EXHIBIT 99.1
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
IN RE: Section
Section CASE NO. 04-31200 HDH
MINORPLANET SYSTEMS USA, INC., Section Jointly Administered
Section
DEBTOR Section CHAPTER 11
Section
CAREN (292) LIMITED, Section CASE NO. 04-31201 HDH
Section
DEBTOR Section CHAPTER 11
Section
MINORPLANET SYSTEMS USA LIMITED, Section CASE NO. 04-31202 SAF
Section
DEBTOR Section CHAPTER 11
DEBTORS' JOINT PLAN OF REORGANIZATION
DATED: APRIL 26, 2004
NELIGAN TARPLEY ANDREWS & FOLEY LLP
By: Patrick J. Neligan, Jr.
State Bar No. 14866000
David Ellerbe
State Bar No. 06530600
dellerbe@neliganlaw.com
Omar J. Alaniz
State Bar No. 24040402
1700 Pacific Avenue
Suite 2600
Dallas, Texas 75201
(214) 840-5300
(214) 840-5301 fax
ATTORNEYS FOR DEBTORS
TABLE OF CONTENTS
<Table>
ARTICLE I DEFINITIONS, CONSTRUCTION, AND INTERPRETATION...........................................................1
ARTICLE II SUMMARY OF THE PLAN....................................................................................8
ARTICLE III UNCLASSIFIED CLAIMS...................................................................................9
3.01. Administrative Claims Against Minorplanet, Limited, and Caren...................................9
3.02. Fee Claims Against Minorplanet, Limited, and Caren; Filing Fee Applications.....................9
3.03. Allowance of Administrative Claims.............................................................10
3.04. Payment of Allowed Administrative Claims.......................................................10
3.05. Allowed Priority Tax Claims....................................................................10
3.06. United States Trustee Fees.....................................................................10
ARTICLE IV CLASSIFICATION OF CLAIMS AND INTERESTS................................................................11
4.01. Classification of Claims Against or Interests in Minorplanet, Limited, and Caren...............11
ARTICLE V IDENTIFICATION OF UNIMPAIRED AND IMPAIRED CLAIMS AND INTERESTS; CRAMDOWN...............................11
5.01. Unimpaired Claims..............................................................................11
5.02. Impaired Claims................................................................................12
5.03. Impaired Interests.............................................................................12
5.04. Controversy Concerning Impairment..............................................................12
5.05. Cramdown...................................................................................... 12
ARTICLE VI TREATMENT OF CLAIMS AND INTERESTS.....................................................................12
6.01. Other Priority Claims--Class 1 Claims Against Minorplanet, Limited, and Caren..................12
6.02. Secured Claims--Class 2 Against Minorplanet, Limited, and Caren................................12
6.03. General Unsecured Claims--Class 3 Against Minorplanet, Limited, and Caren......................13
6.04. Convenience Claims--Class 4 Against Minorplanet, Limited, and Caren............................13
6.05. Interests in Minorplanet attributable to Existing Common Stock--Class 5 as to Minorplanet......13
6.06. Interests in Minorplanet other than Existing Common Stock and Interests in Caren and
Limited--Class 6 as to Minorplanet, Limited, and Caren.........................................14
ARTICLE VII MISCELLANEOUS PROVISIONS RELATED TO TREATMENT OF CLAIMS AND INTERESTS................................14
7.01. Allowed Claims and Allowed Interests...........................................................14
7.02. Postpetition Interest..........................................................................14
7.03. Alternative Treatment..........................................................................14
ARTICLE VIII INDEMNIFICATION OBLIGATIONS; TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES..................15
8.01. Indemnification of Current Officers and Directors..............................................15
8.02. General Treatment of Executory Contracts and Unexpired Leases; Rejected If Not Assumed.........15
8.03. Cure Payments and Release of Liability.........................................................15
8.04. Bar to Rejection Claims........................................................................15
8.05. Rejection Claims...............................................................................16
ARTICLE IX CONTINUATION OF CERTAIN EMPLOYEE BENEFITS; NEW STOCK OPTIONS.........................................16
9.01. Employee Benefits..............................................................................16
9.02. New Management Stock...........................................................................16
9.03. Repurchase Option Exercise Under the SORA......................................................16
</Table>
i
<Table>
ARTICLE X EFFECT OF CONFIRMING THIS PLAN.........................................................................16
10.01. Binding Effect.................................................................................16
10.02. Discharge of Debtors...........................................................................17
10.03. Release........................................................................................17
10.04. Injunction.....................................................................................18
ARTICLE XI MEANS FOR EXECUTION OF THIS PLAN......................................................................18
11.01. Substantive Consolidation......................................................................18
11.02. Reorganized Minorplanet........................................................................19
11.03. Sources of Cash................................................................................19
11.04. Revesting of Assets............................................................................19
11.05. Treatment of the Existing Debt Instruments.....................................................19
11.06. New Common Stock; New Management Stock.........................................................20
11.07. Directors and Management of Reorganized Minorplanet............................................20
11.08. Implementing Documents.........................................................................21
ARTICLE XII METHOD OF DISTRIBUTION...............................................................................21
12.01. Reorganized Minorplanet........................................................................21
12.02. Surrender of Securities Or Instruments.........................................................21
12.03. Initial Distribution Date......................................................................22
12.04. Means Of Cash Payment..........................................................................22
12.05. Calculation of Distribution Amounts of New Securities..........................................22
12.06. Delivery of Distributions......................................................................22
12.07. Fractional Dollars; De Minimis Distributions...................................................23
12.08. Allocation of Plan Distribution Between Principal And Interest.................................23
12.09. Unclaimed Distributions........................................................................23
ARTICLE XIII CLAIMS RESOLUTION...................................................................................23
13.01. Objections to Claims...........................................................................23
13.02. Disputed Claims Reserve........................................................................24
ARTICLE XIV ASSERTION OF CLAIMS..................................................................................24
14.01. Assertion of Estate Actions, Defenses and Counterclaims........................................24
14.02. Setoffs........................................................................................24
ARTICLE XV VOTING AND EFFECT OF REJECTION BY ONE OR MORE CLASSES OF CLAIMS.......................................25
15.01. Impaired Classes to Vote.......................................................................25
15.02. Acceptance by Classes of Claims and Interests..................................................25
15.03. Section 1129(b) Cramdown.......................................................................25
ARTICLE XVI CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THIS PLAN..................................25
16.01. Conditions to Confirmation.....................................................................25
16.02. Conditions to Consummation.....................................................................26
16.03. Waiver of Conditions...........................................................................27
16.04. Effect of Non-Occurrence of Conditions to Consummation.........................................27
ARTICLE XVII RETENTION OF JURISDICTION...........................................................................27
17.01. Jurisdiction...................................................................................27
17.02. Examination of Claims and Interests............................................................27
17.03. Determination of Disputes......................................................................28
17.04. Additional Purposes............................................................................28
</Table>
ii
<Table>
ARTICLE XVIII GENERAL NOTICES AND DEFAULT UNDER THIS PLAN........................................................29
18.01. General Notices................................................................................29
18.02. Asserting and Curing Default Under the Plan....................................................30
18.03. Termination of Creditors' Committee's Duties...................................................30
18.04. Compliance with Tax Requirements...............................................................31
18.05. Modification or Revocation of this Plan........................................................31
18.06. Revocation of this Plan........................................................................31
18.07. Effect of Withdrawal or Revocation.............................................................31
18.08. Due Authorization..............................................................................31
18.09. Implementation.................................................................................31
18.10. Ratification...................................................................................32
18.11. Term of Injunctions or Stays...................................................................32
18.12. Integration Clause.............................................................................32
18.13. Interpretation.................................................................................32
18.14. Severability of Plan Provisions................................................................32
18.15. Governing Law..................................................................................32
</Table>
iii
DEBTORS' JOINT PLAN OF REORGANIZATION
Minorplanet Systems USA, Inc. ("Minorplanet"), Caren (292) Limited
("Caren"), and Minorplanet Systems USA Limited ("Limited" or together with
Minorplanet and Caren, the "Debtors"), file this Joint Plan of Reorganization
(the "Plan") pursuant to section 1121(a) of the Bankruptcy Code. Reference is
made to the Debtors' Joint Disclosure Statement, filed on April __ 2004, for a
discussion of the Debtors' history, businesses, properties, results of
operations, projections for future operations, risk factors, a summary and
analysis of this Plan and certain related matters.
