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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 15
Certification and Notice of Termination of Registration
under Section 12(g) of the Securities Exchange Act of 1934
or Suspension of Duty to File Reports Under Sections 13
and 15(d) of the Securities Exchange Act of 1934
Commission File No. 0-26532
Phoenix Information Systems Corp.
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(Exact name of registrant as specified in its charter)
100 Second Avenue South, Suite 1100, St. Petersburg, FL 33701 727/894-8021
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(Address, including zip code and telephone number, including
area code, of registrant's principal executive offices)
Common Stock, $.01 par value
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(Title of each class of securities covered by this Form)
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(Titles of all other classes of securities for which a duty
to file reports under section 13(a) or 15(d) remains)
Please place an X in the box(es) to designate the appropriate rule
provision(s) relied upon to terminate or suspend the duty to file reports:
Rule 12g-4(a)(1)(i) / / Rule 12h-3(b)(1)(ii) / /
Rule 12g-4(a)(1)(ii) / / Rule 12h-3(b)(2)(i) / /
Rule 12g-4(a)(2)(i) / / Rule 12h-3(b)(2)(ii) / /
Rule 12g-4(a)(2)(ii) / / Rule 15d-6 /X/
Rule 12h-3(b)(1)(i) / /
Approximate number of holders of record as of the certification or
notice date: 5,500
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Phoenix Information Systems Corp. ("Phoenix" or "the Debtor") was a
publicly traded holding company incorporated in Delaware. Phoenix owed a 70%
interest in a joint venture with China Southern Airlines, named Hainan-Phoenix
Information Systems Ltd. Phoenix had not generated any significant revenues,
earnings or history of operations from inception through November 30, 1997.
Consequently, Phoenix's continued existence depended primarily upon its ability
to raise capital. On December 3, 1997, Phoenix announced that after an extensive
and unsuccessful search for additional financing it had determined to seek
protection under Chapter 11 of the United States Bankruptcy Code. Phoenix also
announced that, subject to court approval, it had arranged for
debtor-in-possession financing and a sale of substantially all its assets for
$20 million to S-C Phoenix Partners, a major shareholder.
On December 4, 1997, Phoenix, and two of its subsidiaries, Phoenix
Systems Group, Inc. ("PSG") and Phoenix Systems Ltd. ("PSL"), filed voluntary
petitions for relief under Chapter 11, Title 11 of the United Stated Code (the
"Bankruptcy Code") with the United Stated Bankruptcy Court for the District of
Delaware (the "Court"). The Court agreed to consolidate the petitions and
provide for the joint administration of their respective cases.
On February 5, 1998, the Court approved the Asset Purchase Agreement
with S-C Phoenix Partners, whereby Phoenix was authorized to sell substantially
all of its assets. Phoenix and its subsidiaries permanently suspended all
operations during February, and the sale of assets was finalized on February 25,
1998.
On July 31, 1998, Phoenix filed an amended Joint Plan of Reorganization
(the "Plan") under Chapter 11 of the United States Bankruptcy Code. The Plan was
confirmed by the Court on November 2, 1998. The confirmation authorized Phoenix
to take such steps as may be necessary and appropriate, in its reasonable
judgment, to halt trading in Phoenix equity interest. Phoenix notified NASDAQ of
the Court's ruling on November 5, 1998, and the trading of Phoenix common stock
was terminated.
On December 4, 1998, the Court issued an order approving the Disputed
Claims Agent Agreement, whereby the duties and responsibilities of the Disputed
Claims Agent, as specified in the Plan, were revised and expanded to include all
rights and responsibilities of the Debtors in connection with the dissolution
and winding down of the Debtors.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934
Phoenix Information Systems Corp. has caused this certification/notice to be
signed on its behalf by the undersigned duly authorized person.
Phoenix Information Systems Corp.
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(Registrant)
DATE: 3-17-99 BY: /s/ Barry G. Radick
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(Signature)
Barry G. Radick, Disputed Claims Agent for the Debtor
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(Print the name and title of the signing officer)
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EXHIBITS TO FORM 15
DATE OF EARLIEST EVENT REPORTED: DECEMBER 3, 1997
FOR
PHOENIX INFORMATION SYSTEMS CORP.
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INDEX TO EXHIBITS
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10.46 Order Approving Asset Purchase Agreement with S-C Phoenix
Partners dated February 5, 1998.
10.47 Order Confirming Plan of Reorganization dated November 2, 1998.
10.48 Order Approving Disputed Claims Agent Agreement, Disbursing
Agent Agreement, Common Stock Settlement Fund Administration
Agreement and Tag-Along Agreement dated December 4, 1998.
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EXHIBIT 10.46
Order Approving Asset Purchase Agreement with S-C Phoenix Partners dated
February 5, 1998.
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: )
)
PHOENIX INFORMATION SYSTEMS )
CORP., PHOENIX SYSTEMS LTD., and ) Case No. 97-2498(RRM)
PHOENIX SYSTEMS GROUP, INC., )
)
Debtors. )
ORDER PURSUANT TO 11 U.S.C. SS 105(a), 363(b), (f), AND (m), AND 365
APPROVING ASSET PURCHASE AGREEMENT WITH S-C PHOENIX PARTNERS,
AUTHORIZING THE SALE OF SUBSTANTIALLY ALL OF DEBTORS' ASSETS
FREE AND CLEAR OF LIENS, CLAIMS AND ENCUMBRANCES, THE ASSUMPTION
AND ASSIGNMENT OF CERTAIN EXECUTORY CONTRACTS AND LEASES, AND THE
ASSUMPTION OF CERTAIN LIABILITIES
For the reasons set out in the court's February 5, 1998, opinion,
IT IS HEREBY ORDERED that:
(1) The Debtors' motion for an order pursuant to 11 U.S.C. ss
105(a), 363(b), (f), and (m), and 365 approving Asset Purchase Agreement with
S-C Phoenix is granted.
