SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (date of earliest event reported) OCTOBER 27, 1999
MARKER INTERNATIONAL
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(Exact Name of Registrant as Specified in Charter)
UTAH 0-24556 87-037275
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(State or Other Jurisdiction of (Commission (IRS Employer
Incorporation) File Number) Identification No.)
1070 WEST 2300 SOUTH, SALT LAKE CITY, UTAH 84119
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number,
including area code: (801) 972-2100
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 3. BANKRUPTCY OR RECEIVERSHIP; CONFIRMATION OF PLAN OF REORGANIZATION.
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(1) and (2) IDENTITY OF COURT AND DATE OF ORDER.
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On August 19, 1999, Marker International ("Marker") and certain of its
wholly-owned subsidiaries, DNR USA, Inc. and DNR North America, Inc. (the
"Subsidiaries" and together with Marker, the "Company") filed voluntary
petitions for relief under Chapter 11 of the Bankruptcy Code with the United
States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court")
(Case Nos. 99-2880 through 99-2882 (MFW) (Jointly Administered)).
On September 22, 1999, th Company filed its First Amended Joint
Chapter 11 Plan of Reorganization (the "Plan"), which was confirmed by the
Bankruptcy Court pursuant to an order dated October 27, 1999 (the "Confirmation
Order"). The Confirmation Order is filed herewith as Exhibit 2.1. Descriptions
of the Plan herein are qualified in their entirety by reference to the Plan,
which is filed herewith as Exhibit 2.2. Capitalized terms used, but not defined,
herein shall have the same meaning as in the Agreement (as defined below), the
Plan and the Confirmation Order.
(3) SUMMARY OF THE PLAN.
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The following are the material features of the Plan:
a. The Plan is premised upon the consummation of the transactions
contemplated by the Agreement (as defined below) and several primary settlements
among Marker, Marker International GmbH ("Newco") and Marker's major creditors.
The Asset Purchase Agreement (as amended, the "Agreement"), dated as of July 30,
1999, by and between Marker, as seller, and Newco, as buyer, was filed as
Exhibit 2.1 to the Form 8-K filed by Marker on August 6, 1999, and was amended
by the Amendment to the Agreement, dated as of September 20, 1999, filed
herewith as Exhibit 10.1. Pursuant to the Agreement, on the Effective Date,
Newco will purchase Markers's assets as described in Section 2.1(a) of the
Agreement (which includes all of Marker's interests in its subsidiaries) and
assume the liabilities (the "Assumed Liabilities") set forth in Section 2.2(b)
of the Agreement. Upon consummation of such transactions, Marker will receive a
15% Equity Interest in Newco. Newco will not be responsible or liable for any
claim, liability or obligation owing to Marker that does not constitute an
"Assumed Liability." The Agreement, as amended, and the Plan were approved
specifically by the Confirmation Order.
b. The Plan provides, INTER ALIA, that (i) Allowed Administrative
Claims (other than Allowed Professional Claims), Allowed Priority Claims,
Allowed Small General Unsecured Claims Against Marker and Allowed General
Unsecured Claims Against the Subsidiaries will be paid in full in Cash by Newco,
(ii) Allowed Priority Tax Claims will be paid by Newco pursuant to the Tax Note,
(iii) the Allowed First Security Bank Claim will be paid in full in Cash by
Newco, (iv) the property subject to the First Mortgage which constitutes
Marker's corporate headquarters will be transferred to Marker USA and the
obligations under the First Mortgage will be jointly and severally paid by
Newco, Marker USA and Marker Ltd. in accordance with the terms thereof, (v) the
Hypo Vereinsbank (New York) Claim will be waived and the outstanding
indebtedness of Marker under the Hypo Vereinsbank Claim will be forgiven, (vi)
the Allowed Series A Bond Claims will be satisfied by Newco's issuance of the
Isomura Note, (vii) the German Banks Guarantee Claims will be released, (viii)
M&T Bank's Allowed Foreign Exchange Contract Claims will be satisfied by Newco's
issuance, jointly and severally with Marker Japan Co. Ltd., of the M&T Bank Note
and certain Cash payments to M&T Bank, (ix) KeyBank's Allowed Foreign Exchange
Contract Claims will be satisfied by Newco's issuance, jointly and severally
with Marker Japan Co. Ltd., of the KeyBank Note and certain Cash payments to
KeyBank, (x) the holder of the Piero Claims will receive, from Newco, the Piero
Cash Payment in full settlement and release of the Allowed Piero Claims and (xi)
Insured Product Liability Claims (including deductible amounts) will be assumed
by Newco and paid by the insurer or Newco, as applicable. With respect to
holders of Equity Interests (as such term is defined in the Plan) in Marker, the
holder of the Preferred Stock Interests will receive, as and when due, the
Tauber Payment Obligations and holders of Common Stock Interests will retain
their Equity Interests under the Plan and will receive no other distributions
under the Plan. Holders of Common Stock Interests may receive Cash if CT
exercises its option to purchase, at any time after the second anniversary of
the Effective Date, Marker's 15% Equity Interest in Newco at the then fair
market value. In the event CT exercises its purchase option, the net Cash
proceeds from such acquisition which would be distributed to the holders of
Marker Common Stock would be subject to offset and adjustment as described in
Section VI.G of the Plan. Alternatively, if the option is not exercised prior to
Marker's liquidation, holders of Common Stock will receive an Equity Interest in
Newco equal to each Equity Interest holder's pro rata share of Marker's 15%
interest in Newco. DNR North America Inc. and DNR USA, Inc. will be dissolved as
of the Effective Date of the Plan and the Equity Interests in DNR North America
Inc. and DNR USA, Inc. will be canceled.
c. Newco is organized as a GmbH under the laws of Switzerland.
Newco will have the partnership power and authority to issue the Newco
Equity Securities. The governance of Newco will be carried out in accordance
with Newco's Articles of Association, the Operating Agreement and the applicable
laws of Switzerland.
d. Pursuant to the Plan, Marker will change its name to MKR
Holdings ("MKR") and will remain incorporated in Utah. Pursuant to the
Confirmation Order, Marker is authorized to amend its articles of incorporation
and by-laws to satisfy the provisions of the Agreement (including the name
change), the Plan and the Confirmation Order (including the prohibition against
the issuance of non-voting securities) on or before the Effective Date, without
further authorization and approval from Marker's stockholders, board of
directors or order from the Bankruptcy Court.
e. The following subsidiaries of Marker survive bankruptcy and
upon consummation of the transactions contemplated by the Agreement will
become wholly-owned subsidiaries of Newco: Marker Ltd., Marker USA, Marker
Deutschland GmbH, Marker Japan Co. Ltd., Marker Austria GmbH and DNR Japan Co.
Ltd. In addition, Marker Canada, Ltd. will become a wholly- owned subsidiary of
Newco.
f. The following subsidiaries of Marker will be dissolved
pursuant to the Plan: DNR North America Inc. and DNR USA, Inc.
g. Kevin Hardy, Henry E. Tauber and Louis M. Alpern will be
the three initial directors of MKR. Mr. Hardy will also serve as MKR's
President and Secretary.
(4) CAPITALIZATION.
Prior to the filing of the Plan, there were 11,140,577 shares of
common stock and 1,000,000 shares of Series B preferred stock of Marker issued
and outstanding. On the Effective Date, the authorized capital stock of Marker
will consist only of common stock, with 25,000,000 shares authorized, $0.01 par
value, and approximately 11,120,577 shares outstanding. There are no shares of
stock reserved for future issuance in respect of claims and interests filed and
allowed under the Plan.
(5) ASSETS AND LIABILITIES.
As of September 30, 1999, the latest date that such information is
available, the Company had assets totaling $3,257,069 and liabilities totaling
$58,503,741. This financial information is more current than the information
which was provided to the Bankruptcy Court on the date of the Confirmation
Order, but does not reflect the consummation of the transactions contemplated by
the Plan.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) FINANCIAL STATEMENTS.
None.
(b) PRO FORMA FINANCIAL INFORMATION.
None.
(c) EXHIBITS.
2.1 Order confirming the Company's First Amended Joint Chapter 11
Plan of Reorganization Amended under Chapter 11 of the
Bankruptcy Code, dated October 27, 1999.
2.2 First Amended Joint Chapter 11 Plan of Reorganization of Marker
International, DNR USA, Inc. and DNR North America, Inc., dated
September 22, 1999.
10.1 Amendment to the Asset Purchase Agreement, dated as of
September 20, 1999, by and between Marker International, as
seller, and Marker International GmbH, as buyer.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MARKER INTERNATIONAL
By: /S/ KEVIN HARDY
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Name: Kevin Hardy
Title: Chief Financial Officer
Dated: November 10, 1999
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
2.1 Order confirming the Company's First Amended Joint Chapter 11
Plan of Reorganization Amended under Chapter 11 of the
Bankruptcy Code, dated October 27, 1999.
2.2 First Amended Joint Chapter 11 Plan of Reorganization of
Marker International, DNR USA, Inc. and DNR North America,
Inc., dated September 22, 1999.
10.1 Amendment to the Asset Purchase Agreement, dated as of
September 20, 1999, by and between Marker International, as
seller, and Marker International GmbH, as buyer.
901722v2
<PAGE>
EXHIBIT 2.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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IN RE: :
: CHAPTER 11
DNR USA, INC., DNR NORTH AMERICA, INC., :
AND MARKER INTERNATIONAL : CASE NO. 99-2880 (MFW)
:
: (JOINTLY ADMINISTERED)
DEBTORS. :
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER CONFIRMING FIRST
AMENDED JOINT CHAPTER 11 PLAN OF REORGANIZATION OF MARKER
INTERNATIONAL, DNR USA, INC. AND DNR NORTH AMERICA, INC.
Marker International ("Marker"), DNR USA, Inc. ("DNR USA") and DNR
North America, Inc. ("DNR N.A.", and together with Marker and DNR USA, the
"Debtors"), debtors and debtors-in-possession, having filed the First Amended
Joint Chapter 11 Plan of Reorganization of Marker International, DNR USA, Inc.
and DNR North America, Inc. dated September 22, 1999 (the "Plan") in accordance
with Section 1121 of Title 11 of the United States Code (the "Bankruptcy Code");
and the Debtors having filed the Disclosure Statement for the First Amended
Joint Chapter 11 Plan of Reorganization of Marker International, DNR USA, Inc.
and DNR North America, Inc. dated September 22, 1999 (the "Disclosure
Statement"), and a hearing having been held before this Court on September 22,
1999 (the "Disclosure Hearing") to consider the adequacy of the Disclosure
Statement; and the Court by order dated September 22, 1999 (the "Disclosure
Statement Order") having approved the Disclosure Statement as modified to
include certain minor revisions; and the Disclosure Statement Order having,
INTER ALIA, (i) established and approved procedures for the solicitation and
tabulation of votes to accept or reject the Plan and the forms of ballots and
other solicitation material and notices, (ii) established deadlines for voting
on and objecting to the Plan, and (iii) established October 27, 1999 at 2:30
p.m. as the date and time for the hearing pursuant to Sections 1128 and 1129 of
the Bankruptcy Code to consider confirmation of the Plan (the "Confirmation
Hearing"); and the solicitation of acceptances from holders of Claims and Equity
Interests entitled to vote on the Plan having been made within the time and in
the manner required by the Disclosure Statement Order; and copies of the Plan,
the Disclosure Statement, the Disclosure Statement Order, the Notice of
Confirmation Hearing and various related materials having been transmitted to
all known holders of Claims and Equity Interests in the Chapter 11 Cases in
accordance with the Disclosure Statement Order; and notice of the Confirmation
Hearing, including by publication, having been given as required by the
Disclosure Statement Order; and affidavits of service having been filed
evidencing the transmittal of solicitation materials in the manner required by
the Disclosure Statement Order; and an affidavit of publication having been
filed verifying publication of the notice of Confirmation Hearing in accordance
with the Disclosure Statement Order; and the ballots indicating acceptance or
rejection of the Plan by holders of Claims and Equity Interests having been
received and tabulated by StockTrans, Inc. and Stroock & Stroock & Lavan LLP,
the Court-authorized balloting agents (collectively, the "Balloting Agents");
and an objection to confirmation of the Plan having been filed by James and
Kristi Nelson O'Connor and such objection having been withdrawn; and upon the
full and complete record of the Confirmation Hearing, including, the arguments
of counsel and the testimony adduced or proffered at the Confirmation Hearing,
and all matters and proceedings heretofore part of the record of the Chapter 11
Cases; and the Court having reviewed, INTER ALIA, (i) the Plan Vote
Certifications (as defined below), (ii) the Asset Purchase Agreement dated as of
July 30, 1999 (as amended, supplemented or otherwise modified from time to time,
together with all exhibits and schedules thereto, the "Purchase Agreement")
between Marker, as seller, and Marker International GmbH, as buyer ("Newco"), a
copy of which is annexed to the Plan as Exhibit 1, (iii) the Operating
Agreement, a copy of which is annexed to the Plan as Exhibit 6 and (iv) all
other documents and instruments annexed to the Plan and the Purchase Agreement
or included in the Supplement to the First Amended Joint Chapter 11 Plan of
Reorganization filed with this Court on October 25, 1999 (the "Plan Supplement")
to be executed and delivered in connection with implementing the Plan and the
Purchase Agreement, including the definitive Restructuring Documents (all such
documents and instruments, together with the Purchase Agreement, being the
"Transaction Documents"); and after due deliberation, this Court makes the
following findings of fact and conclusions of law
IT IS HEREBY FOUND THAT:
A. All capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Plan or in the Purchase Agreement.
B. This Court has jurisdiction over the Chapter 11 Cases and the
proceedings to determine confirmation of the Plan and approval of the Purchase
Agreement and the other Transaction Documents pursuant to 28 U.S.C. " 157(b) and
1334. Venue of these proceedings and the Chapter 11 Cases in this District is
proper pursuant to 28 U.S.C. 1408 and 1409. The proceedings to determine
confirmation of the Plan and approval of the Purchase Agreement and the other
Transaction Documents constitute core proceedings as defined in 28 U.S.C. '
157(b)(2)(L), (N) and (O) and this Court has jurisdiction to enter a final order
with respect thereto.
C. The Debtors filed voluntary petitions for relief under Chapter 11
of the Bankruptcy Code on August 19, 1999 (the "Petition Date"). An order for
joint administration pursuant to Rule 1015(b) of the Federal Rules of Bankruptcy
Procedure (the "Bankruptcy Rules") has been entered in the Chapter 11 Cases.
D. Since the Petition Date, the Debtors have operated their businesses
and managed their affairs as debtors and debtors-in-possession pursuant to
Sections 1107 and 1108 of the Bankruptcy Code. No creditors' committee, trustee
or examiner has been appointed in any of the Chapter 11 Cases.
E. Due, timely, sufficient and adequate notice of the Confirmation
Hearing, the Plan and the relevant deadlines for voting on, and filing objection
to, the Plan has been given to all known holders of Claims and Equity Interests
and other parties in interest in accordance with the Disclosure Statement Order,
the Bankruptcy Code, the Bankruptcy Rules, the local rules of the Court and all
other applicable laws, rules and regulations.
F. Ballots were transmitted to holders of Claims and Equity Interests
in the Voting Classes (as defined in Paragraph R below) in accordance with the
Disclosure Statement Order.
G. The solicitation by the Debtors of votes to accept or reject the
Plan was conducted in good faith and complies with Sections 1125 and 1126 of the
Bankruptcy Code, all other applicable provisions of the Bankruptcy Code and all
other applicable laws, rules and regulations.
H. The procedures by which ballots were distributed to holders of
Claims against and Equity Interests in the Debtors and tabulated were fair,
properly conducted and in accordance with the Bankruptcy Code, the Bankruptcy
Rules, the local rules of the Court, the Disclosure Statement Order, and all
other applicable laws, rules and regulations.
I. As evidenced by (a) the Affidavit of Lisa Indelicato dated October
25, 1999, certifying the method and results of the ballot tabulation, (i) at
least two-thirds in amount and more than one-half in number of the holders of
Claims in Marker Class 1, Marker Class 2, Marker Class 3, Marker Class 4 ,
Marker Class 5 , Marker Class 6 (6A and 6B), DNR USA Class 1 and DNR N.A. Class
1 that timely and properly voted on the Plan accepted the Plan and (ii) at least
two thirds in amount of the Equity Interests voted in Marker Class 10, DNR USA
Class 3 and DNR N.A. Class 3 voted to accept the Plan (the "Plan Vote
Certification"). As evidenced by the Affidavit of Christina Bastas dated October
25, 1999, certifying the method and results of the ballot tabulation for Marker
Class 11, at least two-thirds in amount of the shares of Marker Common Stock in
Marker Class 11 that timely and properly voted on the Plan accepted the Plan
(the "Class 11 Plan Vote Certification", and together with the "Plan Vote
Certification", the "Plan Vote Certifications").
J. The Debtors solicited votes for the confirmation of the Plan from
the Classes enumerated in Paragraph I above in good faith and in a manner
consistent with the Bankruptcy Code.
K. Marker Classes 7, 8 and 9, DNR USA Class 2 and DNR N.A. Class 2 are
not impaired under the Plan, and therefore, such Classes are deemed to have
accepted the Plan pursuant to Section 1126(f) of the Bankruptcy Code.
L. The Plan provides for the treatment of Allowed Administrative
Claims, Allowed Priority Claims, Allowed Priority Tax Claims, Allowed First
Security Bank Claim (Marker Class 1, DNR USA Class 1 and DNR N.A. Class 1),
Allowed First Mortgage Claim (Marker Class 2), Allowed Hypo Vereinsbank (New
York) Claim (Marker Class 3), Allowed Series A Bonds Claim (Marker Class 4),
Allowed German Banks Guarantee Claims (Marker Class 5), Allowed Foreign Exchange
Contract Claims (Marker Class 6A and 6B), Allowed Piero Claims (Marker Class 7),
Allowed Insured Product Liability Claims (Marker Class 8), Allowed Small General
Unsecured Claims (Marker Class 9), Allowed General Unsecured Claims (DNR USA
Class 2 and DNR N.A. Class 2) and Intercompany Claims.
M. The Plan establishes the following Classes of Equity Interests:
Allowed Preferred Stock Interests (Marker Class 10), Allowed Common Stock
Interests (Marker Class 11), Allowed Equity Interests in DNR USA (DNR USA Class
3) and Allowed Equity Interests in DNR N.A. (DNR N.A. Class 3).
N. The classification of Claims and Equity Interests under the Plan is
consistent with Section 1122 of the Bankruptcy Code, is reasonable and not
discriminatory. Claims and Equity Interests in each particular Class are
substantially similar to other Claims or Equity Interests in such Class.
O. Except as otherwise agreed, the Plan provides the same treatment
for each Claim or Equity Interest of a particular Class.
P. The Plan specifies the Classes of Claims or Equity Interests not
impaired under the Plan.
Q. The Plan specifies the Classes of Claims or Equity Interests
impaired under the Plan.
R. The following Classes of Claims or Equity Interests (the "Voting
Classes") are impaired and entitled to vote under the Plan: Marker Class 1,
Marker Class 2, Marker Class 4, Marker Class 6A and 6B, Marker Class 10, Marker
Class 11, DNR USA Class 1 and DNR N.A. Class 1. All other Classes of Claims or
Equity Interests are either (a) unimpaired under the Plan or (b) subject to
Paragraph T below, have been deemed to have rejected the Plan pursuant to
Section 1126(g) of the Bankruptcy Code.
S. As evidenced by the Plan Vote Certifications, the Plan has been
accepted, in accordance with Section 1126 of the Bankruptcy Code and consistent
with Bankruptcy Rule 3018 and the Disclosure Statement Order, by all of the
Voting Classes. No Classes have voted to reject the Plan.
T. Although pursuant to Section 1126(g) of the Bankruptcy Code the
Plan is deemed rejected by the members of Marker Class 3, Marker Class 5, DNR
USA Class 3 and DNR N.A. Class 3 (collectively, the "Nonvoting Impaired
Classes"), which members will receive no distribution (or retain any property)
on account of their Allowed Claims or Equity Interests, respectively, the
members of such Nonvoting Impaired Classes have voted in favor of the
confirmation of the Plan.
U. The Plan does not discriminate unfairly, and is fair and equitable,
with respect to each Nonvoting Impaired Class.
V. Pursuant to Section 1123(a)(1) of the Bankruptcy Code, the Plan
does not designate classes for Administrative Claims, Priority Claims and
Priority Tax Claims; however, the Plan does provide for the treatment of each
such Claim.
W. Except to the extent that the holder of an Allowed Administrative
Claim or Allowed Priority Claim has agreed or will agree to a different
treatment of such Claim, the Plan provides that with respect to an Allowed
Administrative Claim or an Allowed Priority Claim of a kind specified in
Sections 503(b), 507(a) (other than 507(a)(8)) or 507(b) of the Bankruptcy Code,
on the later of: (i) the Effective Date, (ii) the date such Claim (or a portion
thereof) is Allowed or on which such Allowed Administrative Claim or Allowed
Priority Claim becomes due and payable or (iii) in the case of Professional
Claims, upon entry of an order of this Court authorizing the payment of such
Claims (PROVIDED, HOWEVER, that professional fees incurred subsequent to the
date of entry of this Order (such date being the "Confirmation Date") shall be
paid by Marker without the need of further approval of this Court), the holder
of such Claim will receive, on account of such Claim, Cash equal to the Allowed
amount of such Claim. Accordingly, the Plan complies with Section 1129(a)(9) of
the Bankruptcy Code.
X. The Plan provides that with respect to an Allowed Priority Tax
Claim of a kind specified in Section 507(a)(8) of the Bankruptcy Code, the
holder of such Allowed Priority Tax Claim will receive on account of such Claim
deferred cash payments, over a period not exceeding six years after the date of
assessment of such Allowed Priority Tax Claim, of a value, as of the Effective
Date, equal to the Allowed amount of such Claim together with the applicable
statutory interest, or such other more favorable treatment as Newco shall elect.
Y. The Plan is supported by Marker Class 11 (holders of Allowed Common
Stock Interests in Marker) and by each other holder of a Claim and/or Equity
Interest, including, without limitation, the members of the Nonvoting Impaired
Classes.
