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): September 8, 1998
SNAKE EYES GOLF CLUBS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-26344 59-3303066
(State or other (Commission (IRS Employer
jurisdiction File No.) Identification No.)
of incorporation)
13000 Sawgrass Village Circle, Suite 30 32082
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (904) 273-8772
Golf Technology Holding, Inc.
(Former name or former address, if changed since last report)
<PAGE>
Item 3. Bankruptcy or Receivership
On September 8, 1998, Snake Eyes Golf Clubs, Inc. (the "Company")
filed a voluntary petition under Chapter 11 of the Bankruptcy Code in
United States Bankruptcy Court, Middle District of Florida, Jacksonville
Division (Case No. 98-07248-3P1).
Under the terms of the plan of liquidation filed with the Bankruptcy
Court (the "Plan of Liquidation"), the Company plans to auction its
business and assets, free and clear of all liens and liabilities, to a
single high cash bidder. The Company anticipates that the auction will
occur in approximately 45 days in conjunction with the Bankruptcy Court
confirmation hearing on the Company's Plan of Liquidation. Under the Plan
of Liquidation the proceeds will be distributed to pay creditors and
thereafter to the Company's shareholders if sufficient funds remain. The
Company has a $1.4 million "back-up" contract which will provide the
opening bid at the auction.
The Company's bankruptcy schedules reflect secured debt of
approximately $100,000, unsecured debt of approximately $3 million, and
preferred stock of approximately $14.8 million. The Company's common stock
is held of record by approximately 700 shareholders.
Item 7. Exhibits
Exhibit 2. Debtor's Plan of Liquidation
<PAGE>
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.
SNAKE EYES GOLF CLUBS, INC.
By:/s/ Harold E. Hutchins
Harold E. Hutchins
Executive Officer
September 8, 1998
UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
In re
Case No.: 98-07248-3P1
SNAKE EYES GOLF CLUBS, INC.,
Debtor.
/
DEBTOR'S PLAN OF LIQUIDATION OF
SNAKE EYES GOLF CLUBS, INC.
Snake Eyes Golf Clubs, Inc., as Debtor and Debtor-in-Possession
("Debtor") proposes the following Plan of Liquidation pursuant to Chapter
11 of the Bankruptcy Code. The Plan is a plan of self-liquidation by
which the Debtor, under the control of the Bankruptcy Court and by
coordination with the Unsecured Creditors' Committee, shall sell its
assets and business free and clear of all liens, claims and encumbrances
and pay the creditors to the fullest extent possible from the cash so
created.
Subject to the restrictions in Section 1127 of the Bankruptcy Code,
the Debtor reserves the right to alter, amend or modify this Plan before
its substantial completion.
ARTICLE 1
DEFINITIONS
The following shall have the respective meanings specified below,
unless the context otherwise requires. Unless otherwise indicated the
singular shall include the plural and the plural shall include the
singular.
1.1 "Administrative Expense" means any cost or expense of
administration of the Chapter 11 Case allowed under Section 503(b) and
507(a)(1) of the Bankruptcy Code, including, without limitation, any
actual and necessary expenses of preserving the Estate of the Debtor, any
actual and necessary expenses of operating the business of the Debtor, all
legal and professional fees of counsel for the Debtor and the Creditors'
Committee and other compensation or reimbursement of expenses to the
extent allowed by the Bankruptcy Court under Section 330 or Section 503 of
the Bankruptcy Code, and any fees or charges assessed against the Estate
of the Debtor under Chapter 123 of Title 28, United States Code.
1.2 "Allowed" means, with respect to an Administrative Expense, a
Secured Claim, a Priority Claim, or an Unsecured Claim, any such Claim,
proof of which was timely and properly filed or, if no proof of claim was
filed, which has been or hereafter is listed by the Debtor on its
schedules as liquidated in amount and not disputed or contingent, and, in
either case, a Claim as to which no objection to the allowance thereof has
been interposed on or before the Confirmation Date or such other
applicable period of limitation fixed by this Plan, the Bankruptcy Code,
the Bankruptcy Rules, or the Bankruptcy Court, or as to which any
objection has been determined by a Final Order to the extent such
objection is determined in favor of a claimant. In the case of
Administrative Expenses arising from the necessary and actual expenses of
preserving the Estate and conducting the Debtor's business during the
Chapter 11 period (excluding all professional fees), such expense will be
deemed allowed if set forth on a "Statement of Operating Expenses" filed
with the Court and served on the Creditors' Committee and the Disbursing
Agent unless an objection is filed within 10 days, in which case such
amount shall be as allowed by the Court. Unless otherwise specified
herein or by order of the Bankruptcy Court, an "Allowed Administrative
Expense" or an "Allowed Claim" shall not, for purposes of computation of
distributions under the Plan, include interest on such Claim for the
period from and after the Petition Date.