(2) The Debtors' motion for an order pursuant to 11 U.S.C. ss
105(a), 363(b), (f), and (m), and 365 authorizing the sale of substantially all
of debtors' assets free and clear of liens, claims, and encumbrances, the
assumption and assignment of certain executory contracts and leases, and the
assumption of certain liabilities, pursuant to and
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as described in the Asset Purchase Agreement, is granted.
/s/ Roderick R. McKelvie
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UNITED STATES DISTRICT JUDGE
Dated: February 5, 1998
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EXHIBIT 10.47
Order Confirming Plan of Reorganization dated November 2, 1998.
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
In re Chapter 11
PHOENIX INFORMATION SYSTEMS CORP., : Case Nos.
et al., 97-2498 through
Debtors. : 97-2500 (RRM)
Jointly Administered
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
CONFIRMING PLAN OF REORGANIZATION
DATED OCTOBER 30, 1998 UNDER CHAPTER 11
OF THE UNITED STATES BANKRUPTCY CODE
AND GRANTING RELATED RELIEF
Phoenix Information Systems Corp. ("Phoenix"), Phoenix Systems Group,
Inc. ("PSG") and Phoenix Systems Ltd. ("PSL"), the above-captioned debtors and
debtors in possession (collectively, the "Debtors"), and SC Phoenix Partners
("SC Phoenix") and Xenophi Limited ("Xenophi") (the Debtors, SC Phoenix and
Xenophi collectively are referred to herein as the "Proponents"), having filed
the Debtors' Joint Plan of Reorganization Under Chapter 11 of the United States
Bankruptcy Code dated July 1, 1998 as amended on July 31, 1998 (the "First
Amended Plan"), as further modified on October 30, 1998 (the First Amended Plan
as amended by the modification on October 30, 1998 is referred to herein as the
"Plan") (terms not defined herein shall have the meanings ascribed to them in
the Plan); and the Debtors' Disclosure
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Statement dated July 1, 1998 as amended on July 31, 1998 (the "Disclosure
Statement"), having been approved by the Court pursuant to the Order Approving
Disclosure Statement and Fixing Time for Voting and Filing Objections to
Confirmation and Setting Confirmation Hearing, dated August 4, 1998 as amended
on August 7, 1998 (the "Disclosure Statement Order"); and copies of (a) the
notice of hearing on confirmation of the Plan, (b) the First Amended Plan, (c)
the Disclosure Statement, (d) the Disclosure Statement Order, and (e) the
appropriate Ballot(s) with instructions and a return envelope (collectively the
"Solicitation Package"), having been transmitted to all creditors, equity
security holders and other parties in interest, all in accordance with the
Disclosure Statement Order and as further permitted by the Court as described in
paragraph 1 herein of this Court's findings; and the Disclosure Statement Order
having fixed (a) September 21, 1998, at 4:00 p.m. as the last day for voting on
the Plan (the "Voting Deadline"), (b) September 14, 1998 as the last day for
filing and serving written objections to confirmation of the Plan, and (c)
September 28, 1998 at 10:00 a.m. as the date and time for the hearing on
confirmation of the Plan (the "Confirmation Hearing"); and proper, timely and
sufficient notice of the Confirmation Hearing, the Voting Deadline, the date by
which objections must be filed and served, having been given and published in
accordance with the terms of
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the Disclosure Statement Order and as further permitted by the Court as
described in paragraph 1 herein of this Court's findings; and proper and timely
filing and service of the forms of the Common Stock Settlement Fund
Administration Agreement, the Disbursing Agent Agreement, the Disputed Claims
Agent Agreement (collectively, the "Agreements"), the New PSL Charter and the
List of New PSL Board members, having been effected on September 18, 1998; and
objections to the confirmation of the First Amended Plan having been filed by
the Official Committee of Equity Security Holders of Phoenix (the "Equity
Committee"), the Securities and Exchange Commission and Gerald P. Lorentz; and
the Confirmation Hearing having been held on October 2, 1998 and October 21,
1998; and the court having considered all objections to confirmation of the
Plan; and all objections to the confirmation of the Plan having been withdrawn
or overruled on October 21, 1998; and upon the entire record and the evidence
presented at the Confirmation Hearing, all pleadings of record, and the
arguments and representations of counsel, the Court makes the following
findings of fact and conclusions of law:
THE COURT HEREBY FINDS THAT:
1. On August 4, 1998, the Court approved the Disclosure Statement. Upon
the entry of the Disclosure Statement Order, the Debtors or their designees
timely and properly gave and published notice of the Confirmation Hearing, the
Voting
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Deadline, the date by which objections to Confirmation of the Plan must be
filed and served, and other matters to be noticed pursuant to the Disclosure
Statement Order. In accordance therewith, the Debtors served copies of the
Solicitation Package by mail to all creditors, equity security holders and
other parties in interest as provided by Bankruptcy Rule 3017(d) pursuant to
Bankruptcy Rule 3017(c). Certain Shareholders did not receive the Solicitation
Package in accordance with the Disclosure Statement Order; such Shareholders
were mailed the solicitation Package on or about October 5, 1998, with a notice
urging them to cast their ballots as soon as possible. The Court finds that
mailing of the Solicitation Packages, as evidenced by the affidavits of service
filed by Peter Ford as Balloting Agent and his designees and the
representations made by Debtors' counsel at the Confirmation Hearing, together
with the notice by publication, were proper, timely, and constituted sufficient
notice of the Confirmation Hearing, voting on the Plan and all other matters to
be noticed pursuant to the Disclosure Statement Order.
