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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
SCHEDULE 13D
(Amendment No. 2)
_______________________
Under the Securities Exchange Act of 1934
RAMTRON INTERNATIONAL CORPORATION
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
7519010
(CUSIP Number)
NTC Liquidating Trust as defined in the Second Amended
Plan of Reorganization for the Jointly Administered
Debtors of CSI Enterprises, Inc., Energy Fuels, Ltd.,
Oren Lee Benton, Energy Fuels Exploration Company,
Nuexco Trading Corporation and Energy Fuels Mining
Joint Venture, pending in the United States Bankruptcy
Court for the District of Colorado, administered under
Case No. 95-11642-CEM.
c/o David J. Beckman, Liquidating Trustee
Price Waterhouse LLP
200 East Randolph Drive, Suite 7600
Chicago, Illinois 60601
312/540-1500
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 31, 1997
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
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CUSIP No. 75190710
Page 2 of 6
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1 NAME OF REPORTING PERSON
NTC Liquidating Trust as defined in the Second Amended Plan of
Reorganization for the Jointly Administered Debtors of CSI Enterprises,
Inc., Energy Fuels, Ltd., Oren Lee Benton, Energy Fuels Exploration
Company, Nuexco Trading Corporation and Energy Fuels Mining Joint
Venture, pending in the United States Bankruptcy Court for the District
of Colorado, administered under Case No. 95-11642-CEM. (a)
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Colorado
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7 SOLE VOTING POWER
7,489,390
NUMBER OF -----------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY -----------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 7,489,390
PERSON -----------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,489,390
- - --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- - --------------------------------------------------------------------------------
13 PERCENTAGE OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.3%
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14 TYPE OF REPORTING PERSON 00
- - --------------------------------------------------------------------------------
The initial Schedule 13D of the NTC Liquidating Trust filed on November 5,
1997 and amended on December 5, 1997 is hereby corrected as follows:
The amount of shares of Common Stock owned directly by the NTC Liquidating
Trust is 4,528,174.
Items 2 through 7 of the initial Schedule 13D of the NTC Liquidating
Trust filed on November 5, 1997 and amended on December 5, 1997 are hereby
further amended and restated in their entirety as follows:
<PAGE> 3
ITEM 2. IDENTITY AND BACKGROUND
This Schedule 13D is being filed by the NTC Liquidating Trust as defined
in the Second Amended Plan of Reorganization (the "Plan") for the Jointly
Administered Debtors of CSI Enterprises, Inc., Energy Fuels, Ltd., Oren Lee
Benton, Energy Fuels Exploration Company, Nuexco Trading Corporation and Energy
Fuels Mining Joint Venture, pending in the United States Bankruptcy Court for
the District of Colorado, administered under Case No. 95-11642-CEM., a Colorado
trust (the "NTC Liquidating Trust"), as the beneficial owner of 4,528,174
shares of Common Stock and the beneficial holder of Warrants for 2,961,216
shares of Common Stock.
The United States Bankruptcy Court for the District of Colorado has
confirmed the Second Amended Plan of Reorganization for the Jointly
Administered Debtors of CSI Enterprises, Inc., Energy Fuels, Ltd., Oren Lee
Benton, Energy Fuels Exploration Company, Nuexco Trading Corporation and Energy
Fuels Mining Joint Venture, pending in the United States Bankruptcy Court for
the District of Colorado, administered under Case No. 95-11642-CEM (the
"Plan"). Pursuant to the Plan and as of August 31, 1997 (the "Effective
Date"), among other things, 4,528,174 shares of Common Stock in Ramtron have
been transferred to the NTC Liquidating Trust. The Plan annexed as Exhibit 2
and the NTC Liquidating Trust Agreement annexed as Exhibit 3 to Schedule 13D
filed on November 5, 1997, and amended on December 5, 1997, are incorporated
herein by reference.
The principal business of the NTC Liquidating Trust is to liquidate assets
for the benefit of holders of Allowed Claims, as defined in the Plan. The
principal business address and address of the principal office of the NTC
Liquidating Trust is David J. Beckman, Liquidating Trustee, c/o Price
Waterhouse LLP, 200 East Randolph Drive, Suite 7600, Chicago, IL 60601. The
beneficiaries of the NTC Liquidating Trust are listed on Exhibit 1 to Schedule
13D filed on November 5, 1997 and amended on December 5, 1997, and incorporated
herein by reference, subject to allowance of such entities' claims against the
Debtor.
The name, citizenship, business address, and present principal occupation
of the Liquidating Trustee of the NTC Liquidating Trust are set forth on
Schedule I to Schedule 13D filed on November 5, 1997 and amended on December 5,
1997, and incorporated herein by reference.
Neither the NTC Liquidating Trust nor the Liquidating Trustee listed on
Schedule I during the last five years (a) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (b) has
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to
a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to federal or state securities laws
or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Under the Plan, as described in Item 2, the NTC Liquidating Trust became
entitled to receive 4,528,174 shares of Common Stock in Ramtron. In addition,
under the Plan, the NTC Liquidating Trust became the holder of
currently-exercisable warrants at a price of $4.15 per share for 2,961,216
shares of Common Stock.