1.3 "Asset Purchase Agreement" shall mean the agreement for the
purchase and sale of substantially all of the assets of the Debtor with
Venture Access International ("VAI"), as purchaser, in substantially the
form attached hereto as Exhibit "A" (the "Base Contract"), provided that
if the Auction results in a price higher than the price offered in the
Base Contract, then the form of agreement entered into with the successful
bidder at the Auction shall be in the form attached as Exhibit "A" except
for the higher purchase price, deletion of the "bust up" fee, and if the
purchaser so desires, modification of the liabilities being assumed.
1.4 "Auction" means the Auction for the sale of substantially all
the assets of the Debtor (excluding cash and certain bankruptcy claims) to
a single high bidder for Cash, which sale shall be pursuant to the form of
the Asset Purchase Agreement, as described in more detail in Section 4.1
hereof.
1.5 "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended, and set forth in Section 101, et seq. of Title 11 of the United
States Code.
1.6 "Bankruptcy Court" means the United States Bankruptcy Court for
the Middle District of Florida, Jacksonville Division.
1.7 "Bankruptcy Rules" means the Rules of Bankruptcy Procedure, as
amended from time to time, as applicable to the Chapter 11 Case, including
the Local Rules of the Bankruptcy Court.
1.8 "Business Day" means any day on which commercial banks are open
for business in Jacksonville, Florida.
1.9 "Cash" means cash, cash equivalents readily marketable direct
obligations of the United States of America, certificates of deposit
issued by banks, plus any interest earned or accrued thereon.
1.10 "Chapter 11 Case" means the case under Chapter 11 of the
Bankruptcy Code, commenced by the filing of a voluntary petition and
styled In re Snake Eyes Golf Clubs, Inc.
1.11 "Claim" means any right to payment from the Debtor, whether or
not such right is reduced, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured; or any right to an equitable remedy for breach of performance
if such breach gives rise to a right of payment from the Debtor, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured.
1.12 "Confirmation Date" means the date on which the Bankruptcy Court
shall enter the Confirmation Order.
1.13 "Confirmation Order" means the order entered by the Bankruptcy
Court confirming the Plan in accordance with the provisions of Chapter 11
of the Bankruptcy Code.
1.14 "Consummation" means, with respect to the Plan, the substantial
completion of all tasks assigned in the Plan.
1.15 "Creditor" means any Person that is the holder of a Claim
against the Estate of the Debtor that arose before the Petition Date, or a
Claim against the Estate of the Debtor of a kind specified in Section
348(d), 502(f), 502(c), 502(h) or 502(i) of the Bankruptcy Code.
1.16 "Creditors' Committee" means the unofficial committee of
unsecured creditors or their duly appointed successors, if any.
1.17 "Debtor" means Snake Eyes Golf Clubs, Inc. and its subsidiaries.
1.18 "Disbursing Agent" means Valerie Hall Manuel, P.A. or any other
party selected by the Debtor and the Creditors' Committee if Ms. Manuel is
unable to serve.
1.19 "Disclosure Statement" means the written statement describing
the Plan that is approved by the Bankruptcy Court and distributed in
accordance with Section 1125(b) of the Bankruptcy Code.
1.20 "Disputed Claim" means a Claim as to which the Debtor or any
other party in interest has interposed or will interpose an objection in
accordance with the Plan, the Disclosure Statement, the Bankruptcy Code,
and the Bankruptcy Rules, which objection has not been withdrawn or
determined by a Final Order.
1.21 "Distribution Date" means any date on which a distribution is
made.
1.22 "Distribution Reserve" has the meaning ascribed to it in Section
3.2.
1.23 "Effective Date" means a Business Day selected by the Debtor
that is not more than one business day after the Confirmation Order
becomes a Final Order.
1.24 "Equity Interest" means any stock interest in the Debtor.
1.25 "Estate" means the estate created pursuant to Section 541 of the
Bankruptcy Code upon the commencement of the Chapter 11 Case.
1.26 "Final Order" means an order of the Bankruptcy Court or a court
having jurisdiction to hear appeals from orders of the Bankruptcy Court
which has not been reversed, modified, amended or stayed by a court of
competent jurisdiction within the time permitted by applicable law or
rule, and which has become final and nonappealable and is in full force
and effect.
1.27 "Person" means an individual, a corporation, a partnership, an
associates, a joint stock company, a joint venture, an estate, a trust, an
unincorporated organization or a government or any political subdivision
thereof, or other entity.
1.28 "Petition Date" means the date on which the Debtor filed its
petition for relief commencing the Chapter 11 Case.
1.29 "Plan" means this Chapter 11 Plan of Liquidation, either in its
present form or as it may be altered, amended, or modified from time to
time.
1.30 "Priority Claim" means any Claim accorded priority in right of
payment under Section 507(a) of the Bankruptcy Code.