2. The Court finds that in accordance with section 1125(e) of title 11
of the United States Code (the "Bankruptcy Code"), the Proponents and their
designees, agents, representatives, attorneys, accountants and advisors acted
in good faith in soliciting acceptances or rejections of the Plan and in
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compliance with all applicable provisions of the Bankruptcy Code.
3. The Court further finds that the solicitation of acceptances or
rejections of the Plan by the Proponents was conducted in good faith and in
compliance with the Bankruptcy Code, Bankruptcy Rules, the Disclosure Statement
Order and any other procedures established by the Court. The process, procedures
and mechanisms for creditors and equity security holders to make any permitted
elections as provided under the Plan have been conducted in good faith and
comply with any applicable provisions of the Bankruptcy Code, Bankruptcy Rules,
the Disclosure Statement Order and any other procedures established by the
Court.
4. As set forth in the Certificate of Balloting regarding the results of
voting on the Plan, filed on September 28, 1998 and supplemented on October
21, 1998, all Classes entitled to vote on the Plan have accepted the Plan in
terms of both number and amount, in accordance with section 1126 of the
Bankruptcy Code. Accordingly, the Plan satisfies section 1129(a)(8) of the
Bankruptcy Code.
5. The Plan complies with the applicable provisions of the Bankruptcy
Code, as required by Bankruptcy Code section 1129(a)(1).
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6. The Proponents have complied with the provisions of the Bankruptcy
Code, as required by section 1129(a)(2) of the Bankruptcy Code.
7. The Plan has been proposed in good faith and not by any means
forbidden by law, as required by section 1129(a)(3) of the Bankruptcy Code.
8. Any payment made or to be made by the Debtors, by the Proponents, or
by a person acquiring property under the Plan, for services, costs or expenses
in or in connection with these Chapter 11 Cases, or in connection with the Plan
and incident to these Chapter 11 Cases, has been approved by or is subject to
approval of the Court as reasonable, as required by section 1129(a)(4) of the
Bankruptcy Code.
9. The identity and affiliations of the persons proposed to serve, after
confirmation of the Plan, as a director, officer or voting trustee, if any, of
Reorganized PSL, to the extent known, have been fully disclosed by the
Proponents, are consistent with the interests of creditors and equity security
holders and are in accord with public policy; the Proponents have also disclosed
the identity of any insider that will be employed or retained by Reorganized
PSL, and have otherwise complied with all of the requirements of section
1129(a)(5) of the Bankruptcy Code.
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10. The Plan does not provide for any rate changes requiring the
approval of a governmental regulatory commission, as contemplated by section
1129(a)(6) of the Bankruptcy Code.
11. Each holder of a claim or equity interest has accepted the Plan or
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 Debtors were
liquidated under Chapter 7 of the Bankruptcy Code on such date, as is required
by section 1129(a)(7)(A) of the Bankruptcy Code. The Court further finds that,
under the Plan, the holders of Claims and Interests will receive more than they
would receive if the Debtors were liquidated under Chapter 7 of the Bankruptcy
Code.
12. No election for application of section 1111(b)(2) of the Bankruptcy
Code by any Class of Secured Creditors has been made, and the requirements of
Bankruptcy Code section 1129(a)(7)(B) do not apply to the Plan.
13. Except to the extent that the holder of a particular Claim has
agreed to a different treatment of such Claim, the Plan provides, as required
by Bankruptcy Code section 1129(a)(9), that:
(a) with respect to an Allowed Claim of a kind specified in section
507(a)(1) of the Bankruptcy Code, on the Effective Date of the Plan, the
holder of such Claim will receive on account of such Claim cash equal to
the
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Allowed amount of such Claim as required by section 1129(a)(9)(A) of the
Bankruptcy Code;
(b) with respect to a Class of Allowed Claims of a kind specified in
section 507(a)(3) or 507(a)(4) of the Bankruptcy Code, the holders of such
Claims will receive cash on the Effective Date of the Plan equal to the
Allowed amount of such Claim as required by section 1129(a)(9)(B) of the
Bankruptcy Code; and
(c) with respect to an Allowed Claim of a kind specified in section
507(a)(8) of the Bankruptcy Code, the holder of such Claim will receive on
account of such Claim payment in full, in cash on the Effective Date, or
deferred cash payments, over a period not exceeding six 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 as required by section
1129(a)(9)(c) of the Bankruptcy Code.
The Plan provides for the payment of Allowed Administrative Claims, Allowed
Priority Tax Claims and Allowed Priority Claims on or as soon as practicable
after the later of (a) the Effective Date, (b) the date that such Claim becomes
an Allowed Claim, or (c) on such date as the holder of any such Allowed Claim
and the Debtor against which it holds such Claim have agreed or shall agree.