Page 3 of 6
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ITEM 4. PURPOSE OF TRANSACTION
The NTC Liquidating Trust became entitled to receive 4,528,174 shares of Common
Stock in the manner described in Item 3 above, and currently-exercisable
warrants for 2,961,216 shares of Common Stock. Except as described below,
the NTC Liquidating Trust has no plans or proposals that would result in (1)
the acquisition by any person of additional securities of Ramtron or the
disposition of securities of Ramtron; (2) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation of Ramtron or any
of its subsidiaries; (3) a sale or transfer of a material amount of assets of
Ramtron or any of its subsidiaries; (4) any change in the present board of
directors or management of Ramtron, including any plans or proposals to change
the number or term of directors or to fill any existing vacancies on the board
of directors of Ramtron; (5) any material change in the present capitalization
or dividend policy of Ramtron; (6) any other material change in the business or
corporate structure of Ramtron; (7) changes in the charter, by-laws or
instruments corresponding thereto of Ramtron, or other actions which may impede
the acquisition of control of Ramtron by any person; (8) any class of
securities of Ramtron being delisted from a national securities exchange or
ceasing to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; (9) any class of equity securities
of Ramtron becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Exchange Act; or (10) any action similar to any of
those enumerated above. The NTC Liquidating Trust, however, reserves its right
to change its plans or intentions at any time and to take any and all actions
that it deems appropriate to maximize the value of its investment including,
among other things, from time to time increasing or decreasing the number of
shares of Common Stock by acquiring additional shares, or by disposing of all
or a portion of the shares of Common Stock in open market or privately
negotiated transactions or otherwise, depending on existing market conditions
and other considerations discussed below. The NTC Liquidating Trust intends to
review its investment in Ramtron on a continuing basis and, depending upon the
price and availability of Common Stock, subsequent developments affecting
Ramtron, the general business and future prospects of Ramtron, other investment
and business opportunities available to the NTC Liquidating Trust, general
stock market and economic conditions, tax considerations and other factors
considered relevant, may decide at any time to increase or decrease the size of
its investment in Ramtron. Ultimately, the Liquidating Trustee will distribute
proceeds of the Common Stock to the beneficiaries of the NTC Liquidating Trust.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The NTC Liquidating Trust beneficially owns 7,489,390 shares of
Common Stock through its ownership of 4,528,174 shares of Common Stock (of
which 703,317 shares are subject to a lien in favor of Union Bank of
Switzerland and the terms of the put and call agreements specified in the
Settlement Agreement approved by the Court on August 18, 1997, annexed hereto
as Exhibit 4 and incorporated into the Plan), and currently-exercisable
warrants for 2,961,216 shares of Common Stock (of which warrants for 165,000
shares are subject to a lien in favor of Kernkraftwerk Liebstadt AG,
Kernkraftwerk Goesgen-Daeniken AG and Nordostschweizerische Kraftwerke AG
(collectively, The "Swiss Utilities"), and the Swiss Utilities shall receive
the proceeds from the sale of the warrants for 165,000 shares, if and when
sold, pursuant to the Plan). Such shares constitute approximately 18.3% of the
40,914,988 shares of Common Stock estimated to be outstanding as of May 14,
1998 (includes 37,953,772 shares of Common Stock estimated to be outstanding as
of May 14, 1998 and 2,961,216 shares of Common Stock attributable to the
warrants held by the NTC Liquidating Trust).
(b) The NTC Liquidating Trust, through its ownership of 4,528,174
shares of Common Stock and certain warrants, may be deemed to have the sole
power to vote or direct the vote and dispose or direct the disposition of
7,489,390 shares of Common Stock.
(c) During the past 60 days, the NTC Liquidating Trust has not effected
any transactions relating to the Common Stock.
(d) Not applicable.
(e) Not applicable.
Page 4 of 6
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The trustee for the NTC Liquidating Trust is also the trustee for the
Benton Liquidating Trust, an entity that owns 1,839,621 shares in Ramtron.