Z. The Plan complies with all applicable provisions of the Bankruptcy
Code as required by Section 1129(a)(1) thereof, and the Debtors, as proponents
of the Plan, have complied with all of the applicable provisions of the
Bankruptcy Code as required by Section 1129(a)(2) thereof.
AA. Based upon the testimony adduced and/or proffered at the
Confirmation Hearing and Bankruptcy Rule 3020(b)(2), 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.
BB. Any payments made or to be made by the Debtors for services or for
costs and expenses in, or in connection with, the Chapter 11 Cases, have been
approved by, or are subject to the approval of, this Court as reasonable.
CC. Pursuant to Section 1129(a)(5)(A) of the Bankruptcy Code, prior to
the Confirmation Hearing the Debtors filed the Plan Supplement which, INTER
ALIA, identifies (a) the initial board of directors that will, on and after the
Effective Date, manage the business and affairs of Marker as more particularly
described in decretal Paragraph 7(j) and (b) the affiliations of the initial
board of managing partners that will manage the business and affairs of Newco on
and after the Effective Date. The Debtors have identified the affiliations of
such individuals; and, as required by Section 1129(a)(7) of the Bankruptcy Code,
the appointment to, or continuance in, such office of such individuals is
consistent with the interests of Marker=s creditors and Equity Interest holders
and with public policy. Pursuant to the Plan, the corporate existence of DNR USA
and DNR N.A. will be terminated on or before the Effective Date.
DD. Pursuant to Section 1129(a)(5)(B) of the Bankruptcy Code, prior to
the Confirmation Hearing the Debtors filed the Plan Supplement which, INTER
ALIA, discloses the identities of the insiders that will be employed or retained
by Marker on and after the Effective Date, and the nature of the compensation of
each such insider.
EE. As no governmental authority has jurisdiction over the rates of
the Debtors, Section 1129(a)(6) of the Bankruptcy Code is inapplicable.
FF. The projected recoveries by holders of Allowed Claims and/or
Equity Interests in the Voting Classes are reasonable. With respect to each
impaired Class of Allowed Claims against or Equity Interests in each Debtor,
each holder of an Allowed Claim or Equity Interest of such Class: (a) has
accepted the Plan or (b) will receive or retain under the Plan, on account of
such Allowed Claim or Equity Interest, property of a value, as of the Effective
Date of the Plan, that is not less than the amount that such holder would so
receive or retain if such Debtor were to be liquidated under Chapter 7 of the
Bankruptcy Code on such date. Accordingly, the Plan complies with Section
1129(a)(7) of the Bankruptcy Code.
GG. The Plan complies with Section 1129(a)(10) of the Bankruptcy Code
as it has been accepted by at least one impaired Class of Claims for Marker
(e.g. Marker Class 1), DNR USA and DNR N.A. (e.g. DNR USA Class 1 and DNR N.A.
Class 1), which acceptance has been determined without including any acceptance
of the Plan by any insider holding a Claim in such Class.
HH. With respect to each Class of Allowed Claims or Equity Interests
designated by the Plan, including, without limitation, the Nonvoting Impaired
Classes, either: (a) such Class has voted to accept the Plan; or (b) such Class
is not impaired under the Plan.
II. Based upon the information included in the Plan, the Disclosure
Statement and the Transaction Documents and the testimony adduced and/or
proffered at the Confirmation Hearing, each of Marker, Newco and the
Subsidiaries has demonstrated its ability to meet its financial obligations
under the Plan and the Transaction Documents (which obligations shall become
effective and shall be performed only after, and subject to, the satisfaction of
each of the conditions precedent set forth in Article XIII of the Plan). Except
as specifically set forth in the Plan with respect to the dissolution of DNR USA
and DNR N.A. on or before the Effective Date and the eventual liquidation of
Marker (as more particularly described in decretal Paragraph 7(j)), confirmation
and consummation of the Plan are not likely to be followed by the liquidation or
the need for further financial reorganization of the Debtors, the Subsidiaries
or Newco. Accordingly, the Plan complies with Section 1129(a)(11) of the
Bankruptcy Code.
JJ. The fees payable by the Debtors to the United States Trustee or
the Clerk of this Court, as provided under 28 U.S.C. ' 1930(a)(6), constitute
Allowed Administrative Claims entitled to priority under Section 507(a)(1) of
the Bankruptcy Code and the treatment of such fees in the Plan satisfies Section
1129(a)(12) of the Bankruptcy Code.
KK. As the Debtors are not obligated to provide any "retiree benefits"
(as that term is defined in Section 1114 of the Bankruptcy Code), no such
benefits are required to be continued pursuant to the Plan.
LL. Pursuant to the Disclosure Statement Order, this Court found that
the Disclosure Statement contained adequate information within the meaning of
Section 1125 of the Bankruptcy Code.
MM. All conditions to confirmation contained in Section 13.1 of the
Plan have been satisfied or have been waived pursuant to Section 13.3 of the
Plan.
NN. The Plan is to be implemented pursuant to the Purchase Agreement,
the Operating Agreement and the Transaction Documents which provide for, among
other things: (i) the sale, conveyance, assignment, transfer and delivery to
Newco of substantially all of the property of the estate of Marker as more
particularly described in the Plan and in Section 2.1(a) of the Purchase
Agreement (collectively, the "Purchased Assets") and Marker=s assumption and
assignment of the Assumed Contracts (listed on Exhibit 4 to the Plan) to Newco,
in each case free and clear of all Encumbrances except Permitted Encumbrances or
Permitted Exceptions as set forth in the Purchase Agreement and as otherwise
specifically provided for in the Plan, (ii) Newco=s assumption of the Assumed
Liabilities (as defined in Paragraph OO) as modified by the Plan and the
Restructuring Documents, and (iii) Newco=s issuance of the Equity Consideration
to Marker. Pursuant to the Plan, Marker=s Real Property constituting its
headquarters building (the "Headquarters Building") shall be assigned, conveyed
and transferred to Marker USA, free and clear of all Encumbrances except
Permitted Encumbrances and as otherwise specifically provided for in the Plan.
The Plan provides adequate means for its execution and implementation and
otherwise complies with Section 1123(a)(5) of the Bankruptcy Code.
OO. Pursuant to, and subject to the terms and conditions of, the
Purchase Agreement and the Plan, on and as of the Effective Date, Newco shall:
(i) acquire good and marketable title to each of the Purchased Assets, (ii)
assume (in each case as modified by the Plan and the Restructuring Documents)
the Allowed Claims and/or Equity Interests (more particularly set forth in the
Claims Schedule) in Marker Class 1, Marker Class 2, Marker Class 4, Marker Class
6A and 6B, Marker Class 7, Marker Class 8, Marker Class 9, Marker Class 10, DNR
USA Class 1, DNR USA Class 2, DNR N.A. Class 1, DNR N.A. Class 2, Allowed
Administrative Claims (other than Professional Claims), Allowed Priority Claims,
Allowed Priority Tax Claims and all amounts due and payable after the Effective
Date under the Assumed Contracts for goods and/or services rendered to Newco
after the Effective Date (collectively, the "Assumed Liabilities") and (iii) pay
the Assumed Liabilities and perform the obligations relating thereto in
accordance with the applicable Restructuring Documents and the Plan.
PP. Notwithstanding anything to the contrary in the Purchase
Agreement, the Restructuring Documents or the Plan, and as more fully set forth
in decretal Paragraphs 7(e) and (f) below, Newco, its Affiliates (as defined in
the Purchase Agreement) and its subsidiaries are not assuming (and shall not be
liable for) by virtue of the Purchase Agreement, the Restructuring Documents,
the Plan or otherwise any Claims against or Equity Interests in Marker that do
not constitute Assumed Liabilities, as modified by the Plan and the
Restructuring Documents.
QQ. The Plan, pursuant to Section 2.2 thereof, constitutes a motion
for approval of the Purchase Agreement and consummation of the transactions
contemplated thereby.
RR. Marker had full corporate power and authority to execute, deliver
and perform the Purchase Agreement and Marker has been duly and validly
authorized by its board of directors and by all other necessary corporate action
on the part of Marker to consummate the transactions contemplated by the Plan
and the Purchase Agreement.
SS. Each Debtor has full corporate power and authority to execute,
deliver and perform each other Transaction Document to be executed, delivered
and performed by such Debtor in connection with the consummation of the
transactions contemplated by the Plan, the Purchase Agreement and such other
Transaction Documents and each Debtor has been duly and validly authorized by
its board of directors and by all other necessary corporate action on the part
of such Debtor to consummate the transactions contemplated by the Plan, the
Purchase Agreement and such other Transaction Documents. Without limiting the
generality of the foregoing, until the Effective Date, Peter Weaver, and
thereafter, Kevin Hardy, are hereby authorized to execute and deliver on behalf
of each Debtor any and all Transaction Documents necessary or desirable to
consummate the transactions contemplated by the Plan and the Purchase Agreement.
TT. Marker has good and marketable title to, or other right to use,
the Headquarters Building and each of the Purchased Assets (including, without
limitation, Marker's Intellectual Property and the Assumed Contracts).
UU. The Assumed Contracts to be assigned to Newco under the Purchase
Agreement and the Plan are in full force and effect and are assignable
notwithstanding any provisions contained therein to the contrary and, pursuant
to the Plan, each non-Debtor party to the Assumed Contracts has been provided
adequate assurance of future performance for the purpose of Section 365(b)(1) of
the Bankruptcy Code. No defaults of any kind exist under the Assumed Contracts
and therefore no cure amounts are due and owing to the contract parties in
connection with the assumption and assignment of the Assumed Contracts pursuant
to Section 365 of the Bankruptcy Code. Accordingly, the Debtors have satisfied
the requirements of Section 365 (b)(1)(A) and (B) and Section 365 (f)(2)(A) of
the Bankruptcy Code.
VV. The sale of the Purchased Assets to Newco and the assumption of
the Assumed Liabilities by Newco (as modified by the Plan and the Restructuring
Documents) is the best option available to the Debtors and the Subsidiaries to
maximize the value of their assets and is in the best interests of the Debtors=
estates.
WW. At the Disclosure Hearing and the Confirmation Hearing and in the
Disclosure Statement, Marker advanced good business reasons for seeking to sell
the Purchased Assets pursuant to the Purchase Agreement, and it is a reasonable
exercise of Marker=s business judgment to consummate the Sale on the terms and
conditions set forth in the Purchase Agreement, and for Marker to perform its
obligations thereunder and under the other Transaction Documents.
XX. The primary purpose of the Plan is not the avoidance of taxes or
the avoidance of the requirements of Section 5 of the Securities Act of 1933.
YY. The Plan and each of the Transaction Documents constitute a good
faith compromise and settlement of all claims or controversies resolved pursuant
to the Plan and such Transaction Documents. Such compromises and settlements are
in the best interests of each of the parties to the Transaction Documents, the
Debtors, their estates and any Person holding Claims against or Equity Interests
in the Debtors. The terms and conditions of the Transaction Documents were
negotiated by the parties thereto at arms length and in good faith, the terms
thereof are fair and reasonable and the transactions contemplated thereunder
shall be deemed to have been entered into in good faith and for valuable
consideration.
ZZ. The Debtors, the Subsidiaries, Newco, their respective Affiliates
(as defined in the Purchase Agreement) and each of their respective officers,
directors, employees, members or agents, and each professional, attorney,
financial advisor, accountant, or other professional employed by any of them and
have acted in good faith and in compliance with the applicable provisions of the
Bankruptcy Code, pursuant to Section 1125(e) and 1129(a)(3) of the Bankruptcy
Code, with respect to the administration of the Plan, the solicitation of
acceptances with regard thereto and the property to be distributed thereunder.
AAA. Based upon the representations and informed views of counsel to
the Debtors, Newco, and, all other testimony and evidence introduced at the
Confirmation Hearing and the full record of the Chapter 11 Cases, the
settlements embodied in the Plan and in the Transaction Documents are fair and
equitable, and fall above the lowest point in the range of reasonableness.
BBB. The Amendment to First Amended Joint Chapter 11 Plan of
Reorganization of Marker International, DNR USA, Inc. and DNR North America,
Inc. proposed by the Debtors prior to, at or in connection with the Confirmation
Hearing and annexed to this Confirmation Order as Exhibit A (the "Plan
Amendment") does not materially adversely affect the treatment of any holders of
any Claim against, or any Equity Interest in, the Debtors that have not accepted
the proposed Plan Amendment. Therefore, in accordance with Section 1127 of the
Bankruptcy Code and Bankruptcy Rule 3019, the Plan as amended is deemed accepted
by all holders of Claims and Equity Interests which have previously accepted the
Plan.
FINDING THAT THE PLAN IS CONFIRMABLE BASED ON ALL OF THE FOREGOING
FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED THAT:
1. The findings of this Court set forth above and the conclusions of
law stated herein shall constitute findings of fact and conclusions of law
pursuant to Bankruptcy Rule 7052, made applicable to this proceeding by
Bankruptcy Rule 9014. To the extent any finding of fact shall be determined to
be a conclusion of law, it shall be so deemed, and vice versa.
2. The Plan Amendment is hereby approved and ratified in all respects
and the Plan is hereby amended by the Plan Amendment.
3. The Plan as modified by the Plan Amendment complies with the
requirements of Sections 1122, 1123 and 1129 of the Bankruptcy Code.
4. The Plan as amended by the Plan Amendment is hereby confirmed
pursuant to Section 1129 of the Bankruptcy Code.
5. The Purchase Agreement is hereby approved and authorized in its
entirety and the performance of the Purchase Agreement in accordance with its
terms by Marker is hereby approved, authorized and ratified in all respects. The
Purchase Agreement is a legal, valid and binding obligation of Marker and Newco,
enforceable in accordance with its terms. The omission in this Order of specific
reference to any provision of the Purchase Agreement shall not impair or
diminish the efficacy, propriety and approval and authorization of such
provision, it being the intent of this Court that the Purchase Agreement be
authorized and approved in its entirety.
6. Each other Transaction Document is hereby approved and authorized
in its entirety and the performance of each such Transaction Document in
accordance with its terms by the parties thereto is hereby approved, authorized
and ratified in all respects. Each such Transaction Document that is duly
executed and delivered shall be on and after the date of such execution and
delivery a legal, valid and binding obligation of the parties thereto,
enforceable in accordance with its terms.
7. This Order is and shall be effective as a determination that on and
as of the Effective Date (subject to the satisfaction of each of the conditions
set forth in Article XIII of the Plan):
(a) The Purchased Assets (including, without limitation, Marker's
Intellectual Property) shall be deemed conveyed, assigned, transferred and
delivered by Marker to Newco and such conveyance, assignment, transfer and
delivery of the Purchased Assets shall be legal, valid and effective, and Newco
shall be deemed to be a good faith purchaser that has acquired good title to the
Purchased Assets (including, without limitation, Marker's Intellectual
Property), free and clear of all Encumbrances, other than Permitted Encumbrances
or Permitted Exceptions as set forth in the Purchase Agreement and as otherwise
provided in the Plan.
(b) Without limiting the generality of decretal Paragraph 7(a) above,
Marker is hereby authorized and directed to assume and assign to Newco the
Assumed Contracts. The Assumed Contracts shall be deemed assumed and assigned to
Newco free and clear of all Encumbrances, other than Permitted Encumbrances and
as may be specifically provided for in the Plan.
(c) All executory contracts and unexpired leases of each Debtor
specifically set forth on Exhibit 5 to the Plan together with each other
executory contract and unexpired lease of each Debtor not specifically listed on
Exhibit 4 to the Plan as being assigned to Newco shall be rejected by such
Debtor pursuant to the provisions of Section 365 of the Bankruptcy Code, except:
(i) any executory contracts and unexpired leases that are the subject of
separate motions to assume or assume and assign filed pursuant to Section 365 of
the Bankruptcy Code by any of the Debtors before the entry of this Order; (ii)
the Assumed Contracts which have been assumed pursuant to decretal Paragraph
7(b) above; (iii) all executory contracts or unexpired leases (including,
without limitation, the Distribution Agreements) assumed or assumed and assigned
by order of the Court entered before the Confirmation Date; and (iv) any
agreement, obligation, security interest, transaction or similar undertaking
that the relevant Debtor believes is not executory or a lease that is later
determined by the Court to be an executory contract or unexpired lease that is
subject to assumption or rejection under Section 365 of the Bankruptcy Code.
Each Person who is a party to a contract or lease rejected under the Plan or
hereunder must file, not later than thirty (30) days after the date of notice of
the entry of this Order, a proof of Claim for damages alleged to arise from the
rejection of the applicable contract or lease, or be forever barred from
asserting a Claim, or sharing in distributions under the Plan, related to such
alleged rejection damages. Any order entered postconfirmation by this Court,
after notice and a hearing, authorizing the rejection of an executory contract
or unexpired lease shall cause such rejection to be a prepetition breach under
Sections 365(g) and 502(g) of the Bankruptcy Code, as if such relief was granted
and such order was entered preconfirmation.
(d) Newco shall have assumed and shall be liable for the Assumed
Liabilities (as modified by the Plan and the Restructuring Documents) and the
payment and performance thereof in accordance with the terms of the Plan and the
Restructuring Documents applicable thereto.
(e) Newco, its Affiliates (as defined in the Purchase Agreement) and
subsidiaries shall not be deemed to: (x) be the successor of Marker; (y) have,
DE FACTO or otherwise, merged with or into Marker; or (z) be a mere continuation
or substantial continuation of Marker or the enterprise of Marker.
(f) Newco, its Affiliates (as defined in the Purchase Agreement) and
its subsidiaries shall not be deemed to have assumed or have any liability or
obligation for any Excluded Liabilities. Without in any way limiting the terms
of Section 2.2(a) and 2.2(c) of the Purchase Agreement and without in any way
limiting the definition of "Excluded Liabilities" in the Purchase Agreement, to
the extent any Claim is not specifically assumed pursuant to the Purchase
Agreement, the Plan and this Order as an Assumed Liability, each of Newco, its
Affiliates (as defined in the Purchase Agreement) and its subsidiaries has NOT
taken subject to and shall NOT be liable for, any Claims against Marker or any
other liabilities or obligations of any kind or nature, whether absolute,
contingent, accrued, known or unknown and whether arising before or after the
Effective Date, of Marker, including, but not limited to (i) any liabilities or
obligations of Marker that are discharged pursuant to the Plan, Section
1141(d)(1) of the Bankruptcy Code or any order of this Court (including, without
limitation, this Order), (ii) any liabilities or obligations of Marker the
collection of which has been permanently enjoined by the Plan, an order of this
Court (including, without limitation, this Order) or by any applicable provision
of the Bankruptcy Code (including, without limitation, Section 524 of the
Bankruptcy Code) and (iii) the following liabilities and obligations:
(1) All fees and expenses of Marker incurred in connection with
the Purchase Agreement, the Operating Agreement, any other Transaction
Document, the Plan, this Order and the transactions contemplated
hereby and thereby.
(2) All fees and expenses, if any, of Marker in connection with
the dissolution and liquidation of Marker and withdrawal from business
by Marker.
(3) Any liabilities or obligations of Marker incurred, arising
from or out of or in connection with the Purchase Agreement, the
Operating Agreement, any other Transaction Document, the Plan, this
Order or any other agreement, document, instrument, certificate or
report executed by Marker from time to time in connection herewith or
therewith.
(4) Any liabilities or obligations of Marker incurred, arising
from or out of or in connection with Marker=s default in the
performance of or compliance with any provision of any judgment,
order, writ, injunction, or decree, including, without limitation,
this Order.
(5) Any liabilities or obligations incurred, arising from or out
of, in connection with or as a result of Marker=s operations
(including liabilities, obligations or claims relating to or arising
under any environmental Law), the condition of its assets or places of
business, its ownership or control of the Purchased Assets, or the
issuance, sale, repayment or repurchase of any of its Equity
Securities, in each case whether before or after the Effective Date.
(6) Any liabilities or obligations incurred, arising from or out
of, in connection with or as a result of Claims made by or against
Marker (including any Claims of existing or former employees), in each
case whether arising out of events before or after the Effective Date.
(7) Any liabilities or obligations incurred, arising from or out
of, in connection with or as a result of any alleged or actual defect
in any product or in connection with any alleged or actual breach of
warranty (whether express or implied) in relation to any product sold,
manufactured, or designed or marketed by Marker whether before or
after the Effective Date, EXCEPT THAT, pursuant to Section 2.2(b)(ii)
of the Purchase Agreement and Section 5.8 of the Plan, Newco has
assumed pre- and post-petition product warranty and product liability
claims (to the extent covered by insurance and any deductibles
therefor).
(8) Any liabilities or obligations (whether assessed or
unassessed) of Marker for any Taxes, including any Taxes arising by
reason of the transactions contemplated by the Purchase Agreement and
the Plan, as of, or for any taxable period (or portion thereof) ending
on or prior to, the Effective Date (or ending after the Effective Date
to the extent allocable to the portion of such period ending on the
Effective Date), EXCEPT THAT, pursuant to the Plan and the Purchase
Agreement, Allowed Priority Tax Claims constitute Assumed Liabilities
payable by Newco.
(9) Any liabilities or obligations to stockholders or former
stockholders of Marker in their capacity as stockholder or former
stockholder, including, without limitation, liabilities or
obligations, if any, to James and Kristin O'Connor.
(10) Any liabilities or obligations of Marker incurred, arising
from or out of, in connection with or as a result of Claims made
against Marker in connection with Marker=s violation of any Law
relating to employment and labor matters, including, without
limitation, the provisions of Title VII or the Civil Rights Act of
1964 (race, color, religion, sex, and national origin discrimination),
42 U.S.C. " 621-634 (the Age Discrimination in Employment Act), 29
U.S.C. ' 206 (equal pay), Executive Order 11246 (race, color,
religion, sex and national origin discrimination), Executive Order
11141 (age discrimination), ' 503 of the Rehabilitation Act of 1973
(handicap discrimination), 42 U.S.C. " 12101-12213 (Americans with
Disabilities Act), 29 U.S.C. 2001-2654 (Family and Medical Leave Act),
29 U.S.C. " 651-678 (occupational safety and health) and requirements
relating to the documentation of the nationality of employees.