ARTICLE I
DEFINITIONS, CONSTRUCTION, AND INTERPRETATION
The capitalized terms used herein shall have the respective meanings
set forth below. A term used herein that is not defined herein shall have the
meaning ascribed to that term, if any, in the Bankruptcy Code. Words and terms
defined in section 101 of the Bankruptcy Code shall have the same meaning when
used in the Plan, unless a different definition is given in the Plan. The rules
of construction contained in section 102 of the Bankruptcy Code shall apply to
the construction of the Plan. Whenever the context requires, words denoting the
singular number shall include the plural number and vice versa, and words
denoting one gender shall include the other gender and vice versa. All exhibits
and schedules attached to the Plan are incorporated herein.
1.1. "Administrative Claim" means any Claim for an Administrative
Expense.
1.2. "Administrative Claims Bar Date" means thirty (30) days after
the Confirmation Date.
1.3. "Administrative Expense" means any cost or expense of
administration of the Cases incurred on or before the
Effective Date entitled to priority under section 507(a)(1)
and allowed under section 503(b) of the Bankruptcy Code,
including, without limitation, Fee Claims and all other claims
for compensation or reimbursement of expenses to the extent
allowed by the Bankruptcy Court under the Bankruptcy Code,
Cure Claims, and all fees and charges assessed against the
Debtors' Estates under chapter 123 of Title 28 of the United
States Code.
1.4. "Allowance Date" means the date on which a Claim or an
Administrative Expense becomes an Allowed Claim.
1.5. "Allowed" means a Claim, an Administrative Expense, or an
Interest, or any portion thereof, (a) that has been allowed by
a Final Order, (b) that was listed in the Schedules as neither
disputed, contingent nor unliquidated and for which no timely
proof of Claim or Interest was filed, (c) for which a proof of
Claim or Interest in a liquidated amount has been timely filed
pursuant to the Bankruptcy Code or any Final Order of the
Bankruptcy Court and as to which either (i) no objection to
its allowance has been filed on or before the Objection
Deadline or within any other period fixed by the Bankruptcy
Code or a Final Order of the Bankruptcy Court or (ii) any
objection to its allowance has been settled, waived
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 1 OF 33
through payment or withdrawn, or has been denied by a Final
Order of the Bankruptcy Court, or (d) that is expressly
allowed in a liquidated amount in the Plan.
1.6. "Assumed Contracts" means all Contracts of the Debtors that
shall be listed or otherwise described in a Plan Document and
that are to be assumed pursuant to this Plan, including the
amounts of Cure Claims that the Debtors believe are due under
those Contracts upon their assumption or as otherwise provided
in this Plan.
1.7. "Authorized New Common Stock" means the fifty million
(50,000,000) shares of common stock of Reorganized Minorplanet
authorized to be issued from and after the Effective Date,
having a par value of $.01 per share as of the Effective Date.
1.8. "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended, and codified at title 11 of the United States Code.
1.9. "Bankruptcy Court" means the Bankruptcy Court unit of the
United States District Court for the Northern District of
Texas, Dallas Division, or such other court having
jurisdiction over the Cases.
1.10. "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as prescribed by the United States Supreme Court
pursuant to section 2075 of title 28 of the United States
Code.
1.11. "Business Day" means any day on which commercial banks are
open for business in Dallas, Texas.
1.12. "Cases" means the cases commenced on the Petition Date under
chapter 11 of the Bankruptcy Code by Minorplanet (Case No.
04-31200), by Caren (Case No. 04-31201) and by Limited (Case
No. 04-31202).
1.13. "Case Interest Rate" means, for an Unsecured Claim, the
federal judgment rate provided in 28 U.S.C. Section 1961 in
effect on the Petition Date, or such other rate as the
Bankruptcy Court may determine, compounded annually on each
anniversary of the Petition Date.
1.14. "Cash" means legal tender of the United States of America or
Cash equivalents.
1.15. "Certificate" means an instrument evidencing an Interest in
any of the Debtors, including, without limitation, the
Existing Common Stock.
1.16. "Claim" shall have the meaning provided in section 101(5) of
the Bankruptcy Code.
1.17. "Claimant" means the holder of a Claim.
1.18. "Collateral" means any property of the Debtors subject to a
valid and enforceable lien to secure the payment of a Claim.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 2 OF 33
1.19. "Confirmation Date" means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order.
1.20. "Confirmation Hearing" means the hearing held by the
Bankruptcy Court pursuant to Bankruptcy Code section 1128,
scheduled to commence on __________, 2004, at ________ Central
Time, and as may be continued from time to time, on
confirmation of the Plan.
1.21. "Confirmation Order" means the order of the Bankruptcy Court
confirming this Plan.
1.22. "Contract" means any executory contract or unexpired lease
governed by section 365 of the Bankruptcy Code.
1.23. "Convenience Claim" means a General Unsecured Claim in an
amount, as of the Petition Date, of $10,000.00 or less;
provided that if the holder of a General Unsecured Claim in an
amount greater than $10,000.00 elects to reduce such Claim to
$10,000.00, such Claim shall be treated as a Convenience Claim
for all purposes. Such election shall be made on the ballot
for accepting or rejecting the Plan, completed and returned
within the time fixed by order of the Bankruptcy Court. Making
this election shall be deemed a waiver by such electing Holder
of (a) any right to participate in Class 3-General Unsecured
Claims as to any and all Claims held by such holder, and (b)
any portion of such Holder's General Unsecured Claim in excess
of $10,000.00.
1.24. "Credit Facility" means a credit facility of up to one million
five hundred seventy-five thousand dollars ($1,575,000) to be
entered into by Minorplanet with a lender and in form and
substance that are acceptable to Minorplanet that is able to
be consummated on or before the Effective Date, and that
provides for the amount of Cash, if any, necessary to
consummate this Plan.
1.25. "Credit Facility Closing Date" means the date on which the
closing on the Credit Facility is concluded.
1.26. "Creditors' Committee" means the Official Committee of
Unsecured Creditors appointed in the Cases.
1.27. "Cure Claim" means a Claim arising from the assumption of a
Contract under section 365(b) of the Bankruptcy Code.
1.28. "Current Board of Directors" means the board of directors of
Minorplanet as of the Confirmation Date.
1.29. "Current Officers" means Dennis R. Casey, W. Michael Smith, J.
Raymond Bilbao, Robert Gray, Robert Lambert and David Bagley
in the capacities identified in section 11.07 of the Plan.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 3 OF 33
1.30. "Current Officers and Directors" means those individuals who
serve or have served as directors or officers of any Debtor at
any time on or after the Petition Date.
1.31. "Debtors" means Minorplanet Systems USA, Inc., Caren (292)
Limited, and Minorplanet Systems USA Limited.
1.32. "Disclosure Statement" means the Joint Disclosure Statement
with respect to this Plan of Reorganization, as it may be
altered, amended or modified from time to time in accordance
with the provisions of the Bankruptcy Code and the Bankruptcy
Rules.
1.33. "Disputed" when used with respect to a Claim or Interest,
means any such Claim or Interest that is not Allowed.
1.34. "Disputed Claims Reserve" shall mean amounts held in trust by
Reorganized Minorplanet for the benefit of Holders of Disputed
Claims in accordance with the provisions of section 13.02 of
this Plan.
1.35. "Distribution" means the property required by this Plan to be
distributed to the Holders of Allowed Claims or Holders of
Allowed Interests in Minorplanet.
1.36. "Effective Date" means a Business Day selected by the Debtors
after the first Business Day which is ten (10) days after the
Confirmation Date on which (a) the Confirmation Order is not
stayed and (b) all conditions to the effectiveness of the Plan
have been satisfied or waived as provided in Article 16 of the
Plan.
1.37. "Erin Mills" means Erin Mills Investment Corporation.
1.38. "Estates" means each individual Debtor's estate, and
collectively the Debtors' estates, in the Cases created
pursuant to section 541 of the Bankruptcy Code.
1.39. "Estate Action" means any cause of action or right to payment
arising under federal, state or common law that the Debtors,
Reorganized Minorplanet, or the Estates may hold against any
Person, including without limitation, causes of action arising
under chapter 5 of the Bankruptcy Code.
1.40. "Exchange Act" means the Securities Exchange Act of 1934, and
the rules and regulations promulgated thereunder, as now in
effect or hereafter amended.
1.41. "Existing Common Stock" means the common stock of Minorplanet,
$.01 par value, issued and outstanding before the Effective
Date.