Because the same trustee administers the NTC Liquidating Trust and the Benton
Liquidating Trust, the two trusts could be considered a group for purposes of
Section 13D. The NTC Liquidating Trust, however, disclaims that it and the
Benton Liquidating Trust are a group for purposes of Section 13D. Of the
4,528,174 shares of Common Stock owned by the NTC Liquidating Trust, 703,317
are subject to a lien in favor of Union Bank of Switzerland and the terms of
the put and call agreements specified in the Settlement Agreement approved by
the Court on August 18, 1997, annexed as Exhibit 4 and incorporated herein
by reference, as described in the Plan (Exhibit 2 to Schedule 13D filed on
November 5, 1997 and amended on December 5, 1997, and incorporated herein by
reference) and the NTC Liquidating Trust Agreement (Exhibit 3 to Schedule
13D filed on November 5, 1997 and amended on December 5, 1997 and incorporated
herein by reference). Of the warrants held by the NTC Liquidating Trust,
warrants for 165,000 shares are subject to a lien in favor of the Swiss
Utilities, and the Swiss Utilities shall receive the proceeds from the sale of
the warrants for 165,000 shares, if and when sold, pursuant to the Plan. The
NTC Liquidating Trust does not have any contract, arrangement, understanding,
or relationship with any other person with respect to any security of Ramtron,
other than as described in this Schedule 13D or exhibits hereto.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- - ----------- -----------
<S> <C>
1. List of beneficiaries of the NTC Liquidating Trust.*
2. Second Amended Plan of Reorganization for the Jointly
Administered Debtors of CSI Enterprises, Inc., Energy Fuels,
Ltd., Oren Lee Benton, Energy Fuels Exploration Company, Nuexco
Trading Corporation and Energy Fuels Mining Joint Venture,
pending in the United States Bankruptcy Court for the District
of Colorado, administered under Case No. 95-11642-CEM.*
3. NTC Liquidating Trust Agreement, as amended.*
4. Settlement Agreement approved by the Court on August 18, 1997.
* Previously filed.
</TABLE>
Page 5 of 6
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 2 to Schedule 13D
is true, complete and correct.
Dated: June 17, 1998
NTC Liquidating Trust as defined in the
Second Amended Plan of Reorganization for
the Jointly Administered Debtors of CSI
Enterprises, Inc., Energy Fuels, Ltd., Oren
Lee Benton, Energy Fuels Exploration
Company, Nuexco Trading Corporation and
Energy Fuels Mining Joint Venture, pending
in the United States Bankruptcy Court for
the District of Colorado, administered
under Case No. 95-11642-CEM.
By: /s/ David J. Beckman
---------------------------------------
David J. Beckman, not individually, but
solely as Liquidating Trustee
Page 6 of 6
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EXHIBIT 4
SETTLEMENT AGREEMENT REGARDING CLAIM OF
UNION BANK OF SWITZERLAND
THIS SETTLEMENT AGREEMENT ("Settlement Agreement") is entered into in
July, 1997 [approved by the Court on August 18, 1997], by Oren L. Benton
("Benton"), CSI Enterprises, Inc. ("CSI"), NUEXCO Trading Corporation ("NTC"),
Energy Fuels Exploration Company ("EFEX"), Energy Fuels, Ltd. ("EFL"), and
Energy Fuels Mining Joint Venture ("EFMJV") (collectively, the "Bankruptcy
Estates"), each as Debtor and Debtor in Possession; the Official Creditors'
Committee for CSI Enterprises, Inc. and the Jointly-Administered Debtors (the
"Committee"); and Union Bank of Switzerland ("UBS").
A. On February 23, 1995, Benton, CSI, NTC, EFEX and EFL filed the
above-captioned cases under chapter 11 of the United States Bankruptcy Code in
the Bankruptcy Court for the District of Colorado (the "Bankruptcy Court"). The
Benton, CSI, NTC, EFEX and EFL cases are jointly-administered under chapter 11
Case No. 95-11642-CEM. On August 12, 1996, EFMJV filed a case under chapter 11
of the Bankruptcy Code and on August 22, 1996, the Bankruptcy Court ordered the
EFMJV case to be jointly administered with the Benton, CSI, NTC, EFEX and EFL
cases (collectively, the "Cases").
B. UBS has filed Proofs of Claim (the "UBS Claims") in the following
Cases:
1. The Benton Case;
2. The NTC Case;
3. The EFEX Case; and
4. The EFL Case.
C. UBS asserts that the UBS Claims are fully secured in the Cases. The
Committee has contested the rights of UBS in portions of its claimed collateral.
D. UBS also asserts some or all of the claims it asserts in the UBS
Claims against Nuexco Exchange A.G., a Swiss entity ("NEAG") presently in
insolvency proceedings in Switzerland.
E. The Bankruptcy Estates, the Committee and UBS have been actively
engaged in settlement discussions and desire to resolve all disputes regarding
the UBS Claims by entering into this Settlement Agreement.
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NOW, THEREFORE, the Committee, the Bankruptcy Estates and UBS agree as
follows:
SETTLEMENT AGREEMENT
1. Definitions. In addition to terms defined elsewhere in this
Settlement Agreement, the following terms used in this Settlement Agreement have
the meanings set forth below:
"Additional Release Effective Date" is defined in Section 11 of this
Settlement Agreement.
"Additional Releases" is defined in Section 10 of this Settlement
Agreement.
"Allowed Claims" means the Benton Claim, the NTC Claim, the EFEX Claim
and the NEAG Claim (as each such term is defined in Section 2 of this Settlement
Agreement).
"Asset" or "Assets" has the meaning provided in the Plan.
"Benton Ramtron Obligation" means the obligation of the Benton and NTC
Bankruptcy Estates (which obligation is an administrative claim) to pay UBS
$10,226,221.91 plus interest at the rate of ten percent (10%) per annum from and
after the Effective Date until paid in full.