(g) The Headquarters Building shall be deemed conveyed, assigned,
transferred and delivered by Marker to Marker USA and such conveyance,
assignment, transfer and delivery of the Headquarters Building shall be legal,
valid and effective, and Marker USA shall be deemed to be a good faith purchaser
that has acquired good title to the Headquarters Building, free and clear of all
Encumbrances, other than Permitted Encumbrances and as otherwise provided in the
Plan.
(h) In accordance with Section 1141(b) of the Bankruptcy Code, all
Excluded Assets shall revest in Marker, and Newco shall issue the Equity
Consideration to Marker in accordance with applicable law, free and clear of all
Encumbrances other than as provided for in the Purchase Agreement and/or the
Operating Agreement. Subject to the terms of the Purchase Agreement and the
Operating Agreement, on and after the Effective Date, Marker=s sole assets shall
be the Excluded Assets and the Equity Consideration issued by Newco to Marker.
(i) As of the Effective Date, the corporate existence of DNR USA and
DNR N.A. shall terminate. Any property of DNR USA and DNR N.A. not distributed
under the Plan shall be deemed conveyed, assigned, transferred and delivered to
Newco as soon as practicable after the dissolution or liquidation of DNR USA and
DNR N.A., and such conveyance, assignment, transfer and delivery shall be legal,
valid and effective, and Newco shall be deemed to be a good faith purchaser that
has acquired good title to such property free and clear of all Encumbrances
other than as provided in the Plan.
(j) Marker shall not engage in the conduct of business and will
operate for the sole purpose of liquidating its assets (including, without
limitation, the Equity Consideration). Without limiting the generality of the
preceding sentence, Marker shall operate in accordance with, and comply with the
terms of, Section 7.4 of the Purchase Agreement and shall dissolve and liquidate
all of its assets (including, without limitation, the Equity Consideration) no
earlier than the third anniversary of the Effective Date and no later than the
fifth anniversary of the Effective Date. Marker is hereby authorized to file and
shall file with the Secretary of State of the State of Utah (which shall accept
and record) a certificate of incorporation and by-laws amended as necessary to
satisfy the provisions of the Purchase Agreement (including Marker=s obligation
to change its name on or prior to the Effective Date), the Plan and this Order
(including the prohibition against the issuance of non-voting securities) and
such amended certificate of incorporation and by-laws shall be the certificate
of incorporation and by-laws of Marker on and after the Effective Date without
further authorization and approval from Marker=s stockholders, board of
directors or order of this Court.
(k) On the Effective Date, the Debtors, their Affiliates (as such term
is defined in Section 101(2) of the Bankruptcy Code but in no event shall such
term be deemed to include Newco for purposes of this decretal Paragraph 7(k))
and their shareholders derivatively are hereby deemed to have forever waived and
released unconditionally each of the Debtors= present and former directors,
officers, employees, agents, consultants, advisors, attorneys, accountants and
other representatives and their respective successors, assigns or Affiliates
(collectively, the "Debtor Releasees"), from any and all Claims, obligations,
suits, judgments, damages, rights, causes of action and liabilities whatsoever,
whether known or unknown, foreseen, or unforeseen, existing or hereafter
arising, in law, equity or otherwise, based in whole or in part upon any act or
omission by, or any transaction, agreement, event or other occurrence (unless
due to the gross negligence or willful misconduct of the Debtor Releasee),
taking place prior to, on, or after the Confirmation Date in any way relating to
the Debtors, their businesses, the Chapter 11 Cases, the Plan, or the Purchase
Agreement (collectively, the "Released Claims"). The Debtors, their Affiliates
and their shareholders shall be forever precluded from asserting whether
directly, derivatively or otherwise, any such Claims against any Debtor
Releasee.
(l) On the Effective Date, except as otherwise provided in the Plan,
the Debtors, their Affiliates (as such term is defined in Section 101(2) of the
Bankruptcy Code) and their shareholders derivatively are hereby deemed to have
forever waived and released unconditionally (i) the holders of Equity Interests,
(ii) First Security Bank, Hypo Vereinsbank (New York), Isomura, M&T Bank,
KeyBank (except that all of the rights, defenses and claims of Marker
Deutschland GmbH and Marker USA against KeyBank relating to or arising under
KeyBank's Foreign Exchange Contract Claims are expressly preserved until such
time as KeyBank's claims, if any, against Marker Deutschland GmbH and Marker USA
are discharged and released pursuant to Section 14.3 of the Plan), the German
Banks, Piero, the Subsidiaries (in their capacity as holders of Claims), and
Newco (except as otherwise provided in the Purchase Agreement) and (iii) all
present and former directors, officers, employees, agents, consultants,
advisors, attorneys, accountants and other representatives and their respective
successors, assigns or Affiliates (as such term is defined in the Purchase
Agreement) of or to any of the foregoing in their capacity as such (all of the
foregoing collectively referred to as the "Third Party Releasees") from the
Released Claims; PROVIDED, HOWEVER, that this release shall not constitute a
release of any Allowed Claims or Equity Interests treated under the Plan or any
Claims or causes of action of Marker or Newco against the other that arise under
or relate to the Purchase Agreement (unless otherwise provided in the Purchase
Agreement), the Operating Agreement or any other Transaction Document. Entities
deemed to have released Claims pursuant to this decretal Paragraph 7(l) shall be
forever precluded from asserting whether directly, derivatively or otherwise,
any such Claims against the Third Party Releasees.
(m) On the Effective Date, each holder (or representative thereof) of
a Claim or Equity Interest (i) who has accepted or is deemed to have accepted
the Plan, (ii) whose Claim or Equity Interest is in a Class that has accepted or
is deemed to have accepted the Plan pursuant to Section 1126 of the Bankruptcy
Code or (iii) who may be entitled to receive a distribution of property or
retain property pursuant to the Plan, shall be deemed to have forever waived and
released unconditionally, to the extent permitted by law, the Debtors, the
Debtor Releasees and the Third Party Releasees from the Released Claims;
PROVIDED, HOWEVER, that this release shall not constitute a release of (A) any
payment obligation with respect to the treatment of Allowed Claims and Equity
Interests provided under the Plan or the Restructuring Documents, (B) any Claims
or causes of action of Marker or Newco against the other that arises under or
relates to the Purchase Agreement (unless otherwise provided in the Purchase
Agreement), the Operating Agreement or any other Transaction Document, (C)
KeyBank's rights and claims, if any, against Marker Deutschland GmbH and Marker
USA arising under or relating to KeyBank's Foreign Exchange Contracts; provided
however, that upon payment to KeyBank of all sums due to KeyBank under the Plan
(including the Cash payment and all amounts due under the KeyBank Note), Marker
Deutschland GmbH and Marker USA will be discharged and released of all such
claims, or (D) any Claims third parties may have against each other, which
Claims are not related to the Debtors and the Chapter 11 Cases. Persons deemed
to have released Claims pursuant to this decretal Paragraph 7(m) shall be
forever precluded from asserting any such Claims against the Debtors, the Debtor
Releasees or the Third Party Releasees.
(n) Except as otherwise expressly provided in the Plan or the Purchase
Agreement, the Plan and this Order shall permanently enjoin, from and after the
Effective Date, all Persons that have held, currently hold, or may hold a Claim
against or other debt or liability of any of the Debtors, whether arising
before, on or after the Effective Date, or that hold any Equity Interest in the
Debtors (including, without limitation, any holder of a Claim or Equity Interest
governed by the Plan) from taking any of the following actions with respect to
such Claim or Equity Interest against the Debtors, the Debtor Releasees, the
Third Party Releasees, the Purchased Assets (wherever located), the Headquarters
Building, or the Excluded Assets or with respect to any of the Released Claims:
(i) commencing, conducting or continuing in any manner, directly or indirectly,
any suit, action or other proceeding of any kind (including, without limitation,
any action against Newco alleging successor liability or otherwise alleging that
Newco is liable for any liabilities or obligations of Marker (other than the
Assumed Liabilities that were assumed by Newco on the Effective Date)) whether
any such proceeding is in a judicial, arbitral, administrative or other forum;
(ii) enforcing, levying, attaching (including, without limitation, any
pre-judgment attachment), collecting or otherwise recovering in any manner or by
any means, whether directly or indirectly, any judgment, award, decree or order;
(iii) creating, perfecting or enforcing in any manner directly or indirectly,
any Lien or other Encumbrance of any kind; (iv) asserting any setoff, right of
subrogation or recoupment of any kind, directly or indirectly; and (v)
proceeding in any manner in any place whatsoever that does not conform to or
comply with or is inconsistent with the provisions of the Plan; PROVIDED,
HOWEVER, that this injunction shall not apply to (x) any Allowed Claims or
Equity Interests that may be asserted under the Plan, (y) any Claims or causes
of action of Marker or Newco against the other that arises under or relates to
the Purchase Agreement, the Operating Agreement or any other Transaction
Document, or (z) any Claims holders of Claims or Equity Interests or other third
parties may have against each other, which Claims are not related to the
Debtors, the Purchased Assets and the Chapter 11 Cases, it being understood,
however, that any defenses, offsets or counterclaims of any kind or nature
whatsoever which the Debtors may have or assert in respect of any of the Claims
of the type described in (x), (y) or (z) of this proviso to the extent not
otherwise waived in the Purchase Agreement or the Plan, are fully preserved.
(o) In accordance with Section 1141(d)(1) of the Bankruptcy Code,
entry of this Order acts as a discharge, effective as of the Effective Date, of
all debts of, Claims against, Liens on, and Equity Interests in (other than
Marker Common Stock Interests), each of the Debtors, their assets or properties
(including, without limitation, the Purchased Assets), which debts, Claims,
Liens, and Equity Interests arose at any time before the Confirmation Date
(including, without limitation, the debts and obligations described in decretal
Paragraph 7(f)(5 - 10); PROVIDED, HOWEVER, in no event shall Section 1141(d)(1)
of the Bankruptcy Code or any provision of the Plan or this Order discharge, or
be deemed to discharge, any obligations or liabilities of Marker or any Claims
of Newco, its Affiliates (as defined in the Purchase Agreement) or its
subsidiaries against Marker that arise from or relate to the Purchase Agreement,
the Operating Agreement or any of the other Transaction Documents. Pursuant to
Section 1141(d)(4) of the Bankruptcy Code, this Order shall be deemed approval
of Marker=s request for a waiver from discharge of its obligations and
liabilities to Newco, its Affiliates (as defined in the Purchase Agreement) and
its subsidiaries arising under or relating to the Purchase Agreement, the
Operating Agreement and the other Transaction Documents. The discharge and
releases provided herein or in the Plan or under the Bankruptcy Code shall not
be a defense to any Claim that Newco may have against Marker that arises under
or relates to the Transaction Documents, or the obligation of Marker to make any
payment thereon.
(p) The discharge of the Debtors shall be effective as to each Claim
and Equity Interest, regardless of whether a proof of claim or interest therefor
was filed, whether the Claim or Equity Interest is an Allowed Claim or Equity
Interest or whether the holder thereof has voted to accept the Plan. On the
Effective Date, as to every discharged Claim and Equity Interest, any holder of
such Claim or Equity Interest shall be precluded from asserting against any
Debtor formerly obligated with respect to such Claim or Equity Interest, or
against such Debtor=s assets or properties (including, without limitation, the
Purchased Assets and the Headquarters Building), or Newco, its Affiliates (as
defined in the Purchase Agreement) and its subsidiaries, any other or further
Claim or Equity Interest based upon any document, instrument, act, omission,
transaction or other activity of any kind or nature that occurred before the
Effective Date. In accordance with Section 524 of the Bankruptcy Code, the
discharge provided hereby and by Section 1141 of the Bankruptcy Code, INTER
ALIA, acts as an injunction against the commencement or continuation of any
action, employment of process or act to collect, offset or recover the Claims
and Equity Interests discharged hereby and under the Plan.
(q) Neither the Debtors, the Debtor Releasees or the Third Party
Releasees or any of their respective Affiliates (as defined in the Purchase
Agreement) or any of their respective officers, directors, employees, members or
agents, or any Professional employed by any of them (collectively, the
"Exculpated Persons"), shall have or incur any liability to any entity for any
act taken or not taken in good faith in connection with or in any way related to
the negotiation, formulation, implementation, confirmation or consummation of
the Plan, the Disclosure Statement, the Purchase Agreement, or any contract,
instrument, release or other agreement or document created in connection with or
related to the Plan (including, without limitation, the Operating Agreement,
each Restructuring Document and each other Transaction Document) or the
administration of the Chapter 11 Cases. The Exculpated Persons shall have no
liability to any holder of a Claim, holder of an Equity Interest or other
party-in-interest herein or any other Person for actions taken under the Plan,
in connection therewith or with respect thereto, in good faith, including,
without limitation, failure to satisfy any condition or conditions, or refusal
to waive any condition or conditions precedent to the Confirmation Date or the
Effective Date. Further, the Exculpated Persons will not have or incur any
liability to any holder of a Claim, holder of an Equity Interest, or other
party-in-interest herein or any other Person for any act or omission in
connection with or arising out of their administration of the Plan or the
property to be distributed under the Plan, except for gross negligence or
willful misconduct as finally determined by this Court, and the Exculpated
Persons are entitled to rely on, and act or refrain from acting on, all
information provided by other Exculpated Persons without any duty to investigate
the veracity or accuracy of such information.
(r) Notwithstanding any provision in the Plan or Confirmation Order to
the contrary, there shall be no bar date with respect to claims of the United
States and all rights and claims of the United States shall not be discharged,
impaired or adversely affected by the Plan and Bankruptcy Cases, shall survive
the Bankruptcy Cases, and shall be determined in the manner and by the
administrative or judicial tribunal in which such rights or claims would have
been resolved or adjudicated if the Bankruptcy Cases had not been commenced;
provided however, that (i) claims of the Internal Revenue Service of a kind
specified in Section 507(a)(8) of the Bankruptcy Code, if any, may be treated
consistent with Section 1129(a)(9)(C) of the Bankruptcy Code and paid pursuant
to the Plan in quarterly installments with interest accruing at the rate
specified in 26 U.S.C. ' 6621 and all such amounts shall be paid in full not
later than six (6) years from the Effective Date, (ii) the proof of claim filed
by the Department of Treasury, Internal Revenue Service, against Marker shall be
and hereby is deemed withdrawn and (iii) all outstanding tax returns shall be
filed and served upon the Special Procedures Function, Internal Revenue Service,
409 Silverside Road, Wilmington, DE 19809, no later than December 31, 1999.
(s) All First Security Secured Loan Documents (including, without
limitation, the Collateral Assignment, Acknowledgement and Consent dated October
30, 1998 among Marker, Marker USA, Marker Deutschland GmbH and First Security),
the Marker/German Banks Guarantees, the Hypo Vereinsbank Term Loan Agreement,
the Foreign Exchange Contracts, the Marker Series B Preferred Stock and any
other note, bond, indenture or other instrument or document (other than the
certificates evidencing the Marker Common Stock Interests and all documents
relating thereto) evidencing or creating any indebtedness or obligation of any
of the Debtors shall be deemed canceled on the Effective Date upon payment of
any distribution due under the Plan, as applicable; PROVIDED, HOWEVER, that the
KeyBank Foreign Exchange Contracts shall continue in effect solely for the
purpose of preserving KeyBank=s rights and claims thereunder, if any, against
Market Deutschland GmbH and Marker USA.
8. Unless otherwise provided in the Plan, all injunctions or stays
provided for in the Chapter 11 Cases pursuant to Sections 105 or 362 of the
Bankruptcy Code or otherwise and in effect on the Confirmation Date shall remain
in full force and effect until the Effective Date.
9. The Equity Consideration distributed by Newco to Marker is not
subject to registration under the securities laws as Newco is a privately held
GmbH.
10. The issuance, transfer, or exchange of a security, or the making
or delivery of an instrument of transfer under the Plan shall not be taxed under
any law imposing a stamp tax or similar tax.
11. All amounts payable in respect of Allowed Claims will be treated
for United States federal income tax purposes to have been applied first in
payment of accrued interest, if any, and then in payment of the principal amount
with respect to such Allowed Claim.
12. The consummation of the transactions contemplated by the Purchase
Agreement, the Plan and this Order shall not diminish or impair the
enforceability of any insurance policies that may cover Claims against the
Debtors, the Subsidiaries, Newco or any other Person or any of their respective
assets, including the Purchased Assets, the Headquarters Building and the
Excluded Assets. The insurance policies that constitute Purchased Assets
(including, without limitation, product liability insurance policies) shall be
in full force and effect in accordance with their terms on, as of and after the
Effective Date.
13. The sale of the Purchased Assets under the Purchase Agreement
shall not give rise to any Claims of severance against any of the Debtors or
give rise to any liabilities or obligations owed to employees of Marker which
are to be assumed by Newco, or trigger any other employee benefit except as may
be expressly provided for in the Plan and the Purchase Agreement.
14. Each Debtor is hereby authorized and directed to execute and
deliver or cause the execution and delivery of any and all agreements,
conveyances, instruments, assignments, schedules, documents and amendments
(including, without limitation, as set forth in Sections 3.2 and 8.2(v) of the
Purchase Agreement) and do all other things and take all further actions as may
be reasonably necessary or appropriate for the performance of its obligations as
contemplated by the Purchase Agreement, the Operating Agreement, any other
Transaction Document, the Plan and this Order.
15. Except as otherwise provided in the Plan, no distribution under
the Plan shall be made to or on behalf of any holder of a Claim or Equity
Interest unless and until such holder has contemporaneously with the receipt of
any Plan distribution which such holder may be entitled to under the Plan:
turned over and released to Newco any and all property of the relevant Debtor
that secures or purportedly secures such Claim or Equity Interest; executed such
documents and instruments, including appropriate termination statements, as
Newco requires to evidence such claimant=s release of such property; and/or
surrendered to Newco the specified documents, agreements and instruments set
forth in decretal Paragraph 7(s) and any other note, instrument, document,
certificate, agreement, certificated security or other item evidencing such
Claim or Equity Interest, or demonstrated the non-availability of such items to
the satisfaction of Newco, including requiring such holder to post a lost
instrument or other indemnity bond, among other things, to hold Newco harmless
in respect of such Lien, instrument or other item described above and any
distributions made in respect thereof. If any Person that has filed financing
statements or other documents or agreements evidencing Liens or other
Encumbrances in the Purchased Assets (which are not Permitted Encumbrances or
are otherwise specifically permitted under the Plan) shall not have delivered to
Newco, contemporaneously with such Person's receipt of any Plan distribution due
under the Plan (in proper form for filing and duly executed by the appropriate
parties), termination statements, instruments of satisfaction and releases of
all such Liens or other Encumbrances which such Person has with respect to the
Purchased Assets, then Newco shall be authorized and directed to execute and
file such statements, instruments, releases and other documents on behalf of
such Person with respect to the Purchased Assets.
16. This Order is and shall be binding upon and govern the acts of all
Persons, including, without limitation, all filing agents, filing officers,
title agents, title companies, recorders of mortgages, recorders of Governmental
Entities, secretaries of state, foreign, federal, state and local officials, and
all other Persons who may be required by operation of law, the duties of his
office, or contract, to accept, file, register or otherwise record or release
any documents or instruments, or who may be required to report or insure any
title or state of title in or to any of the Purchased Assets.
17. Each and every foreign, federal, state, and local Governmental
Entity shall accept any and all documents and instruments necessary and
appropriate to consummate the transactions contemplated by the Purchase
Agreement and the Plan, including, without limitation, documents and instruments
for recording in or with any Governmental Entity required to transfer to Newco
the names and any and all other licenses or permits under Marker=s ownership
necessary for the operations that are associated with the Purchased Assets and
the Headquarters Building, and the county and state officials wherein
termination and assignment statements under the Uniform Commercial Code are
authorized to be filed.
18. Each holder of an Allowed Common Stock Interest in Marker shall
retain such Equity Interest and shall not receive any distribution on the
Effective Date under the Plan; PROVIDED, HOWEVER, such holders may receive cash
distributions (subject to offsets and adjustments) on account of their Allowed
Common Stock Interests if Marker=s Equity Consideration is redeemed or otherwise
liquidated by CT and/or Newco in accordance with the terms of the Operating
Agreement.
19. Upon Newco=s issuance to Marker of the Equity Consideration,
Marker shall have such rights and obligations as a minority equity holder in
Newco as set forth in the Operating Agreement and the Equity Consideration shall
be subject to, and governed by, the terms of the Operating Agreement which is
hereby approved in its entirety. Notwithstanding anything herein to the
contrary, this Court shall not retain or otherwise have exclusive jurisdiction
with respect to any controversies, suits or disputes arising under or relating
to the Operating Agreement.
20. Upon the consummation of the transactions contemplated by the Plan
and the Purchase Agreement, Marker will not be (a) an "investment company" that
is not subject to the exceptions set forth in Section 7(a) of the Investment Act
for transactions which are merely incidental to the dissolution of an investment
company, (b) a company required to be registered under the Investment Act, (c) a
registered company under the Investment Act or (d) an entity "controlled" by an
"investment company" as such terms are defined in the Investment Act.
21. On and after the Effective Date, Newco and/or the Subsidiaries are
authorized to enter into the Employment Agreements (as defined in the Purchase
Agreement) with Peter Weaver and Eiichi Isomura.
22. On and after the Effective Date, Newco (with the assistance of
Marker) shall have the authority (without this Court=s prior approval) to file,
settle, compromise, withdraw, or litigate to judgment objections to Claims. In
addition, Marker shall continue to prosecute (at its sole cost and expense) and
shall have authority to settle all objections to Claims relating to Equity
Interests in Marker, including, without limitation, the securities-related Claim
filed by James and Kristin O'Connor; provided that all such settled Claims
(whether by way of agreement or pursuant to an order of a court of competent
jurisdiction or otherwise) shall be retained by, and be the sole obligation of,
Marker.
23. All objections to Claims and Equity Interests shall be filed and
served on the holders of such Claims or Equity Interests by the later of: (a)
the Effective Date and (b) sixty (60) days after the proof of such Claim or
Equity Interest has been filed.