1.42. "Face Amount" means (a) when used in reference to a Disputed
Claim, the full stated amount claimed by the Holder of the
Claim in a timely filed proof of Claim; (b) when used in
reference to an unliquidated Claim, the amount of the Claim as
estimated by the Bankruptcy Court pursuant to section 502(c)
of the
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 4 OF 33
Bankruptcy Code; and (c) when used in reference to an Allowed
Claim, the Allowed amount of the Claim.
1.43. "Fee Application" means an application for the allowance of a
Fee Claim.
1.44. "Fee Claim" means a Claim by a Professional or any other party
in interest pursuant to sections 327, 328, 330, 331, 363,
503(b) or 1103 of the Bankruptcy Code or otherwise relating to
services performed after the Petition Date and prior to and
including the Effective Date, including Claims for
reimbursement of expenses incurred by members of the
Creditors' Committee in performing their duties under the
Bankruptcy Code.
1.45. "Final Decree" means the final decree entered by the
Bankruptcy Court on or after the Effective Date and pursuant
to Bankruptcy Rule 3022.
1.46. "Final Order" means (a) an order as to which the time to
appeal, petition for certiorari or move for reargument,
rehearing, reconsideration, new trial, or to alter or amend
findings or judgment has expired and as to which no appeal,
petition for certiorari or other proceedings for reargument,
rehearing, reconsideration, new trial, or to alter or amend
findings or judgment shall then be pending or (b) in the event
that an appeal, writ of certiorari, reargument, rehearing,
reconsideration, new trial, or motion to alter or amend
findings or judgment thereof has been sought, such order shall
have been affirmed by the highest court to which such order
was appealed, or certiorari has been denied or from which
reargument, rehearing, reconsideration, new trial, or motion
to alter or amend findings or judgment was sought, and the
time to take any further appeal, petition for certiorari or
move for reargument, rehearing, reconsideration, new trial, or
to alter or amend findings or judgment shall have expired,
provided, however that no order shall fail to be a Final Order
solely because of the possibility that a motion pursuant to
Rule 60 of the Federal Rules of Civil Procedure may be filed
with respect to such order.
1.47. "General Unsecured Claim" means any Claim against any of the
Debtors that is neither secured nor entitled to priority under
the Bankruptcy Code or any order of the Bankruptcy Court.
1.48. "Holder" means a Person who is the beneficial owner of a Claim
or Interest. For purposes of voting to accept or reject this
Plan, a Person must be a Holder as of the Voting Record Date.
For purposes of a Distribution, a Person must be a Holder as
of the Initial Distribution Date.
1.49. "Indenture" means the Indenture, dated September 23, 1997, by
and among Minorplanet, HighwayMaster Corporation, and Texas
Commerce Bank, N.A. as trustee, as supplemented and modified
by the First Supplemental Indenture, dated June 20, 2001, by
and among Minorplanet and The Chase Manhattan Bank, N.A.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 5 OF 33
1.50. "Indenture Trustee" means JPMorgan Chase Bank (as successor to
Texas Commerce Bank, N.A. and The Chase Manhattan Bank, N.A.)
in its capacity as the trustee under the Indenture.
1.51. "Initial Distribution Date" means, when used with respect to a
particular Claim or Interest as to which the Holder thereof is
entitled to a Distribution under the Plan, the later of (a)
the Effective Date or as soon thereafter as practicable, or
(b) the Allowance Date or as soon thereafter as practicable.
1.52. "Interest" means any "equity security" (as defined in section
101 of the Bankruptcy Code) in any of the Debtors, including,
without limitation, the Existing Common Stock and any rights
under any warrant, option or other right, contractual or
otherwise, to acquire any Existing Common Stock or any other
securities of Minorplanet.
1.53. "New Board of Directors" means the board of directors of
Reorganized Minorplanet, formed as of the Effective Date, as
described in section 11.07 of this Plan.
1.54. "New Common Stock" means the seven million seven hundred
thousand (7,700,000) shares of Authorized New Common Stock
(including the 700,000 shares of New Management Stock) that
will be issued on the Initial Distribution Date to Holders of
Allowed General Unsecured Claims and Holders of Allowed
Interests in Minorplanet pursuant to sections 6.03 and 6.05 of
the Plan, respectively, and, with respect to the New
Management Stock, to the Current Officers.
1.55. "New Management Stock" means seven hundred thousand (700,000)
shares of the New Common Stock that will be issued to the
Current Officers after the Effective Date in amounts to be
determined by the Compensation Committee of the New Board of
Directors, as provided in section 9.02 of this Plan.
1.56. "Note" means a note issued before the Petition Date by
Minorplanet under the Indenture, which notes are due on
September 15, 2005 and bear interest at 13.75% with
semi-annual interest payments due March 15 and September 15 of
each year.
1.57. "Objection Deadline" means the date by which objections to
Claims shall be filed with the Bankruptcy Court and served
upon the respective Holder(s) thereof as provided in section
13.01 of the Plan, which date shall be ninety (90) days after
the Effective Date unless extended by order of the Bankruptcy
Court.
1.58. "Other Priority Claim" means any Claim that, if Allowed, would
be entitled to priority under section 507(a)(2) through
507(a)(7) of the Bankruptcy Code.
1.59. "Person" means and include natural persons, corporations,
limited partnerships, general partnerships, joint ventures,
trusts, land trusts, business trusts, unincorporated
organizations, or other organizations, irrespective of whether
they
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 6 OF 33
are legal entities, governments and agencies and political
subdivisions thereof or other entities.
1.60. "Petition Date" means February 2, 2004.
1.61. "Plan" or "Plan of Reorganization" means this Joint Plan of
Reorganization, either in its present form or as it may
hereafter be altered, amended or modified from time to time.
1.62. "Plan Documents" means the documents that aid in effectuating
the Plan as specifically identified as such herein, which will
be substantially in the respective forms filed by the Debtors
with the Bankruptcy Court no later than four (4) business days
before the deadline for voting on the Plan.
1.63. "Priority Tax Claim" means any Claim against any of the
Debtors that, if Allowed, would be entitled to priority in
payment under section 507(a)(8) of the Bankruptcy Code.
1.64. "Professionals" means those Persons defined as professional
persons in sections 327 or 1103 of the Bankruptcy Code who
have been employed pursuant to an order of the Bankruptcy
Court in the Cases and the professionals seeking compensation
or reimbursement of costs and expenses in connection with the
Cases pursuant to sections 503(b)(4) or 1129(a)(4) of the
Bankruptcy Code.
1.65. "Pro Rata share" means the proportion that (a) the Face Amount
of a Claim in a particular class bears to the aggregate Face
Amount of Claims in the class, and includes Disputed Claims,
or (b) the Interests held by an Interest Holder in a
particular class bears to the aggregate Interests in the
class, and includes Disputed Interests.
1.66. "Rejection Damage Claim" means a Claim by a party to a
pre-petition executory contract or an unexpired lease of
non-residential real property with any of the Debtors that has
not been assumed by the Debtors pursuant to this Plan or a
prior Final Order of the Bankruptcy Court entered in the
Cases.
1.67. "Reorganized Minorplanet" means Minorplanet, Caren, and
Limited, as substantively consolidated, reorganized, and
merged, pursuant to this Plan, into a new entity from and
after the Effective Date, which entity shall be named before
the Confirmation Date.
1.68. "Schedules" means the schedules of assets and liabilities and
the statement of financial affairs filed by the Debtors as
required by section 521 of the Bankruptcy Code and Bankruptcy
Rule 1007, as such schedules and statements have been or may
be supplemented or amended.
1.69. "SEC" means the Securities and Exchange Commission.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 7 OF 33
1.70. "Secured Claim" means a Claim that is secured by a security
interest in or lien on property of the Estates to the extent
of the value, as of the Effective Date or such other date
established by the Bankruptcy Court, of such Claim Holder's
interest in the Estates' interest in such property as
determined by a Final Order of the Bankruptcy Court pursuant
to section 506 of the Bankruptcy Code or as otherwise agreed
upon in writing by the Debtors and the Claim Holder. Secured
Claims shall include Claims secured by security interests or
liens junior in priority to existing security interests or
liens, whether by operation of law, contract, or otherwise,
but solely to the extent of the value, as of the Effective
Date or such other date established by the Bankruptcy Court,
of such Claim Holder's interest in the Estates' interest in
such property after giving effect to all security interests or
liens senior in priority. Secured Claims include Secured Tax
Claims.