14. No Claims exist against the Debtors of a kind specified in sections
507(a)(5), 507(a)(6) or 507(a)(7) of the Bankruptcy Code. Section 507(a)(2) of
the Bankruptcy Code is not applicable to the Debtors' cases.
15. The Court finds that the Plan is feasible and that (a) with respect to
PSL, confirmation and consummation of the Plan is not likely to be followed by
the liquidation, or the need for
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further financial reorganization, of Reorganized PSL, and (b) with respect to
Phoenix and PSG, the Plan provides for their liquidation, all as required by
section 1129(a)(11) of the Bankruptcy Code.
16. All fees payable under 28 U.S.C. section 1930 have been paid, or the
Plan provides for the payment of all such fees on the Effective Date of the
Plan, as required by section 1129(a)(12) of the Bankruptcy Code.
17. The Plan provides for the amendment to the Charter of Reorganized
PSL and the filing of the By-Laws of Reorganized PSL with the Secretary of
State of the State of Delaware, each containing provisions as are necessary to
satisfy the terms of the Plan and section 1123(a)(6) of the Bankruptcy Code.
18. The classification of all Claims and Interests as provided under the
Plan is hereby authorized and approved, and is proper, complies with applicable
law, and satisfies the requirements of the Bankruptcy Code, including, but not
limited to, sections 1122(a) and 1123(a)(1), (2), (3) and (4).
19. The provisions governing the making of distributions and payments,
as provided for in the Plan, are necessary, fair, reasonable and appropriate.
The distribution procedures, mechanisms and proposed allocations provided in
Article VI of the Plan are necessary, fair, reasonable and appropriate.
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20. The modification of the Plan provisions relating to the Tag-Along
Agreement and such other Plan modifications related thereto or contemplated
thereby are necessary, fair, reasonable and appropriate. The Court hereby finds
that such modifications satisfy the requirements of Bankruptcy Rule 3019 and do
not adversely change the treatment of the Claim of any creditor or the Interest
of any security holder who has not accepted the modification in writing.
21. All aspects of the appeal filed by the Equity Committee to this
Court's Memorandum Decision and Order dated February 5, 1998, approving the
sale of substantially all of the Debtors' assets to SC Phoenix and its
affiliates, shall be withdrawn with prejudice.
22. The Debtors have either assumed or rejected their executory
contracts and unexpired leases as of October 21, 1998. Any remaining executory
contract or unexpired lease entered into by the Debtors prior to the Petition
Date, that has not previously been assumed or has not previously expired or
terminated pursuant to its own terms, is hereby deemed rejected in accordance
with the Debtors' business judgment.
23. Pursuant to section 1123(b)(3)(A) of the Bankruptcy Code and
Bankruptcy Rule 9019(a): the settlements and compromises embodied in the Plan
are proper, fair, reasonable and in the best interests of the Debtors, their
Estates, and any
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holders of Claims or Interests against the Debtors, including, without
limitation, the Common Stock Settlement as set forth in the Plan which provides,
among other things, that (a) the Common Stock Settlement Fund Administrator and
Xenophi shall become parties to the Tag-Along Agreement, (b) the Non-
participating Shareholders and any other Released Parties holding
Indemnification Claims shall waive their right to participate in the Common
Stock Settlement and shall waive any Indemnification Claims against the Debtors'
Estates with the exception of Indemnification Claims arising from the breach of
the releases and injunction set forth in Section 9.3 of the Plan or that are not
released pursuant to Section 9.3 of the Plan, (c) SC Phoenix shall waive its
right to any claims under section 503(b)(3) of the Bankruptcy Code, and (d) the
Releases and Injunction set forth in Section 9.3 of the Plan shall become fully
effective.
24. All settlements and compromises of claims and causes of action
against non-Debtor entities that are embodied in the Plan, including, without
limitation, the releases and injunctions provided in Section 9.3 of the Plan,
which are approved herein as proper, fair, reasonable and in the best interests
of the Debtors, their Estates and any holders of Claims or Interests against
the Debtors, are effective and binding on all persons and entities who, prior
or pursuant to the filing of these Chapter 11 Cases, may have had standing to
assert such claims or causes of
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action, and no person or entity shall possess such standing to assert such
claims or causes of action after the Effective Date.
25. Because Xenophi is a Proponent of the Plan and one of the Debtors,
PSL, is an affiliate of Xenophi, the Common Stock Settlement Certificates (the
"Certificates") to be issued to existing equity security holders pursuant to the
Common Stock Settlement will be issued pursuant to the exemption from
registration under the Securities Act of 1933 (the "Securities Act") offered by
section 1145(a) of the Bankruptcy Code.
26. Neither Xenophi nor the Certificates are subject to registration
under the Securities Exchange Act of 1934 (the "Exchange Act") because (a)
Section 12(b) and Section 15(d) are inapplicable and (b) Section 12(g) is
inapplicable because the Certificates do not constitute an "equity security" as
defined under Section 3(a)(11) of the Exchange Act.
27. The Certificates are not now traded or registered for trading on any
securities exchange and are not proposed to be traded or registered for trading
on any such exchange in the future. The Certificates are not transferable at all
other than under the very limited circumstances of transfer by operation of law.
Thus, neither Xenophi nor the Certificates are subject to registration under
Section 12(b) of the Exchange Act.