24. On and after the Effective Date, Newco shall retain and may
enforce any Claims, rights and causes of action that any Debtor may hold other
than any Claims or causes of action which are released pursuant to the Plan and
this Order.
25. Except as otherwise provided herein, a Claim may not be filed or
amended after the Confirmation Date without prior notice to the Debtors and
Newco and prior authorization of this Court, and may not be amended to increase
the amount of the Claim. Except as otherwise permitted herein, a Claim filed or
amended after the Confirmation Date shall be deemed disallowed and expunged
without any action by the Debtors or Newco if prior notice has not been given or
authorization has not been obtained.
26. All applications for payment of Professional Claims incurred
before the Confirmation Date must be filed with the Court on or before November
30, 1999. Notice of such date shall be sent by the Debtors to all Professionals
retained in the Chapter 11 Cases and other parties in interest. Any Person that
fails to file such application with the Court on or before such time and date
shall be forever barred from asserting such Professional Claim against any of
the Debtors, Newco or their property (including the Purchased Assets and the
Excluded Assets), such Claim shall be discharged, and the holder thereof shall
be enjoined from commencing or continuing any action, employment of process or
act to collect, offset or recover such Claim. Any holder of a Professional Claim
which is not finally approved pursuant to an order of this Court pursuant to a
Professional Claim filed in accordance with the provisions hereof or of the Plan
shall disgorge to Newco, without defense, offset or the need for further order
of the Court, all amounts previously paid, but not so approved, on account of
such Professional Claim. Objections, if any, to Professional Claims shall be
filed and served not later than five days prior to the date set by the Court for
the hearing to consider such Claims. Professional Claims incurred after the
Confirmation Date shall be the sole obligation of, and be paid by, Marker
without the need for approval of this Court.
27. Pursuant to Section 1146(c) of the Bankruptcy Code: (i) the
issuance, transfer or exchange of any securities, instruments or documents; (ii)
the creation of any other lien, mortgage, deed of trust or other security
interest; or (iii) the making or assignment of any lease or sublease or the
making or delivery of any deed or other instrument of transfer under, pursuant
to, in furtherance of or in connection with, the Plan, including any deeds,
bills of sale or assignments executed in connection with the Plan or the
Confirmation Order, shall not be subject to any stamp tax, transfer tax,
intangible tax, recording fee, or similar tax, charge or expense to the fullest
extent provided for under Section 1146(c) of the Bankruptcy Code.
28. This Court hereby retains jurisdiction of the Reorganization Cases
(a) pursuant to and for the purposes of Sections 105(a) and 1127 of the
Bankruptcy Code, and (b) as set forth in Section 15.1 of the Plan, which is
incorporated herein by reference, as if set forth IN EXTENSO. This Order may be
enforced in other foreign or domestic jurisdictions by suit or any other manner
provided by law.
29. In accordance with the Plan, the treatment accorded to Claims and
Equity Interests pursuant to the Plan shall be in full satisfaction, settlement,
release and discharge of such respective Claims or Equity Interests, and a
holder of an Allowed Claim or Equity Interest may not receive a distribution on
account of such Allowed Claim or Equity Interest in excess of the full amount of
such Allowed Claim or Equity Interest.
30. Each Debtor reserves the right to modify or revoke and withdraw
the Plan as the plan of reorganization for such Debtor=s Chapter 11 Case, if the
Debtors are for any reason unable to consummate the Plan after the Confirmation
Date, at any time up to the Effective Date. Any such revocation or withdrawal by
a Debtor shall not affect the Plan as the plan of reorganization for the other
Debtors. If a Debtor revokes and withdraws from the Plan: (a) nothing contained
herein shall be deemed to constitute a waiver or release of any Claims by or
against such Debtor or to prejudice in any manner the rights of such Debtor or
any Persons in any further proceedings involving such Debtor; and (b) any
provisions of any Confirmation Order with respect to such Debtor shall be null
and void (and such Debtor shall not be benefited by the Confirmation Order) and
all such rights of or against such Debtor shall exist as though the Plan had not
been filed and no actions taken to effectuate it.
31. Not later than ten (10) Business Days after entry of the
Confirmation Order, the Debtors or their authorized agent(s) shall serve by
first class mail a Notice of Entry of Confirmation Order in substantially the
form attached hereto as Exhibit B to each of the following at their respective
addresses last known to the Debtors: (i) the Office of the United States
Trustee, (ii) all parties that have filed requests for notices in these Chapter
11 Cases pursuant to Bankruptcy Rule 2002, (iii) all parties to the Newco
Assigned Contracts listed on Exhibit 4 to the Plan, (iv) all holders of
Professional Claims and (v) all other known creditors and Equity Interest
holders of the Debtors as of the Confirmation Date. Such service shall
constitute good and sufficient notice pursuant to Bankruptcy Rules 2002(f)(7) of
the entry of the Confirmation Order and no other or further notice need be
given.
32. The Debtors are authorized, directed, and empowered to take all
actions and perform all acts reasonably necessary or appropriate to effectuate
the consummation and implementation of the Plan.
33. Notice of all subsequent pleadings in the Chapter 11 Cases shall
be limited to the following parties: (a) the Debtors and Newco; (b) counsel to
the Debtors and Newco; (c) the United States Trustee; and (d) any party known to
be directly affected by the relief sought.
Dated: Wilmington, Delaware
October 27, 1999
/s/ Mary F. Walrath
------------------------------------
The Honorable Mary F. Walrath
United States Bankruptcy Judge
EXHIBIT 2.2
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re: )
) Chapter 11
DNR USA, INC., DNR NORTH )
AMERICA, INC. AND MARKER ) Case No. 99-2880 (MFW)
INTERNATIONAL )
) (Jointly Administered)
Debtors. )
FIRST AMENDED JOINT CHAPTER 11 PLAN OF REORGANIZATION
OF MARKER INTERNATIONAL, DNR USA, INC.
AND DNR NORTH AMERICA, INC.
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, New York 10038
(212) 806-5400
and
YOUNG CONAWAY STARGATT & TAYLOR, LLP
P.O. Box 391
Rodney Square North, 11th Fl.
Wilmington, DE 19801
(302) 571-6600
Co-Counsel for the Debtors
Dated: Wilmington, Delaware
September 22, 1999
<PAGE>
TABLE OF CONTENTS
ARTICLE I...................................................................1
DEFINITIONS AND CONSTRUCTION OF TERMS.....................................1
1.1 Definitions.......................................................1
1.2 Interpretation and Rules of Construction.........................11
ARTICLE II.................................................................12
ACQUISITION OF MARKER'S SALE ASSETS......................................12
2.1 Acquisition Agreement............................................12
2.2 Approval of Acquisition..........................................12
2.3 Effect of Acquisition............................................12
ARTICLE III................................................................13
DESIGNATION OF CLASSES OF CLAIMS AND EQUITY INTERESTS....................13
3.1 Unclassified Claims: Administrative, Priority and Priority
Tax Claims.......................................................13
3.2 Classified Claims................................................13
3.2.1 Claims and Equity Interests Against Marker................13
3.2.2 Claims and Equity Interests Against DNR USA...............14
3.2.3 Claims and Equity Interests Against DNR N.A...............14
ARTICLE IV.................................................................15
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE CLAIMS,
PRIORITY CLAIMS AND PRIORITY TAX CLAIMS..................................15
4.1 Administrative Claims............................................15
4.2 Priority Claims..................................................15
4.3 Priority Tax Claims..............................................15
ARTICLE V..................................................................16
PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY
INTERESTS AGAINST MARKER.................................................16
5.1 First Security Bank Claims Against Marker (Marker Class 1).......16
5.2 First Mortgage Claim Against Marker (Marker Class 2).............16
5.3 Hypo Vereinsbank (New York) Claim Against Marker (Marker
Class 3).........................................................16
5.4 Series A Bonds Claim Against Marker (Marker Class 4).............17
5.5 German Banks Guarantee Claims Against Marker (Marker Class 5)....17
5.6 Foreign Exchange Contract Claims Against Marker (Marker Class 6).17
5.6.1 M&T Bank's Foreign Exchange Contract Claims
(Marker Class 6A).........................................17
5.6.2 KeyBank's Foreign Exchange Contract Claims
(Marker Class 6B).........................................18
5.7 Piero Claims Against Marker (Marker Class 7).....................18
5.8 Insured Product Liability Claims (Marker Class 8)................18
5.9 Small General Unsecured Claims Against Marker (Marker Class 9)...18
5.10 Preferred Stock Interests in Marker (Marker Class 10)............19
5.11 Common Stock Interests in Marker (Marker Class 11)...............19
ARTICLE VI.................................................................19
PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY
INTERESTS AGAINST DNR USA................................................19
6.1 First Security Bank Claim Against DNR USA (DNR USA Class 1)......19
6.2 General Unsecured Claims Against DNR USA (DNR USA Class 2).......20
6.3 Equity Interests in DNR USA (DNR USA Class 3)....................20
ARTICLE VII................................................................20
PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY
INTERESTS AGAINST DNR N.A................................................21
7.1 First Security Bank Claim Against DNR N.A. (DNR N.A. Class 1)....21
7.2 General Unsecured Claims Against DNR N.A. (DNR N.A. Class 2).....22
7.3 Equity Interests in DNR N.A. (DNR N.A. Class 3)..................22
ARTICLE VIII...............................................................22
PROVISIONS FOR TREATMENT OF INTERCOMPANY CLAIMS..........................22
8.1 Intercompany Claims..............................................22
ARTICLE IX.................................................................22
ACCEPTANCE OR REJECTION OF THE PLAN......................................23
9.1 Voting Rights....................................................23
9.2 Class Acceptance Requirement.....................................23
9.3 One Vote per Holder..............................................23
9.4 Cramdown.........................................................23
ARTICLE X..................................................................23
MEANS FOR IMPLEMENTATION OF THE PLAN.....................................23
10.1 Transfers to Newco...............................................23
10.2 Organization of Newco............................................24
10.3 Issuance of Newco Equity Securities..............................24
10.4 Assets and Liabilities of Newco..................................24
10.5 Governance of Newco..............................................24
10.6 Capitalization of Marker.........................................24
10.7 Governance of Marker.............................................24
10.8 Funding of Marker................................................25
10.9 Cessation of Marker's Business...................................25
10.10 Execution of Documents and Certain Other Actions on Or Prior to
the Effective Date...............................................25
10.10.1 Operating Agreement.....................................25
10.10.2 Amended and Restated Certificate of
Incorporation and By-laws for Marker....................25
10.10.3 Corporate Name..........................................26
10.10.4 Dissolution of DNR USA and DNR N.A......................26
10.10.5 Newco Financing Facility................................26
10.10.6 Transfer of Patents to Newco............................26
10.10.7 Termination of Collateral Assignment....................26
10.10.8 Termination of Exclusive Distributorship
Agreement...............................................26
ARTICLE XI.................................................................26
PROVISIONS AS TO DISTRIBUTIONS AND TREATMENT OF
DISPUTED CLAIMS..........................................................26
11.1 Distribution Responsibility......................................27
11.2 Date of Distributions............................................27
11.3 Delivery of Distributions........................................27
11.4 Clear Title and Release of Liens.................................28
11.5 Means of Cash Payment............................................28
11.6 Prosecution of Claims Objections.................................28
11.7 No Distributions Pending Allowance...............................26
11.8 Distributions After Allowance....................................28
ARTICLE XII................................................................28
EXECUTORY CONTRACTS AND UNEXPIRED LEASES.................................28
12.1 Assumed and Assigned Contracts...................................29
12.2 Rejected Contracts...............................................29
12.3 Claims Relating to Rejected Contracts............................29
ARTICLE XIII...............................................................29
CONDITIONS PRECEDENT.....................................................29
13.1 Conditions Precedent to Confirmation.............................29
13.2 Conditions Precedent to the Effective Date.......................30
13.3 Waiver of Conditions.............................................31
ARTICLE XIV................................................................31
EFFECTS OF PLAN CONFIRMATION AND EFFECTIVENESS OF
PLAN.....................................................................31
14.1 Extent of Release................................................31
14.2 Release by Debtors...............................................31
14.3 Release by Creditors and Holders of Equity Interests.............32
14.4 Injunction.......................................................32
14.5 Discharge........................................................33
14.6 No Liability for Solicitation....................................33
14.7 Limitation of Liability..........................................33
14.8 Other Documents and Actions......................................33
14.9 Term of Injunctions or Stays.....................................34
14.10 Registration Exemption...........................................34
14.11 Transfer Tax Exemption...........................................34
14.12 Miscellaneous....................................................34
ARTICLE XV.................................................................34
RETENTION OF JURISDICTION................................................34
15.1 Jurisdiction of the Bankruptcy Court.............................34
ARTICLE XVI................................................................36
MISCELLANEOUS PROVISIONS.................................................36
16.1 Payment of Statutory Fees.......................................36
16.2 No Penalties....................................................36
16.3 No Attorney's Fees..............................................36
16.4 Rights of Action/Release of Preference Claims...................36
16.5 No Admissions...................................................36
16.6 Governing Law...................................................36
16.7 Successors and Assigns..........................................36
16.8 Modification of this Plan.......................................37
16.9 Revocation of Plan..............................................37
16.10 Severability....................................................37
16.11 Inconsistencies.................................................37
16.12 Notices.........................................................38
16.13 Withholding and Reporting.......................................38
ARTICLE XVII...............................................................38
EFFECT OF TERMINATION OF THE ASSET PURCHASE
AGREEMENT................................................................38
17.1 Effect of Termination on the Plan...............................38
17.2 Effect of Termination on the Debtors' Property..................39
EXHIBITS TO THE PLAN
Exhibit 1: Newco Agreement (without Exhibits or Schedules)
Exhibit 2: Isomura Note
Exhibit 3: M&T Bank Note
Exhibit 4: List of Newco Assigned Contracts
Exhibit 5: List of Rejected Contracts
Exhibit 6: Form of Operating Agreement
<PAGE>
Marker International, DNR USA, Inc. and DNR North America, Inc. hereby
propose the following first amended joint plan of reorganization pursuant to the
provisions of Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. ss.ss.
101, ET seq.
ARTICLE I
DEFINITIONS AND CONSTRUCTION OF TERMS
1.1 DEFINITIONS. Except as expressly provided or unless the context
otherwise requires, the following terms used herein and in the Disclosure
Statement shall have the respective meanings set forth below, and such meanings
shall be equally applicable to the singular and plural forms of the terms
defined. ANY CAPITALIZED TERM NOT DEFINED HEREIN WHICH IS DEFINED IN THE NEWCO
AGREEMENT OR THE BANKRUPTCY CODE SHALL HAVE THE MEANING ASCRIBED TO IT IN THE
NEWCO AGREEMENT OR THE BANKRUPTCY CODE.
"ADMINISTRATIVE CLAIM" means a Claim arising on or after the Filing
Date through the Confirmation Date for payment of an expense of a kind specified
in Sections 503(b), 507(a)(1) or 507(b) of the Bankruptcy Code, including but
not limited to Professional Claims that are Allowed under the Bankruptcy Code
and an interim order or Final Order of the Court, and any fees or charges
assessed against the Debtors' estates under Section 1930, Chapter 123, title 28,
of the United States Code; and shall include the Breakup Fee (if any), and other
amounts which become payable by Marker and/or its Subsidiaries under the Breakup
Fee Order and/or the Newco Agreement including such amounts as are described in
Section 11.14(c) thereof and the Reimbursement Expenses.
"ALLOWED" means, with respect to any Claim or Equity Interest, (a) any
Claim against or Equity Interest in any of the Debtors which has been listed by
the Debtors in their Schedules, as liquidated in amount and not disputed or
contingent, and as to which no contrary proof of claim or interest has been
filed or is otherwise not a Disputed Claim, (b) any Claim or Equity Interest as
to which a proof of claim or interest has been filed within the applicable
period of limitation fixed by the Court in accordance with Rule 3003(c)(3) of
the Bankruptcy Rules as to which (i) no objection to the allowance thereof has
been interposed within the applicable period of limitation fixed by the
Bankruptcy Code, the Bankruptcy Rules, the Local Rules or a Final Order, or (ii)
no action has been commenced to avoid such Claim or Equity Interest prior to the
Effective Date, or (iii) an objection has been interposed, to the extent such
Claim or Equity Interest has been allowed (including temporarily allowed
pursuant to Rule 3018(a) of the Bankruptcy Rules) (whether in whole or in part)
by a Final Order, or (c) any Claim or Equity Interest specifically allowed under
the provisions of this Plan.
"ASSETS" means all of the right, title and interest of Marker in and
to any property, of whatever kind and nature, whether real, personal or mixed,
tangible or intangible, including without limitation the Subsidiary Common Stock
Interests owned beneficially or of record by Marker, and all property of
Marker's Estate.
"ASSUMED LIABILITIES" means the liabilities described in Section
2.2(b) of the Newco Agreement as restructured and payable under the Plan.
"ASSUMPTION ORDER" means the order of the Court dated September 14,
1999 approving, pursuant to Section 365(a) of the Bankruptcy Code, the
assumption of the Distribution Agreement dated as of June 1, 1999 by and between
Marker and Marker Canada, as amended by the Amendment Agreement dated as of June
1, 1999, by and among Marker, Marker Canada, Tecnica S.p.A. and Volkl
International AG.
"AVOIDANCE ACTION" means a Cause of Action which a trustee,
debtor-in-possession or other appropriate party-in-interest, including Newco,
may assert under Sections 542, 544, 545, 547, 548, 549, 550 or 551 of the
Bankruptcy Code.
"BALLOT" means the form or forms distributed with this Plan to each
holder of an Impaired Claim or Equity Interest upon which is to be indicated
acceptance or rejection of this Plan.
"BANKRUPTCY CODE" means title 11 of the United States Code, 11 U.S.C.
ss.ss. 101 ET seq., as in effect on the date hereof and as the same may be
amended from time to time hereafter.
"BANKRUPTCY RULES" means the Federal Rules of Bankruptcy Procedure as
promulgated by the United States Supreme Court under Section 2075 of title 28 of
the United States Code as in effect on the date hereof and as the same may be
amended from time to time hereafter.
"BREAKUP FEE" means, in addition to the Reimbursement Expenses and the
other obligations and liabilities of Marker and its Subsidiaries under Section
11.14(c) of the Newco Agreement, the $1,000,000 fee payable by Marker to Newco
in Cash pursuant to Section 11.14(a) of the Newco Agreement in the event that
(i) any plan of reorganization other than this Plan is confirmed or (ii) any
acquisition, merger, tender or exchange offer or other form of business
combination or any disposition of all or any substantial part of the assets or
the Equity Securities (as defined in the Newco Agreement) of Marker or any
Subsidiary is consummated upon terms more favorable to the shareholders of
Marker other than as contemplated by the Newco Agreement; provided however, that
the Breakup Fee shall not be payable if Marker's failure to consummate the Sale
is due to (i) circumstances beyond Marker's reasonable control so long as Marker
is not in material breach of any representation, warranty or covenant contained
in the Newco Agreement and Marker has not consummated or agreed to consummate an
Alternative Sale (as defined in the Newco Agreement) or (ii) a material breach
of the Newco Agreement by Newco. The Breakup Fee shall be due and payable
promptly (and, in any event, within five days) after the occurrence of any of
the events described in clause (i) or clause (ii) hereof.
"BREAKUP FEE ORDER" means the order of the Court dated September 14,
1999 granting Newco and its Affiliates (as defined in the Newco Agreement),
among other things, an administrative priority claim under Sections 503 and 507
of the Bankruptcy Code for the Breakup Fee, the Reimbursement Expenses and the
other reimbursement and indemnification obligations of Marker and its
Subsidiaries under Section 11.14(c) of the Newco Agreement and approving the
payment thereof to Newco and its Affiliates.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, or legal
holiday as defined in Bankruptcy Rule 9006(a).
"CANADIAN STOCKHOLDERS AGREEMENT" means the Shareholders Agreement
dated as of June 18, 1999 among CT (acting for and on behalf of Newco), Marker,
Marker Canada and LaPointe Rosenstein, as escrow agent, together with each of
the distribution agreements attached thereto and made a part thereof, as the
same may be amended, supplemented or otherwise modified from time to time.
"CASH" means legal tender of the United States of America.
"CAUSES OF ACTION" means any and all actions, causes of action,
liabilities, obligations, rights, suits, debts, sums of money, damages,
judgments, claims and demands whatsoever, whether known or unknown, in law,
equity or otherwise.
"CHAPTER 11 CASES" means the chapter 11 cases commenced by the
Debtors.
"CLAIM" means any (a) right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or (b)
right to an equitable remedy for breach of performance, if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
"CLASS" means a category of holders of Claims or Equity Interests as
designated in Article III of this Plan.
"CLOSING" means the closing of the Sale pursuant to the terms and
conditions of the Newco Agreement.
"CLOSING DATE" means the date on which the Closing occurs pursuant to
the terms and conditions of the Newco Agreement.
"COLLATERAL" means any property or interest in property of the
Debtors' Estates subject to a valid, perfected and enforceable Lien to secure
the payment or performance of a Claim.
"CONFIRMATION DATE" means the date on which the Confirmation Order is
entered by the Court.
"CONFIRMATION HEARING" means the hearing held by the Court to consider
confirmation of this Plan pursuant to Section 1128 of the Bankruptcy Code, as it
may be adjourned or continued from time to time.
"CONFIRMATION ORDER" means the order of the Court confirming this Plan
pursuant to Section 1129 of the Bankruptcy Code.
"COURT" means the United States Bankruptcy Court for the District of
Delaware having jurisdiction over the Chapter 11 Cases or, to the extent there
is no reference pursuant to Section 157 of title 28 of the United States Code,
the United States District Court for the District of Delaware, or any other
court having jurisdiction over the Chapter 11 Cases.
"CT" means CT Sports Holding AG, a corporation organized under the
laws of Switzerland.
"CURE COSTS" means amounts required to be paid by the Debtors under
Section 365(b)(1) of the Bankruptcy Code to cure all monetary defaults that are
timely asserted by a non-Debtor party to executory contracts or unexpired leases
in connection with the assumption of such executory contracts or unexpired
leases pursuant to this Plan or any Final Order of the Court.
