Exhibit 2.3
MARTIN J. BRILL (State Bar No. 53220)
ROBYN B. SOKOL (State Bar No. 159506)
ROBINSON, DIAMANT & BRILL
A Professional Corporation
1888 Century Park East, Suite 1500
Los Angeles, California 90067
Telephone: (310) 277-7400
Telecopier: (310) 277-7584
Attorneys for Debtor
and Debtor in Possession
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SAN FERNANDO VALLEY DIVISION
Bk. No. SV 99-10944-GM
Chapter 11
In re ORDER CONFIRMING DIGITAL TECHNOLOGIES
MEDIA GROUP, INC.'S THIRD AMENDED
DIGITAL TECHNOLOGIES MEDIA GROUP, CHAPTER 11 PLAN OF REORGANIZATION
INC., a Delaware corporation,
Date: April 18, 2000
Debtor. Time: 9:00 a.m.
Place: Courtroom "303"
21041 Burbank Blvd.
Woodland Hills, CA
A hearing was held before the undersigned United States Bankruptcy
Judge on April 18, 2000 at 9:00 a.m. on the confirmation of Digital Technologies
Media Inc.'s Third Amended Chapter 11 Plan of Reorganization (the "Plan") filed
by Digital Technologies Media, Inc. Debtor and Debtor in Possession (the
"Debtor"). Martin J. Brill and Robyn B. Sokol of Robinson, Diamant & Brill, A
Professional Corporation, appeared on behalf of the Debtor. No other
appearances were made.
///
The Court having considered the Memorandum in Support of Confirmation
of Debtor's Third Amended Chapter 11 Plan of Reorganization and the Declarations
filed in support of confirmation of the Plan, and it appearing that adequate
notice and opportunity for hearing were given under all of the circumstances,
and no objections to confirmation of the Plan having been filed, hereby makes
the following findings of fact and conclusions of law:
FINDINGS OF FACT
----------------
1. The Debtor provided adequate and appropriate notice of the hearing
on confirmation of the Plan by service of the (a) "Notice To Creditors Of: (1)
126
<PAGE>
Hearing To Consider Confirmation Of Debtor's Third Amended Chapter 11 Plan of
Reorganization; (2) Time Fixed For Debtor's Receipt of Ballots Accepting or
Rejecting Plan; (3) Time Fixed For Filing Objections To Confirmation"
("Solicitation Notice") and the "Notice To Interest Holders Of: (1) Hearing To
Consider Confirmation Of Debtor's Third Amended Chapter 11 Plan; (2) Time Fixed
For Debtor's Receipt Of Ballots Accepting Or Rejecting Plan; and (3) Time Fixed
For Filing Objections To Confirmation ("Interest Holder Notice"); (b) the
"Ballot For Accepting Or Rejecting Plan" ("Ballot(s)"); (c) the "Debtor's
Disclosure Statement Describing Debtor's Third Amended Chapter 11 Plan" (the
"Disclosure Statement"); and (d) the "Debtor's Third Amended Chapter 11 Plan of
Reorganization" (the "Plan"). The noticing of the Disclosure Statement and Plan
was in accordance with the applicable provisions of the Bankruptcy Code, Federal
Rules of Bankruptcy Procedure and the Local Bankruptcy Rules. The Debtor also
mailed appropriate ballots to the members of each class entitled to vote on the
Plan.
2. No objection to confirmation of the Plan was filed or served.
3. The Plan has been accepted by at least two-thirds in amount and more
than one-half in number of allowed claims of each class held by creditors
entitled to vote and voting on the Plan. The Plan has been accepted by Class 3
Interest Holders by more than one-half in number of allowed interests.
4. The Debtor as proponent of the Plan has complied with 11 U.S.C.
1125 in connection with solicitation of acceptances to the Plan.
5. The Plan provides adequate means for its implementation.
6. The Plan provides for the selection of any officer, director or
trustee of the Debtor and/or its affiliates under the Plan, or a successor
thereto in a manner which is consistent with the interests of creditors and
equity security holders and with public policy.
7. The Plan complies with the applicable provisions of the Bankruptcy
Code.
