANS OF DISTRIBUTION AND IMPLEMENTATION.........................14
7.01 Cash Distributions..................................................14
7.02 Stock Distributions.................................................14
7.03 PLT Certificate Distributions.......................................15
7.04 Distributions by Indenture Trustee as Disbursing Agent..............15
7.05 Distribution by Reorganized Debtor of Recoveries from PL Trust......15
7.06 Miscellaneous Distribution Provisions...............................15
(a) Date of Distributions.................... .......15
(b) Delivery of Distributions................. . ....16
(c) Fractional Shares........................... . ...16
(d) Setoffs and Recoupment......................... .16
(e) Distributions After Effective Date............. .16
ARTICLE VIII RIGHTS AND OBLIGATIONS OF THE DISBURSING AGENTS.................17
8.01 Exculpation...................................... ... .....17
8.02 Powers of the Disbursing Agents................... ... ....17
8.03 Duties of the Disbursing Agents.................... ... ...17
8.04 Fees of Disbursing Agents........................... ... ..17
ARTICLE IX PROCEDURES FOR TREATING DISPUTED CLAIMS UNDER THE PLAN........... 18
9.01 Disputed Claims............................................18
9.02 No Distributions Pending Allowance.........................18
9.03 Distributions After Allowance............................. 18
9.04 Voting Rights of Holders of Disputed Claims and Disputed
Equity Interests......................18
ARTICLE X TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES........... 19
10.01 Rejected If Not Assumed................................. 19
ARTICLE XI CONDITIONS PRECEDENT..............................................19
11.01 Conditions Precedent to Effective Date.....................19
11.02 Waiver of Conditions Precedent.............................20
ARTICLE XII EFFECT OF CONFIRMATION OF THIS PLAN..............................20
12.01 Continued Corporate Existence..............................20
12.02 Vesting of Assets..........................................20
12.03 Discharge of the Debtor....................................20
12.04 Injunction.................................................21
12.05 Extinguishment of Causes of Action Under the Avoiding Power
Provisions.........................21
12.06 Votes Solicited in Good Faith..............................21
12.07 The Debtor's Release.......................................21
12.08 Exculpation, Release and Injunction of Released Parties....22
12.09 Term of Bankruptcy Injunction or Stay.....................22
12.10 Preservation of Insurance..................................22
12.11 Officers' and Directors' Indemnification Rights and
Insurance..................................23
ARTICLE XIII RETENTION OF JURISDICTION.......................................23
13.01 Scope of Jurisdiction......................................23
13.02 The PL Trust...............................................24
ARTICLE XIV MISCELLANEOUS PROVISIONS.........................................24
14.01 Creditors' Committee.......................................24
14.02 Compliance with Tax Requirements...........................24
14.03 Cancellation of Indenture..................................24
14.04 Payment of Statutory Fees..................................25
14.05 Pre-Confirmation Modification..............................25
14.06 Post-Confirmation Immaterial Modifications.................25
14.07 Governing Law..............................................25
14.08 Notices....................................................25
14.09 Post-Confirmation Date Service List........................26
14.10 Exemption From Certain Transfer Taxes......................26
14.11 Filing or Execution of Additional Documents................26
14.12 Section 1145 Exemption.....................................27
<PAGE>
FOR IMMEDIATE RELEASE Contact: Sharon P. Riggs
Investor Relations
San Antonio, Texas 78229
210 593 7901
DYNACORE HOLDINGS CORPORATION (FORMERLY DATAPOINT CORPORATION) AMENDED PLAN
OF REORGANIZATION APPROVED BY DELAWARE BANKRUPTCY COURT
San Antonio, Texas, December 8, 2000.....Dynacore Holdings Corporation,
f/k/a Datapoint Corporation (EBB:DYHGQ), today reported that on December 5,
2000, the United States Bankruptcy Court for the District of Delaware conducted
a hearing with respect to the confirmation of Dynacore's Amended Plan of
Reorganization. At the conclusion of the hearing the Court approved and entered
an order confirming the Plan.
On the Effective Date, as defined in the Plan, all of the existing debt
and equity in Dynacore will be cancelled, and 10 million shares of new common
stock of the reorganized corporation, as well as 10 million Beneficial
Interests, representing interests in the Dynacore Patent Litigation Trust to be
formed to pursue Dynacore's patent litigations, shall be issued. It is
anticipated that the conditions precedent to the Effective Date will be
satisfied by December 19, 2000.
The Plan provides for the distribution of $34.8 million to debenture
holders and other unsecured creditors of Dynacore on the Effective Date of the
Plan. The Plan also provides that the: (i) debenture holders and other unsecured
creditors will receive 25% of the equity of the reorganized corporation (2.5
million shares of common stock) and 40% of the Dynacore Patent Litigation Trust
(4 million Beneficial Interests), (ii) current Exchangeable Preferred
Shareholders will receive 23.5% of the equity of the reorganized corporation
(2.35 million shares of common stock), and 3.5% of the Dynacore Patent
Litigation Trust (350,000 Beneficial Interests), (iii) current Common
Shareholders will receive 41.5% of the equity of the reorganized corporation
(4.15 million shares of common stock); and (iv) current management will receive
10% of the equity of the reorganized corporation (1 million shares of common
stock) as part of a settlement of certain officer administrative claims that
include contract cancellation and waiver of bonus. Pursuant to the Plan,
Dynacore will retain a 56.5% interest in the Dynacore Patent Litigation Trust
(5,650,000 Beneficial Interests). Pursuant to the Plan, all fractional shares of
common stock and/or Beneficial Interests will be eliminated.
more......
<PAGE>
Dynacore anticipates commencing distributions to the creditors,
debenture and equity holders before year end in accordance with the terms of the
Plan.
This press release contains forward-looking statements that involve
uncertainties, including, but not limited to, risks and uncertainties related to
foreign currency translations, the competitive environment and other risks.
Future trends and results may differ materially from disclosures contained in
this release.
#####
<PAGE>
LOGO (ERNST & YOUNG LLP) Suite 1500 Phone: 214 969 8000
2121 San Jacinto Street Fax: 214 969 8587
Dallas, Texas 75201 Telex: 6710375
December 8, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
We have read Item 4 of Form 8-K dated December 5, 2000 of Dynacore Holdings
Corporation (formerly Datapoint Corporation) and are in agreemetn with the
statements contained in Item 4.(a)(i), (ii) and (iii) on page 2 therein. We
have no basis to agree or disgree with other statements of the registrant
contained therein.
Very truly yours,
/s/ Ernst & Young LLP
Ernst & Young LLP