"DEBTORS" means, collectively, Marker International, DNR USA, Inc. and
DNR North America, Inc.
"DEBTORS IN POSSESSION" means the Debtors in their respective capacity
as debtors in possession pursuant to Sections 1107(a) and 1108 of the Bankruptcy
Code.
"DISCLOSURE STATEMENT" means the Disclosure Statement provided in
accordance with the requirements of Section 1125 of the Bankruptcy Code that
relates to this Plan.
"DISPUTED CLAIM" means a Claim against any of the Debtors to the
extent that (a) allowance of such Claim is the subject of an objection, appeal
or motion to estimate or fix interposed by a party-in-interest, which objection,
appeal or motion has not been determined by a Final Order, (b) the Claim is
listed as disputed, contingent, or unliquidated on any Schedules filed with the
Court, or (c) that portion of a filed Claim in excess of the amount of the Claim
scheduled by the Debtors.
"DNR N.A." means DNR North America, Inc., a Delaware corporation, and
a wholly-owned Subsidiary of Marker.
"DNR USA" means DNR USA, Inc., a Delaware corporation, and a
wholly-owned Subsidiary of Marker.
"EFFECTIVE DATE" means the first Business Day on which all of the
conditions precedent specified in Section 13.2 of this Plan have been satisfied
or waived in accordance with Section 13.3 of this Plan; provided, however, that
the Effective Date shall not occur any earlier than the Closing Date.
"ESTATE" means with respect to each Debtor, the estate created for
such Debtor in its Chapter 11 Case pursuant to Section 541 of the Bankruptcy
Code.
"EQUITY INTEREST" means any capital stock or other ownership interest
in any of the Debtors including, without limitation, the Preferred Stock
Interests and the Marker Common Stock Interests, whether or not transferable,
and any option, warrant, or right, contractual or otherwise, to acquire sell or
subscribe for an ownership interest or other equity interest in any of the
Debtors.
"EXCLUDED ASSETS" means the Assets described in Section 2.1(b) of the
Newco Agreement that are excluded from the Sale Assets.
"FILING DATE" means August 19, 1999, the date on which the Debtors
filed their petitions for relief commencing the Chapter 11 Cases.
"FINAL ORDER" means an order or judgment of the Court or any other
court of competent jurisdiction, as entered in the docket in the Chapter 11
Cases, the operation or effect of which has not been stayed, reversed, vacated
or amended, and as to which order or judgment (or any revisions, modification,
or amendment thereof) the time to appeal, petition for certiorari, or seek
review or rehearing has expired and as to which no appeal, petition for
certiorari, or petition for review or rehearing was filed or, if filed, remains
pending.
"FIRST MORTGAGE" means the first mortgage granted by Marker to certain
third parties in Marker's fee interest in the real property (including the land,
the improvements and the fixtures) where its corporate headquarters is located
pursuant to the Trust Deed with Assignment of Rents dated as of September 8,
1993 (as amended, supplemented or otherwise modified from time to time, the
"TRUST DEED").
"FIRST MORTGAGE CLAIM" means the Secured Claim of the existing holders
of the First Mortgage arising under or relating to the Trust Deed and the other
documents and instruments executed from time to time in connection therewith.
"FIRST SECURITY" means First Security Bank, N.A.
"FIRST SECURITY BANK CLAIM" means the entire Claim of First Security
(which is an Allowed Secured Claim) against the Debtors arising under or
relating to the First Security Secured Loan Documents, including, without
limitation, principal, accrued interest and reasonable costs, fees (including
reasonable attorneys' fees) and expenses.
"FIRST SECURITY SECURED LOAN DOCUMENTS" means, collectively, (i) the
Revolving Credit Agreement dated as of October 30, 1998, as amended, among First
Security, as lender, and Marker, Marker, USA, Marker Ltd., DNR USA and DNR N.A.,
as borrowers (as amended to the date hereof, the "REVOLVING CREDIT AGREEMENT"),
(ii) the promissory notes issued pursuant thereto by the borrowers to First
Security, (iii) the Collateral Documentation (as defined in the Revolving Credit
Agreement) and (iv) any and all other documents, instruments and agreements
relating to the foregoing.
"FOREIGN EXCHANGE CONTRACT CLAIMS" means all Claims held by M&T Bank
and Key Bank arising under or relating to the Foreign Exchange Contracts.
"FOREIGN EXCHANGE CONTRACTS" means, collectively, (i) the Foreign
Exchange Netting Agreement between Marker and M&T Bank dated May 1, 1997 and
(ii) the KeyBank National Association Foreign Exchange Transaction Terms and
Conditions set forth in the written confirmations entered into from time to time
with respect to each foreign exchange transaction between KeyBank and Marker, in
each case in order to hedge against foreign currency fluctuations.
"GENERAL UNSECURED CLAIM" means any unsecured Claim arising or
accruing prior to the Filing Date, including but not limited to trade Claims and
Claims arising under or relating to rejected executory contracts or leases.
"GERMAN BANK AGREEMENTS" means, collectively, the various working
capital loan agreements dated as of various dates between Marker Deutschland
GmbH and the German Banks.
"GERMAN BANKS" means, collectively, Hypo Vereinsbank and Deutsche
Bank, AG.
"GERMAN BANKS GUARANTEE CLAIMS" means the unsecured guarantee Claims
of the German Banks arising under or relating to the Marker/German Banks
Guarantees.
"HYPO VEREINSBANK" means Bayerische Hypo - und Vereinsbank AG, a bank
organized under the laws of the Federal Republic of Germany.
"HYPO VEREINSBANK (NEW YORK) CLAIM" means the unsecured Claim of Hypo
Vereinsbank (New York Branch) arising under or relating to the Hypo Vereinsbank
Term Loan Agreement.
"HYPO VEREINSBANK TERM LOAN AGREEMENT" means, collectively, (i) the
Third Restated and Amended Promissory Note between Marker and Hypo Vereinsbank
(acting through its New York Branch) dated April 15, 1998, and (ii) the Pledge
Agreement and Conditional Assignment to Hypo Vereinsbank, effective as of June
26, 1995, as amended, pursuant to which Hypo Vereinsbank agreed to loan Marker
the amount of DM 6,397,919.38 (U.S. $3.5 million).
"IMPAIRED" means, when used with reference to a Claim or Equity
Interest, a Claim or Equity Interest that is impaired within the meaning of
Section 1124 of the Bankruptcy Code.
"INSURED PRODUCT LIABILITY CLAIMS" means all pre- and post-petition
Claims arising as a result of alleged product liability or breach of product
warranty relating to products manufactured and/or distributed by the Debtors
which Claims are covered by insurance.
"INTERCOMPANY CLAIM" means any Claim held or asserted by (i) any
Debtor against any other Debtor, (ii) any Subsidiary of Marker against any
Debtor, or (iii) any Debtor against any Subsidiary of Marker.
"ISOMURA" means Isomura Sangyo Keisha Ltd., a Japanese corporation and
the holder of all of Marker's Series A Bonds.
"ISOMURA NOTE" means the five (5) year unsecured promissory note in
the aggregate principal amount of $5,750,000 to be issued by Newco to Isomura on
the Effective Date in full and complete satisfaction of the Series A Bonds
Claim. The Isomura Note shall have the following principal terms: (i) principal
amortization in four (4) equal annual installments of $750,000 commencing on the
first anniversary of the date on which the Confirmation Order shall become a
Final Order (hereafter, the "Final Confirmation Date") and the remaining
principal amount of $2,750,000 to be payable on the fifth anniversary of the
Final Confirmation Date; (ii) interest shall be paid annually until the second
anniversary of the Final Confirmation Date and semi-annually thereafter at an
interest rate of 2% per annum both before and after default until the fourth
anniversary of the Final Confirmation Date and thereafter, the interest rate,
both before and after default shall be the rate Isomura pays to the bank or
other financial institution that funded the purchase of the Series A Bonds by
Isomura or has taken over said position from the original funding bank or
institution, provided said rate of interest does not exceed the prime lending
rate extended by said bank or other financial institution on commercial loans in
Japan from time to time plus one-half of one percent (.5%); and (iii) interest
shall accrue under the Isomura Note commencing April 1, 1999. The Isomura Note
shall be substantially in the form annexed to this Plan as Exhibit 2.
"KEYBANK" means KeyBank National Association, a national banking
organization.
"KEYBANK NOTE" means the five (5) year unsecured promissory note in
the aggregate principal amount of $364,694 to be issued jointly and severally by
Newco and Marker Japan Co. Ltd. to KeyBank on the Effective Date. The KeyBank
Note shall have the following other principal terms: (i) Principal Payments: (x)
$273,520 annually during each of the first four years of the term (paid in 16
consecutive equal quarterly installments of $17,095, the first of which shall be
paid ninety (90) days after the Effective Date); and (y) $91,172 during the
fifth year of the term (in consecutive equal quarterly installments of $22,793);
and (ii) interest shall be paid quarterly (together with each principal
installment) at the rate of 2% per annum until the fourth anniversary of the
Effective Date and thereafter until the maturity date at the prime lending rate
extended by commercial banks on commercial loans in Japan from time to time plus
one-half (1/2) of one (1) percent. The KeyBank Note shall be substantially in
the form of the M&T Bank Note annexed to this Plan as Exhibit 3.
"LIEN" has the meaning assigned to such term in Section 101(37) of the
Bankruptcy Code.
"LOCAL RULES" means the Local Bankruptcy Rules of the United States
Bankruptcy Court for the District of Delaware, as in effect on the date hereof
and as the same may be amended from time to time.
"M&T BANK" means Manufacturers and Traders Trust Company, a trust
company organized and existing under the laws of the State of New York.
"M&T BANK NOTE" means the five (5) year unsecured promissory note in
the aggregate principal amount of $1,050,000 to be issued jointly and severally
by Newco and Marker Japan Co. Ltd. to M&T Bank on the Effective Date. The M&T
Bank Note shall have the following other principal terms: (i) Principal
Payments: (x) $200,000 annually during each of the first four years of the term
(in consecutive equal quarterly installments of $50,000, the first of which
shall be paid ninety (90) days after the Effective Date); and (y) $250,000
during the fifth year of the term (in consecutive equal quarterly installments
of $62,500); and (ii) interest shall be paid quarterly (together with each
principal installment) at the rate of 2% per annum until the fourth anniversary
of the Effective Date and thereafter until the maturity date at the prime
lending rate extended by commercial banks on commercial loans in Japan from time
to time plus one-half (1/2) of one (1) percent. The M&T Bank Note shall be
substantially in the form annexed to this Plan as Exhibit 3.
"MARKER" means Marker International, a Utah corporation.
"MARKER CANADA" means Marker Canada, Ltd., a Canadian corporation.
"MARKER COMMON STOCK INTERESTS" means the common stock, par value $.01
per share, of Marker issued and outstanding as of the Record Date.
"MARKER/GERMAN BANKS GUARANTEES" means, collectively, (i) the
Guarantee Agreement dated as of August 1, 1990 among Marker, Marker USA and Hypo
Vereinsbank pursuant to which each of Marker and Marker USA guaranteed Marker
Deutschland GmbH 's obligations to Hypo Vereinsbank under the German Bank
Agreements in the amount of DM 80,000,000, and (ii) the Guarantee Agreement
dated as of April 30, 1998 among Marker, Marker USA and Deutsche Bank AG
pursuant to which each of Marker and Marker USA guaranteed Marker Deutschland
GmbH's obligations to Deutsche Bank AG under the German Bank Agreements in the
amount of DM 40,000,000
"NEW FINANCING FACILITY" means a new credit facility to be provided to
Newco or the Subsidiaries on or before the Closing Date by one or more financial
institutions in order to provide Newco and such Subsidiaries with working
capital following the Closing in amounts and pursuant to terms and conditions
reasonably satisfactory to Newco.
"NEWCO" means Marker International GmbH, a Swiss GmbH, duly organized
under the laws of Switzerland, and a wholly-owned subsidiary of CT (prior to
giving effect to the transactions which will take place on the Effective Date).
"NEWCO AGREEMENT" means the Asset Purchase Agreement dated as of July
30, 1999, as amended by the Amendment to Asset Purchase Agreement dated as of
September 20, 1999, between Newco, as Buyer, and Marker, as Seller, providing
for the sale of substantially all of Marker's Assets. A copy of the Newco
Agreement (without exhibits or schedules) is annexed to this Plan as Exhibit 1.
"NEWCO EQUITY SECURITIES" means 15% of the equity interest of Newco
which shall be issued and outstanding on the Effective Date.
"OPERATING AGREEMENT" means that certain agreement by and among CT,
Newco and Marker dated as of the Closing Date together with the protocol annexed
thereto, a form of which is annexed to this Plan as Exhibit 6.
"PIERO" means Piero G. Ruffinengo, a former employee of Marker, and
the plaintiff in the Piero Lawsuit.
"PIERO CASH PAYMENT" means the Cash payment to be made by Newco to
Piero in the amount of $350,000 pursuant to the terms of the Piero Settlement
and the Plan. Interest shall accrue on the Piero Cash Payment from the date of
payment of the $100,000 initial payment required to be paid by Marker to Piero
under the Piero Settlement until the date of payment of the Piero Cash Payment
authorized by Section 5.7 of this Plan at a rate per annum equal to the prime
rate charged from time to time by First Security Bank plus 1%.
"PIERO CLAIMS" means all the Claims of Piero against Marker and its
Subsidiaries including those claims asserted by Piero in the Piero Lawsuit and
any Claims for unpaid wages and/or severance arising from services rendered by
Piero to Marker and/or any of its Subsidiaries.
"PIERO LAWSUIT" means the civil action commenced by Piero against
Marker and certain of its officers and directors on March 22, 1999, in the Third
Judicial District Court for Salt Lake County, State of Utah, entitled RUFFINENGO
V. MARKER INTERNATIONAL, PETER WEAVER, JOHN G. MCMILLIAN, HANK TAUBER, VINTON
SUMMERVILLE, GRAHAM ANDERSON AND BOB SIND, Civ. No. 990903167, alleging, among
other things, claims of breach of contract and failure to pay wages, and
seeking, among other things, injunctive relief and a declaratory judgment that
Marker does not have authority to demand that Piero transfer his rights to
certain intellectual property to Marker or any other person or entity, including
any of its Subsidiaries.
"PIERO SETTLEMENT" means the settlement embodied in the letter
agreement between Marker and Piero dated August 17, 1999, the material economic
terms of which are summarized in the Disclosure Statement and Section 5.7 of
this Plan.
"PLAN" means this joint Chapter 11 plan of reorganization, including
the exhibits and schedules hereto, as the same may be amended, modified or
supplemented as and to the extent permitted herein, by the Newco Agreement, and
by the Bankruptcy Code.
"PREFERRED STOCK INTERESTS" means all the issued and outstanding
shares of Marker Series B Preferred Stock, $0.01 par value, issued by Marker to
Henry E. Tauber.
"PRIORITY CLAIM" means any Claim entitled to priority pursuant to
Section 507(a) of the Bankruptcy Code other than an Administrative Claim or
Priority Tax Claim.
"PRIORITY TAX CLAIM" means any Claim of a kind specified in Section
507(a)(8) of the Bankruptcy Code.
"PROCEEDS" means all cash or other property paid by Newco under the
Newco Agreement and the Restructuring Documents (as defined in the Newco
Agreement) on or after the Closing of the Newco Agreement.
"PROFESSIONAL" means any attorneys, accountants, investment advisors
and other similar professionals employed or to be compensated pursuant to
Sections 327, 328, 330, 331, 503(b) or 1103 of the Bankruptcy Code and an
interim order or Final Order of the Court, except with respect to
post-confirmation fees and expenses which shall be payable by Marker without the
need of Court approval.
"PRO RATA" means, with respect to any distribution to a Class under
this Plan, proportionate sharing pursuant to which the ratio of the amount
distributed on account of an Allowed Claim to the amount of such Allowed Claim
is the same as the ratio of the total amount distributed to such Class to the
total amount of all Allowed Claims and Disputed Claims in such Class.
"RECORD DATE" means the record date for purposes of making
distributions under the Plan on account of Allowed Claims and Allowed Equity
Interests which date shall be the date on which the Court enters an order
pursuant to Section 1125 of the Bankruptcy Code approving the Disclosure
Statement.
"REIMBURSEMENT EXPENSES" means all out-of-pocket expenses and fees
(including but not limited to reasonable fees, expenses and disbursements of
counsel, accountants, investment bankers and other representatives of Newco and
its Affiliates) incurred by them or in connection with the transactions
contemplated by the Newco Agreement and the Plan, the Chapter 11 Case and the
negotiation, execution or performance of the Newco Agreement and any related
investigations and due diligence analysis of Marker and its Subsidiaries, which
are immediately due and payable by Marker to Newco in the event that the Newco
Agreement is terminated or abandoned for any reason (except in the event that
(a) Marker terminates the Newco Agreement in accordance with its terms or due to
a material breach of the Newco Agreement by Newco; provided that failure of a
condition to Newco's obligation to consummate the transactions contemplated by
the Newco Agreement shall not by itself constitute a material breach by Newco,
or (b) Newco terminates the Newco Agreement other than as a result of a material
breach of Marker of any representation, warranty or covenant under the Newco
Agreement or pursuant to Section 9.1(e) of the Newco Agreement).
"SALE" means the sale of the Sale Assets to Newco pursuant to the
terms and conditions of the Newco Agreement.
"SALE ASSETS" means the Assets described in Section 2.1(a) of the
Newco Agreement to be sold, assigned and conveyed by Marker to Newco.
"SCHEDULES" means the schedules of assets and liabilities, statement
of financial affairs, and lists of holders of Claims and Equity Interests filed
with the Court by the Debtors, including any amendments or supplements thereto.
"SECURED CLAIM" means a Claim which is secured by a valid, perfected
and enforceable Lien on the Collateral, to the extent of the value of the
interest of the holder of such Secured Claim in such property as agreed to by
the Debtors and the holder of such Secured Claim, or as determined by the
Bankruptcy Court pursuant to Section 506(a) of the Bankruptcy Code.
"SERIES A BONDS" means the Series A Bonds issued by Marker to Isomura
in the aggregate principal amount of $19 million.
"SERIES A BONDS CLAIM" means the unsecured Claim of Isomura arising
under or relating to the Series A Bonds.
"SMALL GENERAL UNSECURED CLAIM" means a General Unsecured Claim not
otherwise classified in this Plan in Marker Classes 3, 4, 5, 6, 7 or 8 and equal
to $100,000 or less.
"SUBSIDIARIES" means Marker Ltd., Marker USA, Marker Deutschland GmbH,
Marker AG, Marker Japan Co., Ltd., Marker Austria, GmbH, Marker Canada, DNR
Japan Co., Ltd., DNR USA and DNR N.A.
"SUBSIDIARY COMMON STOCK INTERESTS" means, collectively, the issued
and outstanding shares of common stock of the Subsidiaries.
"TAX NOTE" means a note to be issued by Newco in the amount of an
Allowed Priority Tax Claim payable over a period of six years from the date of
assessment, bearing interest at the applicable statutory interest rate
commencing on the Effective Date.
"TAUBER CLAIM" means Tauber's Allowed Claim against Marker in the
principal amount of $1,500,000 arising on account of Tauber's Preferred Stock
Interests.
"TAUBER PAYMENT OBLIGATIONS" means Newco's obligations under this Plan
to assume and pay the Tauber Claim as follows: (a) three equal annual
consecutive installments of the principal of the Tauber Claim of $150,000 each,
the first of which shall be due and payable on June 1, 2000 and the second and
third on the same day of each succeeding year; and (b) four equal annual
consecutive installments of the principal of the Tauber Claim of $262,500 each,
the first of which shall be due and payable on June 1, 2003 and the remaining
three on the same day of each succeeding year until paid in full on June 1,
2006. Simple interest at the rate of 5% per annum shall accrue on all
installments of the principal of the Tauber Claim that have not been paid, in
whole or in part, on their respective due dates; provided that interest shall
only commence as and from the later of June 1, 2003 and the date such
installment was due and payable. Newco shall have the right any time and from
time to time to defer, without premium or penalty, the payment (in whole or in
part) of any installment of principal and the payment of any accrued interest
thereon up to and including June 1, 2007. Tauber shall have no recourse against
Newco for failure to pay Tauber any principal installment when due; provided
that all amounts due Tauber under this Plan shall be paid on or before June 1,
2007.
1.2 INTERPRETATION AND RULES OF CONSTRUCTION. Unless otherwise
specified, all section, article and exhibit references in this Plan are to the
respective section in, article of, and exhibit to, this Plan, as the same may be
amended, waived or modified from time to time. Captions and heading to articles,
sections and exhibits are inserted for convenience of reference only, are not a
part of this Plan, and shall not be used to interpret this Plan. The rules of
construction set forth in Section 102 of the Bankruptcy Code shall apply to this
Plan. In computing any period of time prescribed or allowed by this Plan, the
provisions of Bankruptcy Rule 9006(a) shall apply.
ARTICLE II
ACQUISITION OF MARKER'S SALE ASSETS
2.1 ACQUISITION AGREEMENT. This Plan is based upon the Newco Agreement
attached hereto as Exhibit 1, and all terms and provisions of the Newco
Agreement are incorporated in this Plan by reference. In the event of any
inconsistency between this Plan and the Newco Agreement, the provisions of the
Newco Agreement shall govern.
2.2 APPROVAL OF ACQUISITION. This Plan constitutes a motion for
approval of the Newco Agreement. Confirmation of this Plan shall constitute
approval by the Court of such motion, and the Confirmation Order shall contain
findings supporting and conclusions providing for Newco's purchase of the Sale
Assets and the assumption of the Assumed Liabilities on the terms set forth in
the Newco Agreement.
2.3 EFFECT OF ACQUISITION. Pursuant to the Newco Agreement and this
Plan, on the Effective Date, CT will own an 85% equity interest in Newco on a
fully diluted basis and Marker will own the Newco Equity Securities representing
15% of all of Newco's issued and outstanding equity securities on a fully
diluted basis. On the Effective Date, all Assets and property of the Estate of
Marker, except for the Excluded Assets (including Marker's fee simple interest
in the real property (including the land, the improvements and the fixtures)
where its corporate headquarters is located which shall be transferred to Marker
USA), shall be transferred and assigned to Newco free and clear of all Liens and
Claims except as otherwise provided in this Plan.