1.71. "Secured Tax Claim" means any Claim that is based on or
assessed against any real or personal property of a Debtor and
is secured as of the Petition Date by a Tax Lien against such
property, which lien is valid, perfected and enforceable under
applicable law and is not subject to avoidance under the
Bankruptcy Code or applicable non-bankruptcy law, but only to
the extent of the value of the assets or property securing
such Claim.
1.72. "Securities Act" means the Securities Act of 1933, 15 U.S.C.
Sections 77a-77aa, and the rules and regulations promulgated
thereunder, as now in effect or hereafter amended.
1.73. "SORA" means the Stock Option Repurchase Agreement entered
into between Minorplanet and Erin Mills on August 15, 2003.
1.74. "Tax Lien" means any statutory lien securing an Allowed
Secured Tax Claim of any ad valorem taxing authority.
1.75. "Voting Record Date" means April 26, 2004.
ARTICLE II
SUMMARY OF THE PLAN
This summary describes certain major elements of this Plan. The
remaining sections of this Plan deal with each of these subjects in greater
detail. Those sections are controlling, and this summary will not change or be
used to construe the other provisions of this Plan.
On or as soon as practicable after the Initial Distribution Date,
Holders of Allowed Administrative Claims and Allowed Other Priority Claims will
be paid in Cash in the ordinary course as they come due or on such other terms
as the parties may agree. Holders of Allowed Priority Tax Claims will receive
periodic payments as provided under section 1129(a)(9)(C) of the Bankruptcy
Code, unless the parties agree to other terms for the payment of such Claims.
Holders of Allowed Secured Claims shall receive, at the election of
Reorganized Minorplanet, either (i) payment in Cash in an amount equivalent to
the full amount of such Holder's Allowed Secured Claim; (ii) deferred Cash
payments over a period of five (5) years
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 8 OF 33
after the Initial Distribution Date totaling the amount of such Holder's Allowed
Secured Claim, with interest; (iii) the return of the Collateral securing such
Allowed Secured Claim in full satisfaction of such Claim, or (iv) such other
treatment as may be agreed to in writing by such Holder and the Debtors or
Reorganized Minorplanet.
Holders of Allowed General Unsecured Claims will receive their Pro Rata
share of seven million (7,000,000) shares of the New Common Stock of Reorganized
Minorplanet on or as soon as practicable after the Initial Distribution Date.
The portion of the New Common Stock that will be distributed to Holders of
Allowed General Unsecured Claims will be determined based upon the Bankruptcy
Court's determination, on or before the Confirmation Date, of the aggregate
value of all of the New Common Stock.
Each Holder of an Allowed Convenience Claim shall receive Cash in an
amount equal to twenty-five percent (25%) of their Allowed Claims. Reorganized
Minorplanet shall pay such Cash in full on the Initial Distribution Date.
All Interests in Minorplanet, Limited, and Caren will be extinguished
as of the Effective Date. Each Holder of an Interest in Minorplanet that is
attributable to Existing Common Stock will receive a Pro Rata share of seven
million (7,000,000) shares of the New Common Stock that is not issued to Holders
of Allowed General Unsecured Claims. The portion of the New Common Stock that
will be distributed to such Holders of Allowed Interests in Minorplanet will be
determined based upon the Bankruptcy Court's determination, on or before the
Confirmation Date, of the aggregate value of all of the New Common Stock. The
Holders of Interests in Minorplanet other than Existing Common Stock and the
Holders of Interests in Limited and Caren will not receive or retain any
property under the Plan on account of those Interests.
ARTICLE III
UNCLASSIFIED CLAIMS
3.01. ADMINISTRATIVE CLAIMS AGAINST MINORPLANET, LIMITED, AND CAREN
The Holder of any Administrative Claim, other than (a) a Fee Claim, (b)
an Allowed Administrative Claim, or (c) a liability incurred and paid in the
ordinary course of business by the Debtors must file with the Bankruptcy Court,
and serve on all parties required to receive notice thereof, an application for
the allowance of such Administrative Claim no later than the Administrative
Claims Bar Date. Such application must include at a minimum (a) the name of the
Holder of the Claim, (b) the amount of the Claim, and (c) the basis of the
Claim. Failure to timely file and serve the application required under this
section shall result in the Administrative Claim being forever barred and
discharged.
3.02. FEE CLAIMS AGAINST MINORPLANET, LIMITED, AND CAREN; FILING FEE
APPLICATIONS
Each Professional who holds or asserts an Administrative Claim that is
a Fee Claim for compensation for services rendered and reimbursement of expenses
incurred prior to the Effective Date shall be required to file with the
Bankruptcy Court, and shall serve on all parties required to receive notice, a
Fee Application within ninety (90) days after the Effective Date. Objections to
Fee Applications must be filed within twenty-five (25) days after the filing and
service of the Fee Application. Failure to timely file a Fee Application as
required under this section of the Plan shall result in the Fee Claim being
forever barred and discharged.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 9 OF 33
3.03. ALLOWANCE OF ADMINISTRATIVE CLAIMS
An Administrative Claim with respect to which notice has been timely
and properly filed pursuant to section 3.01 of the Plan shall become an Allowed
Administrative Claim if no objection is filed within sixty (60) days after its
filing and service. If an objection is filed within such sixty (60) day period,
the Administrative Claim shall become an Allowed Administrative Claim only to
the extent Allowed by a Final Order. An Administrative Claim that is a Fee
Claim, and with respect to which a Fee Application has been timely and properly
filed pursuant to section 3.02 of the Plan, shall become an Allowed
Administrative Claim only to the extent allowed by a Final Order.
3.04. PAYMENT OF ALLOWED ADMINISTRATIVE CLAIMS
Each Holder of an Allowed Administrative Claim shall be paid the amount
of such Holder's Allowed Administrative Claim in Cash on or as soon as
practicable after the Initial Distribution Date, or shall receive such other
treatment as agreed upon in writing by the Debtors or Reorganized Minorplanet
and such Holder; provided, however, that an Administrative Claim representing a
liability incurred in the ordinary course of business by the Debtors may be paid
in the ordinary course of business by the Debtors or Reorganized Minorplanet;
and provided, further, that the payment of any Allowed Cure Claim may be made,
at the sole election of Reorganized Minorplanet, in one or more monthly payments
of Cash over a period of three (3) months after the Initial Distribution Date or
such other period as the Bankruptcy Court may determine. All Allowed Fee Claims
shall be paid by the Debtors or Reorganized Minorplanet in Cash within ten (10)
days after such Claim is Allowed by a Final Order.
3.05. ALLOWED PRIORITY TAX CLAIMS
Each Holder of an Allowed Priority Tax Claim shall be paid the Allowed
amount of such Claim pursuant to (a) the provisions of section 1129(a)(9)(C) of
the Bankruptcy Code in equal annual installments commencing on the first
anniversary of the Initial Distribution Date, with the final payment of the
unpaid balance thereof to be made on the sixth anniversary of the date of
assessment of the tax, together with interest thereon at the prevailing interest
rate for United States Treasury Bills maturing on June 30, 2009 as published in
the Wall Street Journal on the Effective Date, or (b) such other terms as the
Holder of such Claim and the Debtors or Reorganized Minorplanet may agree;
provided, however, that Reorganized Minorplanet shall have the right to pay any
Allowed Priority Tax Claim, or any unpaid balance of such Claim, in full, at any
time after the Effective Date, without premium or penalty.
3.06. UNITED STATES TRUSTEE FEES
Reorganized Minorplanet shall be responsible for timely payment of
United States Trustee quarterly fees incurred pursuant to 28 U.S.C. Section
1930(a)(6). Any fees due as of the Confirmation Date will be paid in full on the
Effective Date. After the Confirmation Date, Reorganized Minorplanet shall pay
United States Trustee quarterly fees as they accrue until this case is closed by
the Bankruptcy Court. Reorganized Minorplanet shall file with the Bankruptcy
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 10 OF 33
Court and serve on the United States Trustee a quarterly financial report for
each quarter (or portion thereof) that the case remains open in a format
prescribed by the United States Trustee.
