Exhibit 10(vii)
UNITED STATES BANKRUPTCY COURT
DISTRICT OF CONNECTICUT
BRIDGEPORT DIVISION
In re:
POWER DESIGNS, INC. and : Chapter 11
PDIXF ACQUISITION CORP. :
: Case No. 98-50117
Debtors : Case No. 98-50118
: (Jointly Administered)
FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER UNDER SECTIONS 1129(A) AND (B)
OF THE BANKRUPTCY CODE CONFIRMING
FOURTH AMENDED PLAN OF REORGANIZATION OF
POWER DESIGNS, INC. AND PDIXF ACQUISITION CORP.
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
RECITALS
A. On January 22, 1998, Power Designs, Inc. ("PDI") and PDIXF
Acquisition Corp. ("PDIXF"), the above-captioned debtors and debtors in
possession (the "Debtors"), filed petitions for relief under Chapter 11 of the
Bankruptcy Code. On November 24, 1999, the Debtors filed their Amended
Disclosure Statement and an Amended Plan of Reorganization ("Amended Plan").
B. This Court held a properly noticed hearing on November 30, 1999
to consider the adequacy of the Debtors' Amended Disclosure Statement. On that
same date, this Court entered an order (i) approving the
Amended Disclosure Statement, (ii) establishing solicitation, and voting and
tabulation procedures and deadlines, (iii) scheduling a hearing to consider
confirmation of the Amended Plan, (iv) establishing deadlines and procedures for
filing objections to confirmation of the Amended Plan, and (v) approving the
form and manner of notice of the Confirmation Hearing (the "Scheduling Order").
C. Prior to the Court's deadline for filing objections to the
Amended Plan, objections to confirmation were filed by the State of Connecticut,
Department of Labor, United States of America, Internal Revenue Service, Pension
Benefit Guaranty Corp., Universal Manufacturing Co., Bruce MacDonald and Robert
Layton (the "Objections").
D. On August 23, 2000, the Debtors filed their Second Amended Plan
which, INTER ALIA, resolved some of the pending objections.
E. On October 31, 2000, this Court granted the Debtors' Motion for
Order Authorizing Compromise and Settlement of Claims with Universal
Manufacturing Co., Inc., and granting a first priority lien on Winding Machine
which resolved the objection to the Amended Plan filed by Universal
Manufacturing Co.
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F. On December 20, 200, the Debtors filed their Third Amended Plan
which, inter alia, resolved additional pending Objections and was served on all
creditors and parties having filed appearances pursuant to Fed. R. Bankr. P.
2002.
G. On January 23, 2001, the Debtors filed their Fourth Amended Plan
(the "Plan") which was then served on all creditors and parties having filed
appearances pursuant to Fed. R. Bankr. P. 2002. The Plan resolved the remaining
Objections, a second objection filed by the State of Connecticut.
H. Under the Plan, Hayes is defined as Hayes Corporation f/k/a
Access Beyond, Inc. as successor in interest to Access Beyond, Inc., RDCAN Corp.
(formerly Technipower, Inc.) and Intist (formerly Constant Power, Inc.). Hayes
holds a disputed claim against the Debtor that is unsecured within the meaning
of Codess.506 ("Hayes").
I. The Chapter 11 Cases were filed, and the Plan was proposed, with
the purposes of reorganizing the Debtors by reducing their debt burden and
expeditiously distributing cash and securities to the Debtors' creditors.
Furthermore, the Plan is the product of months of extensive, arms-length
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negotiations among the Debtors, the Creditors Committees, and various parties in
interest and their respective counsel and financial advisors. The Plan reflects
the results of these negotiations and is reflective of the interests of all of
the estate's constituencies.
J. The Confirmation Hearing was held on January 23, 2001 at 2:00
p.m. at which time counsel to the Debtors, the Official Committee of Unsecured
Creditors of PDI, the Official Committee of Unsecured Creditors of PDIXF,
Inverness Corporation (the principal secured creditor of the Debtors), the
United States of America Internal Revenue Service and the United States Trustee
appeared in support of confirmation of the Plan.
NOW, THEREFORE, based upon the Court's review of the Certification
of Ballots previously filed with the Court and upon (i) all of the proffers and
arguments of counsel made at the Confirmation Hearing as modified and clarified
herein and (ii) the entire record of the Chapter 11 cases (the "Chapter 11
Cases"), and after due deliberation thereon and good cause appearing therefor:
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FINDINGS OF FACT AND CONCLUSIONS OF LAW(1)
IT IS HEREBY FOUND AND DETERMINED THAT:
1. Exclusive Jurisdiction: Venue: Core Proceeding (28 U.S.C.
SS.SS.157, 1334(a), 1408 AND 1409). This Court has jurisdiction over the Chapter
11 cases pursuant to 28 U.S.C.ss.ss.157 and 1334. Venue is proper before the
Court pursuant to 28 U.S.C.ss.1408 and 1409. Confirmation of the Plan is a core
proceeding under 28 U.S.C.ss. 157(b)(2), and this Court has exclusive
jurisdiction to determine whether the Plan complies with the applicable
provisions of the Bankruptcy Code and should be confirmed.