1.31 "Priority Tax Claim" means a claim of a governmental unit of the
kind specified in subsection 507(a)(8) of the Bankruptcy Code.
1.32 "Pro Rata" means in the proportion that the amount of an Allowed
Claim against the Debtor in a particular class bears to the aggregate
amount of all Allowed Claims against the Debtor in that class.
1.33 "Schedules" means the schedules of assets and liabilities and
the statement of financial affairs described in Section 521 of the
Bankruptcy Code and the Official Bankruptcy Forms, and as filed by the
Debtor.
1.34 "Secured Claim" shall mean any Claim, to the extent the Claim is
secured by a lien, security interest or other encumbrance which has been
properly perfected as required by applicable law for the property owned by
the Debtor. A claim is only a Secured claim up to the value of the
Creditor's interest in the collateral securing the Claim.
1.35 "Unsecured Claim" means any Claim that is not either (i) an
Administrative Expense or (ii) a Secured Claim, and is not entitled to
priority under the Bankruptcy Code, excluding expenses and Claims of the
kind specified in sub-section 507(a) of the Bankruptcy Code.
1.36 "Winddown Fund" has the meaning ascribed to it in Section 4.3.
1.37 Other Terms. The words "herein", "hereof", "hereto",
"hereunder", and others of similar import refer to the Plan as a whole and
not to any particular section, subsection or clause contained in the Plan.
A term used herein that is not defined herein shall have the meaning
ascribed to that term, if any, in the Bankruptcy Code.
ARTICLE 2
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
2.1 Summary. The categories of Claims and interests listed below
are classified for all purposes, including voting, confirmation, and
distribution pursuant to the Plan:
Class 1: Allowed Administrative Expenses
Class 2: Allowed Secured Claims
Class 3: Allowed Priority Claims
Class 4: Allowed Unsecured Claims
Class 5: Equity Interests of Series A Preferred Stock
Class 6: Equity Interests of Series B Preferred Stock
Class 7: Equity Interests of Series C Preferred Stock
Class 8: Equity Interests of Common Stock
2.2 Class 1: Allowed Administrative Expenses. All Allowed
Administrative Expenses shall be paid in full in Cash on the later of the
Effective Date or the date such Administrative Expense becomes Allowed,
except to the extent that the holder of an Allowed Administrative Expense
agrees to a different treatment.
2.3 Class 2: Allowed Secured Claims. The Debtor is indebted to
Larry Movsovitz for $100,000 secured by a lien on all the Company's
assets. The Debtor shall pay Movsovitz in full, in Cash, as soon as
practicable after the Effective Date. In the event any other Allowed
Secured Claims exist, such claims shall be paid in full, in Cash, as soon
as practical after the Effective Date, except to the extent the holder of
an Allowed Secured Claim agrees to a different treatment.
2.4 Class 3: Allowed Priority Claims. All Allowed Priority Claims,
including all Allowed Priority Tax Claims shall be paid in full, in Cash,
as soon as practicable after the Effective Date, except to the extent that
the holder of an Allowed Priority Claim agrees to a different treatment.
2.5 Class 4: Allowed Unsecured Claims. After payment in full of
all Allowed Class 1, Class 2, and Class 3 Claims and funding of the
Distribution Reserve and the Winddown Fund, as defined in Articles 3 and 4
of the Plan, respectively, to the extent funds remain available, all
Allowed Class 4 Claims shall be paid in Cash, Pro Rata, from Cash
available on a Distribution Date, except to the extent the holder of an
Allowed Class 4 Claim agrees to a different treatment.
2.6 Classes 5, 6, 7 and 8: Equity Interests. Equity interests
(Classes 5, 6, 7 and 8) shall receive no distribution unless Classes 1
through 4 have been paid in full. It is not anticipated and is extremely
unlikely that funds shall be available for Equity Interests. [If
sufficient funds are available, Class 5 shall be paid pro rata until paid
its full liquidation preference of $1,863,000. Thereafter, if sufficient
funds are available, Class 6 shall be paid pro rata until paid its full
liquidation preference of $8,481,000. Thereafter, if sufficient funds are
available, Class 7 shall be paid pro rata until paid its full liquidation
preference of $4,500,000. Thereafter, any remaining funds shall be paid
pro rata to Class 8.]