ARTICLE IV
CLASSIFICATION OF CLAIMS AND INTERESTS
4.01. CLASSIFICATION OF CLAIMS AGAINST OR INTERESTS IN MINORPLANET,
LIMITED, AND CAREN
This section 4.01 sets forth a designation of classes of Claims against
and Interests in the Debtors in accordance with section 1122(a) of the
Bankruptcy Code. A Claim or Interest is classified in a particular class only to
the extent that the Claim or Interest qualifies within the description of the
class and is classified in a different class to the extent the Claim or Interest
qualifies within the description of that different class. If a Claim is acquired
or transferred, the Claim shall be placed in the class in which it would have
been placed if it were owned by the original Holder of such Claim.
The following classification of Claims against and Interests in each of
the Debtors presumes that the Debtors' Estates have been substantively
consolidated on or before the Confirmation Date, as described in section 11.01
of this Plan. The Debtors reserve the right to amend the Plan with respect to
the classification of Claims and Interests in the event the Debtors' Estates are
not substantively consolidated.
Class 1: Other Priority Claims against Minorplanet, Limited,
and Caren
Class 2: Secured Claims against Minorplanet, Limited, and
Caren
Class 3: General Unsecured Claims against Minorplanet,
Limited, and Caren
Class 4: Convenience Claims against Minorplanet, Limited, and
Caren
Class 5: Interests in Minorplanet attributable to Existing
Common Stock
Class 6: Interests in Minorplanet other than Existing Common
Stock; Interests in Limited and Caren
ARTICLE V
IDENTIFICATION OF UNIMPAIRED AND IMPAIRED
CLAIMS AND INTERESTS; CRAMDOWN
5.01. UNIMPAIRED CLAIMS
Class 1 Claims against Minorplanet, Limited, or Caren are not impaired
under this Plan and the Holders of those Claims are conclusively presumed to
have accepted this Plan under section 1126(f) of the Bankruptcy Code.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 11 OF 33
5.02. IMPAIRED CLAIMS
Class 2, 3, and 4 Claims against Minorplanet, Limited, or Caren are
impaired under this Plan and the Holders of those Claims are entitled to vote to
accept or reject this Plan.
5.03. IMPAIRED INTERESTS
The Holders of Class 5 Interests in Minorplanet attributable to
Existing Common Stock are impaired under this Plan and the Holders of those
Interests are entitled to vote to accept or reject this Plan. The Holders of
Class 6 Interests in Minorplanet other than Existing Common Stock and the
Holders of Class 6 Interests in Limited and Caren will not receive or retain any
property on account of such Interests, and such Holders are deemed to have
rejected the Plan under section 1126(g) of the Bankruptcy Code and are not
entitled to vote to accept or reject this Plan.
5.04. CONTROVERSY CONCERNING IMPAIRMENT
In the event of a controversy as to whether any Claim or Interest or
class of Claims or Interests is impaired under this Plan, the Bankruptcy Court
will, after notice and a hearing, determine the controversy.
5.05. CRAMDOWN
This section shall constitute the Debtors' request, pursuant to section
1129(b)(1) of the Bankruptcy Code, that the Bankruptcy Court confirm the Plan if
all of the requirements of section 1129(a) of the Bankruptcy Code, other than
subsection (8) thereof, are met with respect to the Plan.
ARTICLE VI
TREATMENT OF CLAIMS AND INTERESTS
6.01. OTHER PRIORITY CLAIMS--CLASS 1 CLAIMS AGAINST MINORPLANET,
LIMITED, AND CAREN
All Allowed Other Priority Claims shall be paid by Reorganized
Minorplanet either (a) in full, in Cash, on or as soon as practicable after the
Initial Distribution Date, or (b) upon such terms as may be agreed to in writing
by the Holder of such Claim and the Debtors or Reorganized Minorplanet. This
class is unimpaired under the Plan.
6.02. SECURED CLAIMS--CLASS 2 AGAINST MINORPLANET, LIMITED, AND CAREN
Class 2 Claims against Minorplanet, Limited, and Caren shall contain
separate subclasses for each Other Secured Claim. Each subclass is deemed to be
a separate class for all purposes under the Bankruptcy Code. On or as soon as
practicable after the Initial Distribution Date, each Holder of an Allowed
Secured Claim, in full satisfaction, settlement, release and discharge of each
such Claim, shall receive, at Reorganized Minorplanet's option, either (i)
payment in Cash
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 12 OF 33
in an amount equivalent to the full amount of such Holder's Allowed Secured
Claim; (ii) deferred Cash payments over a period of five (5) years after the
Initial Distribution Date totaling the amount of such Holder's Allowed Secured
Claim, with interest payable at the prevailing interest rate for United States
Treasury Bills maturing on June 30, 2009 as published in the Wall Street Journal
on the Effective Date; (iii) the return of the Collateral securing such Allowed
Secured Claim in full satisfaction of such Claim; or (iv) such other treatment
as may be agreed to in writing by such Holder and the Debtors or Reorganized
Minorplanet. In the event that any such Allowed Secured Claim exceeds the value
of the Collateral, any such excess (exclusive of any post-petition interest,
fees or other charges Allowed by a Final Order as part of that Allowed Secured
Claim) shall constitute a General Unsecured Claim for purposes of the Plan,
unless the Holder of such Claim has elected treatment pursuant to section
1111(b) of the Bankruptcy Code and in accordance with Bankruptcy Rule 3014.
These classes are impaired under the Plan.
6.03. GENERAL UNSECURED CLAIMS--CLASS 3 AGAINST MINORPLANET, LIMITED,
AND CAREN
On or as soon as practicable after the Initial Distribution Date, each
Holder of an Allowed General Unsecured Claim will receive, in full satisfaction,
settlement, release and discharge of its Allowed General Unsecured Claim, a Pro
Rata share of a portion of seven million (7,000,000) shares of the New Common
Stock, which portion shall be based on the aggregate value of all of the New
Common Stock as determined by the Bankruptcy Court on or before the Confirmation
Date. Within thirty (30) days after a Disputed General Unsecured Claim becomes
an Allowed General Unsecured Claim, Reorganized Minorplanet shall distribute to
the Holder thereof a number of shares of the Authorized New Common Stock
(excluding the New Common Stock) in the same proportion that such Allowed
General Unsecured Claim bears to the aggregate of all other Allowed General
Unsecured Claims whose Holders have received a Pro Rata share of the New Common
Stock distributed pursuant to this section 6.03. This class is impaired under
the Plan.
6.04. CONVENIENCE CLAIMS--CLASS 4 AGAINST MINORPLANET, LIMITED, AND
CAREN
Each Holder of an Allowed Convenience Claim shall receive Cash in an
amount equal to twenty-five percent (25%) of their Allowed Claims, up to an
aggregate maximum of fifty thousand dollars ($50,000). Reorganized Minorplanet
shall pay such Cash in full on the Initial Distribution Date. This class is
impaired under the Plan.
6.05. INTERESTS IN MINORPLANET ATTRIBUTABLE TO EXISTING COMMON
STOCK--CLASS 5 AS TO MINORPLANET
As of the Effective Date, all Interests in Minorplanet will be
extinguished. Each Holder of an Interest in Minorplanet that is attributable to
Existing Common Stock will receive a Pro Rata share of the portion of seven
million (7,000,000) shares of the New Common Stock that is not issued to Holders
of Allowed General Unsecured Claims. The portion of the New Common Stock to be
issued to Holders of Allowed Interests in Minorplanet shall be based on the
aggregate value of all of the New Common Stock as determined by the Bankruptcy
Court on or before the Confirmation Date. Within thirty (30) days after a
Disputed Class 5 Interest becomes an Allowed Class 5 Interest, Reorganized
Minorplanet shall distribute to the Holder thereof a
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 13 OF 33
number of shares of the Authorized New Common Stock (excluding the New Common
Stock) in the same proportion that such Allowed Class 5 Interest bears to the
aggregate of all other Allowed Class 5 Interests whose Holders have received a
Pro Rata share of the New Common Stock distributed pursuant to this section
6.05. This class is impaired under the Plan.
6.06. INTERESTS IN MINORPLANET OTHER THAN EXISTING COMMON STOCK AND
INTERESTS IN CAREN AND LIMITED--CLASS 6 AS TO MINORPLANET,
LIMITED, AND CAREN
As of the Effective Date, all Interests in Limited and Caren Limited
will be extinguished. The Holders of Interests in Minorplanet other than
Existing Common Stock and the Holders of Interests in Limited and Caren will not
receive or retain any property on account of such Interests. These classes are
impaired under the Plan and are deemed to reject the Plan.