8. The Debtor as proponent of the Plan, has complied with the
applicable provisions of the Bankruptcy Code.
9. The Plan is proposed in good faith and not by any means forbidden by
law.
///
10. Any payments made or to be made by the Debtor under the Plan to
professional persons for services or for costs and expenses in, or in connection
with, the chapter 11 case, or in connection with the Plan and incident to
the chapter 11 case, have been approved by, or are subject to further approval
of the Court, as reasonable.
11. The Debtor has disclosed the identity and affiliations of any
individual proposed to serve, after confirmation of the Plan, as a director or
officer of the Debtor and/or its affiliates.
12. The appointment to, or continuance in office of, individuals
proposed to serve as officers or directors following confirmation of the Plan is
consistent with the interests of creditors and equity security holders and
with public policy.
13. The Debtor has disclosed the identity of any insiders who will be
employed or retained by the Debtor following confirmation of the Plan and the
nature of any compensation for such insider.
14. The Debtor is not subject to the jurisdiction of any governmental
regulatory commission with respect to rate matters.
127
<PAGE>
15. Each holder of a claim or interest will receive or retain under the
Plan on account of such claim or interest property of a value, as of the
Effective Date of the Plan, that is not less than the amount that such holder
would receive or retain if the Debtor were liquidated under chapter 7 of the
Bankruptcy Code on the Effective Date of the Plan.
///
16. Each class of claims or interests has accepted the Plan.
17. Each class of claims that is impaired under the Plan has accepted
the Plan, excluding the acceptance of any insider as defined in 11 U.S.C.
101(31). Classes 1, 2 and 3, which are all impaired, voted to accept the Plan.
18. The Plan satisfies 11 U.S.C. 1129(a)(11) as the Debtor will have
enough cash on the Effective Date to satisfy all claims and expenses entitled to
be paid on such date.
19. All bankruptcy fees payable pursuant to 28 U.S.C. 1930 will be
paid on the Plan's Effective Date or as soon thereafter as possible.
20. There are no retiree benefits required to be paid or continued
under the Plan.
21. The Plan provides for the payment of all allowed priority claims in
cash in the full amount of such claims on the Effective Date of the Plan
unless such claimants have agreed to alternate satisfaction of their claims.
The evidence establishes that funds of the bankruptcy estate will be sufficient
to provide for payment in accordance with the Plan of all existing
administrative and other priority claims.
22. Any conclusion of law set forth below which is deemed a finding of
fact is incorporated herein.
CONCLUSIONS OF LAW
------------------
1. The Plan has been accepted in writing by the creditors
whose acceptances are required by law.
2. The Plan complies with the applicable provisions of Title
11 of the United States Code.
3. The Debtor has complied with the applicable provisions of
Title 11 of the United States Code.
4. The Plan has been proposed in good faith and not by any
means forbidden by law.
5. The identity, qualifications, and affiliations of the
persons who are to be directors or officers of the Debtor and/or its affiliates
after confirmation of the Plan have been fully disclosed, and the appointment of
such persons to such offices, or their continuance therein is equitable and
consistent with the interests of the creditors and equity security holders and
with public policy.
6. Solicitation of acceptances of the Plan, including the
mailing of the Plan and the Disclosure Statement, and the mailing of ballots to
holders of claims and interests, was in accordance with the orders thereon of
this Court, the provisions of the Bankruptcy Code, the Federal Rules of
Bankruptcy Procedure, Local Bankruptcy Rules, and any other applicable law.
7. Each holder of a claim or interest has accepted the Plan or will
receive or retain under the Plan property of a value, as of the Effective Date
of the Plan, that is not less than the amount that such holder would receive or
retain if the Debtor was liquidated under chapter 7 of the Bankruptcy Code on
such date.
8. With respect to each class of claims or interests under
the Plan, such class has accepted the Plan pursuant to the provisions of 11
U.S.C. 1126.
128
<PAGE>
9. The Plan provides appropriate treatment for the
claims entitled to priority pursuant to 11 U.S.C. 507, as required pursuant to
11 U.S.C. 1129(a)(9).
10. At least one class of claims that is impaired under the
Plan has accepted the Plan, excluding the acceptance of any insider as defined
in 11 U.S.C. 101(31).