28. Neither Xenophi nor the Certificates are subject to registration
under Section 15(d) of the Exchange Act.
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Registration under such section of the Exchange Act applies only to an issuer
which files a registration statement which has become effective pursuant to the
Securities Act. Xenophi has not and does not propose to file any registration
statement under the Securities Act in connection with the above captioned
bankruptcy cases.
29. Neither Xenophi nor the Certificates are subject to registration
under Section 12(g) of the Exchange Act. Registration under such section of the
Exchange Act applies only to an issuer with "a class of equity security" held
of record by five hundred or more persons. The Certificates do not constitute
an "equity security" as such term is defined under Section 3(a)(11) of the
Exchange Act.
NOW, AFTER DUE DELIBERATION, THE COURT HEREBY ORDERS, ADJUDGES AND
DECREES THAT:
1. The Plan be, and it hereby is, confirmed.
2. The Common Stock Settlement and the Tag-Along Agreement (as amended
and submitted to the Court together with the Plan) are hereby approved pursuant
to Bankruptcy Rule 9019 as effecting a fair, equitable, reasonable and
non-discriminatory compromise of the controversies and claims resolved by the
Common Stock Settlement and the Plan and is of substantial benefit to creditors
and equity security holders of the Debtors, and other parties in interest. The
Common Stock Settlement and the Tag-
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Along Agreement are hereby deemed binding on all persons affected thereby and
deemed effective as of the Effective Date of the Plan.
3. The Certificates are not securities giving rise to any reporting or
disclosure obligations on the part of Xenophi or any of its Affiliates.
4. The releases and injunctions set forth in Section 9.3 of the Plan are
hereby approved as proper and valid and as effecting a fair, equitable,
reasonable and non-discriminatory compromise of the controversies and claims
released and enjoined thereby and under the Common Stock Settlement, in the
best interests of the Debtors' Estates. The consideration given under the Plan
in exchange for the releases and injunctions is hereby deemed adequate and
fair. Pursuant to the releases and injunctions set forth in Section 9.3 of the
Plan, and pursuant to this Order, such releases and injunctions are hereby
deemed effective as of the Effective Date of the Plan, at which time the
Debtors, their Estates, each holder of a Claim or Interest, including all
holders of Administrative Expense Claims, each holder of a right to set off,
and each party to any pending action or proceeding, against the Debtors,
regardless of their acceptance of or objection to the Plan, shall be deemed to
have released unconditionally, and are hereby deemed to have released
unconditionally, (a) the Debtors and their respective officers,
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directors, Shareholders, partners, Affiliates, employees, consultants, financial
advisors, attorneys, accountants, other agents, representatives and each of
their respective successors, executors, administrators, heirs and assigns, (b)
SC Phoenix and its officers, directors, Shareholders, partners, Affiliates,
employees, consultants, financial advisors, attorneys, accountants, other
agents, representatives and each of their respective successors, executors,
administrators, heirs and assigns, and (c) any Person covered by a valid
indemnity of the Debtors and such Person's officers, directors, Shareholders,
partners, Affiliates, employees, consultants, financial advisors, attorneys,
accountants, other agents, representatives and each of their respective
successors, executors, administrators, heirs and assigns (the entities referred
to in clauses (a), (b) and (c), collectively, the "Released Parties"), from any
and all claims, obligations, suits, judgments, damages, rights, Causes of Action
or Liabilities whatsoever (other than the right to enforce the Debtors'
obligations under the Plan or as otherwise provided in the Plan), whether known
or unknown, foreseen or unforeseen, in each case whether existing or hereafter
arising, in law, equity or otherwise, bases in whole or in part upon any act or
omission, transaction, event or other occurrence taking place on or prior to the
Effective Date in any way relating to the Released Parties, the Debtors and/or
their Affiliates, the Chapter 11
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Cases, the Plan, or any act of compliance with the Plan (including, without
limitation, the transfer of any assets), and in each case regardless of whether
a proof of Claim or Interest has been filed or deemed filed, or whether or not
Allowed, and this Order hereby enjoins the prosecution by any Person, whether
directly, derivatively or otherwise, of any claim, debt, right, Cause of Action
or Liability which was or could have been asserted against the Released
Parties, except as otherwise provided in the Plan, provided, however, that such
release and injunction shall not be effective as to (a) any Claim arising in
the normal course of business after the Petition Date until such claim has been
paid, satisfied or otherwise disposed of, and (b) any Excluded Claims. Nothing
in the Plan, the Common Stock Settlement Agreement, the Tag-Along Agreement or
this Confirmation Order will restrict any federal government regulatory agency
from pursuing any regulatory or police enforcement action against any party
released herein.
5. To the extent any objections to confirmation of the Plan have not
been withdrawn prior to entry of this Order or are not cured by the relief
granted herein, all remaining objections to confirmation of the Plan be, and
they hereby are, overruled, and all withdrawn objections be, and they hereby
are, deemed withdrawn with prejudice.
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6. The Record Date for distribution to creditors and equity security
holders shall be October 21, 1998, pursuant to Bankruptcy Rule 3021, and
Section 6.4 of the Plan. Phoenix is hereby authorized to give notice to all
banks, brokers, depositories and other similar financial intermediaries and
"street name" holders of said Record Date. Phoenix is hereby authorized to take
such steps as may be necessary and appropriate, in its reasonable judgment, to
halt trading in Phoenix equity interests and to close the books of the transfer
agent(s) for such securities.