ARTICLE III
DESIGNATION OF CLASSES OF CLAIMS AND EQUITY INTERESTS
3.1 UNCLASSIFIED CLAIMS: ADMINISTRATIVE, PRIORITY AND PRIORITY TAX
CLAIMS.. In accordance with Section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims, Priority Claims and Priority Tax Claims are not
separately classified under this Plan, but shall receive the treatment specified
in Article IV. Administrative, Priority and Priority Tax Claims apply separately
to each Debtor.
3.2 CLASSIFIED CLAIMS. The following Classes of Claims against, and
Equity Interests in, the Debtors are designated pursuant to and in accordance
with Section 1123(a)(1) of the Bankruptcy Code:
3.2.1 CLAIMS AND EQUITY INTERESTS AGAINST MARKER
(a) First Security Bank Claim Against Marker (Marker Class
1).
(b) First Mortgage Claim Against Marker (Marker Class 2).
(c) Hypo Vereinsbank (New York) Claim Against Marker
(Marker Class 3).
(d) Series A Bonds Claim Against Marker (Marker Class 4).
(e) German Banks Guarantee Claims Against Marker (Marker
Class 5).
(f) Foreign Exchange Contract Claims Against Marker (Marker
Class 6).
(i) Class 6A - M&T Bank's Foreign Exchange Contract
Claims
(ii) Class 6B - KeyBank's Foreign Exchange Contract
Claims
(g) Piero Claims Against Marker (Marker Class 7).
(h) Insured Product Liability Claims (Marker Class 8).
(i) Small General Unsecured Claims Against Marker (Marker
Class 9).
(j) Preferred Stock Interests in Marker (Marker Class 10).
(k) Common Stock Interests in Marker (Marker Class 11).
3.2.2 CLAIMS AND EQUITY INTERESTS AGAINST DNR USA
(a) First Security Bank Claim Against DNR USA (DNR USA
Class 1).
(b) General Unsecured Claims Against DNR USA (DNR USA Class
2).
(c) Equity Interests in DNR USA (DNR USA Class 3).
3.2.3 CLAIMS AND EQUITY INTERESTS AGAINST DNR N.A.
(a) First Security Bank Claim Against DNR N.A. (DNR N.A.
Class 1).
(b) General Unsecured Claims Against DNR N.A. (DNR N.A.
Class 2).
(c) Equity Interests in DNR N.A. (DNR N.A. Class 3).
ARTICLE IV
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE CLAIMS, PRIORITY CLAIMS
AND PRIORITY TAX CLAIMS
4.1 ADMINISTRATIVE CLAIMS. Each holder of an Allowed Administrative
Claim against any of the Debtors (other than holders of Allowed Professional
Claims which shall be paid by Marker) shall receive from Newco in full
satisfaction thereof (A) one hundred percent (100%) of the amount of such
Allowed Administrative Claim, in Cash, on or soon as practicable after the later
of: (i) the Effective Date; (ii) the date such Claim (or a portion thereof) is
Allowed or on which such Allowed Administrative Claim becomes due and payable;
or (iii) in the case of Professional Claims, upon entry of an order of the Court
authorizing the payment of such Claims (PROVIDED, HOWEVER, that professional
fees incurred subsequent to the Confirmation Date shall be paid by Marker
without the need for approval of the Court); or (B) such other treatment as may
be agreed to by the holder of such Allowed Administrative Claim and the Debtors
and/or Newco (as the case may be), or as may be ordered by the Court.
Administrative Claims are not Impaired under the Plan and, pursuant to
Section 1126(f) of the Bankruptcy Code, holders of Allowed Administrative Claims
are conclusively deemed to have accepted the Plan and shall not be entitled to
vote on the Plan.
4.2 PRIORITY CLAIMS. With respect to each Debtor, each holder of an
Allowed Priority Claim shall receive from Newco in full satisfaction thereof one
hundred percent (100%) of the amount of such Allowed Priority Claim, in Cash, on
or soon as practicable after the later of (i) the Effective Date, (ii) the date
such Claim (or a portion thereof) is Allowed or on which such Allowed Priority
Claim becomes due and payable or (iii) as otherwise agreed to by the holder of
such Allowed Priority Claim and Newco, or as may be ordered by the Court.
Priority Claims are not Impaired under the Plan and, pursuant to
Section 1126(f) of the Bankruptcy Code, holders of Allowed Priority Claims are
conclusively deemed to have accepted the Plan and shall not be entitled to vote
on the Plan.
4.3 PRIORITY TAX CLAIMS. With respect to each Debtor, on the Effective
Date, each holder of an Allowed Priority Tax Claim shall receive from Newco a
Tax Note that complies with the requirements of Section 1129(a)(9)(C) of the
Bankruptcy Code or such other, more favorable treatment, as Newco shall elect.
ARTICLE V
PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY INTERESTS AGAINST
MARKER
5.1 FIRST SECURITY BANK CLAIMS AGAINST MARKER (MARKER CLASS 1)
(a) IMPAIRMENT AND VOTING. Marker Class 1 is Impaired under the
Plan. First Security Bank shall be entitled to vote to accept or reject the
Plan.
(b) TREATMENT AND DISTRIBUTIONS. On the Effective Date, the
holder of the Allowed First Security Bank Claim shall receive from Newco, in
full and complete satisfaction thereof, Cash equal to the Allowed amount of such
Claim.
(c) RELEASE OF LIENS. On the Effective Date, conditioned upon its
receipt of payment in full as provided in Section 5.1(b), the holder of the
Marker Class 1 Claim shall release and satisfy, and be deemed to have released
and satisfied, its Liens on the Collateral, including any Liens on collateral
held by any non-debtor affiliate or Subsidiary of Marker. The collateral agent
and/or the holder of the Class 1 Claim shall execute and deliver such documents
in connection with the foregoing as may be reasonably required by the Debtors or
Newco.
5.2 FIRST MORTGAGE CLAIM AGAINST MARKER (MARKER CLASS 2)
(a) IMPAIRMENT AND VOTING. Marker Class 2 is Impaired under the
Plan. The holder of the First Mortgage Claim shall be entitled to vote to accept
or reject the Plan.
(b) TREATMENT AND DISTRIBUTIONS. In full and complete
satisfaction of the Allowed First Mortgage Claim against Marker, on the
Effective Date, the property subject to the First Mortgage shall be transferred
to Marker USA and the obligations under the First Mortgage shall be jointly and
severally paid and performed by Newco, Marker USA and Marker Ltd. in accordance
with the First Mortgage; provided that Marker's right, title and interest to the
real property covered by the First Mortgage shall be transferred to Marker USA
on the Effective Date of the Plan and the holder of the First Mortgage Claim
shall have a first mortgage from Marker USA.
5.3 HYPO VEREINSBANK (NEW YORK) CLAIM AGAINST MARKER (MARKER CLASS 3)
(a) IMPAIRMENT AND VOTING. Marker Class 3 is Impaired under the
Plan. Although Hypo Vereinsbank will not receive any distribution or retain any
property under the Plan and is deemed to have rejected the Plan pursuant to
Section 1126(g) of the Bankruptcy Code, Hypo Vereinsbank has agreed to accept
the treatment accorded to it in the Plan.
(b) TREATMENT AND DISTRIBUTIONS. On the Effective Date, Hypo
Vereinsbank (New York) shall forgive, in full, the outstanding indebtedness of
Marker under the Hypo Vereinsbank Term Loan Agreement in full and complete
satisfaction of the Hypo Vereinsbank (New York) Claim, and Hypo Vereinsbank
shall not be entitled to any distributions under the Plan on account of the Hypo
Vereinsbank (New York) Claim.
5.4 SERIES A BONDS CLAIM AGAINST MARKER (MARKER CLASS 4)
(a) IMPAIRMENT AND VOTING. Marker Class 4 is Impaired under the
Plan. Isomura, the holder of the Allowed Series A Bonds Claim, shall be entitled
to vote to accept or reject the Plan.
(b) TREATMENT AND DISTRIBUTIONS. In full and complete
satisfaction of the Series A Bonds Claim, Isomura, the holder of the Allowed
Series A Bonds Claim shall receive, on the Effective Date, the Isomura Note, to
be issued by Newco, in the aggregate principal amount of $5,750,000.
5.5 GERMAN BANKS GUARANTEE CLAIMS AGAINST MARKER (MARKER CLASS 5)
(a) IMPAIRMENT AND VOTING. Marker Class 5 is Impaired under the
Plan. Although the German Banks will not receive any distribution or retain any
property under the Plan and are deemed to have rejected the Plan pursuant to
Section 1126(g) of the Bankruptcy Code, the German Banks have agreed to accept
the treatment accorded to them in the Plan.
(b) TREATMENT AND DISTRIBUTIONS. The German Banks shall receive
no distribution under the Plan on account of the German Banks Guarantee Claims.
Pursuant to the Plan, the German Banks shall release Marker's and Marker USA's
guarantees of Marker Deutschland GmbH's obligations to the German Banks under
the German Bank Agreements in full and complete satisfaction of the German Banks
Guarantee Claims.
5.6 FOREIGN EXCHANGE CONTRACT CLAIMS AGAINST MARKER (MARKER CLASS 6)
5.6.1 M&T BANK'S FOREIGN EXCHANGE CONTRACT CLAIMS (MARKER CLASS
6A)
(a) IMPAIRMENT AND VOTING. Marker Class 6A is Impaired under the
Plan. M&T Bank shall be entitled to vote to accept or reject the Plan.
(b) TREATMENT AND DISTRIBUTIONS. In full and complete
satisfaction of M&T Bank's Foreign Exchange Contract Claims against Marker, on
the Effective Date M&T Bank shall receive (i) from Newco and Marker Japan Co.
Ltd. the M&T Note (and such other documents and agreements as may be mutually
agreed to by Newco and M&T Bank) and (ii) from Newco Cash in an amount equal to
$788,000.
5.6.2 KEYBANK'S FOREIGN EXCHANGE CONTRACT CLAIMS (MARKER CLASS
6B)
(a) IMPAIRMENT AND VOTING. Marker Class 6B is Impaired under the
Plan. KeyBank shall be entitled to vote to accept or reject the Plan.
(b) TREATMENT AND DISTRIBUTIONS. In full and complete
satisfaction of KeyBank's Foreign Exchange Contract Claims against Marker, on
the Effective Date KeyBank shall receive (i) from Newco and Marker Japan Co.
Ltd. the KeyBank Note and (ii) from Newco Cash in an amount equal to $273,840.
5.7 PIERO CLAIMS AGAINST MARKER (MARKER CLASS 7)
(a) IMPAIRMENT AND VOTING. Marker Class 7 is unimpaired under the
Plan. Piero shall not be entitled to vote to accept or reject the Plan.
(b) TREATMENT AND DISTRIBUTIONS. In full and complete
satisfaction of the Piero Claims, pursuant to and in accordance with the terms
of the Piero Settlement Agreement, within five (5) business days after the
Effective Date, Piero shall receive, from Newco, the Piero Cash Payment.
5.8 INSURED PRODUCT LIABILITY CLAIMS (MARKER CLASS 8)
(a) IMPAIRMENT AND VOTING. Marker Class 8 is not Impaired under
the Plan. Pursuant to Section 1126(f) of the Bankruptcy Code, each holder of an
Allowed Insured Product Liability Claim in Marker Class 8 is conclusively deemed
to have accepted the Plan and is not entitled to vote to accept or reject the
Plan.
(b) TREATMENT AND DISTRIBUTIONS. Allowed Insured Product
Liability Claims (including applicable deductibles under Marker's insurance
policies) are being assumed by Newco pursuant to Section 2.2(b)(ii) of the Asset
Purchase Agreement and will be paid by the insurer or, in the case of any
applicable deductible amount, by Newco, in the ordinary course of business.
5.9 SMALL GENERAL UNSECURED CLAIMS AGAINST MARKER (MARKER CLASS 9)
(a) IMPAIRMENT AND VOTING. Marker Class 9 is not Impaired under
the Plan. Pursuant to Section 1126(f) of the Bankruptcy Code, each holder of an
Allowed Small General Unsecured Claim in Marker Class 9 is conclusively deemed
to have accepted the Plan and is not entitled to vote to accept or reject the
Plan.
(b) TREATMENT AND DISTRIBUTIONS. In full and complete
satisfaction of the Small General Unsecured Claims, holders of Allowed Marker
Class 9 Claims will receive from Newco one hundred (100%) percent of their
Allowed Claims in Cash on the later of (i) the Effective Date, (ii) the date
such Claims (or a portion thereof) are Allowed or on which an Allowed Claim
comes due, or (iii) as otherwise agreed to by the claimant and Newco.
5.10 PREFERRED STOCK INTERESTS IN MARKER (MARKER CLASS 10)
(a) IMPAIRMENT AND VOTING. Marker Class 10 is Impaired under the
Plan. The holder of the Allowed Preferred Stock Interests in Marker shall be
entitled to vote to accept or reject the Plan.
(b) TREATMENT AND DISTRIBUTIONS. In full and complete
satisfaction of the Preferred Stock Interests, on the Effective Date Newco shall
assume the Tauber Claim and shall pay, as and when due, the Tauber Payment
Obligations in accordance with the terms hereof.
5.11 COMMON STOCK INTERESTS IN MARKER (MARKER CLASS 11)
(a) IMPAIRMENT AND VOTING. Marker Class 11 is Impaired under the
Plan. Each holder of an Allowed Common Stock Interest in Marker shall be
entitled to vote to accept or reject the Plan.
(b) TREATMENT AND DISTRIBUTIONS. Each holder of a Class 11 Common
Stock Interest in Marker shall retain its Marker Common Stock and shall not
receive any distribution under the Plan. On the Effective Date, Marker will own
the Newco Equity Securities in lieu of 100% of the capital stock of the
Subsidiaries. Pursuant to the Operating Agreement, holders of Common Stock
Interests in Marker may receive (i) Cash (subject to certain adjustments set
forth in the Newco Agreement and/or the Operating Agreement) if CT exercises its
option under the Operating Agreement to purchase all of the Common Stock
Interests in Marker for such Equity Interests' Fair Market Value (as defined in
the Operating Agreement) or, alternatively, (ii) an interest in Newco if such
purchase option is not exercised prior to Marker's dissolution.
ARTICLE VI
PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY INTERESTS AGAINST
DNR USA
6.1 FIRST SECURITY BANK CLAIM AGAINST DNR USA (DNR USA Class 1)
(a) IMPAIRMENT AND VOTING. DNR USA Class 1 is Impaired under the
Plan. First Security Bank shall be entitled to vote to accept or reject the
Plan.
(b) TREATMENT AND DISTRIBUTIONS. On the Effective Date, First
Security Bank shall receive the treatment provided to it in Marker Class 1 in
full and complete satisfaction of its Claim against DNR USA; provided, however,
that First Security Bank shall be entitled to only one satisfaction in full
under the Plan.
(c) RELEASE OF LIENS. On the Effective Date, conditioned upon its
receipt of payment in full as provided in Section 5.1(b), the holder of the DNR
USA Class 1 Claim shall release and satisfy, and be deemed to have released and
satisfied, its Liens on the Collateral, including any Liens on collateral held
by any non-debtor affiliate or Subsidiary of Marker. The collateral agent and/or
the holder of the Class 1 Claim shall execute and deliver such documents in
connection with the foregoing as may be reasonably required by the Debtors or
Newco.
6.2 GENERAL UNSECURED CLAIMS AGAINST DNR USA (DNR USA CLASS 2)
(a) IMPAIRMENT AND VOTING. DNR USA Class 2 is not Impaired under
the Plan. Pursuant to Section 1126(f) of the Bankruptcy Code, each holder of an
Allowed General Unsecured Claim in DNR USA Class 2 is conclusively deemed to
have accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) TREATMENT AND DISTRIBUTIONS. In full and complete
satisfaction of the General Unsecured Claims, holders of Allowed DNR USA Class 2
Claims will receive from Newco one hundred (100%) percent of their Allowed
Claims in Cash on the later of (i) the Effective Date, (ii) the date such Claims
(or a portion thereof) are Allowed or on which an Allowed Claim comes due, or
(iii) as otherwise agreed to by the claimant and Newco.
6.3 EQUITY INTERESTS IN DNR USA (DNR USA CLASS 3)
(a) IMPAIRMENT AND VOTING. DNR USA Class 3 is Impaired under the
Plan. Although Marker, the sole holder of Equity Interests in DNR USA, will not
receive or retain any property under the Plan on account of its Equity Interests
and is conclusively deemed to have rejected the Plan pursuant to Section 1126(g)
of the Bankruptcy Code, Marker, as the holder of the DNR USA Class 3 Equity
Interests, has agreed to accept the treatment accorded to it in the Plan.
(b) TREATMENT AND DISTRIBUTIONS. Marker, the holder of the Class
3 Equity Interests in DNR USA, shall not receive any distributions under this
Plan on account of such Equity Interests, and the DNR USA Equity Interests shall
be canceled and extinguished on the Effective Date without any further act or
action under any applicable agreement, law, regulation, order or rule.
ARTICLE VII
PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY INTERESTS AGAINST
DNR N.A.
7.1 FIRST SECURITY BANK CLAIM AGAINST DNR N.A. (DNR N.A. Class 1)
(a) IMPAIRMENT AND VOTING. DNR N.A. Class 1 is Impaired under the
Plan. First Security Bank shall be entitled to vote to accept or reject the
Plan.
(b) TREATMENT AND DISTRIBUTIONS. On the Effective Date, First
Security Bank shall receive the treatment provided to it in Marker Class 1 in
full and complete satisfaction of its Claim against DNR N.A.; provided, however,
that First Security Bank shall be entitled to only one satisfaction in full
under the Plan.
(c) RELEASE OF LIENS. On the Effective Date, conditioned upon its
receipt of payment in full as provided in Section 5.1(b), the holder of the DNR
N.A. Class 1 Claim shall release and satisfy, and be deemed to have released and
satisfied, its Liens on the Collateral, including any Liens on collateral held
by any non-debtor affiliate or Subsidiary of Marker. The collateral agent and/or
the holder of the Class 1 Claim shall execute and deliver such documents in
connection with the foregoing as may be reasonably required by the Debtors or
Newco.
7.2 GENERAL UNSECURED CLAIMS AGAINST DNR N.A. (DNR N.A. CLASS 2)
(a) IMPAIRMENT AND VOTING. DNR N.A. Class 2 is not Impaired under
the Plan. Pursuant to Section 1126(f) of the Bankruptcy Code, each holder of an
Allowed General Unsecured Claim in DNR N.A. Class 2 is conclusively deemed to
have accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) TREATMENT AND DISTRIBUTIONS. In full and complete
satisfaction of the General Unsecured Claims Against DNR N.A., holders of
Allowed DNR N.A. Class 2 Claims will receive from Newco one hundred (100%)
percent of their Allowed Claims in Cash on the later of (i) the Effective Date,
(ii) the date such Claims (or a portion thereof) are Allowed or on which an
Allowed Claim comes due, or (iii) as otherwise agreed to by the claimant and
Newco.
7.3 EQUITY INTERESTS IN DNR N.A. (DNR N.A. CLASS 3)
(a) IMPAIRMENT AND VOTING. DNR N.A. Class 3 is Impaired under the
Plan. Although Marker, the sole holder of Equity Interests in DNR N.A., will not
receive or retain any property under the Plan on account of its Equity Interests
and is conclusively deemed to have rejected the Plan pursuant to Section 1126(g)
of the Bankruptcy Code, Marker, as the holder of the DNR N.A. Class 3 Equity
Interests, has agreed to accept the treatment accorded to it in the Plan.
(b) TREATMENT AND DISTRIBUTIONS. Marker, the holder of the Class
3 Equity Interests in DNR N.A. shall not receive any distributions under this
Plan on account of such Equity Interests, and the DNR N.A. Equity Interests
shall be canceled and extinguished on the Effective Date without any further act
or action under any applicable agreement, law, regulation, order or rule.
ARTICLE VIII
PROVISIONS FOR TREATMENT OF INTERCOMPANY CLAIMS
8.1 INTERCOMPANY CLAIMS. As of the Effective Date, except as set forth
on Schedule 4.18 to the Newco Agreement, which Schedule is annexed hereto as
Exhibit 9, all Intercompany Claims (including without limitation, any
contribution or similar claim Marker may have against its Subsidiaries for
payment of the First Security Bank Claim) shall be canceled.
ARTICLE IX
ACCEPTANCE OR REJECTION OF THE PLAN
9.1 VOTING RIGHTS. Each holder of an Impaired Claim against or Equity
Interest in the Debtors as of the Record Date shall be entitled to vote to
accept or reject this Plan within the class of Claims or Equity Interests that
such holder's Claim or Equity Interest is classified hereunder.
9.2. CLASS ACCEPTANCE REQUIREMENT. A Class of Claims shall have
accepted this Plan if it is accepted by at least two-thirds in dollar amount and
one-half in number of the holders of Allowed Claims in such class that have
timely and properly voted to accept or reject this Plan. A Class of Equity
Interests shall have accepted this Plan if its accepted by at least two-thirds
in amount of Allowed Equity Interests in such class that have timely and
properly voted to accept or reject this Plan.
9.3. ONE VOTE PER HOLDER. If a holder of a Claim holds more than one
Claim or Equity Interest in any one Class, all Claims or Equity Interests of
such holder in such Class shall be aggregated and deemed to be one Claim or
Equity Interest for purposes of determining the number and amount of Claims or
Equity Interests in such Class voting on this Plan.
9.4. CRAMDOWN. If any impaired Class of Claims or Equity Interests
shall not have accepted this Plan by the requisite statutory majorities provided
in Sections 1126(c) or 1126(d) of the Bankruptcy Code, as applicable, the
Debtors (subject to Newco's prior approval) reserve the right to (a) request the
Court to confirm this Plan pursuant to Section 1129(b) of the Bankruptcy Code,
or (b) modify this Plan in accordance with Section 16.8 hereof.