"Collateral Liquidation Escrow" means the escrow account or accounts
into which proceeds realized from the liquidation of contracts and/or uranium
products in which UBS asserted a lien during the pendency of the Cases were
deposited.
"Coverage Amount," at any time, means the product of (i) four and (ii)
$6,683,131 minus the amount on deposit in the UBS Distribution Escrow at such
time.
"Coverage Ratio," at any time, means the ratio of (i) Net Assets to
(ii) $6,683,131 minus the amount on deposit in the UBS Distribution Escrow at
such time.
"CPC" means Consumer Energy Company, formerly known as Consumers Power
Company.
"Distribution" has the meaning provided in the Plan.
"Effective Date" is defined in Section 11 of this Settlement Agreement.
"EUP" means enriched uranium product.
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"German Collateral" means the (i) INB Claimed Material, (ii) all money
or other property received by or for the benefit of UBS from anyone (including
any amounts paid by other parties to the INB Litigation in reimbursement of UBS'
attorneys' fees and expenses), whether by judgment, settlement or otherwise, as
a result of the INB Litigation and (iii) any and all proceeds of either of the
foregoing.
"INB" means Industrias Nucleares de Brasil.
"INB Claimed Material" means the uranium material stored at the
facilities of Siemens AG and/or Urenco Deutschland GmbH in Germany in which NTC,
UBS, NEAG and INB assert interests and otherwise designated as those portions of
Lots 2 and 5 in that certain loan agreement between INB and NEAG.
"INB Litigation" means any and all pending or threatened litigation
between NEAG and/or UBS and INB regarding the INB Claimed Material, no matter
where, or in what forum, the same is pending.
"Liquidating Trust" has the meaning provided in the Plan.
"Liquidating Trustee" has the meaning provided in the Plan.
"Net Assets," at any time, means the aggregate liquidation value of the
undistributed Assets of the NTC Bankruptcy Estate at such time as determined in
good faith by the Liquidating Trustee minus the amount of unpaid administrative,
priority and secured claims against the NTC Bankruptcy Estate at such time
provided that, for purposes of this definition, Net Assets shall exclude that
portion of the liquidation value of any single Asset (other than cash or cash
equivalents) at such time as determined in good faith by the Liquidating Trustee
which exceeds 50% of the Coverage Amount.
"NPPD" means Nebraska Public Power Supply District.
"Petition Date" means February 23, 1995.
"Plan" means the Modified First Amended Plan of Reorganization for the
Jointly-Administered Debtors, as subsequently amended or modified.
"Ramtron" means Ramtron International, Inc.
"Ramtron Call Price" means $9.94.
"Richland EUP" means the EUP located at SPC's facility at Richland,
Washington, containing 864,830 KgU as UF6 and 457,485 SWU, in which NTC, the
Utilities, UBS and SPC claim interests.
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"Rio Narcea" means Rio Narcea Gold Mines, Ltd.
"SPC" means Siemens Power Corporation.
"Supply System" means Washington Public Power Supply System.
"SWU" means separative work unit.
"UBS Distribution Escrow" is defined in Section 7.A of this Settlement
Agreement.
"UBS Distribution Escrow Maximum" means $6,683,131 less the amounts, if
any, specified in Sections 7.B(3) and 7.D of this Settlement Agreement.
"UBS Ramtron Stock" means 1,406,633 shares of Ramtron common stock
pledged to UBS by Benton.
"UEC" means Union Electric Company.
"Utilities" means UEC, the Supply System, NPPD and CPC.
2. Allowance of Claims. UBS shall be allowed claims in the Cases and
against NEAG as set forth in this Section 2 in full satisfaction of the UBS
Claims and all claims by UBS against NEAG. Notwithstanding the amounts of the
Allowed Claims as set forth in this Section 2 or anything to the contrary in
this Settlement Agreement, UBS' recovery on account of the Allowed Claims shall
be limited to (i) UBS' share of the Collateral Liquidation Escrow as provided in
Section 5 of this Settlement Agreement, (ii) payment in full of the Benton
Ramtron Obligation as provided in Section 4 of this Settlement Agreement, (iii)
UBS' share of the payments to be made by the Utilities as provided in Section 6
of this Settlement Agreement, (iv) the German Collateral, and (v) the amounts
payable to UBS from the UBS Distribution Escrow as provided in Section 7 of this
Settlement Agreement. The Allowed Claims represent all claims UBS holds against
the Bankruptcy Estates, NEAG or any of their affiliates (as defined in 11 U.S.C.
ss. 101(2)), and any other claims or scheduled amounts against any of the
Bankruptcy Estates or NEAG shall be disallowed.
A. Benton Claim. UBS shall be allowed a claim against the
Benton Bankruptcy Estate in the amount of $52,240,479 (the "Benton Claim"). UBS
shall accept payment in full of the Benton Ramtron Obligation and all other
payments described in this Settlement Agreement in full satisfaction of the
Benton Claim.