ARTICLE 3
PROVISIONS FOR TREATMENT OF DISPUTED, CONTINGENT
AND UNLIQUIDATED ADMINISTRATIVE EXPENSES AND CLAIMS
3.1 Characterizations of Claims as Disputed. Pursuant to Section
1111 of the Bankruptcy Code, evidence of a Claim is deemed filed under
Section 501 of the Bankruptcy Code if that Claim is included in the
Schedules, except if the Claim is scheduled as disputed, contingent, or
unliquidated. Such a disputed, contingent, or unliquidated Claim must be
asserted by its holder by the timely filing of a proof of Claim. If a
proof of Claim is not filed in a timely manner, the Claim will be deemed
allowed in the amount set forth on the Schedules of the Debtor. Both the
Debtor and the Creditors' Committee shall have the authority to object to
and contest the allowance of any Claim filed with the Bankruptcy Court,
whether or not such Claim was scheduled as disputed, contingent or
unliquidated, which objection must be filed with the Court no later than
twenty-one (21) days following the claims bar date as established by court
order or the Bankruptcy Rules.
3.2 Reserve for Disputed Administrative Expenses and Disputed
Claims. In determining the amounts of distributions to be made to holders
of Allowed Claims, the appropriate Pro Rata calculations required by the
Plan (i) shall be made as if all Disputed Claims were Allowed Claims and
all Disputed Administrative Expenses were Allowed Administrative Expenses,
in the full amount claimed by the holders thereof and (ii) shall include
an appropriate estimate for Administrative Expenses that have not been
Allowed at the time of such distribution but which are not likely to be
disputed, including potential post-confirmation professional fees.
Distributions for holders of Disputed Administrative Expenses and Disputed
Claims and estimated potential future Administrative Expenses shall be
deposited by the Disbursing Agent in one or more separate accounts
(collectively, the "Distribution Reserve"), which shall be held in trust
for the benefit of holders of Disputed Administrative Expenses and
Disputed Claims and potential future Administrative Expenses pending
determination of the entitlement thereto.
At such time as a Disputed Administrative Expense or Disputed Claim
becomes an Allowed Administrative Expense or Allowed Claim, respectively,
the distribution reserved for such Administrative Expense or Claim shall
be released from the Distribution Reserve and delivered by the Disbursing
Agent to the holder of such Allowed Administrative Expense or Allowed
Claim. In the event any disputed Administrative Expense or Disputed Claim
is disallowed, funds held in the Distribution Reserve on account of those
disallowed Administrative Expenses or Claims shall be retained pending
final disposition of all disputed Administrative Expenses and Disputed
Claims and upon resolution of all such Disputed Administrative Expenses
and Disputed Claims, such funds shall be distributed by the Disbursing
Agent Pro Rata to holders of Allowed Unsecured Claims in accordance with
the provisions of the Plan.
Notwithstanding anything to the contrary contained in the Plan, the
Disbursing Agent shall make a distribution on the undisputed portion of an
Allowed Administrative Expense and an Allowed Claim in accordance with the
provisions of the Plan. The Disbursing Agent shall use her reasonable
judgment regarding whether, under the circumstances, it is in the best
interests of creditors and the efficient administration of the Estate to
make an interim distribution on Allowed Claims and thereafter disburse the
balance or whether to postpone distribution until all disputed claims are
resolved.
3.3 Resolution of Contested Administrative Expenses, Claims and
Equity Interests.
3.3.1 Objections. Unless otherwise ordered by the
Bankruptcy Court, after notice and a hearing, the Debtor or the Creditors'
Committee shall each have the right to make and file objections to
Administrative Expenses and Claims and shall serve a copy of each
objection upon the holder of the Administrative Expense or Claim to which
the objection is made, as soon as practicable, but no later than twenty
one days after the claims bar date or the date such Administrative Expense
Application is filed.
3.3.2 Prosecution of Objections. The Debtor or the
Creditors' Committee shall litigate to judgment, settle, or withdraw
objections to Administrative Expenses and Claims.
ARTICLE 4
IMPLEMENTATION OF THE PLAN
4.1 Liquidating Plan; the Auction. The Plan is a liquidating plan.
The Debtor has entered into the Asset Purchase Agreement with VAI for the
sale of substantially all the Assets and Business of the Debtor (excluding
cash and certain claims) free and clear of all liabilities, liens and
encumbrances (except liabilities specifically assumed under the Asset
Purchase Agreement) for a cash payment of $1,400,000 (subject to the
terms, conditions and adjustments as set forth in the Asset Purchase
Agreement). The sale to VAI pursuant to the Asset Purchase Agreement is
subject to no higher cash bids being accepted by the Debtor at the
Auction.
At the Confirmation Hearing, the Debtor shall ask the Bankruptcy
Court to conduct the Auction and to give potential purchasers, who have
satisfied the Debtor's bid deposit requirements and other auction rules,
the right to bid for the purchase of the Debtor's assets and business
pursuant to the terms of the Asset Purchase Agreement, with the minimum
bid being $1,425,000 and all further bids being in minimum increments of
$25,000. In the event the Bankruptcy Court declines to conduct the
Auction at the Confirmation Hearing, the Debtor shall announce in open
Court at the hearing, the time and place of the Auction, which shall be
scheduled as promptly as convenient following the Confirmation Hearing.