11. Confirmation of the Plan is not likely to be followed by
the need for further financial reorganization, of the Debtor or any successor to
the Debtor under the Plan and the Debtor is able to satisfy all Effective Date
distributions.
12. All bankruptcy fees payable pursuant to 28 U.S.C. 1930
have been paid or shall be paid on or prior to the Plan's Effective Date.
13. There are no retiree benefits required to be paid or
continued under the Plan.
14. Any finding of fact above which is deemed a conclusion of
law is incorporated herein.
Accordingly, it is hereby
ORDERED:
A. The Debtor's Plan, a copy of which is attached hereto as
Exhibit "1," is confirmed and approved.
B. The provisions of the Plan and of this order shall be
binding on the Debtor, the Reorganized Debtor, the bankruptcy estate, and any
entity acquiring property under the Plan, and on any and all creditors and
equity security holders.
C. The property of the bankruptcy estate shall be vested in
the Reorganized Debtor as provided in Article V.B of the Plan.
D. The Reorganized Debtor shall act as disbursing agent with-
out bond and is authorized to make the disbursements required under the Plan.
E. On the Effective Date as defined in the Plan, all
creditors and claimants at law or in equity whose status is based upon any debt,
claim, lien, security interest, liability or cause of action which was in
existence as of the date of this order or which arises out of the rejection of
an executory contract or unexpired lease, shall be and are hereby, permanently
restrained and enjoined from pursuing or attempting to pursue, or from
commencing or continuing any suit or proceeding at law, or in equity, directly
or indirectly, against the Debtor and the Reorganized Debtor herein, except
pursuant to and consistent with the provisions of the Plan.
F. Pursuant to Article IV.A.1. of the Plan, the Debtor shall
assume the following executory contracts and leases: Server Lease - Intel server
for e-commerce business, Jande International - Lessor; Real Property Lease -
office space, Jande International - Lessor; Office Equipment Lease, Jande
International - Lessor; Fogdog Sport Contract - contract to sell merchandise on
the Internet, Fogdog - non-Debtor contracting party.
G. Pursuant to Article IV.A.2. of the Plan, the Debtor
rejects all of its unexpired leases and executory contracts which it does not
assume through the Plan. Within thirty (30) days following entry of this Order,
the holder of any claim arising from rejection of an executory contract or
unexpired lease shall file with the clerk and serve upon the Debtor and its
counsel a proof of claim for damages resulting from rejection or be barred from
asserting such claim or receiving any dividend or payment on account of such
claim.
129
<PAGE>
H. The Debtor and Reorganized Debtor are authorized to
execute any and all documents and to take such other actions as may be necessary
to implement the provisions of the Plan.
I. This Court shall and does hereby retain jurisdiction to
the extent provided by law.
J. All securities to be issued pursuant to the Plan to
Holders of Allowed Claims and Allowed Interests, except the Data common stock
and Digi common stock, shall be issued pursuant to the exemption contained in 11
U.S.C. 1145 from the requirements of Section 5 of the Securities Act of 1933,
and other applicable federal, state or local law requiring registration.
K. A post-confirmation status conference will be held on
August 8, 2000 at 9:00 a.m. in Courtroom "303". Not less than ten (10) days
prior to the Status Conference, the Reorganized Debtor must file a status report
("Report") explaining what progress has been made toward consummation of the
confirmed Plan. The initial Report must be served on the United States Trustee
and those parties who have requested special notice. Further reports must be
filed every one hundred twenty (120) days thereafter and served on the same
entities, unless otherwise ordered by the Court.
///
///
///
///
///
///
///
L. If the above-referenced case is converted to one under
chapter 7, the property of the Reorganized Debtor shall be revested in the
chapter 7 estate.
DATED:
___________________________________
GERALDINE MUND
UNITED STATES BANKRUPTCY JUDGE
PRESENTED BY:
ROBINSON, DIAMANT & BRILL
A Professional Corporation
By: ________________________________
MARTIN J. BRILL
Attorneys for DIGITAL TECHNOLOGIES
MEDIA GROUP, INC., Chapter 11 Debtor
and Debtor in Possession