7. The record of the Confirmation Hearing be, and it hereby is, closed.
8. the Tag-Along Agreement, as amended, is hereby approved and the
Debtors are authorized and directed to take all necessary and appropriate steps
and perform all necessary and appropriate acts, to consummate the terms and
conditions of the Tag-Along Agreement and all transactions contemplated
therein. Without limiting the foregoing, the Debtors are directed to prepare a
list of all Participating and Non-Participating Shareholders (the "Shareholder
List") as of the Record Date. The Debtors are further directed to serve a copy
of the Shareholder List on all Non-Participating Shareholders and the Equity
Committee, within thirty (30) days from the date of this Order. Any shareholder
or party in interest shall have ten (10) business days after receipt
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of the Shareholder List to object to the designation of Shareholders on the
Shareholder List by filing the objection with the Bankruptcy Court and serving
a copy on the Debtors, the Shareholders who are the subject matter of the
objection, and counsel for the Equity Committee. In the event any filed
objection is not resolved, this Court shall have jurisdiction to hear and
resolve any such objection. In the event no objection is filed, the Debtors are
hereby authorized to direct the Common Stock Settlement Fund Administrator as
to which holders of the Debtors' Common Stock Interests are Participating
Shareholders prior to, and for purposes of, distribution of the Common Stock
Settlement Certificates. Simultaneously therewith, the Debtors shall send a
copy of such direction to counsel to the Official Committee of Equity Security
Holders of Phoenix who is further authorized to send a copy of the Shareholder
List to the Equity Committee. The Equity Committee shall have three (3)
business days to object to the Shareholder List prior to such list becoming
final and effective. In accordance with the Plan and the Common Stock
Settlement Fund Administration Agreement, either the Debtors or the Common
Stock Settlement Fund Administrator shall send notice to all holders on the
Shareholder List of the requirement under the Plan that they surrender to the
Common Stock Settlement Fund Administrator any instrument or other document
underlying or evidencing such Common Stock Interest or
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Subordinated Claim in order to receive a Common Stock Settlement Certificate.
9. In accordance with section 1141 of the Bankruptcy Code, the Plan and
its provisions hereby are binding upon the Debtors and their successors,
including Reorganized PSL, any Person or entity acquiring or receiving property
under the Plan, and any holder of a Claim against or Interest in the Debtors,
whether or not the Claim or Interest of such holder is impaired under the Plan
and whether or not such holder has filed, or is deemed to have filed, a proof
of Claim or Interest, or has accepted or rejected the Plan.
10. In accordance with section 1141 of the Bankruptcy Code, any property
transferred or otherwise dealt with by the Plan hereby is free and clear of all
Claims against and Interests in the Debtors.
11. Pursuant to this Order, on the Effective Date, the transfers of
assets by the Debtors contemplated under the Plan will be deemed legal, valid,
binding and effective transfers of property and will, to the fullest extent
permitted by the Bankruptcy Code, vest in the respective transferee good title
to such property, free and clear of all liens, claims and encumbrances, except
as otherwise provided for by the Plan or as required in order to implement the
Plan and/or the Agreements provided thereunder.
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<PAGE> 21
12. In accordance with section 1141 of the Bankruptcy Code, except as
otherwise specifically provided in the Plan, upon the occurrence of the
Effective Date, the consideration distributed under the Plan shall be in
exchange for and in complete satisfaction, release, and termination of, all
Claims or Interests of any nature whatsoever against the Debtors or any of
their assets or properties, and except as otherwise provided herein or in the
Plan, upon the Effective Date PSL shall be discharged and released pursuant to
section 1141(d)(1)(A) of the Bankruptcy Code, from any and all debts and
Claims, including, but not limited to demands and liabilities that arose before
the Effective Date, all debts of the kind specified in section 502(g), 502(h)
or 502(i) of the Bankruptcy Code, whether or not (a) a proof of Claim based
upon such debt has been filed or deemed filed under section 501 of the
Bankruptcy Code; (b) a Claim based upon such debt has been allowed under
section 502 of the Bankruptcy Code; or (c) the holder of a Claim based upon
such debt has accepted the Plan. This Order is a judicial determination,
effective on the occurrence of the Effective Date, of termination of all
liabilities of and all Claims against, and all Interests in, the Debtors,
including a discharge of all debts and Claims against and all Interests in PSL,
except as otherwise specifically provided in the Plan. On the Effective Date,
as to every discharged or released debt, Claim or Interest, the holder
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<PAGE> 22
of such debt, or Interest is permanently enjoined and precluded from asserting
against the Debtors, Reorganized PSL or against their assets or properties or
any transferee thereof, any other or further Claim or Interest based upon any
document, instrument or act, omission, transaction or other activity of any
kind or nature that occurred prior to the Effective Date, except as expressly
set forth in the Plan or this Order.
13. In accordance with section 524 of the Bankruptcy Code, effective on
the occurrence of the Effective Date, this Order:
(i) voids any judgment at any time obtained, to the extent
that such judgment is a determination of the liability of PSL with
respect to any debt or Claim discharged hereby; and
(ii) operates as an injunction against the commencement or
continuation of an action, the employment process, or an act, to
collect, recover or offset any such debt or Claim as a liability of
PSL.