In the event the Auction is not conducted by the Bankruptcy Court, the
Auction shall be conducted by the Debtor or the Debtor's counsel. The
Debtor expressly reserves the right and privilege of promulgating
reasonable rules and procedures for conducting the Auction, including
rules regarding posting a pre-bid deposit or letter of credit and posting
of a deposit by the successful bidder following the Auction. In addition,
the Debtor, with the advice and express consent of the Creditors'
Committee, reserves the right to reject a bid if the Debtor and Creditors'
Committee conclude, acting reasonably and in good faith, that the bid is
not made in good faith, the bidder is unlikely to close as required by the
Asset Purchase Agreement, or such rejection is otherwise in the best
interest of the Creditors and Equity Interests. In the event VAI is not
the successful bidder, VAI shall be entitled to a $25,000 "bust-up" fee
paid by the Debtor upon Closing the sale to a third party for more than
$1,400,000. The highest acceptable bidder at the Auction must sign the
Asset Purchase Agreement.
The sale shall be consummated to the highest acceptable bidder at the
Auction, or if no person bids at the Auction, to VAI, pursuant to the
Asset Purchase Agreement. The sale shall close after the Confirmation
Order is entered and before the Effective Date. The purchaser shall
acquire the Debtor's assets and business free and clear of all
liabilities, liens and encumbrances, except for liabilities which the
Purchaser expressly agrees to assume pursuant to the Asset Purchase
Agreement. (For purposes of facilitating the Auction and sale, each
potential bidder may include, in its discretion, only the "assumed
liabilities" which such buyer desires to assume. For example, some
bidders may wish to acquire and assume the warehouse lease or the copier
lease and others may choose not to assume such liabilities.) Except for
the liabilities specifically assumed in the Asset Purchase Agreement
signed by the successful bidder, the purchaser shall not assume or be
obligated to pay any debt, lien, expense or liability of the Debtor.
The Plan does not contemplate the continued operation of the Debtor,
merger, or consolidation of the Debtor with one or more Persons or the
transfer of all or any part of the Estate to any entity, except in
satisfaction of an Allowed Administrative Expense or Allowed Claim or as a
distribution or partial distribution pursuant to the Plan.
4.2 Delivery of Proceeds to Disbursing Agent. The Debtor shall
deliver the cash proceeds from the sale of the assets plus all other cash
on hand (less the Winddown Fund) to the Disbursing Agent for distribution
by the Disbursing Agent pursuant to the Plan. The Debtor shall have
substantially completed its obligations under the Plan upon delivery of
such funds to the Disbursing Agent. The Disbursing Agent shall then
distribute such funds as provided by the Plan. The Disbursing Agent may
seek instructions from the Bankruptcy Court. In addition, the Disbursing
Agent shall be entitled to rely on a certificate of instruction or
clarification signed jointly by the Debtor and Creditor's Committee. The
Disbursing Agent shall have no personal liability except for actions taken
in bad faith or with actual knowledge that the actions were improper. The
Disbursing Agent shall be entitled to receive a fee of $12,500 (plus
reimbursement for her reasonable, actual expenses including postage,
printing and the cost of any premium of a bond, whether such bond is
required under the Plan or requested by the U.S. Trustee), for her
services under this Plan, provided that such fee shall be increased to
$15,000 if the distribution is made to equity interestholders, which fee
shall be deducted from the monies to be distributed.
In connection with making either an interim or final distribution
under the Plan, the Disbursing Agent may, but shall not be required to,
file a Schedule of the Proposed Distribution which lists the amounts
proposed to be sent to each creditor or interestholder and serve such
Schedule on the Debtor, the counsel for the Committee, the U.S. Trustee
and any interested party who has specifically requested copies of such
Schedule of Proposed Distribution from the Disbursing Agent by written
notice to the Disbursing Agent. In the event no objection to the proposed
Distribution is filed in the Bankruptcy Court and served on the Disbursing
Agent, the Debtor and the Committee within 20 days from the filing of such
Notice of Proposed distribution, the Disbursing Agent may conclusively
rely on the correctness of the information set forth therein.
4.3 Winddown Activities. The Debtor shall retain $25,000 as a
winddown fund to pay the reasonable costs and expenses of preparing the
final tax returns, and reasonable and necessary post-Effective Date
expenses related to the "shut down" of the Debtor and to facilitate the
actual delivery of the Debtor's assets, books and records to the Buyer
following the Effective Date (the "Winddown Fund"). Any excess funds left
in the Winddown Fund shall be paid to the Disbursing Agent after the
shutdown of the Company is complete.
4.4 Method of Distribution under the Plan.
4.4.1 In General. All distributions are to be made by the
Disbursing Agent. The Disbursing Agent shall establish such account or
accounts as may be necessary to carry out the provisions of the Plan.