B. NTC Claim. UBS shall be allowed a claim against the NTC
Bankruptcy Estate as provided in Section 6.2 of the Plan (the "NTC Claim") in
the maximum amount of $38,665,575. Notwithstanding the foregoing, the recovery
of UBS
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on account of the NTC Claim shall be limited as set forth in Section 7 of this
Settlement Agreement.
C. EFEX Claim. UBS shall be allowed a claim against the EFEX
Bankruptcy Estate (the "EFEX Claim") in an amount equal to $15,879,738.
D. NEAG Claim. UBS shall be allowed a claim against NEAG in
the principal amount of $54,602,800 plus (i) interest at the rate of 11% per
annum (both before and after the commencement of NEAG's insolvency proceeding),
and (ii) all attorneys' fees incurred by UBS (the "NEAG Claim"). Notwithstanding
the foregoing, interest which accrues, and attorneys' fees incurred by UBS,
after April 16, 1996 shall be allowed as agreed amongst the creditors of NEAG.
3. Security. The Allowed Claims shall be deemed to be secured as set
forth in this Section 3. The security interests provided in this Section 3 are
in full and complete satisfaction of all claims of UBS to a security interest,
lien, charge or other interest in any property of the Bankruptcy Estates, NEAG,
or any of the Bankruptcy Estates' or NEAG's affiliates (as defined in 11 U.S.C.
ss. 101(2)). All claims of UBS to a security interest, lien, charge or other
interest in property, other than as expressly set forth in this Section 3, are
of no force and effect.
A. UBS Ramtron Stock. The Benton Claim and the Benton Ramtron
Obligation shall be deemed to be secured by a valid and perfected security
interest in the UBS Ramtron Stock.
B. Rights to Other Collateral. The Allowed Claims shall be
deemed to be secured by a valid and perfected interest in (i) UBS' share of the
Collateral Liquidation Escrow as provided in Section 5 of this Settlement
Agreement, (ii) UBS' share of the payments to be made by the Utilities as
provided in Section 6 of this Settlement Agreement, and (iii) the UBS
Distribution Escrow.
C. NEAG Claim.
(1) The NEAG Claim shall be deemed to be secured by
a valid and perfected security interest in the INB Claimed Material, and UBS
shall be entitled to the proceeds of the INB Claimed Material.
(2) On the Effective Date, UBS shall be deemed to
have assigned to the Liquidating Trust (without recourse or warranty) all of its
rights, title and interest in and to the NEAG Claim, except for UBS' interest
in, or claims to, the German Collateral (the "Assigned NEAG Claim"). In
connection with such assignment, the NTC Bankruptcy Estate hereby assumes any
indemnification liability UBS might otherwise have pursuant to Section 17 of the
NEAG Settlement Agreement. The allowance of the Assigned NEAG Claim against NEAG
shall be the subject of a separate agreement
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between NEAG and the NTC Bankruptcy Estate. The Liquidating Trust shall be
entitled to recover from NEAG as an unsecured creditor on the Assigned NEAG
Rights to the same extent UBS would have recovered had UBS retained the Assigned
NEAG Rights, provided that the Liquidating Trust's recovery shall not be
diminished, reduced or offset by any amounts received by UBS on the NTC Claim.
4. Disposition of UBS Ramtron Stock.
A. Bankruptcy Estate's Right to Control Disposition. On the
Effective Date, UBS shall return the certificates representing the UBS Ramtron
Stock to the Liquidating Trustee. During the 16 months following the Effective
Date, the Liquidating Trustee shall be entitled to control the ultimate
disposition of such stock. The proceeds of any sale of the UBS Ramtron Stock
shall be paid immediately to UBS up to the amount of the Benton Ramtron
Obligation. The Liquidating Trustee shall not sell the UBS Ramtron Stock for
less than the Benton Ramtron Obligation without the prior consent of UBS. In
such event, the Liquidating Trustee shall pay all proceeds of the sale to UBS in
partial satisfaction of the Benton Ramtron Obligation and shall not make any
Distribution on account of any Class 4 or Class 5 Claim (as defined in the Plan)
against the Benton or NTC Bankruptcy Estates until the Benton Ramtron Obligation
has been paid in full. UBS has no obligation to accept payment in respect of the
Benton Ramtron Obligation unless and until the Liquidating Trustee consummates a
bona fide sale of the UBS Ramtron Stock.
B. UBS Put/Call.
(1) In consideration for giving the Liquidating
Trustee the right to dispose of the UBS Ramtron Stock, UBS shall receive a
put/call right for such stock. At any time during the 16 months following the
Effective Date, UBS shall be entitled to call the UBS Ramtron Stock upon 30 days
notice to the Liquidating Trust in the manner provided in Section 12 of this
Settlement Agreement. Prior to the expiration of such 30 day period, the
Liquidating Trust shall retain the right to sell the UBS Ramtron Stock as
provided in this Section 4. If the Liquidating Trustee has not otherwise sold
the UBS Ramtron Stock prior to the end of such 30 day period, he shall then sell
the UBS Ramtron Stock to UBS at the Ramtron Call Price which UBS may pay by
setting off against the Benton Ramtron Obligation.