ARTICLE VII
MISCELLANEOUS PROVISIONS RELATED TO
TREATMENT OF CLAIMS AND INTERESTS
7.01. ALLOWED CLAIMS AND ALLOWED INTERESTS
Notwithstanding any provision herein to the contrary, Reorganized
Minorplanet shall make Distributions only to Holders of Allowed Claims and
Allowed Class 5 Interests. No Holder of a Disputed Claim of Disputed Class 5
Interest will receive any Distribution on account thereof until and to the
extent that its Disputed Claim or Disputed Interest becomes an Allowed Claim or
an Allowed Interest. Reorganized Minorplanet, in its sole discretion, may
withhold Distributions otherwise due hereunder to the Holder of a Claim or
Interest until the Objection Deadline to enable Reorganized Minorplanet to file
a timely objection thereto. Reorganized Minorplanet will establish the Disputed
Claims Reserve in accordance with this Plan. Any Holder of a Disputed Claim that
becomes an Allowed Claim after the Initial Distribution Date will receive its
Distributions accruing before the Allowance Date, without postpetition interest
(except as otherwise expressly provided in the Plan), as soon as practicable
after the Allowance Date in accordance with the provisions of the Plan.
7.02. POSTPETITION INTEREST
In accordance with section 502(b)(2) of the Bankruptcy Code, the amount
of all Allowed Claims against the Debtors shall be calculated as of the Petition
Date. Except as otherwise explicitly provided herein or in an order of the
Bankruptcy Court or pursuant to the Bankruptcy Code, no Holder of an Allowed
Claim shall be entitled to or receive postpetition interest with respect to any
portion of an Allowed Claim. To the extent a Holder of an Allowed Claim is
entitled to receive postpetition interest with respect to any portion of its
Allowed Claim, such post-petition interest will accrue from the Petition Date
through the Effective Date at the Case Interest Rate.
7.03. ALTERNATIVE TREATMENT
Notwithstanding any provision herein to the contrary, any Holder of an
Allowed Claim or an Allowed Class 5 Interest may receive, instead of the
Distribution or treatment to which it is entitled hereunder, any other
Distribution or treatment to which it and, prior to the Effective
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 14 OF 33
Date, the Debtors or, on or after the Effective Date, Reorganized Minorplanet
may agree in writing, so long as such alternative treatment is substantially the
same as or less favorable than the treatment otherwise prescribed for such
Holder by the Plan.
ARTICLE VIII
INDEMNIFICATION OBLIGATIONS; TREATMENT OF
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.01. INDEMNIFICATION OF CURRENT OFFICERS AND DIRECTORS
The obligations of any Debtor to indemnify any of the Current Officers
and Directors, whether under a Debtor's certificate of incorporation or bylaws
(or analogous governing documents), any agreement, law or regulation, or
otherwise, will be assumed by Reorganized Minorplanet and will continue after
the Confirmation Date and be the obligations of Reorganized Minorplanet.
8.02. GENERAL TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES;
REJECTED IF NOT ASSUMED
The Plan constitutes and incorporates a motion by the Debtors to
reject, as of the Effective Date, all prepetition executory contracts and
unexpired leases to which any of the Debtors is a party, except for executory
contracts or unexpired leases that (a) have been assumed or rejected pursuant to
Final Order of the Bankruptcy Court, (b) are the subject of a separate motion
pursuant to section 365 of the Bankruptcy Code to be filed and served by the
Debtor on or before the Confirmation Date, or (c) are designated in a Plan
Document that lists the executory contracts and unexpired leases that the
Debtors intend to assume.
8.03. CURE PAYMENTS AND RELEASE OF LIABILITY
All Allowed Cure Claims that may be required by section 365(b)(1) of
the Bankruptcy Code under any executory contract or unexpired lease that is
assumed under this Plan or pursuant to a prior Final Order of the Bankruptcy
Court shall be made in accordance with section 3.04 of the Plan. To the extent
that a party to an assumed executory contract or unexpired lease has not filed
an appropriate pleading with the Bankruptcy Court on or before the thirtieth
(30th) day after the Effective Date disputing the amount of any Cure Claim
offered to it, disputing the cure of any other defaults, disputing the
promptness of the Cure Claim payments, or disputing the provisions of adequate
assurance of future performance, then such party shall be deemed to have waived
its right to dispute such matters.
8.04. BAR TO REJECTION CLAIMS
If the rejection of an executory contract or an unexpired lease by the
Debtors results in damages to the other party or parties to such contract or
lease, a Claim for such damages shall be forever barred and shall not be
enforceable against the Debtors, Reorganized Minorplanet or their respective
properties or agents, successors, or assigns, unless a proof of Claim is filed
with the Bankruptcy Court and served upon Reorganized Minorplanet by the earlier
of (a) thirty (30) days after the Effective Date or (b) such other deadline as
the Bankruptcy Court may set for asserting a Claim for such damages.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 15 OF 33
8.05. REJECTION CLAIMS
Any Claim arising from the rejection of an unexpired lease or executory
contract shall be treated as a General Unsecured Claim pursuant to the Plan,
except as limited by the provisions of sections 502(b)(6) and 502(b)(7) of the
Bankruptcy Code and state law mitigation requirements. Nothing contained herein
shall be deemed an admission by the Debtors that such rejection gives rise to or
results in a Claim or shall be deemed a waiver by the Debtors of any objections
to such Claim if asserted.
ARTICLE IX
CONTINUATION OF CERTAIN EMPLOYEE
BENEFITS; NEW STOCK OPTIONS
9.01. EMPLOYEE BENEFITS
From and after the Effective Date, Reorganized Minorplanet will
continue (unless subsequently modified or replaced) all existing employee
benefit policies, plans and agreements, including: (a) medical, dental, life,
travel accident and accidental death and dismemberment insurance; (b) sick pay,
short-term disability pay and long-term disability insurance; (c) vacation and
holiday pay; (d) bonus and severance programs; and (e) qualified deferred
compensation plans.
9.02. NEW MANAGEMENT STOCK
On or after the Effective Date, Reorganized Minorplanet, as determined
by the Compensation Committee of the New Board of Directors, shall issue the New
Management Stock to the Current Officers of Minorplanet, to be divided among the
Current Officers as determined by the Compensation Committee of the New Board of
Directors in its sole discretion.
9.03. REPURCHASE OPTION EXERCISE UNDER THE SORA
On the Effective Date, immediately prior to the extinguishment of the
Existing Common Stock, Reorganized Minorplanet shall exercise its rights
pursuant to the SORA to repurchase, and shall repurchase, from Erin Mills the
3,875,703 shares of the Existing Common Stock owned by Erin Mills. Reorganized
Minorplanet shall pay Erin Mills the aggregate price of $193.79, as set forth in
paragraph 1 of the SORA, in Cash on the Effective Date immediately prior to the
extinguishment of the Existing Common Stock.
ARTICLE X
EFFECT OF CONFIRMING THIS PLAN
10.01. BINDING EFFECT
This Plan shall be binding upon and inure to the benefit of the
Debtors, Reorganized Minorplanet, all present and future Holders of Claims and
Interests, and their respective successors and assigns.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 16 OF 33
10.02. DISCHARGE OF DEBTORS
All consideration distributed under this Plan will be in exchange for,
and in complete satisfaction, settlement, discharge, and release of, all Claims
against the Debtors of any nature whatsoever or against any of the Debtors'
assets or properties. Except as otherwise expressly provided in this Plan, entry
of the Confirmation Order acts as a discharge of all Claims against, liens on,
and Interests in each of the Debtors, the Debtors' assets and properties,
arising at any time before the Effective Date, regardless of whether a proof of
Claim or proof of Interest was filed, whether the Claim or Interest is Allowed,
or whether the Holder of the Claim or Interest votes to accept this Plan or is
entitled to receive a distribution under this Plan. Upon the entry of the
Confirmation Order, any Holder of the discharged Claim or Interest will be
precluded from asserting against the Debtors or Reorganized Minorplanet or any
of their assets or properties any other or further Claim or Interest based on
any document, instrument, act, omission, transaction or other activity of any
kind or nature that occurred before the Effective Date. The Confirmation Order
will be a judicial determination of discharge of all liabilities of the Debtors,
and Reorganized Minorplanet will not be liable for any Claims or Interests and
will only have the obligations as are specifically provided for in this Plan.