Except as set forth herein, the Disbursing Agent shall pay Allowed
Administrative Expenses, Allowed Priority Tax Claims and Allowed Priority
Claims in Cash on the Effective Date or as soon thereafter as practicable.
Distributions on account of Allowed Unsecured Claims will occur as soon as
practicable after the Effective Date.
4.4.2 Investment in Cash. In the period between
distributions of Cash, all Cash of the Debtor, including Cash held in the
Distribution Reserve, shall be invested by the Disbursing Agent in United
States Treasury Bills, interest bearing certificates of deposits, interest
bearing savings accounts, and investments permitted by Section 345 of the
Bankruptcy Code and local rules. All interest earned on such Cash shall
be held by the Disbursing Agent and distributed as part of the Estate in
accordance with the provisions of the Plan.
4.4.3 Manner of Payment under the Plan. Any payment made by
the Disbursing Agent pursuant to the Plan shall be made in Cash.
4.4.4 Distribution of Unclaimed Property. Any distribution
under the Plan which is unclaimed after one hundred eighty (180) days
following the Distribution Date shall be retained by the Disbursing Agent
and redistributed Pro Rata to holders of Allowed Unsecured Claims in
accordance with the provisions of the Plan.
4.4.5 Setoffs. On behalf of the Estate, the Debtor may, but
shall not be required to, set off against any Claim and the payments to be
made pursuant to the Plan in respect of such Claim, or claims of any
nature whatsoever the Debtor may have against the claimant, but neither
the failure to do so nor the allowance of any claim hereunder shall
constitute a waiver or release by the Estate of any such claim the Debtor
may have against such claimant.
4.4.6 Distributions under Five Dollars. No distributions of
less that $5.00 shall be made by the Disbursing Agent to any Creditor
unless a request therefor is made in writing to the Disbursing Agent. If
as a result of this provision, an interim distribution is not made to any
holder of a Claim such holder nevertheless shall receive subsequent
interim or final distributions from the estate provided that the aggregate
amount of such holder's previous unpaid distributions plus the amount of
the interim or final distribution then to be made is not less than $5.00.
4.4.7 Saturday, Sunday, or Legal Holiday. If any payment or
act under the 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.
ARTICLE 5
CLASSES OF CLAIMS AND EQUITY
INTERESTS IMPAIRED UNDER THE PLAN
5.1 Impaired Classes. Classes 4, 5, 6, 7 and 8 are impaired under
the Plan.
5.2 Unimpaired Classes. Classes 1, 2 and 3 are unimpaired under the
Plan.
5.3 Resolution of Controversy Concerning Impairment. The Bankruptcy
Court shall, after notice and a hearing, determine any controversy
relating to whether any Creditors or holders of an Equity Interest, or
class of Creditors or class of Equity Interests, are impaired under the
Plan.
5.4 Deemed Rejection by Classes 5, 6, 7 and 8. The Plan provides
that the holders of Classes 5, 6, 7 and 8 Equity Interests are not
entitled to receive or retain any property under the Plan on account of
such Equity Interests unless and until Class 4 Creditors have been paid in
full, which in this case is not anticipated to occur. Classes 5, 6, 7 and
8 are impaired and are deemed not to have accepted the Plan in accordance
with Section 1126(g) of the Bankruptcy Code.
In accordance with Section 1126(f) of the Bankruptcy Code, because
Classes 1, 2 and 3 are not impaired under the Plan, these classes are
conclusively presumed to have accepted the Plan.
Because Classes 5, 6, 7 and 8 are deemed to have rejected the Plan
pursuant to Section 1126(g) of the Bankruptcy Code, if Class 4 accepts the
Plan, the Debtor will seek confirmation of the Plan in accordance with
Section 1129(b) of the Bankruptcy Code notwithstanding the deemed
rejection by Classes 5, 6, 7 and 8.
ARTICLE 6
EXECUTORY CONTRACTS
6.1 Executory Contracts. Except for these executory contracts they
have been assigned pursuant to an order entered by the Bankruptcy Court,
all executory contracts that exist between the Debtor and any Person, are
hereby specifically rejected (to the extent that such executory contracts
have not been previously rejected). Entry of the Confirmation Order by
the Bankruptcy Court shall constitute approval of that rejection pursuant
to Section 365(a) of the Bankruptcy Code.
6.2 Unexpired Leases. Except for those leases of real property that
have been assigned pursuant to on order entered by the Bankruptcy Court,
all unexpired leases of real property under which the Debtor is the lessee
are hereby rejected (to the extent that such leases of real property have
not been previously rejected). Entry of the Confirmation Order by the
Bankruptcy Court shall constitute approval of that rejection pursuant to
Section 365(a) of the Bankruptcy Code.