2. Burden Of Proof. The Debtors, as proponents of the Plan, have the
burden of proving the elements of sections 1129(a) and (b) and have satisfied
their burden.
3. Transmittal and Mailing of Materials. Notice. The Amended Plan,
Third Amended Plan and Fourth Amended Plan each were transmitted and served in
compliance with the Bankruptcy Rules, and such
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(1) Findings of Fact shall be construed as conclusions of law and conclusions of
law shall be construed as findings of fact when appropriate. SEE Fed. R. Bankr.
P. 7052.
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transmittal and service were adequate and sufficient. Adequate and sufficient
notice of the Confirmation Hearing and the other dates described in the
Scheduling Order was given in compliance with the Bankruptcy Rules, and no other
or further notice is or shall be required.
4. Plan Compliance and Plan Proponent Compliance WITH THE APPLICABLE
PROVISIONS OF THE BANKRUPTCY CODE (11 U.S.C. SS.1129(A)(L) AND (A)(2)). The Plan
and the Plan Proponent, the Debtors have complied with the applicable provisions
of the Bankruptcy Code, thereby satisfying ss. 1129(a)(l) and (a)(2) of the
Bankruptcy Code.
(i) Proper Classification of Claims and INTERESTS (11 U.S.C.
SS.SS. 1122 AND 1L23(A)(1)). In addition to Administrative Claims and Priority
Tax Claims, which need not be classified, the Plan designates nine Classes of
Claims and Equity Interests. The Claims or Equity Interests placed in each Class
are substantially similar to other Claims or Equity Interests, as the case may
be, in such Class. Valid business, factual and legal reasons exist for
separately classifying the various Classes of Claims and Equity Interests
created under the
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Plan, and such Classes do not unfairly discriminate among holders of Claims or
Equity Interests. Thus, the Plan satisfies ss.ss. 1122 and 1123(a)(1) of the
Bankruptcy Code. Impaired and unimpaired classes are specified in the Plan. The
Plan also provides for the same treatment by the Debtors for each Claim or
Equity Interest in a particular Class.
(ii) Implementation of Plan (11 U.S.C. ss.1123(a)(5)). The Amended
Disclosure Statement and the Amended Plan and each subsequent amended plan
(including the Plan) disclosed that the Debtors will retain their property under
the Plan and disclosed the merger of PDIXF into PDI on the Effective Date of the
Plan. Considering the Plan, the record and the circumstances of this case, the
Plan provides adequate and proper means for implementation of the Plan,
including the merger of PDIXF into PDI on the Effective Date, thereby satisfying
ss. 1123(a)(5) of the Bankruptcy Code.
5. Plan Proposed in Good Faith (11 U.S.C.ss. 1129(a)(3)). The
Debtors have proposed the Plan in good faith and not by any means forbidden by
law, thereby satisfying ss.1129(a)(3) of the Bankruptcy Code.
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6. Payments for Services or Costs and Expenses (11 U.S.C. ss.
1129(a)(4)). Except as otherwise provided or permitted by the Plan, any payment
made or to be made by the Debtors for services or for costs and expenses in or
in connection with the Chapter 11 Cases, or in connection with the Plan and
incident to the Chapter 11 Cases, has been approved by, or is subject to the
approval of, the Court as reasonable, thereby satisfying ss. 1129(a)(4) of the
Bankruptcy Code.
7. Directors, Officers, and Insiders (11 U.S.C.ss. 1129(a)(5)). The
Debtors have complied withss.1129(a)(5) of the Bankruptcy Code. The Plan
provides for and discloses the identities of the initial board of directors of
Reorganized PDI and the officers of Reorganized PDI.
8. No Rate Changes (11 U.S.C.ss.1129(a)(6)). The Debtors' prices are
not subject to governmental regulation. Thus,ss. 1129(a)(6) of the Bankruptcy
Code is not applicable in this Chapter 11 Case.
9. Best Interests of Creditors Test (11 U.S C. ss.1129(a)(7)). The
Plan satisfies ss. 1129(a)(7) of the Bankruptcy Code. The liquidation analysis
contained in the Amended Disclosure Statement and other proffers made at the
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Confirmation Hearing (i) are persuasive and credible, (ii) have not been
controverted by other evidence or challenged, and (iii) establish that each
holder of a Claim or Equity Interest in an impaired Class either (x) has
accepted the Plan or (y) will receive or retain under the Plan, on account of
such Claim or Equity Interest, property of a value, as of the Effective Date of
the Plan, that is not less than the amount that it would receive if the Debtors
were liquidated under chapter 7 of the Bankruptcy Code.