10.03. RELEASE
The Debtors, Reorganized Minorplanet, the Creditors' Committee, the
members of such committee in their capacity as such, any of such parties'
respective present members, officers, directors, employees, advisors, attorneys,
representatives, financial advisors, investment bankers, or agents, and any of
such parties' successors and assigns (the "Released Parties") shall not have or
incur, and are hereby released from, any claim, obligation, cause of action, or
liability to one another, to any Claim Holder or Interest Holder, to any other
party in interest, or to any of their respective agents, employees,
representatives, financial advisors, attorneys, or affiliates, or to any of
their successors or assigns, for any post-petition act or omission through and
including the Effective Date in connection with, relating to, or arising out of
the operation of the Debtors' business (other than liabilities incurred in the
ordinary course of the Debtors' business), the Cases, the filing of the Cases,
the formulation, preparation, dissemination, approval, confirmation,
administration, or consummation of the Plan, the Disclosure Statement, or the
property to be distributed under the Plan, except for any act or omission to the
extent such act or omission is determined in a Final Order to have constituted
willful misconduct or gross negligence, and in all respects the Released Parties
shall be entitled to reasonably rely upon the advice of counsel with respect to
their duties and responsibilities under the Plan or in connection with the
Debtors' business.
Notwithstanding any other provision of this Plan, no Holder of a Claim
or Interest, no other party in interest, none of their respective agents,
employees, representatives, financial advisors, attorneys, or affiliates, and no
successors or assigns of the foregoing, shall have any right of action against
the Released Parties for any post-petition act or omission through and including
the Effective Date in connection with, relating to, or arising out of the
operation of the Debtors' business (other than liabilities incurred in the
ordinary course of the Debtors' business), the Cases, the filing of the Cases,
the formulation, preparation, dissemination,
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 17 OF 33
approval, confirmation, administration, or consummation of the Plan or the
Disclosure Statement, except for any act or omission to the extent such act or
omission is determined in a Final Order to have constituted willful misconduct
or gross negligence.
10.04. INJUNCTION
The satisfaction, releases, and discharge pursuant to Article X of the
Plan shall also act as an injunction against any Person commencing or continuing
any action, employment of process, or act to collect, offset, or recover any
Claim or cause of action satisfied, released, or discharged under the Plan to
the fullest extent authorized or provided by the Bankruptcy Code, including,
without limitation, to the extent provided for or authorized by sections 524 and
1141 thereof.
Any Person who, after the Effective Date, initiates any judicial
proceeding to assert or prosecute any claim that is released and enjoined under
sections 10.03 and 10.04 of the Plan shall post a bond of $1,000,000 to cover
the legal fees and expenses of the person(s) against whom such claims are
asserted. Such bond must be issued by a bonding company acceptable to the
Person(s) against whom such claims are asserted or shall be established through
an escrow account at a federally insured banking institution.
The releases and injunction provided in sections 10.03 and 10.04 of the
Plan shall not release or enjoin any claims against any of the individuals or
entities enumerated therein with respect to (a) fiduciary obligations under
ERISA or any controlled group liabilities under Title IV of ERISA or (b) police
or regulatory activities of governmental regulatory agencies.
ARTICLE XI
MEANS FOR EXECUTION OF THIS PLAN
11.01. SUBSTANTIVE CONSOLIDATION
Before the hearing on this Disclosure Statement, the Debtors filed a
Motion for Substantive Consolidation, asking the Bankruptcy Court to approve the
substantive consolidation of the Debtors' Estates. The Debtors have requested a
hearing on such motion before the Confirmation Date. This Plan is proposed on
the basis that the Motion for Substantive Consolidation is granted on or before
the Confirmation Date. If such motion is granted, all of the Debtors will be
treated as substantively consolidated as Reorganized Minorplanet. All Cash
payments and the issuance of New Common Stock to be made on or after the
Effective Date pursuant to this Plan will be the obligation of the substantively
consolidated Reorganized Minorplanet, and Reorganized Minorplanet will cause
these obligations to be performed. Reorganized Minorplanet will take the other
actions contemplated under this Plan to consummate and perform this Plan,
including making Distributions, abandoning Collateral, objecting to Claims,
administering the Disputed Claims Reserve and asserting claims (including,
without limitation, the Estate Actions). All obligations under this Plan that
are to be performed over time after the Effective Date, including periodic
payments to the Holders of Allowed Secured Claims, Allowed Cure Claims, Allowed
Other Priority Claims, and any other Allowed Claims that are to be paid over
time shall be the obligations of and continue to be performed by Reorganized
Minorplanet. All liens of the Holders of Allowed Secured Claims, and the
priority
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 18 OF 33
of such liens, shall be unaffected by the substantive consolidation and merger
of Limited and Caren into Minorplanet. Holders of Allowed Claims will be
entitled to only one recovery from the substantively consolidated estate of
Reorganized Minorplanet. The Holders of any intercompany Claims by, between, or
among Minorplanet, Limited, and Caren will not receive any Distribution on
account of such intercompany Claims under this Plan.
11.02. REORGANIZED MINORPLANET
From and after the Effective Date, each of Minorplanet, Limited, and
Caren will cease to exist as a separate corporate or other entity and will be
substantively consolidated as Reorganized Minorplanet in accordance with the
laws of the State of Delaware and pursuant to Reorganized Minorplanet's charter
and bylaws.
11.03. SOURCES OF CASH
Reorganized Minorplanet may obtain the funds necessary for the payment
of Allowed Claims that are to be paid in Cash on or after the Effective Date
through the combination of the Credit Facility and Cash on hand from the
Debtors' operations. On or before the Confirmation Date, the Debtors intend to
enter into the Credit Facility with one or more existing or new lenders, on
terms as may be acceptable to the Debtors.
11.04. REVESTING OF ASSETS
Except as otherwise provided in this Plan, the property and assets of
the Debtors' Estates under section 541 of the Bankruptcy Code will revest in
Reorganized Minorplanet on the Effective Date free and clear of all Claims and
Interests, but subject to the obligations of Reorganized Minorplanet as set
forth in this Plan and the Confirmation Order. Commencing on the Effective Date,
Reorganized Minorplanet may deal with its assets and property and conduct its
business without any supervision by, or permission from, the Bankruptcy Court or
the Office of the United States Trustee, and free of any restriction imposed on
the Debtors by the Bankruptcy Code or by the Bankruptcy Court during the Cases.
11.05. TREATMENT OF THE EXISTING DEBT INSTRUMENTS
As of the Effective Date, except to the extent provided otherwise in
the Plan, any and all notes held by Holders of any Claims (including, without
limitation, the Notes), and all agreements, instruments and other documents
evidencing the Claims and the rights of the Holders of the Claims, will be
automatically canceled, extinguished, voided, and surrendered as provided in
section 12.02 of the Plan; all obligations of any Person under those instruments
and agreements will be fully and finally satisfied and released; and the
obligations of the Debtors under those instruments and agreements will be
discharged. On the Effective Date, except to the extent otherwise provided in
the Plan, the Indenture relating to the Notes will be canceled, and the
obligations of the Indenture Trustee and the Debtors thereunder, except for any
obligation to pay reasonable professional fees, will be discharged; however, the
Indenture will continue in effect solely for the purposes of allowing the
Indenture Trustee to maintain any rights or liens it may have for reasonable
fees, costs and expenses under the Indenture. On payment in full of the
reasonable fees and expenses of the Indenture Trustee, except as provided
herein, the rights of the Indenture Trustee will terminate.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 19 OF 33
11.06. NEW COMMON STOCK; NEW MANAGEMENT STOCK
The issuance of the New Common Stock pursuant to this Plan is hereby
authorized without further act or action under applicable law. The New Common
Stock shall be issued and distributed in accordance with the terms of this Plan
without further act or action under applicable law, regulation, order or rule
and shall be exempt from registration under applicable securities law pursuant
to section 1145(a) of the Bankruptcy Code. The provisions of the New Common
Stock to be issued pursuant to this Plan are summarized as follows:
(a) Authorization. Reorganized Minorplanet will be authorized
to issue up to fifty million (50,000,000) shares of Authorized New Common Stock
on or after the Effective Date. The New Common Stock, a subset of the Authorized
New Common Stock, will be issued under the Plan pursuant to sections 6.03 and
6.05 of the Plan.
(b) Par Value. The New Common Stock will have a par value of
$.01 per share.
(c) Rights. The New Common Stock will have the rights with
respect to dividends, liquidation, voting and other matters as set forth in the
amended and restated certificate of incorporation of Reorganized Minorplanet and
as provided under applicable law and in this Plan.