ARTICLE 7
THE CREDITORS' COMMITTEE
7.1 Continuation of the Creditors' Committee. As long as any
payments or distributions required to be made to holders of Allowed
Unsecured Claims under the Plan remain unpaid, the Creditors' Committee
shall be composed of such persons as presently constituted and shall
continue as such until all of such payments to holders of Allowed
Unsecured Claims are made in full, at which time all powers of the
Creditors Committee shall terminate and it shall be deemed dissolved.
7.2 No Liability for the Creditors' Committee. Neither the
Creditors' Committee nor any member thereof, nor the firm with which such
member is affiliated, nor the attorneys, accountants, or agents of the
Creditors' Committee, or any other Person, firm, or corporation shall be
liable for an error of judgment or any act of omission, it being
understood that each member of the Creditors' Committee, and its
attorneys, accountants, and agents shall be liable only for their own
willful misconduct, gross negligence, or fraud.
7.3 Compensation. The Creditors' Committee and its members shall
serve without compensation as long as the Creditors' Committee shall
remain in existence, provided, however, that the Creditors' Committee and
each member thereof shall be reimbursed by the Debtor for its or their
reasonable out-of-pocket expenses in connection with the functioning of
the Creditors' Committee subsequent to the Effective Date in accordance
with the provisions of the Bankruptcy Code.
7.4 Retention of Counsel to Enforce Plan. The Creditors' Committee
shall be entitled to retain counsel to enforce any of the provisions of
the Plan, and the Debtor shall, consistent with Article VIII hereof,
promptly pay the reasonable fees and expenses of the Creditors'
Committee's legal counsel for services rendering and enforcing any
default by the Debtor under Plan.
ARTICLE 8
POST-REORGANIZATION PROFESSIONAL FEES
8.1 Payment of Fees and Expenses After Effective Date. Subsequent
to the Effective Date of the Plan, the Debtor shall be authorized to pay
professional fees and expenses incurred by professionals retained by the
Debtor and professionals retained by the Creditors' Committee, subject to
a fee aplication served only on the Debtor, its counsel, the chairman of
the Creditors' Committee and counsel to the Creditors' Committee and the
U.S. Trustee which is approved by the Bankruptcy Court.
ARTICLE 9
BANKRUPTCY COURT'S RETENTION OF JURISDICTION
9.1 Retention of Jurisdiction. In addition to the continuing
jurisdiction after entry of a Confirmation Order as provided by the
Bankruptcy Code and the Bankruptcy Rules, the Bankruptcy Court shall
retain jurisdiction for the following purposes:
9.1.1 To hear and determine pending applications for the
rejection of executory contracts or unexpired leases, if any are pending,
and the allowance of claims resulting therefrom;
9.1.2 To determine any and all pending adversary
proceedings, applications, and contested matters;
9.1.3 To ensure that distributions to holders of Allowed
Claims are accomplished as provided herein;
9.1.4 To hear and determine any objections to Administrative
Expenses or to Claims filed, both before and after Confirmation, including
any objections to the classification of any Claim, and to allow or
disallow any contested Administrative Expense or contested Claim in whole
or in part;
9.1.5 To enter and implement such orders as may be
appropriate in the event the Confirmation Order is for any reason stayed,
revoked, modified, or vacated;
9.1.6 To hear and determine all applications for
compensation and reimbursement of expenses of professionals under Section
330 and Section 331 of the Bankruptcy Code;
9.1.7 To hear an application, if any, by any party in
interest, to modify the Plan in accordance with Section 1127 of the
Bankruptcy Code;
9.1.8 To hear and determine disputes arising in connection
with the Plan or its implementation and Consummation;
9.1.9 To recover all assets of the Debtor and property of
the Estate, wherever located;
9.1.10 To hear and determine all controversies, suits, and
disputes that may arise in connection with the interpretation or
enforcement of the Plan;
9.1.11 To construe, interpret and enforce the Asset Purchase
Agreement, and to grant judgment against any party in the event of a
breach of the Asset Purchase Agreement;
9.1.12 To hear and determine matters concerning state, local,
and Federal laws in accordance with Section 346, Section 505, and Section
1146 of the Bankruptcy Code;
9.1.13 To enter a final decree closing the Chapter 11 Case;
and
9.1.14 To hear any other matter not inconsistent with the
Bankruptcy Code.
9.2 Closing the Case. The Debtor shall have substantially completed
performance of the Plan upon delivery of the Purchase Price to the
Disbursing Agent.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 No Liability for the Debtor. Neither the Debtor nor the
attorneys, officers, employees, accountants or agents of the Debtor or any
other person, firm or corporation shall be liable for any error of
judgment or any act or omission, it being understood that the Debtor, its
attorneys, accountants and agents shall be liable only for their own
willful misconduct, gross negligence or fraud.