14. In accordance with section 1142 of the Bankruptcy Code, the Debtors,
Reorganized PSL and any other entity or person designated pursuant to the Plan
be, and they hereby are, authorized, empowered and directed to issue, execute,
deliver, file and record any document, and to take any action necessary or
appropriate to implement, effectuate and consummate the Plan and the Agreements
contemplated thereunder, and any transactions contemplated thereby in accordance
with their respective terms, whether or not any such document is specifically
referred to in
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<PAGE> 23
the Plan or exhibits thereto, and without further application to or order of
this Court.
15. Pursuant to section 1142(b) of the Bankruptcy Code, but subject to
the retained jurisdiction of the Court to resolve disputes as provided in the
next sentence, all Persons holding Claims or Interests which are dealt with
under the Plan be, and they hereby are, directed to execute, deliver, file or
record any document, and to take any action necessary to implement, effectuate
and consummate the Plan in accordance with its terms and all such persons shall
be bound by the terms and provisions of all documents to be executed by them in
connection with the Plan, whether or not such documents actually have been
executed by such Persons. The Court retains jurisdiction to hear and determine
any dispute concerning the proposed application of section 1142 of the
Bankruptcy Code and of the preceding sentence. The foregoing shall not,
however, in any manner adversely affect or impair any of the rights of the
parties to the agreements under the Plan or release any such party from any
condition under the agreements and instruments relating thereto.
16. After the Effective Date, objections to Claims shall be made, and
objections to Claims or Interests made previous thereto shall be pursued, only
by the Disputed Claims Agent and its counsel, LeBoeuf, Lamb, Green & MacRae,
L.L.P., or the non-Debtor Proponents. Any objections made by the Disputed Claims
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<PAGE> 24
Agent after the Effective Date shall be served and filed not later than 180
days after the Effective Date; provided, however, that such period may be
extended by Order of this Court for good cause shown.
17. From and after the Effective Date, the Disputed Claims Agent may
litigate to judgment, propose settlements of, or withdraw objections to, all
pending or filed Disputed Claims and Interests and may settle or compromise any
Disputed Claim or Interest.
18. From and after the Effective Date, any notice to be provided shall
be sufficient if provided to (i) the list of creditors as required under
Bankruptcy Rule 2002; or (ii) all parties whose rights may be affected by the
action which is the subject of the notice; and such notice as is approved as
sufficient by Order of this Court.
19. In accordance with Section 12.2 of the Plan, the Equity Committee
shall terminate on the Effective Date and shall thereafter have no further
responsibilities in respect of these Chapter 11 Cases except as expressly set
forth in Section 12.2 of the Plan.
20. Pursuant to the Plan, and in accordance with section 1142 of the
Bankruptcy Code, the Debtors are hereby authorized to take such corporate
action as may be necessary and appropriate to implement and effectuate
consummation of the Plan and each of the
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<PAGE> 25
agreements and instruments referred to therein or contemplated thereby, in this
Order, or under the Plan.
21. The Debtors are authorized and directed to do and perform all acts
and to make, execute and deliver all instruments, agreements and documents, in
each case, necessary or appropriate to consummate the transactions, including,
without limitation, the execution, delivery, performance and administration of
the (a) Common Stock Settlement Fund Administration Agreement, (b) Disbursing
Agent Agreement, (c) Disputed Claims Agent Agreement, (d) New PSL Charter, and
(e) Tag-Along Agreement, in substantially the form filed with the Court, and
identified and made a part of the evidence presented at the Confirmation
Hearing, the form of each of which is hereby approved by the Court.
22. From and after the Effective Date, Reorganized PSL may use, operate
and deal with its respective assets, and may conduct and change its business,
without any supervision by the Bankruptcy Court or the Office of the United
States Trustee, and free from any restrictions imposed on the Debtors by the
Bankruptcy Code or by the Court during these Chapter 11 Cases.
23. All Interests in Phoenix and PSG be, and they hereby are, cancelled,
annulled and extinguished effective as of the Effective Date.
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<PAGE> 26
24. Applications for allowance of Administrative Expense Claims (with
the exception of Claims for Administrative Taxes and Administrative Expense
Claims incurred in the ordinary course or previously Allowed by a Final Order
of the Bankruptcy Court), including all applications of Professionals under
sections 330 or 503(b) of the Bankruptcy Code for allowance of compensation and
reimbursement of expenses accrued through the Effective Date, must be filed not
later than sixty (60) days after the Confirmation Date, and shall only be paid
pursuant to applicable orders of this Court governing payment of professional
fees and the applicable provisions of the Plan. Claims for Professional Fees
filed after such date shall automatically be deemed disallowed for all purposes
under the Plan unless and until the Claimant obtains an order of the Court
allowing such Claims. Payment of any Administrative Expense Claim, with the
exception of those Claims not subject to an Administrative Expense Claim Bar
Date, shall be subject to approval by the Bankruptcy Court following a hearing.
Objections to requests for payment of Administrative Expense Claims must be
filed with the Court, and served on counsel for the Debtors, the U.S. Trustee,
counsel for the Equity Committee and counsel for SC Phoenix, within thirty (30)
days of the service of an application requesting such payment.
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<PAGE> 27
25. Claims for Administrative Taxes for the period beginning on the
Petition Date and ending on the Effective Date, shall be filed within ninety
(90) days after the Effective Date, provided that such ninety day period shall
not begin to run until the appropriate Tax return is filed by the applicable
Debtor or Debtors.