10. (i) Acceptance by Certain Classes 11 U.S.C. ss. 1129(a)(8).
Classes 1A, 1B, 4A and 4B have voted to accept the Plan in accordance with
sections 1126(c) and (d) of the Bankruptcy Code. SEE Certification of Ballots.
Class 3 is a class of priority claims and has voted to accept the Plan but is
unimpaired. Classes 5 and 6 are not entitled to receive or retain any property
under the Plan, and, therefore, are deemed to have rejected the Plan pursuant to
ss.1126(g) of the Bankruptcy Code.
(ii) Acceptance by Hayes 11 U.S.C. ss.1129(a)(8). The claims of
Hayes against PDI and PDIXF are impaired and are treated in the Plan in Classes
2A and 2B, respectively, and their treatment was adequately disclosed in the
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Amended Disclosure Statement. PDIXF scheduled Hayes or its predecessor in
interest as holding a disputed claim, counsel for Hayes filed an appearance in
the cases subjecting Hayes to this Court's jurisdiction, Hayes did not file a
proof of claim in these cases and received adequate and sufficient notice of the
Amended Disclosure Statement and the Plan. Taking into consideration Hayes'
failure to vote on or object to the Plan and its failure to file a proof of
claim, the lack of equity for its collateral position in any assets of the
Debtors, the value of its claim ascribed by the Debtors after careful
consideration of relevant issues between the parties, the fact that the amount
of payments and stock which Hayes is to receive under the Plan is more than it
would receive in liquidation, the fact that Hayes is the only member of Classes
2A and 2B, and in the absence of any objection, this Court finds that under
these circumstances, Hayes is deemed to have accepted the Plan. SEE IN RE
RUTI-SWEETWATER, INC., 836 F.2d 1263 (10th Cir. 1988).
(iii) Non-acceptance by other Classes. Although ss. 1129(a)(8) of
the Bankruptcy Code has not been satisfied with respect to Classes 5 and 6, the
Plan is confirmable because the Plan satisfies ss. 1129(b) of the Bankruptcy
Code with respect to such Classes, as found below.
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11. Treatment of Priority Claims (11 U.S.C. ss. 1129(a)(9)). The
Plan's treatment of Allowed Administrative Claims, and Allowed Priority Claims,
including Tax Claims satisfies the requirements of ss. 1129(a)(9)(A), (B) and
(C) of the Bankruptcy Code, respectively. Professional fees and expenses
incurred through the date this Order is entered, the Confirmation Date, are
subject to approval by the Court.
12. Acceptance of at Least One Impaired Class (11 U.S.C.SS.11 29(a)(
10)). Classes 4A (General Unsecured Claims of PDI) and 4B (General Unsecured
Claims of PDIXF) are impaired Classes of Claims that have voted to accept the
Plan, and they have accepted the Plan in requisite numbers and amounts without
the need to include any acceptance of the Plan by any insider, thus satisfying
ss.1129(a)(10) of the Bankruptcy Code. SEE Certification of Ballots.
13. Feasibility (11 U.S.C. ss. 1129(a)(11). Based on the proffer of
counsel, the operating reports of the Debtors, the projections set forth in the
Amended Disclosure Statement and the support of the U.S. Trustee, Reorganized
PDI will have the ability to meet its obligations under the Plan. Based upon the
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Debtors' projections, Reorganized PDI will be able to make all of the payments
required pursuant to the Plan and, therefore, confirmation of the Plan is not
likely to be followed by liquidation or the need for further reorganization.
14. Payment of Certain Fees 11 U.S.C. ss. 1129(a)(12)). All fees
payable on or before the Effective Date under 28 U.S.C. ss. 1930 either have
been paid or will be paid on the Effective Date. In addition, any such fees that
may be due and payable after the Effective Date shall be paid by the Reorganized
PDI. Accordingly, the Plan satisfies ss. 1129(a)(12) of the Bankruptcy Code.
15. Continuation of Retiree Benefits (11 U.S.C.ss. 1129(a)(13)).
This section is not applicable.
16. Fair and Equitable: No Unfair Discrimination
(11 U.S.C.ss.ll29(b).