ARTICLE X
MEANS FOR IMPLEMENTATION OF THE PLAN
10.1 TRANSFERS TO NEWCO.
a. On the Effective Date, pursuant to the Newco Agreement, Marker
will transfer or cause to be transferred to Newco all property of the Estate,
including, but not limited to, all assets of Marker utilized in its business
operations (other than the Excluded Assets) and all Equity Securities of the
Subsidiaries; provided, however, that (i) the property subject to the First
Mortgage which constitutes Marker's corporate headquarters shall be transferred
to Marker USA and (ii) the Equity Interests in DNR USA and DNR N.A. will be
canceled and extinguished.
b. On the Effective Date, pursuant to the Newco Agreement and in
accordance with the terms hereof and the documents and instruments executed and
delivered by Newco in connection herewith, Newco shall assume and agrees to pay,
perform, discharge and satisfy when due the Assumed Liabilities, including such
treatment of Allowed Claims against Marker as set forth in this Plan that
constitute Assumed Liabilities.
10.2 ORGANIZATION OF NEWCO. Newco is organized as a GmbH under the
laws of Switzerland. Newco shall have the partnership power and authority to
issue the Newco Equity Securities. The governance of Newco will be carried out
in accordance with Newco's Articles of Association, the Operating Agreement and
the applicable laws of Switzerland.
10.3 ISSUANCE OF NEWCO EQUITY SECURITIES. Pursuant to the Newco
Agreement and the Operating Agreement, Newco shall issue the Newco Equity
Securities which shall contain the terms described in the Disclosure Statement.
10.4 ASSETS AND LIABILITIES OF NEWCO. On the Effective Date, Newco
will own the Sale Assets, including, among other assets, 100% of the issued and
outstanding capital stock of the Subsidiaries (other than DNR USA and DNR N.A.),
free and clear of all Liens, Claims and encumbrances except as otherwise
expressly provided for herein. As of the Effective Date, Newco's only other
material assets will consist of (i) the capital contributions and other
investments made by CT in an aggregate amount equal to $13,974,499 and (ii) the
equity securities issued to Newco pursuant to the Canadian Stockholders
Agreement. As of the Effective Date, Newco will assume the Assumed Liabilities
pursuant to Section 10.1 of this Plan.
10.5 GOVERNANCE OF NEWCO. The business and affairs of Newco will be
managed by and under the direction of the Board of Managing Partners (the
"Board"). The Board shall consist of not less than four or more than seven
managing members. Pursuant to the terms of the Operating Agreement, Marker shall
be entitled, but not required, to nominate one managing member of the Board;
provided, however, that such nominee shall be acceptable to CT. CT shall be
entitled, but not required, to nominate the remaining managing members of the
Board. The identities of the initial managing members of the Board as well as
the identities of the officers of Newco will be disclosed at or prior to the
Confirmation Hearing.
10.6 CAPITALIZATION OF MARKER. On the Effective Date, the authorized
capital stock of Marker shall consist only of common stock, with 25,000,000
shares authorized, $0.01 par value and approximately 11,140,577 shares
outstanding.
10.7 GOVERNANCE OF MARKER. On the Effective Date, the business and
affairs of Marker will be managed by and under the direction of a Board of
Directors which shall consist of three members. The identities of the members of
the Board of Directors as well as the identities of the officers of Marker are
identified will be disclosed at or prior to the Confirmation Hearing.
10.8 FUNDING OF MARKER. Pursuant to Section 7.8 of the Newco Agreement
and so long as Marker is not in default of any of its obligations under the
Newco Agreement or the Operating Agreement, Newco shall advance to Marker from
time to time an aggregate amount not to exceed $300,000 for each twelve month
period following the Effective Date (the "Advances"); provided that the proceeds
of the Advances shall be used solely for: (i) maintaining director and officer
liability insurance for Marker's board of directors and officers, (ii)
preparing, filing and distributing (including to Marker's shareholders) such
documents and other information as may be required by United States federal and
state securities laws that are applicable to Marker, (iii) compliance with its
statutory and other legally required or contractual obligations arising under
the Newco Agreement (other than any indemnification obligation arising under
Article X of the Newco Agreement) and/or the Operating Agreement, and (iv)
ordinary administrative and operating expenses associated with clauses (i), (ii)
and (iii) (including, salaries and the payment of reasonable costs, fees and
expenses of attorneys and other professionals, provided that the scope of their
engagement is reasonably satisfactory to Newco and a copy of each invoice
submitted by such attorney or professional is promptly delivered to Newco).
Newco shall have no obligations to make any Advances to Marker after the earlier
of (a) the second anniversary of the Effective Date, (b) Marker's breach of its
obligations under Section 7.8(a) of the Newco Agreement and (c) Marker's failure
to be the holder of record of the Newco Equity Securities. All Advances,
together with accrued interest thereon at 5% per annum from the date of funding
of such Advance, must be repaid by Marker pursuant to Section 10.3(iii)(C) of
the Newco Agreement.
10.9 CESSATION OF MARKER'S BUSINESS. From and after the Effective
Date, Marker will not be engaged in the conduct of business and will operate for
the purpose of liquidating its assets (including, without limitation, the Newco
Equity Securities). Marker will dissolve and liquidate all of its assets no
earlier than the third anniversary of the Effective Date and no later than the
fifth anniversary of the Effective Date.
10.10 EXECUTION OF DOCUMENTS AND CERTAIN OTHER ACTIONS ON OR PRIOR TO
THE EFFECTIVE DATE. On or prior to the Effective Date, the following actions
will be taken and the following documents will be executed, all of which
documents will become effective on the Effective Date unless otherwise specified
herein:
10.10.1 OPERATING AGREEMENT. Marker, Newco and CT will execute
the Operating Agreement and such other documents as are contemplated by the
Operating Agreement.
10.10.2 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AND
BY-LAWS FOR MARKER. The certificate of incorporation and by-laws of Marker will
be amended as necessary to satisfy the provisions of this Plan and the
provisions of the Newco Agreement, and such amended certificate and by-laws
shall be the certificate of incorporation and by-laws governing Marker after the
Effective Date. The adoption of the amended certificate of incorporation and by-
laws of Marker, and the initial selection of directors and officers for Marker
pursuant to Section 10.7 shall be authorized and approved in all respects
without further order of the Court or any action by the stockholders or
directors of Marker.
10.10.3 CORPORATE NAME. On or prior to the Effective Date, Marker
shall take all action necessary and file all documents or instruments necessary
to change its current corporate name to a name that is distinctly different in
spelling and sound from its current name which new name shall be subject to
Newco's prior approval.
10.10.4 DISSOLUTION OF DNR USA AND DNR N.A. As of the Effective
Date, the corporate existence of DNR USA and DNR N.A. shall terminate and any
remaining assets of DNR USA and DNR N.A., shall vest in Newco. Certificates of
dissolution for DNR USA and DNR N.A. may be filed at any time after the
Confirmation Date to become effective on the Effective Date.
10.10.5 NEWCO FINANCING FACILITY. On or prior to the Effective
Date, Newco or the Subsidiaries shall have entered into the Newco Financing
Facility.
10.10.6 TRANSFER OF PATENTS TO NEWCO. Without limiting the terms
of Section 10.1 or any other provision of this Plan, on the Effective Date, all
trademarks, patents and licenses of Marker of every kind relating or pertaining
in any way to the production of ski bindings and/or their components by Marker
Deutschland GmbH shall have been irrevocably transferred and/or assigned to
Newco pursuant to legally binding agreements, reasonably satisfactory in form
and substance to the German Banks.
10.10.7 TERMINATION OF COLLATERAL ASSIGNMENT. Without limiting
the terms of Section 11.4 or any other provisions of this Plan, on the Effective
Date, the Collateral Assignment, Acknowledgment and Consent among Marker, Marker
USA, First Security and Marker Deutschland GmbH, dated October 30, 1998, shall
be terminated and be of no further effect.
10.10.8 TERMINATION OF EXCLUSIVE DISTRIBUTORSHIP AGREEMENT. On or
prior to the Effective Date, the Exclusive Distributorship Agreement, dated
October 30, 1998, between Marker USA and Marker Deutschland GmbH shall be
terminated and be of no further effect.
ARTICLE XI
PROVISIONS AS TO DISTRIBUTIONS AND TREATMENT OF
DISPUTED CLAIMS
11.1 DISTRIBUTION RESPONSIBILITY. Except as otherwise provided in the
Plan, and subject to the specific treatment provisions of Articles IV - VIII,
Newco shall be responsible for and shall be obligated to make in accordance with
the terms of this Plan and the documents and instruments executed by Newco in
connection herewith, all post-Effective Date distributions required with respect
to all allowed Claims and Equity Interests, including, Administrative Claims
(other than Allowed Professional Claims), Priority Claims, Priority Tax Claims,
the First Mortgage Claim, the Piero Claims, the Foreign Exchange Contract
Claims, the Series A Bonds Claim, Small General Unsecured Claims, Preferred
Stock Interests and General Unsecured Claims Against DNR USA and DNR N.A.
Marker, with funding provided by Newco, shall make the Effective Date
distributions required under this Plan.
11.2 DATE OF DISTRIBUTIONS. Except as otherwise provided in the Plan,
any distributions and deliveries to be made hereunder shall be made on the
Effective Date or as soon as practicable thereafter. If any payment or act under
this Plan is required to be made or performed on a date that is not a Business
Day, then the making of such payment or the performance of such act may be
completed on the next succeeding Business Day, but shall be deemed to have been
completed as of the required date.
11.3 DELIVERY OF DISTRIBUTIONS. Except as otherwise provided in the
Plan, all distributions to be made under this Plan shall be made to the holder
of an Allowed Claim or Equity Interest (other than the Marker Common Stock
Interests) as of the Record Date. The holder of an Allowed Claim or Equity
Interest as of the Record Date shall be deemed to be the entity who (a) filed
the most recent timely proof of claim or interest relating thereto, provided no
evidence of the transfer of such Claim or Equity Interest was filed on or before
the Record Date, or (b) if evidence of the transfer of a timely filed proof of
claim or interest was filed on or before the Record Date, (i) the transferee
named therein if the transferor named therein does not file a timely objection
pursuant to Bankruptcy Rule 3001(e) or (ii) the Person so designated by a Final
Order of the Court if a timely objection to the evidence of transfer was filed,
or (c) is reflected in the Schedules as the holder of such Claim or Equity
Interest if no timely proof of claim or interest related thereto was filed.
Subject to Bankruptcy Rule 9010, all distributions to any holder of an
Allowed Claim or Equity Interest shall be made at the address of such holder as
listed in the Schedules filed with the Court unless the applicable Debtor has
been notified in writing of a change of address, including, without limitation,
by the filing of a proof of claim by such holder that contains an address for
such holder different from the address reflected for such holder in the
Schedules. In the event that any distribution to any holder is returned as
undeliverable, the Debtors or Newco, as applicable, shall use reasonable efforts
to determine the current address of such holder, but no distribution to such
holder shall be made unless and until the Debtors or Newco, as applicable, has
determined the then current address of such holder, at which time such
distribution shall be made to such holder without interest. All Claims for
undeliverable distributions must be made on or before the fifth anniversary of
the Effective Date, and if not made by such fifth anniversary all unclaimed
property will revert to Newco, and the Allowed Claims or Equity Interests whose
distributions were not delivered will be discharged and barred forever. Checks
issued in respect of Allowed Claims or Equity Interests will be null and void if
not cashed within 60 days of the date of issuance thereof.
11.4 CLEAR TITLE AND RELEASE OF LIENS. Except as specifically provided
otherwise in this Plan or the Newco Agreement, all Sale Assets of Marker
conveyed to and vesting in Newco shall be free and clear of all Liens, Claims
and Equity Interests. Whenever by the terms of this Plan it is provided that
Liens on Collateral securing a particular Claim are released and deemed null and
void or a Claim that is secured by Collateral is disallowed in full by Final
Order, Newco may require the holder of any such Claim to execute releases of
Liens or such other documents as may be necessary to obtain clear title to the
Collateral under applicable law. In the event that a holder of any Claim refuses
to execute such releases or other documents with respect to the Collateral
securing such Claim, Newco may refuse to make distributions with respect to such
Claim under this Plan until such holder executes appropriate releases or other
documentation.
11.5 MEANS OF CASH PAYMENT. Except as otherwise provided in the Plan,
Cash payments required to be made pursuant to the Plan shall be made either by
wire transfer or check drawn on an internationally recognized commercial bank
mailed by first-class mail.
11.6 PROSECUTION OF CLAIMS OBJECTIONS. On and after the Effective
Date, Newco (with the assistance of Marker) shall be authorized, at its own
expense, to file, settle, compromise, withdraw or litigate to judgment
objections to the allowance of Claims.
11.7 NO DISTRIBUTIONS PENDING ALLOWANCE. Notwithstanding any other
provision hereof, no distributions shall be made with respect to a Disputed
Claim (or any Disputed portion of a Claim if such Claim is not severable) by
either Newco or Marker unless and until such Disputed Claim becomes an Allowed
Claim.
11.8 DISTRIBUTIONS AFTER ALLOWANCE. Payments and distributions to each
holder of a Disputed Claim or any other Claim that is not an Allowed Claim, to
the extent such Claim ultimately becomes an Allowed Claim shall be made in
accordance with the provisions of this Plan. As soon as practicable after the
date that the order or judgment of the Court allowing any Disputed Claim or any
other Claim that is not an Allowed Claim becomes a Final Order, Newco shall
distribute to the holder of such Claim (without affecting Newco's rights to
indemnification under the Newco Agreement) any amounts that should have been
distributed to such holder if the Claim had been an Allowed Claim on the
Effective Date.
ARTICLE XII
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
12.1 ASSUMED AND ASSIGNED CONTRACTS. On the Effective Date, all
executory contracts and leases listed on Exhibit 4 to this Plan, as such Exhibit
may be amended (with the prior consent of Newco) from time to time prior to the
Confirmation Date (the "Newco Assigned Contracts"), shall be assumed and
simultaneously assigned to Newco. All Cure Costs, if any, under the Newco
Assigned Contracts shall be determined on or prior to the Effective Date and
shall be paid by the Debtors (with funds provided by Newco) on the Effective
Date; or, in the event of a dispute, on the date of determination of that
dispute by a Final Order of the Court. All non-monetary defaults as of the
Effective Date, if any, under the Newco Assigned Contracts shall be cured by
either the Debtors or Newco (to the extent required by the Newco Agreement) on
the Effective Date. The assignment of the Newco Assigned Contracts to Newco
shall be adequate assurance of future performance of the Newco Assigned
Contracts in accordance with Section 365 of the Bankruptcy Code.
12.2 REJECTED CONTRACTS. All executory contracts and leases of the
Debtors not assumed and assigned to Newco pursuant to Section 12.1 of the Plan,
including those contracts specifically set forth on Exhibit 5 annexed hereto,
shall be rejected or deemed rejected as of the Effective Date; provided,
however, that in no event shall the Distribution Agreement dated as of June 1,
1999 by and between Marker and Marker Canada, as amended by the Amendment
Agreement dated as of June 1, 1999 by and between Marker, Marker Canada, Tecnica
S.p.A. and Volkl International AG, which contract is to be assumed by Marker
pursuant to the Assumption Order, be deemed rejected by the Debtors.
12.3 CLAIMS RELATING TO REJECTED CONTRACTS. Any entity that has a
Claim against any of the Debtors by virtue of rejection of an executory contract
or lease shall file a proof of Claim with the Clerk of the Court, and serve such
proof of Claim upon counsel for the Debtors, within twenty-five days (25) days
following service upon such entity of notice of entry of the order confirming
the Plan or order authorizing such rejection, as the case may be. If such proof
of Claim is not filed within such specified time, the holder of such Claim shall
be forever barred from asserting such Claim against the Debtors or their
Estates. Objections to any such Claim shall be filed not later than thirty (30)
days after such proof of Claim is filed or such later date as the Court shall
approve. Any entity whose Claim arises from rejection of an executory contract
or lease shall, to the extent such Claim becomes an Allowed Claim, have the
rights of a holder of a Small General Unsecured Claim or General Unsecured Claim
(as the case may be) with respect thereto.
ARTICLE XIII
CONDITIONS PRECEDENT
13.1 CONDITIONS PRECEDENT TO CONFIRMATION. This Plan shall not be
confirmed unless and until the following conditions are satisfied or, if
waivable pursuant to Section 13.3, waived:
(a) the Breakup Fee Order, in form and substance acceptable to
Newco, shall have been entered by the Court;
(b) the Assumption Order, in form and substance acceptable to
Newco, shall have been entered by the Court;
(c) an Order approving the Disclosure Statement, in form and
substance acceptable to Newco, shall have been entered by the Court;
(d) the Confirmation Order, in form and substance acceptable to
Newco, shall have been entered by the Court, which provides, INTER ALIA, that:
(i) all applicable requirements of Section 1129 of the
Bankruptcy Code have been satisfied;
(ii) the Newco Agreement is approved;
(iii) the transfer of Sale Assets by Marker contemplated by
this Plan and the Newco Agreement (A) are or will be legal, valid and
effective transfers of property, and (B) vest or will vest in Newco
good title to such property free and clear of all Claims and Liens,
except as otherwise provided in this Plan or the Newco Agreement; and
(iv) Newco and the Debtors are empowered and authorized to
take or cause to be taken, prior to the Effective Date, all actions
which are necessary to enable them to activate and implement the
provisions of this Plan and satisfy all other conditions precedent to
the effectiveness of this Plan; and
(e) neither Newco nor Marker shall have terminated the Newco
Agreement.
13.2 CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. The Effective Date
shall not occur unless the following are satisfied or, if waivable pursuant to
Section 15.3 hereof, waived:
(a) the Confirmation Order shall have been entered by the Court
by October 27, 1999 or such later date as Newco may, in its sole and
absolute discretion, expressly consent to in writing or on the record
in the Bankruptcy Court (provided that such later date shall in no
event be after November 30, 1999) and shall have become a Final Order,
or shall not have been reversed, revoked, modified in any manner
unacceptable to the Debtors and Newco, or stayed;
(b) all conditions precedent to the obligations of Marker and
Newco pursuant to the Newco Agreement shall have been satisfied or
waived in accordance therewith;
(c) neither Newco nor Marker shall have terminated the Newco
Agreement; and
(d) Newco or the Subsidiaries shall have entered into the New
Financing Facility.
13.3 WAIVER OF CONDITIONS. Each of the conditions precedent in
Sections 13.1 and 13.2 hereof may be waived, in whole or part, or modified by
written agreement by the Debtors with Newco's consent.
ARTICLE XIV
EFFECTS OF PLAN CONFIRMATION AND EFFECTIVENESS OF PLAN
14.1 EXTENT OF RELEASE. Except as expressly set forth in this Plan,
nothing contained in this Plan shall affect any right of any Entity (as defined
in the Bankruptcy Code) to assert or pursue any claim or cause of action against
any Entity other than the Debtors, Marker's Subsidiaries, Newco and Newco's
Affiliates (as defined in the Newco Agreement).
14.2 RELEASE BY DEBTORS.
(a) On the Effective Date, the Debtors, their Affiliates (as such
term is defined in Section 101(2) of the Bankruptcy Code but in no event shall
such term be deemed to include Newco for purposes of this Article XIV) and their
shareholders derivatively are hereby deemed to have forever waived and released
unconditionally each of the Debtor's present and former directors, officers,
employees, agents, consultants, advisors, attorneys, accountants and other
representatives and their respective successors, assigns or Affiliates
(collectively, the "Debtor Releasees"), from any and all claims, obligations,
suits, judgments, damages, rights, causes of action and liabilities whatsoever,
whether known or unknown, foreseen, or unforeseen, existing or hereafter
arising, in law, equity or otherwise, based in whole or in part upon any act or
omission by, or any transaction, agreement, event or other occurrence (unless
due to the gross negligence or willful misconduct of the Debtor Releasee),
taking place prior to, on or after the Confirmation Date in any way relating to
the Debtors, their businesses, the Chapter 11 Cases, the Plan, or the Newco
Agreement (collectively, the "Released Claims"). Debtors, their Affiliates and
their shareholders shall be forever precluded from asserting whether directly,
derivatively or otherwise, any such claims against any Debtor Releasee.
(b) On the Effective Date, except as otherwise provided in the
Plan, the Debtors, their Affiliates (as defined in Section 101(2) of the
Bankruptcy Code) and their shareholders derivatively are hereby deemed to have
forever waived and released unconditionally (i) the holders of Equity Interests,
(ii) First Security Bank, Hypo Vereinsbank (New York), Isomura, M&T Bank,
KeyBank, the German Banks, Piero, Marker's Subsidiaries (in their capacity as
holders of Claims), and Newco (except as otherwise provided in the Newco
Agreement) and (iii) all present and former directors, officers, employees,
agents, consultants, advisors, attorneys, accountants and other representatives
and their respective successors, assigns or Affiliates (as defined in the Newco
Agreement) of or to any of the foregoing in their capacity as such (all of the
foregoing collectively referred to as the "Third Party Releasees") from the
Released Claims; PROVIDED, HOWEVER, that this release shall not constitute a
release of any Allowed Claims treated under this Plan or any claims or causes of
action of Marker or Newco against the other arising under the Newco Agreement
(unless otherwise provided in the Newco Agreement) or the Operating Agreement.
Entities deemed to have released claims pursuant to this Section 14.2(b) shall
be forever precluded from asserting whether directly, derivatively or otherwise,
any such claims against the Third Party Releasees.