26. Notwithstanding confirmation of the Plan and in addition to the
provisions in Article XI of the Plan for retention of jurisdiction thereunder,
this Court hereby retains exclusive jurisdiction over the Debtors' Chapter 11
Cases pursuant to and for the purposes of (a) sections 105(a) and 1127 of the
Bankruptcy Code; (b) Article VII of the Plan; and (c) for such other purposes
as may be necessary or useful to aid in the confirmation and consummation of
the Plan and its implementation.
27. Pursuant to Bankruptcy Rule 3020(c), the Debtors shall promptly
serve notice of entry of this order, as well as a notice to equity holders of
the name and address of the Common Stock Settlement Fund Administrator and
purpose of the Common Stock Settlement Fund, including a statement of how
Participating Shareholders may receive Common Stock Settlement Certificates
upon turning over their shares of stock, and how Common Stock Settlement
Certificate holders can obtain information from the Common Stock Settlement
Fund Administrator, as provided in Bankruptcy Rule 2002(f) to all creditors,
equity security holders
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<PAGE> 28
and other parties in interest, to be sent by first class mail, postage
pre-paid, except to such parties who may be served by hand or facsimile or
overnight courier, which service is hereby authorized.
28. To the extent that any provision designated herein as a findings of
fact is more properly characterized as a conclusion of law, it is adopted as
such. To the extent that any provision designated herein as a conclusion of law
is more properly characterized as a findings of fact, it is adopted as such.
The provisions of this Order are integrated with each other and are
non-severable and mutually dependent.
Dated: November 2, 1998
Wilmington, Delaware
/s/ Roderick R. McKelvie
--------------------------------------
U.S. District Court Judge
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<PAGE> 1
EXHIBIT 10.48
Order Approving Disputed Claims Agent Agreement, Disbursing Agent Agreement,
Common Stock Settlement Fund Administration Agreement and Tag-Along Agreement
dated December 4, 1998.
<PAGE> 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re ) Chapter 11
)
PHOENIX INFORMATION SYSTEMS CORP., ) Case No. 97-2498 (RRM)
et al., ) (Jointly Administered)
)
Debtors. )
ORDER APPROVING DISPUTED CLAIMS AGENT AGREEMENT,
DISBURSING AGENT AGREEMENT, COMMON STOCK SETTLEMENT
FUND ADMINISTRATION AGREEMENT AND TAG-ALONG AGREEMENT
Phoenix Information Systems Corp., Phoenix Systems Group Inc. and
Phoenix Systems Ltd., the above captioned debtors and debtors in possession
(collectively, the "Debtors") having filed their joint plan of reorganization
under chapter 11 of the United States Code July 1, 1998, as amended on July 31,
1998, as further modified on October 30, 1998 (the "Plan"), and the Plan having
been confirmed by an order of this Court dated November 2, 1998 (the
"Confirmation Order"); and the Confirmation Order having approved certain
exhibits to the Plan including the Disputed Claims Agent Agreement, Disbursing
Agent Agreement, Common Stock Settlement Fund Administration Agreement and
Tag-Along Agreement (collectively, the "Exhibits") in substantially the same
form as the forms of such Exhibits annexed to the Plan; and the Disputed Claims
Agent Agreement having been revised to expand the Disputed Claims Agent's duties
and responsibilities to
<PAGE> 3
include, among other things, that the Disputed Claims Agent will succeed to all
the rights and responsibilities of the Debtors in connection with the
dissolution of the Debtors and the Debtors' implementation of the Plan, and
that the Disputed Claims Agent is empowered to perform such tasks, as provided
under the Plan, including, but not limited to, (a) terminating the Debtors'
401(k) plan or other retirement plans; (b) preparing operating reports to the
Office of the United States Trustee; (c) preparing and filing tax returns on
behalf of the Debtors' estates, (d) exchanging stock certificates with Common
Stock Settlement Certificates; and/or (e) otherwise causing the wind-down and
dissolution of the Debtors; and the Disbursing Agent Agreement, Common Stock
Settlement Fund Administration Agreement and the Tag-Along Agreement having
been revised in a manner not to materially change the purpose of such Exhibits;
and the Debtors having requested the entry of an order approving the Exhibits
in their revised form; and the Debtors having further requested that they be
authorized to transfer the Notes (as defined in the First Amended Disclosure
Statement Pursuant to Section 1125 of the Bankruptcy Code for the Plan) to the
Disputed Claims Agent in order for the Disputed Claims Agent to carry out its
duties and responsibilities under the Plan and the Disputed Claims Agent
Agreement; and for good cause appearing; it is hereby
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<PAGE> 4
ORDERED, that the Disputed Claims Agent shall succeed to all of the
rights of the Debtors and is authorized to assume the responsibilities of the
Debtors relating to dissolving and winding down the Debtors as set forth in the
Exhibits, and executing and transmitting all notices and documents and otherwise
implementing the Plan; and it is further
ORDERED, that the Exhibits, as revised and annexed to this order as
Exhibit A, are otherwise hereby approved; and it is further
ORDERED, that the Debtors are authorized to transfer the Notes to the
Disputed Claims Agent.
Dated: Wilmington, Delaware
December 4, 1998
/s/ Roderick R. McKelvie
-----------------------------------
UNITED STATES DISTRICT COURT JUDGE
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