(i) Classes 5 and 6 are impaired Classes of Interests that
are deemed to have rejected the Plan pursuant to ss.1126(g) of the Bankruptcy
Code because their such interests will be cancelled and extinguished. The
Debtors made uncontroverted proffers at the Confirmation Hearing that the Plan
does not discriminate unfairly and is fair and equitable with respect to these
Rejecting
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Classes, as required by ss. 1129(b)(1) of the Bankruptcy Code and no interest
junior to Classes 5 and 6 is receiving any distribution under the Plan and each
holder would receive no distribution in liquidation on account of their
interest. Therefore, the Court finds that the Plan is fair and equitable with
respect to Classes 5 and 6 and that the Debtors have satisfied 11 U.S.C.
ss.1129(b)(1) and (b)(2).
(ii) Thus, the Plan may be confirmed notwithstanding the
Debtors failure to satisfy ss.1129(a)(8) of the Bankruptcy Code.
17. Good Faith Solicitation (11 U.S.C. ss. 1125(e)). Based upon the
record before the Court, the Debtors, and the Creditors Committees, and their
respective agents, counsel and financial advisors have solicited votes on the
Plan in good faith and in compliance with the applicable provisions of the
Bankruptcy Code and are entitled to the protections afforded by ss. 1125(e) of
the Bankruptcy Code.
18. Satisfaction of Confirmation Requirements. The Plan satisfies
the requirements for confirmation set forth inss.ss. 1129(a) and (b) of the
Bankruptcy Code.
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DECREES
NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, DECREED AND
DETERMINED THAT,
19. Confirmation. The Plan (a copy of which is annexed hereto as
Exhibit A, and which consists of the Fourth Amended Plan) is approved and
confirmed under ss. 1129 of the Bankruptcy Code as of the date of this Order.
All objections to the Plan not heretofore withdrawn or resolved as set forth on
the record at the Confirmation Hearing are overruled in their entirety.
20. As set forth on the record at the Confirmation Hearing, Venture
Partners, Ltd. and Vantage Partners, LLC shall vote the shares of Reorganized
PDI Common Stock to be issued to them under the Plan only in accordance with the
recommendations of the Debtor's Board of Directors until termination, in
accordance with Section 2 thereof, of the voting agreement set forth in Section
1 of the Shareholders Voting Agreement which is Exhibit 7.3 to the Plan.
21. Provisions of Plan and Order Nonseverable and MUTUALLY
DEPENDENT. The provisions of the Plan and this Confirmation Order, including the
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findings of fact and conclusions of law set forth herein, are nonseverable and
mutually dependent.
22. Final Decree. The Debtor is directed to file a Final Report with
an Application for Final Decree no later than July 31, 2001 unless that time is
extended by this Court.
Dated at Bridgeport, Connecticut this ____ day of February, 2001.
BY THE COURT,
-------------------------------
Alan H.W. Shiff
Chief, U.S. Bankruptcy Judge
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF CONNECTICUT
BRIDGEPORT DIVISION
In re:
POWER DESIGNS, INC. and : Chapter 11
PDIXF ACQUISITION CORP. :
: Case No. 98-50117
Debtors : Case No. 98-50118
: (Jointly Administered)
CERTIFICATE OF SERVICE
I, Matthew K. Beatman, hereby certify that on the 15th day of February,
2001, I served a copy of the proposed Findings of Fact, Conclusions of Law, and
Order Under Sections 1129(a) and (b) of the Bankruptcy Code Confirming Fourth
Amended Plan of Reorganization of Power Designs, Inc. and PDIXF Acquisition
Corp. under Chapter 11 of the Bankruptcy Code by regular postage prepaid mail
to:
Power Designs, Inc.
PDIXF Acquisition Corp.
Anthony Intino, President
Melvin A. Becker, Vice President
14 Commerce Street
Danbury, CT 06810
Mark I. Fishman, Esq.
Pepe & Hazard, LLP
30 Jelliff Lane
Southport, CT 06490-1436
Attorneys for Inverness Corp.
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Brian C. Courtney, Esq.
Brown, Rudnick, Freed & Gesmer
CityPlace 1, 38th Floor
Hartford, CT 06103
Robert U. Sattin, Esq.
Eric A. Henzy, Esq.
Reid and Riege, P.C.
One State Street
Hartford, CT 06103
Keith N. Costa, Esq.
Office of the U.S. Trustee
265 Church St., #1103
New Haven, CT 065l0
Ann M. Nevins, Esq.
Assistant United States Attorney
915 Lafayette Blvd., Room 309
Bridgeport, CT 06604
Dated this___ day of February, 2001.
THE DEBTORS,
POWER DESIGNS, INC. and
PDIXF ACQUISITION CORP.
By:
--------------------------------
Matthew K. Beatman (ct08923)
ZEISLER & ZEISLER, P.C.
558 Clinton Avenu, P.O. Box 3186
Bridgeport, CT 06605
(203) 368-4234
Its Attorneys