(2) In the event the Liquidating Trustee is
unsuccessful in disposing of the UBS Ramtron Stock within the 16 month period
after the Effective Date, the UBS Ramtron Stock will be deemed put to the
Liquidating Trustee without the need for any further action. At such time, the
Liquidating Trustee shall deliver notice of the expiration of the 16 month
period to UBS in the manner provided in Section 12 of this Settlement Agreement.
Notwithstanding the deemed put described above, UBS shall have 10 business days
from its receipt of the Liquidating Trustee's notice to notify the Liquidating
Trustee in the manner provided in Section 12 of this Settlement Agreement
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that it will retain the UBS Ramtron Stock. If the Liquidating Trustee does not
receive such a notice from UBS prior to the end of the 10 business day period,
the Liquidating Trustee shall promptly pay UBS an amount equal to the Benton
Ramtron Obligation. If UBS elects to retain the UBS Ramtron Stock, the Benton
Ramtron Obligation shall be deemed satisfied in full.
(3) The put and call granted UBS in this Section 4.B
shall terminate upon the sale of all of the UBS Ramtron Stock by the Liquidating
Trustee.
5. Distribution of Collateral Liquidation Escrow. On the Effective
Date, the Collateral Liquidation Escrow shall be distributed to UBS and the
Liquidating Trust as provided in this Section 5. UBS shall be distributed
$28,299,879 from the Collateral Liquidation Escrow and the Bankruptcy Estates
shall be distributed $7,440,435. Interest earned on the funds deposited in the
Collateral Liquidation Escrow shall be divided pro rata between UBS and the
Liquidating Trust. UBS' share of the Collateral Liquidation Escrow shall be
distributed to it in full and complete satisfaction of UBS' security interest
therein. The Liquidating Trust's share of the Collateral Liquidation Escrow and
the accrued interest thereon shall be free and clear of any lien, charge or
security interest asserted by UBS.
6. Richland EUP. The Liquidating Trust shall pay $520,000 to UBS in
full and complete satisfaction of UBS' security interest in the Richland EUP.
7. Satisfaction of NTC Claim. Notwithstanding anything to the contrary
in this Settlement Agreement, UBS shall accept an amount equal to the UBS
Distribution Escrow Maximum plus any interest distributable to UBS as provided
in Section 7.A(3) of this Settlement Agreement in full satisfaction of the NTC
Claim. This sum shall be payable solely from the UBS Distribution Escrow as
provided in this Section 7.
A. UBS Distribution Escrow. The NTC Bankruptcy Estate shall
establish a distribution escrow for the benefit of UBS (the "UBS Distribution
Escrow"). The amount of funds deposited by the NTC Bankruptcy Estate into the
UBS Distribution Escrow (excluding interest earned) shall not exceed the UBS
Distribution Escrow Maximum.
B. Escrow Funding. Subject to the UBS Distribution Escrow
Maximum, the NTC Bankruptcy Estate shall deposit into the UBS Distribution
Escrow:
(1) All Distributions to Class 4 Creditors (as
defined in the Plan) of the NTC Bankruptcy Estate to which UBS is entitled under
the Plan on account of the maximum NTC Claim.
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<PAGE> 8
(2) The first net proceeds received by the NTC
Bankruptcy Estate from the sale of its holdings of Ramtron (other than the UBS
Ramtron Stock) and Rio Narcea.
(3) The UBS Distribution Escrow Maximum shall be
reduced by any portion of the funds held by UBS in Account No. 513168.68X which
are determined to be properly applied to reduce the UBS Claims, but not by any
interest accrued on the account, which shall revert to UBS.
C. Interest. The NTC Bankruptcy Estate's obligation to fund
the UBS Distribution Escrow shall not be offset or reduced by interest earned on
funds deposited in the UBS Distribution Escrow. Any such interest shall be
allocated to UBS and the NTC Bankruptcy Estate based on their entitlement to
proceeds of the UBS Distribution Escrow.
D. German Collateral Proceeds. UBS shall receive any and all
proceeds of the German Collateral. Notwithstanding the foregoing, after UBS
shall have received proceeds of the German Collateral in an amount equal to (i)
all of UBS' reasonable legal and out-of-pocket expenses incurred in the INB
Litigation and (ii) $7.5 million, one-half of all additional proceeds of the
German Collateral received by UBS shall reduce the UBS Distribution Escrow
Maximum.
E. Distribution of Escrow Funds. The UBS Distribution Escrow
shall be distributed promptly after the resolution, either by settlement or
entry of a final judgment which is no longer subject to appeal or review, of the
INB Litigation.
8. INB Litigation Reporting. UBS shall provide the Liquidating Trustee
with such information regarding the INB Litigation as the Liquidating Trustee
may reasonably request (other than privileged materials including, without
limitation, materials protected by the attorney-client or attorney work product
privilege).