14.3 RELEASE BY CREDITORS AND HOLDERS OF EQUITY INTERESTS. On the
Effective Date, each holder (or representative thereof) of a Claim or Equity
Interest (a) who has accepted or is deemed to have accepted this Plan, (b) whose
Claim or Equity Interest is in a class that has accepted or is deemed to have
accepted this Plan pursuant to Section 1126 of the Bankruptcy Code or (c) who
may be entitled to receive a distribution of property or retain property
pursuant to this Plan, shall be deemed to have forever waived and released
unconditionally the Debtors, the Debtor Releasees and the Third Party Releasees
from the Released Claims; PROVIDED, HOWEVER, that this release shall not
constitute a release of (i) any payment obligation with respect to the treatment
of Allowed Claims provided under this Plan, (ii) any claims or causes of action
of Marker or Newco against the other arising under the Newco Agreement (unless
otherwise provided in the Newco Agreement) or the Operating Agreement, (iii)
KeyBank's claims, if any, against Marker Deutschland GmbH and Marker USA arising
under or relating to KeyBank's Foreign Exchange Contracts; provided, however,
that upon payment to KeyBank of all sums due to KeyBank under the Plan
(including the Cash payment and all amounts due under the KeyBank Note), Marker
Deutschland GmbH and Marker USA will be discharged and released of all such
claims, or (iv) any claims third parties may have against each other, which
claims are not related to the Debtors and the Chapter 11 Cases. Persons deemed
to have released claims pursuant to this Section 14.3 shall be forever precluded
from asserting any such claims against the Debtors, the Debtor Releasees or the
Third Party Releasees.
14.4 INJUNCTION. Except as otherwise expressly provided herein or the
Newco Agreement, confirmation of this Plan shall, provided that the Effective
Date occurs, permanently enjoin all entities that have held, currently hold, or
may hold a Claim against or other debt or liability of any of the Debtors,
whether arising before, on or after the Effective Date, or that hold any Equity
Interest in the Debtors from taking any of the following actions with respect to
such Claim or Equity Interest against the Debtors, the Debtor Releasees, the
Third Party Releasees, or the Sale Assets (wherever located) or the Excluded
Assets: (i) commencing, conducting or continuing in any manner, directly or
indirectly, any suit, action or other proceeding of any kind; (ii) enforcing,
levying, attaching, collecting or otherwise recovering in any manner or by any
means, whether directly or indirectly, any judgment, award, decree or order;
(iii) creating, perfecting or enforcing in any manner directly or indirectly,
any Lien or encumbrance of any kind; (iv) asserting any setoff, right of
subrogation or recoupment of any kind, directly or indirectly; and (v)
proceeding in any manner in any place whatsoever that does not conform to or
comply with or is inconsistent with the provisions of this Plan; PROVIDED,
HOWEVER, that this injunction shall not apply to (x) any Allowed Claims or
Equity Interests that may be asserted under this Plan, (y) any claims or causes
of action of Marker or Newco against the other arising under the Newco Agreement
or the Operating Agreement, or (z) any claims holders of Claims or Equity
Interests or other third parties may have against each other, which claims are
not related to the Debtors, the Sale Assets and the Chapter 11 Cases, it being
understood, however, that any defenses, offsets or counterclaims of any kind or
nature whatsoever which the Debtors may have or assert in respect of any of the
claims of the type described in (x), (y) or (z) of this proviso to the extent
not otherwise waived in the Newco Agreement or the Plan, are fully preserved.
14.5 DISCHARGE. Except as otherwise provided in the Plan and/or in the
Newco Agreement, the entry of the Confirmation Order shall operate as a
discharge pursuant to Section 1141(d)(1) of the Bankruptcy Code, effective as of
the Effective Date, of any and all debts of or Claims against one or more of the
Debtors (other than claims that Newco may have under the Newco Agreement and/or
Operating Agreement) that arose at any time prior to the Confirmation Date,
including, but not limited to, all principal and all interest, whether accrued
before, on or after the Filing Date, and including without limitation, any debt
of a kind specified in Section 502(g), 502(h) or 502(i) of the Bankruptcy Code,
to the full extent permitted by Section 1141(d)(1)(A) of the Bankruptcy Code.
14.6 NO LIABILITY FOR SOLICITATION. As specified in Section 1125(e) of
the Bankruptcy Code, entities that solicit acceptances or rejections of this
Plan in good faith and in compliance with the applicable provisions of the
Bankruptcy Code, are not liable on account of such solicitation for violation of
any applicable law, rule, or regulation governing the solicitation of
acceptances or rejections of this Plan.
14.7 LIMITATION OF LIABILITY. Neither the Debtors, the Debtor
Releasees or the Third Party Releasees or any of their respective Affiliates or
any of their respective officers, directors, employees, members or agents, or
any Professional employed by any of them (collectively, the "EXCULPATED
PERSONS"), shall have or incur any liability to any entity for any act taken or
not taken in good faith in connection with or in any way related to the
negotiation, formulation, implementation, confirmation or consummation of this
Plan, the Disclosure Statement, the Newco Agreement, or any contract,
instrument, release or other agreement or document created in connection with or
related to this Plan or the administration of the Chapter 11 Cases. The
Exculpated Persons shall have no liability to any holder of a Claim, holder of
an Interest or other party-in-interest herein or any other person for actions
taken under this Plan, in connection therewith or with respect thereto, in good
faith, including, without limitation, failure to satisfy any condition or
conditions, or refusal to waive any condition or conditions precedent to the
Confirmation Date or the Effective Date. Further, the Exculpated Persons will
not have or incur any liability to any holder of a Claim, holder of an Interest,
or other party-in-interest herein or any other Person for any act or omission in
connection with or arising out of their administration of this Plan or the
property to be distributed under this Plan, except for gross negligence or
willful misconduct as finally determined by the Court, and the Exculpated
Persons are entitled to rely on, and act or refrain from acting on, all
information provided by other Exculpated Persons without any duty to investigate
the veracity or accuracy of such information.
14.8 OTHER DOCUMENTS AND ACTIONS. The Debtors may execute such
documents and take such other action as is necessary to effectuate the
transactions provided for in this Plan.
14.9 TERM OF INJUNCTIONS OR STAYS. Unless otherwise provided in the
Plan, all injunctions or stays provided for in the Chapter 11 Cases pursuant to
Sections 105 or 362 of the Bankruptcy Code or otherwise and in effect on the
Confirmation Date shall remain in full force and effect until the Effective
Date.
14.10 REGISTRATION EXEMPTION. All equity securities in Newco
distributed to Marker shall be exempt from registration under the securities
laws to the fullest extent permitted by the provisions of Section 1145 of the
Bankruptcy Code.
14.11 TRANSFER TAX EXEMPTION. The issuance, transfer, or exchange of a
security, or the making or delivery of an instrument of transfer under the Plan
shall not be taxed under any law imposing a stamp tax or similar tax.
14.12 MISCELLANEOUS. All amounts payable in respect of Allowed Claims
will be treated for United States federal income tax purposes to have been
applied first in payment of accrued interest, if any, and then in payment of the
principal amount with respect to such Allowed Claim.
ARTICLE XV
RETENTION OF JURISDICTION
15.1 JURISDICTION OF THE BANKRUPTCY COURT. The Court shall retain
exclusive jurisdiction of these cases as long as necessary for the following
purposes (but in no event shall the Court retain exclusive jurisdiction with
respect to any controversies, suits or disputes arising under or relating to the
Operating Agreement):
(a) To determine any and all objections to the allowance,
disallowance or subordination of Claims or any controversy as to the
classification of Claims;
(b) To liquidate any disputed, contingent, or unliquidated Claims
including through estimation under Section 502(c) of the Bankruptcy Code, and
finally determine damages and other amounts in connection with such disputed,
contingent or unliquidated Claims;
(c) To determine any and all applications for professional and
similar fees and for the reimbursement of disbursements and expenses with
respect to services rendered and expenses incurred prior to the Confirmation
Date;
(d) To determine any and all pending motions and applications for
assumption or rejection of executory contracts and leases and the allowance and
classification of any Claims resulting from the rejection of executory contracts
and leases;
(e) To determine any and all motions, applications, adversary
proceedings, contested and litigated matters or such other matters over which
the Court has jurisdiction prior to the Confirmation Date, including the
enforcement, prosecution, litigation, settlement and/or other disposition of
claims and counterclaims of the Debtors;
(f) To enforce the provisions of, and resolve any and all
disputes under or pertaining to the Plan or the Newco Agreement;
(g) To modify the Plan or correct any defect, cure any omission
or reconcile any inconsistency in the Plan or in the order of the Court
confirming the Plan, or to enter such orders as may be necessary to effectuate
the terms and conditions of the Plan to the extent authorized by the Bankruptcy
Code as may be necessary to carry out the purpose and intent of the Plan;
(h) To hear and determine all controversies, suits and disputes,
if any, as may arise with regard to orders of this Court in the Chapter 11
Cases;
(i) To hear and determine any and all controversies and disputes
arising under, or in connection with, the Plan or the order confirming the Plan;
(j) To adjudicate all Claims to a security or ownership interest
in any property of the Debtors or in any proceeds hereof;
(k) To adjudicate all Claims or controversies arising out of any
purchases, sales or contracts made or undertaken by the Debtors during the
pendency of these Chapter 11 Cases;
(l) To recover all assets and properties of the Debtors wherever
located, including the prosecution and adjudication of all rights and Causes of
Action available to the Debtors, including the Avoidance Actions (which actions
shall become assets of Newco on the Effective Date);
(m) To determine all questions and disputes regarding recovery of
and entitlement to the Debtors' assets and determine all claims and disputes
between the Debtors and any other Entity, whether or not subject to an action
pending as of the Confirmation Date (provided however, that with respect to any
disputes arising under or relating to the Operating Agreement, the Court's
jurisdiction shall not be exclusive);
(n) To enter any order, including injunctions, necessary to
enforce the title, rights and powers of the Debtors and to impose such
limitations, restrictions, terms and conditions on such title, rights and powers
as the Court may deem necessary or appropriate;
(o) To enter an order or final decree closing and terminating the
Chapter 11 Cases; and
(p) To make such orders as are necessary or appropriate to carry
out the provisions of this Plan, including but not limited to orders
interpreting, clarifying or enforcing the provisions thereof.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
16.1 PAYMENT OF STATUTORY FEES. All fees payable pursuant to Section
1930 of title 28 of the United States Code, as determined by the Court at the
hearing pursuant to Section 1128 of the Bankruptcy Code, shall be paid on or
before the Effective Date.
16.2 NO PENALTIES. No penalties or late charges are to be allowed on
any Claim or Interest subsequent to the Filing Date except as expressly stated
in this Plan, or allowed by a Final Order of a court of competent jurisdiction.
16.3 NO ATTORNEY'S FEES. No attorneys' fees will be paid by any Debtor
with respect to any Claim or Interest except as expressly specified herein or
allowed by a Final Order of a court of competent jurisdiction.
16.4 RIGHTS OF ACTION/RELEASE OF PREFERENCE CLAIMS. Except as
otherwise provided herein or in the Newco Agreement, any and all rights and
Causes of Action accruing to the Debtors, including the Avoidance Actions, shall
become assets of Newco. Newco may pursue those rights and Causes of Action, as
appropriate, in accordance with what is in their best interests. As of the
Effective Date, the Debtors and Newco waive the right to prosecute and release,
on behalf of themselves and their respective estates, any recovery actions under
Section 547 of the Bankruptcy Code. Nothing in this Plan shall constitute a
waiver or release by any Debtor or Newco (unless previously waived in the Newco
Agreement) of any right of set-off, defense or counterclaim such Debtor or Newco
may have against any Person other than the Debtor Releasees and the Third Party
Releasees.
16.5 NO ADMISSIONS. Notwithstanding anything herein to the contrary,
nothing contained in this Plan (i) shall be deemed an admission by any Debtor
with respect to any matter set forth herein, including, without limitation,
liability on any Claim or Interest or the propriety of any classification of any
Claim or Interest, or (ii) constitutes an acknowledgment by Marker that it has
liability after the Effective Date for obligations that are to be assumed by
Newco pursuant to the Newco Agreement.
16.6 GOVERNING LAW. Except to the extent the Bankruptcy Code, the
Bankruptcy Rules or other federal laws are applicable, the laws of the State of
New York shall govern the construction, implementation and enforcement of this
Plan and all rights and obligations arising under this Plan, without giving
effect to the principles of conflicts of laws.
16.7 SUCCESSORS AND ASSIGNS. The rights, benefits and obligations of
any Person named or referred to in this Plan will be binding upon, and will
inure to the benefit of, the heir, executor, administrator, representative,
successor or assign of such Person.
16.8 MODIFICATION OF THIS PLAN. Modifications of this Plan may be
proposed in writing by the Debtors, with the prior consent of Newco, at any time
before the Confirmation Date; provided, however, that this Plan as modified,
satisfies the requirements of Sections 1122 and 1123 of the Bankruptcy Code and
the Debtors shall have complied with Section 1125 of the Bankruptcy Code. This
Plan may be modified at any time after the Confirmation Date and before
substantial consummation of the Plan, with the prior consent of Newco; provided,
however, that this Plan as modified, satisfies the requirements of Sections 1122
and 1123 of the Bankruptcy Code and the Court, after notice and a hearing
confirms this Plan as modified under Section 1129 of the Bankruptcy Code. A
holder of a Claim or Interest that has accepted this Plan shall be deemed to
have accepted the Plan as modified if the proposed modification does not
materially and adversely change the treatment of the Claim or Equity Interest of
such holder.
16.9 REVOCATION OF PLAN. The Debtors reserve the right to revoke
and/or withdraw this Plan prior to the Confirmation Date; provided, however,
that the Debtors may not revoke and/or withdraw this Plan without the prior
consent of Newco. If the Debtors revoke and/or withdraw this Plan, or if
confirmation of this Plan does not occur, then this Plan shall be deemed null
and void and nothing contained herein shall be deemed to constitute a waiver or
release of any Claims by or against any of the Debtors or any other Person or to
prejudice in any manner the rights of the Debtors or any other Person in any
further proceedings involving the Debtors.
16.10 SEVERABILITY. Should the Court determine, prior to the
Confirmation Date, that any provision of this Plan is either illegal on its face
or illegal as applied to any Claim or Equity Interest, such provision shall be
unenforceable as to all holders of Claims or Interests or to the specific holder
of such Claim or Equity Interest, as the case may be, as to which the provision
is illegal. Unless otherwise determined by the Court, such a determination of
unenforceability shall in no way limit or affect the enforceability and
operative effect of any other provision of this Plan. However, the Debtors
reserve the right not to proceed with confirmation or consummation of this Plan
if any such ruling occurs.
16.11 INCONSISTENCIES. To the extent of any inconsistency among the
Confirmation Order, the Plan or the Disclosure Statement, this Plan controls the
Disclosure Statement and the Confirmation Order controls this Plan. To the
extent of any inconsistency among the Plan or the Disclosure Statement and the
Newco Agreement, the Newco Agreement shall control.
16.12 NOTICES. All notices, requests, elections or demands in
connection with this Plan shall be in writing and shall be mailed by registered
or certified mail, return receipt requested, to:
Marker International
1070 W. 2300 South
Salt Lake City, Utah 84119
Attention: Kevin Hardy
With copies to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
Attention: Robert Raskin, Esq.
16.13 WITHHOLDING AND REPORTING. In connection with the Plan and all
instruments issued in connection therewith and distributions thereon, the
Debtors and Newco shall comply with all withholding and reporting requirements
imposed by any Federal, State, local or foreign taxing authority and all
distributions hereunder shall, to the extent applicable, be subject to any such
withholding and reporting requirements.
ARTICLE XVII
EFFECT OF TERMINATION OF THE NEWCO AGREEMENT
17.1 EFFECT OF TERMINATION ON THE PLAN. If the Newco Agreement is
properly terminated by Marker or Newco, this Plan shall be deemed null and void,
withdrawn, and of no further force and effect.
17.2 EFFECT OF TERMINATION ON THE DEBTORS' PROPERTY. Following a
termination of the Newco Agreement, the Debtors shall remain in possession of
their Assets and properties, subject to the provisions of the Bankruptcy Code,
and may propose one or more alternative plans.
Dated: September 22, 1999
Respectfully Submitted,
MARKER INTERNATIONAL, et al., Debtors
By: /S/ KEVIN HARDY
Name: Kevin Hardy
Title: Chief Financial Officer
COUNSEL:
Robert Raskin
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, New York 10038
(212) 806-5400
Laura Davis Jones
YOUNG CONAWAY STARGATT & TAYLOR, LLP
P.O. Box 391
Rodney Square North, 11th Fl.
Wilmington, DE 19801
(302) 571-6600
EXHIBIT 10.1
AMENDMENT TO ASSET
PURCHASE AGREEMENT
This AMENDMENT TO ASSET PURCHASE AGREEMENT (this "AMENDMENT") is dated
as of September 20, 1999 and entered into by and between Marker International, a
Utah corporation and a debtor and debtor-in-possession ("SELLER"), and Marker
International GmbH, a Swiss GmbH ("BUYER"), and is made with reference to that
certain Asset Purchase Agreement dated as of July 30, 1999 (the "PURCHASE
AGREEMENT"), by and between Seller (prior to becoming a debtor and
debtor-in-possession) and Buyer. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Purchase
Agreement.
RECITALS
WHEREAS, as contemplated by the Purchase Agreement, Seller and two of
its wholly-owned Subsidiaries, DNR North America, Inc. and DNR USA, Inc., each
filed a voluntary petition under Chapter 11 of the Bankruptcy Code on August 19,
1999 (the "PETITION DATE") with the United States Bankruptcy Court for the
District of Delaware (the "BANKRUPTCY COURT");
WHEREAS, pursuant to the terms of the Purchase Agreement it is a
condition to Closing that Seller cause certain Orders to be entered by the
Bankruptcy Court on or before the times set forth in the Purchase Agreement, in
each case in form and substance reasonably satisfactory to Buyer; and
WHEREAS, Seller and Buyer desire to amend the Purchase Agreement to
provide, among other things, Seller with additional time to cause the Orders set
forth below to be entered by the Bankruptcy Court.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE PURCHASE AGREEMENT
1.1 AMENDMENTS TO SUBSECTION 1.1: PROVISIONS RELATING TO DEFINED TERMS
Subsection 1.1 of the Purchase Agreement is hereby amended as follows:
A. The definition of "Breakup Fee Order" is hereby amended by deleting
it in its entirety and substituting the following therefor:
"'Breakup Fee Order' means the Order of the Bankruptcy Court entered
on September 14, 1999 which grants Buyer and its Affiliates, among
other things, an administrative priority claim for the Breakup Fee,
the Reimbursement Expenses and reimbursement and indemnification
obligations under Section 11.14(c) and approves the payment thereof to
Buyer and its Affiliates."
B. The definition of "Confirmation Order" is hereby amended by
deleting at the end thereof the clause: "and shall be entered by the Bankruptcy
Court no later than fifty-five (55) days after the Petition Date".
C. The definition of "Disclosure Statement Order" is hereby amended by
deleting at the end thereof the clause: "and shall be entered by the Bankruptcy
Court no later than thirty (30) days after the Petition Date".
1.2 AMENDMENT TO SUBSECTION 4.8: SELLER'S REPRESENTATIONS AND
WARRANTIES: AUTHORIZATION; NO CONFLICTS
Subsection 4.8 of the Purchase Agreement is hereby amended by deleting
therefrom the phrase "other than the super-priority claim of Buyer under the
Breakup Fee Order and Section 364(c)(1) of the Bankruptcy Code" and substituting
therefor:
"other than the administrative priority claim of Buyer under the
Breakup Fee Order"
1.3 AMENDMENT TO SUBSECTION 6.3: PRE-CLOSING COVENANTS: CONDUCT OF
BUSINESS
Subsection 6.3 of the Purchase Agreement is hereby amended by deleting
the phrase "shall be junior in priority" in clause (e), clause (l) and in the
last paragraph of such subsection and substituting therefor (in each instance):
"shall in no event be senior in priority".
1.4 AMENDMENT TO SUBSECTION 6.8(B)(II): SELLER'S COVENANTS: CHAPTER 11
CASE
Subsection 6.8(b)(ii) of the Purchase Agreement is hereby amended by
deleting therefrom the phrase "fifteen (15) business days after the Petition
Date" and substituting therefor:
"September 14, 1999 or such later date as Buyer may, in its sole and
absolute discretion, expressly consent to in writing or on the record
in the Bankruptcy Court"
1.5 AMENDMENTS TO SUBSECTION 8.2(N)(I): CONDITIONS TO OBLIGATIONS OF
BUYER: CHAPTER 11 CASE
Subsection 8.2(n)(i) of the Purchase Agreement is hereby amended by:
A. deleting clause (A) of such subsection in its entirety and
substituting the following therefor:
"the Breakup Fee Order shall have been entered by the Bankruptcy Court
no later than September 14, 1999;";
B. deleting the phrase "thirty (30) days after the Petition Date" from
clause (C) of such subsection and substituting therefor:
"September 22, 1999 or such later date as Buyer may, in its sole and
absolute discretion, expressly consent to in writing or on the record
in the Bankruptcy Court"; and
C. deleting the phrase "fifty-five (55) days after the Petition Date"
from clause (D) of such subsection and substituting therefor:
"October 27, 1999 or such later date as Buyer may, in its sole and
absolute discretion, expressly consent to in writing or on the record
in the Bankruptcy Court (provided that such later date shall in no
event be after November 30, 1999),".
SECTION 2. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
(i) On and after the date hereof, each reference in the Purchase
Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Purchase Agreement shall mean
and be a reference to the Purchase Agreement as amended hereby.
(ii) Except as specifically amended by this Amendment, the Purchase
Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Buyer under, the Purchase Agreement.
B. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of a
counterpart hereof by Seller and Buyer and receipt by Seller and Buyer of
written or telephonic notification of such execution and authorization of
delivery thereof. Seller represents and warrants that the filing of a voluntary
petition by Seller under Chapter 11 of the Bankruptcy Code on the Petition Date
was duly authorized by all necessary corporate action and that Seller's
execution, delivery and performance of this Amendment does not require prior
notice to or the consent of any Person (including, without limitation, the
Bankruptcy Court).
C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
BUYER:
MARKER INTERNATIONAL GMBH
By: /s/ Peter C. Weaver
--------------------------------
Name: Peter C. Weaver
Title: Chief Executive Officer
By: /s/ Kevin Hardy
--------------------------------
Name: Kevin Hardy
Title: Chief Financial Officer
SELLER:
MARKER INTERNATIONAL, AS DEBTOR
AND DEBTOR-IN-POSSESSION
By: /s/ Christoph Bronder
--------------------------------
Name: Christoph Bronder
Title: Manager
By: /s/ Gian Carlo Zanata
--------------------------------
Name: Gian Carlo Zanata
Title: President