10.2 Payment of Statutory Fees. All fees payable pursuant to 28
U.S.C. Section 1930, as determined by the Bankruptcy Court at the hearing
pursuant to Section 1128 of the Bankruptcy Code, shall be paid on or
before the Effective Date.
10.3 Rights of Action. Notwithstanding anything to the contrary
contained in the Plan, any rights or causes of action accruing to the
Debtor pursuant to Chapter 5 of the Bankruptcy Code are hereby expressly
waived by the Debtor unless the Debtor or the Creditors' Committee file an
adversary proceeding within 30 days after the Confirmation Date.
10.4 Change of Address. It is the duty of each holder of a Claim to
keep the Disbursing Agent informed of any changes in address by giving
notice of such changes in writing. Should a holder of any Claim fail to
notify the Disbursing Agent of any change of address and the Disbursing
Agent is unable to obtain the changed mailing address of a holder of a
Claim (after using reasonable efforts to obtain such changed address), the
Disbursing Agent shall cancel any checks returned, redeposit the funds,
and strike the Claim from the class, and distribute such funds Pro Rata to
holders of Allowed Unsecured Claims in accordance with the provisions of
the Plan.
10.5 Correction or Modification of the Plan. After the Confirmation
Date, the Debtor, so long as it does not adversely affect the interests of
the Creditors, institute proceedings in the Bankruptcy Court to remedy any
defect or omission or reconcile any inconsistencies in the Plan,
Disclosure Statement, or the Confirmation Order, and such matters as may
be necessary to carry out the purposes and effects of the Plan; provided,
however, that prior notice of such proceedings is served in accordance
with Bankruptcy Rules 7004 and 9016.
10.6 Headings. Headings are used in the Plan for convenience and
reference only, and shall not constitute a part of the Plan for any other
purpose.
10.7 Binding Effect. The Plan shall be binding upon and inure to the
benefit of the Debtor, its Creditors, the holders of Equity Interests, and
their respective successors and assigns.
10.8 Revocation or Withdrawal. The Debtor reserves the right to
revoke or withdraw the Plan prior to the Confirmation Date. If the Debtor
revokes or withdraws the Plan prior to the Confirmation Date, or if the
Confirmation Date or the Effective Date do not occur, then the Plan shall
be deemed null and void. In such event, nothing contained herein shall be
deemed to constitute a waiver or release of any claims by or against the
Debtor or any other Person or to prejudice in any matter the rights of the
Debtor or any Person in any further proceedings involving the Debtor.
10.9 Notices. Any notice required or permitted to be provided under
the Plan shall be in writing and served by either (a) certified mail,
return receipt requested, postage prepaid, (b) hand delivery, or (c)
reputable overnight delivery service, freight prepaid, to be addressed as
follows:
If to the Debtor: Snake Eyes Golf Clubs, Inc.
Attn: Harold Hutchins
11210 Phillips Industrial Boulevard
Suite 210
Jacksonville, FL 32256
with a copy to: Foley & Lardner
Attn: Gardner F. Davis
200 North Laura Street
P.O. Box 240
Jacksonville, FL 32201-0240
If to Committee: Kronish, Lieb, Weiner & Hellman LLP
Attn: Lawrence C. Gottlieb
1114 Avenue of the Americas
New York, New York 10036
If to Disbursing Agent: Valerie Hall Manuel, Esquire
Hall & Hall
300 West Adams Street, Suite 550
Jacksonville, FL 32202
10.10 Governing Law. Unless a rule of law or procedure is
supplied by federal law (including the Bankruptcy Code and Rules), Florida
law shall govern the construction of the Plan and any agreements,
documents, and instruments executed in connection with the Plan and under
such agreements, documents, and instruments (except to the extent such
agreements, documents, and instruments provide for a different governing
law).
Dated: Jacksonville, Florida
September 8, 1998 Respectfully submitted,
SNAKE EYES GOLF CLUBS, INC.
By: /s/ Harold E. Hutchins
Harold E. Hutchins, Executive
Officer
FOLEY & LARDNER
/s/ Gardner F. Davis
GARDNER F. DAVIS
Florida Bar No.: 0471712
LEAH G. COOPER
Florida Bar No.: 0082996
200 North Laura Street
Post Office Box 240
Jacksonville, FL 32201-0240
Telephone: (904) 359-2000
Facsimile: (904) 359-8700
and
K. RODNEY MAY
FOLEY & LARDNER
Florida Bar No.: 0222781
111 North Orange Avenue, Suite 1800
Orlando, FL 32801
Telephone: (407) 423-7656
Facsimile: (407) 648-1743
Counsel for Debtor
<PAGE>
EXHIBIT A
to
DEBTOR'S PLAN OF LIQUIDATION
OF
SNAKE EYES GOLF CLUBS, INC.
Asset Purchase Agreement between the Company and Venture Access
International.