9. Coverage Ratio. The NTC Bankruptcy Estate shall at all times
maintain a Coverage Ratio of not less than 4:1. Unless the balance of the UBS
Distribution Escrow is at least $6,683,131, no Distribution shall be made on
account of any Class 4 or Class 5 Claim (as defined in the Plan) against the
Benton or NTC Bankruptcy Estates if, after such Distribution, the Coverage Ratio
would be less than 4:1. Prior to making any Distribution to unsecured creditors
of the Benton or NTC Bankruptcy Estates, the Liquidating Trustee shall certify
to UBS in writing that such Distribution will not cause a breach of this
section. The Liquidating Trustee's certificate will set forth in reasonable
detail the calculation of Net Assets and the Coverage Ratio demonstrating
compliance with this Section 9 and shall identify any undistributed Asset with a
value which exceeds 50% of the Coverage Amount.
8
<PAGE> 9
10. Release of Claims. Subject to the final sentence of this Section
10, on the Effective Date (i) each of the Bankruptcy Estates and the Committee
shall be deemed hereby to irrevocably release any and all avoidance actions,
claims, liabilities, causes of action or other rights, if any, against UBS, any
property of UBS (including, without limitation, any property distributed to or
retained by UBS under the Plan or this Settlement Agreement and any property
and/or distributions UBS received from NEAG), or any of its officers, employees,
shareholders, directors, agents, representatives and professionals, and (ii) UBS
shall be deemed hereby to irrevocably release any and all claims, liabilities,
causes of action or other rights, if any, it may have against the Bankruptcy
Estates, the Committee, any of their property, or any of their officers,
employees, directors, shareholders, agents, representatives and professionals.
In addition, effective on the Additional Release Effective Date, (a) UBS shall
be deemed hereby to irrevocably release any and all claims, liabilities, causes
of action or other rights, if any, it may have against any of the Utilities, any
of their property, or any of their officers, employees, directors, shareholders,
agents, representatives and professionals, arising from or relating to the Cases
or the Richland EUP and (b) UBS shall be deemed irrevocably to release SPC, any
of its property, or any of its officers, employees, directors, shareholders,
agents, representatives and professionals from any and all claims arising from
or related to any action or inaction of SPC prior to the Effective Date
regarding the Agreement Between Nuexco Trading Corporation and Siemens Power
Corporation--Nuclear Division for the Storage of Enriched UF6, dated April 8,
1993, as amended from time to time, including, without limitation, claims based
upon SPC's confirmation of NTC's assignment, transfer or granting of security
interests in the Richland EUP (collectively, the "Additional Releases").
Notwithstanding the foregoing, nothing in this Section 10 shall in any way
constitute a release of, or affect or otherwise impair, any of the following:
A. Any claim against SPC or any affiliate thereof in respect
of the German Collateral or the INB Litigation; and
B. The Allowed Claims, the rights and obligations of the
parties under this Settlement Agreement, the Plan, or any document, instrument
or agreement executed, or court order issued, in connection with this Settlement
Agreement or the Plan; and
C. Any claims UBS may have against Benton personally under
section 523(a) of the Bankruptcy Code and UBS' right to pursue an action against
Benton seeking a determination that Benton's obligations to UBS are
non-dischargeable unless and until each other member of the Committee waives or
releases any similar claims or actions it may have; and
D. UBS' right to seek additional consideration out of the
post-petition earnings of Benton consistent with the Bankruptcy Code if any
other member of the Committee seeks such consideration.
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<PAGE> 10
11. Bankruptcy Court Approval.
A. Settlement Effective Date. This Settlement Agreement is
contingent upon the occurrence of the following ("Effective Date"): (1) the
occurrence of the Effective Date as defined in the Plan; and (2) entry of an
order or orders of the Bankruptcy Court (a) overruling all objections to the UBS
Claims or this Settlement Agreement that may at any time be pending, (b)
approving this Settlement Agreement and directing the Bankruptcy Estates to take
all actions required to implement this Settlement Agreement, and (c) dismissing
with prejudice all adversary proceedings or contested matters brought by any of
the Committee, the Bankruptcy Estates or NEAG that at any time may be pending
against UBS in any of the cases.
B. Additional Release Effective Date. The effectiveness of the
Additional Releases is contingent upon the occurrence of the following
("Additional Release Effective Date"): (1) the occurrence of the Effective
Date; and (2) entry of an order or orders of the Bankruptcy Court (a) approving
settlement agreements between the Committee and each of the Utilities and SPC
that include releases with respect to UBS in form and substance acceptable to
UBS, and (b) dismissing with prejudice all adversary proceedings or contested
matters that at any time may be pending against UBS in any of the Cases.
12. Notices. Any notice required or permitted to be given shall be in
writing and shall be (i) personally delivered, (ii) transmitted by first class
mail, postage prepaid, or (iii) transmitted by telecopier (with a copy sent by
first class mail, postage prepaid) to the relevant party at the address set
forth below:
If to UBS:
Mr. G. Christian Ullrich
Managing Director
Union Bank of Switzerland
299 Park Avenue
New York, New York 10171-0026
Telecopy No. (212) 821-3008
If to the Liquidating Trustee:
Mr. David J. Beckman
Price Waterhouse LLP
200 E. Randolph Drive, Suite 7600
Chicago, Illinois 60601
Telecopy No. (312) 856-1916
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<PAGE> 11
Notice to either party shall be effective (i) if delivered personally,
on the date of receipt, (ii) if by mail, 3 business days after such notice is
deposited in the mail, addressed as above provided, or (iii) if by telecopier,
when transmitted to the appropriate number as set forth above and the
appropriate confirmation of transmission is received, or the date of receipt of
the mail confirmation, whichever shall first occur. Any party may change its
address for purposes hereof in a notice specifically designated as a notice of
change of address to the other party.
13. Consent to Settlement Agreement. The Bankruptcy Estates and the
Committee are fully apprised of the merits of the UBS Claims, support the
approval of this Settlement Agreement, and waive any notice of this Settlement
Agreement that may be required.
14. Representations. The parties represent that they are the proper
parties to enter into this Settlement Agreement and that, other than Bankruptcy
Court approval, they possess all requisite power and authority to enter into
this Settlement Agreement. UBS further represents that as of the date hereof it
is the only party entitled to receive payment with respect to the UBS Claims,
that it owns the UBS Claims and that it has not assigned the UBS Claims. UBS
shall notify the Liquidating Trustee in writing at the address provided on the
signature pages for the Committee's counsel of any assignment of the Allowed
Claims made after the date hereof and the identity of any assignee.
15. Further Assurances. The parties agree that they will cooperate in
executing all documents necessary to effectuate this Settlement Agreement.
16. Integration and Amendment. This Settlement Agreement constitutes
the entire Agreement entered into by the parties regarding the subject matter
hereof and this Settlement Agreement may not be amended, altered, modified or
otherwise changed except by writing executed by a duly authorized representative
of each of the parties hereto or thereto. Any material modification of this
Settlement Agreement shall be subject to the approval of the Bankruptcy Court.
17. Counterparts. This Settlement Agreement may be executed in any
number of counterparts, each of which shall be an original, and all of which
when taken together shall constitute one and the same document.
18. Governing Law. This Settlement Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Colorado,
without regard to Colorado choice of law provisions and except to the extent
that it is governed by the United States Bankruptcy Code.
19. Jurisdiction and Venue. The Bankruptcy Court shall have
jurisdiction to resolve all disputes concerning the interpretation and
enforcement of this Settlement Agreement.
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<PAGE> 12
20. No Admission. This Settlement Agreement is a settlement of disputes
between the parties hereto regarding the UBS Claims. Nothing contained herein,
nor the execution hereof, shall be admissible in any subsequent litigation
regarding the UBS Claims nor shall be deemed an admission against interest.
21. Successor in Interest. After the Effective Date, any reference to
any of the Bankruptcy Estates shall, where appropriate, be deemed to be a
reference to the Liquidating Trust and/or the Liquidating Trustee.
SETTLED AND AGREED TO BY:
LeBoeuf, Lamb, Greene CSI Enterprises, Inc.
& MacRae, L.L.P. Debtor-in-Possession
By: /S/ By:
---------------------- ----------------------
Carl A. Eklund
James L. Ruemoeller NUEXCO Trading Corp.
ATTORNEYS FOR THE OFFICIAL By:
JOINT CREDITORS' COMMITTEE ----------------------
Energy Fuels Exploration Co.
Union Bank of Switzerland Debtor-in-Possession
By: /S/ By:
--------------------- -----------------------
G. Christian Ullrich
Its: Managing Director Energy Fuels, Ltd.
Debtor-in-Possession
By: /S/
---------------------
By: Energy Fuels Mining Joint
Its: Managing Director Venture, Debtor-in-
Possession
/S/
---------------------- By: First Concord Mining
Oren L. Benton Corporation
Debtor-in-Possession Its General Partner
By:
Energy Fuels Mining Joint --------------------------
Venture
Debtor-in-Possession
By: First Concord Mining
Corporation
Its General Partner
By:
-----------------------
Its: General Partner
12
<PAGE> 13
Oren L. Benton,
Debtor-in-Possession
/S/
------------------------------------
CSI Enterprises, Inc.,
Debtor-in-Possession
By: /S/
------------------------------------
Oren L. Benton, Chairman
NUEXCO Trading Corporation,
Debtor-in-Possession
By: /S/
------------------------------------
Oren L. Benton, Chairman
Energy Fuels Exploration Company,
Debtor-in-Possession
By: /S/
------------------------------------
Oren L. Benton, Chairman
Energy Fuels, Ltd., Debtor-in-Possession
By: Energy Fuels Mining Joint Venture,
Debtor-in-Possession, Its General
Partner
By: First Concord Mining Corporation
Its General Partner
By: /S/
------------------------------------
Oren L. Benton, Chairman
Energy Fuels Mining Joint Venture
Debtor-in-Possession
By: First Concord Mining Corporation
Its General Partner
By: /S/
------------------------------------
Oren L. Benton, Chairman