(d) Dilution. The New Common Stock is subject to dilution by
any additional issuance of the Authorized New Common Stock duly authorized by
Reorganized Minorplanet after the Effective Date.
11.07. DIRECTORS AND MANAGEMENT OF REORGANIZED MINORPLANET
Minorplanet's Current Officers and Directors are listed in the
Disclosure Statement. The New Board of Directors for Reorganized Minorplanet
shall consist of five (5) members who shall be identified at the hearing on the
Disclosure Statement and will be formed as of the Effective Date. The Current
Officers of Minorplanet and the officers of Reorganized Minorplanet immediately
after the Effective Date shall be the following:
Dennis R. Casey President and Chief Executive Officer
W. Michael Smith Executive Vice President
Treasurer
Chief Operating Officer
Chief Financial Officer
J. Raymond Bilbao Senior Vice President
General Counsel
Secretary
Robert Gray Chief Accounting Officer
Robert Lambert Vice President Information Technologies
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 20 OF 33
David Bagley Vice President of Network Operations
All decisions regarding the election of other officers, the continued
employment of senior management of Reorganized Minorplanet, selection of
officers by the New Board of Directors, and new employment contracts for senior
management of Reorganized Minorplanet will be made by the New Board of
Directors. The New Board of Directors will serve until the first annual meeting
of stockholders of Reorganized Minorplanet held after the Effective Date.
11.08. IMPLEMENTING DOCUMENTS
To implement this Plan, the following Plan Documents will be signed and
delivered or otherwise made effective on the Effective Date, including the
following documents:
o the Credit Facility documents; and
o the amended certificate of incorporation, bylaws, and
charter or analogous documents of Reorganized Minorplanet, which will satisfy
the provisions of this Plan and section 1123(a)(6) of the Bankruptcy Code.
Forms of these documents will be filed with the Bankruptcy Court no
later than four (4) business days before the deadline for voting on the Plan.
The Debtors will provide a copy of the form of any of these documents to any
party in interest who requests it in writing. Written requests should be sent to
Neligan Tarpley Andrews & Foley LLP at 1700 Pacific Avenue, Suite 2600, Dallas,
Texas, 75201, if by mail or courier service, or to (214) 840-5301 if by
facsimile, or to kgradick@neliganlaw.com if by electronic mail, in each case to
the attention of Katherine Gradick. Confirmation of this Plan will authorize the
Debtors, Reorganized Minorplanet and their directors and officers to execute and
deliver, file or record these implementing documents and related necessary
documents, and to take any actions as may be necessary or appropriate in
furtherance of this Plan.
ARTICLE XII
METHOD OF DISTRIBUTION
12.01. REORGANIZED MINORPLANET
Reorganized Minorplanet or its stock transfer agent will make all
Distributions required under this Plan (subject to the provisions hereof).
12.02. SURRENDER OF SECURITIES OR INSTRUMENTS
On or as soon as practicable after the Effective Date, each Holder of a
Certificate or a Note as of the Initial Distribution Date shall surrender such
Certificate or Note to Reorganized Minorplanet or its transfer agent and all
Certificates and Notes will be canceled. No Distribution of property hereunder
will be made to or on behalf of any Holder of a Certificate or a Note unless and
until the Certificate or Note is received by Reorganized Minorplanet or its
transfer agent or the unavailability of the Certificate or the Note is
reasonably established to the satisfaction of Reorganized Minorplanet. Any
Holder of a Certificate or a Note who fails to
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 21 OF 33
surrender or cause to be surrendered the Certificate or the Note or fails to
execute and deliver an affidavit or loss and indemnity reasonably satisfactory
to Reorganized Minorplanet before the first anniversary of the Effective Date,
will be deemed to have forfeited all rights and Claims or Interests in respect
of the Certificate or the Note and will not participate in any Distribution
hereunder, and all New Common Stock in respect of the forfeited distribution
will be canceled notwithstanding any federal or state escheat laws to the
contrary.
12.03. INITIAL DISTRIBUTION DATE
At the close of business on the Initial Distribution Date, the transfer
ledgers for the Notes and Interests will be closed, and there will be no further
changes in the record Holders of these securities. Reorganized Minorplanet and
the Indenture Trustee shall have no obligation to recognize any transfer of any
securities or instruments occurring after the Initial Distribution Date and will
be entitled instead to recognize and deal for all purposes hereunder with only
those record Holders stated on the transfer ledgers as of the close of business
on the Initial Distribution Date.
12.04. MEANS OF CASH PAYMENT
Cash payments made pursuant to this Plan will be in U.S. funds, by the
means agreed to by the payor and the payee, including by check or wire transfer,
or, in the absence of an agreement, by a commercially reasonable manner as the
payor will determine in its sole discretion.
12.05. CALCULATION OF DISTRIBUTION AMOUNTS OF NEW SECURITIES
No fractional shares of New Common Stock will be issued or distributed
under the Plan or by Reorganized Minorplanet. Each Person entitled under the
Plan to receive a Distribution of New Common Stock will receive the total number
of whole shares of New Common Stock to which the Person is entitled. Whenever
any Distribution, or a portion thereof, to a particular Person would otherwise
call for distribution of a fraction of a share of New Common Stock, Reorganized
Minorplanet will allocate separately one whole share of New Common Stock to the
Person and other Persons similarly entitled, in order of the fractional portion
of their entitlement, starting with the largest fractional portion, until all
remaining whole shares have been allocated. Upon the allocation of a whole share
to a Person in respect of the fractional portion of its entitlement, the
fractional portion will be canceled. If two or more Persons are entitled to
equal fractional entitlements and the number of Persons so entitled exceeds the
number of whole shares of New Common Stock that remain to be allocated,
Reorganized Minorplanet will allocate the remaining whole shares to the Holders
by random lot or another impartial method as Reorganized Minorplanet deems fair.
Upon the allocation of all of the whole shares authorized under this Plan, all
remaining fractional portions of the entitlements will be canceled and will be
of no further force and effect.
12.06. DELIVERY OF DISTRIBUTIONS
Distributions to Holders of Allowed Claims and Allowed Class 5
Interests will be made by Reorganized Minorplanet or its transfer agent (a) at
the addresses set forth on the proofs of Claim or Interests filed by the
Holders, (b) at the addresses set forth in any written notice of
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 22 OF 33
address change delivered to Reorganized Minorplanet after the date of any
related proof of Claim or Interest, (c) at the addresses reflected in the
Schedules if no proof of Claim or Interest has been filed and Reorganized
Minorplanet has not received a written notice of a change of address, (d) or at
the last known address of the Holder if no proof of Claim or Interest has been
filed, (e) in the case of the Holder of a Claim that is governed by the
Indenture and is administered by the Indenture Trustee, at the addresses
contained in the official records of the Indenture Trustee, or (f) at the
addresses set forth in a properly completed letter of transmittal accompanying
securities or instruments properly remitted to Reorganized Minorplanet or its
transfer agent. If any Holder's Distribution is returned as undeliverable, no
further Distributions to the Holder will be made unless and until Reorganized
Minorplanet or its transfer agent is notified of the Holder's then current
address, at which time all missed Distributions will be made to the Holder
without interest. Amounts in respect of undeliverable Distributions made by
Reorganized Minorplanet will be returned to Reorganized Minorplanet until the
Distributions are claimed.
12.07. FRACTIONAL DOLLARS; DE MINIMIS DISTRIBUTIONS
Any other provision of this Plan notwithstanding, payments of fractions
of dollars will not be made. Whenever any payment of a fraction of a dollar
under this Plan would otherwise be called for, the actual payment made will
reflect a rounding of the fraction to the nearest whole dollar (up or down),
with half dollars being rounded down. Reorganized Minorplanet will not make any
payment of less than twenty-five dollars ($25.00) with respect to any Claim
unless a request is made in writing to Reorganized Minorplanet.
12.08. ALLOCATION OF PLAN DISTRIBUTION BETWEEN PRINCIPAL AND INTEREST
To the extent that any Allowed Claim entitled to a Distribution under
this Plan is comprised of principal indebtedness and accrued but unpaid interest
thereon, the Distribution will, to the extent permitted, be allocated for income
tax purposes to the principal amount of the Claim first and then, to the extent
the consideration exceeds the principal amount of the Claim, to the portion of
the Claim representing accrued but unpaid interest.
12.09. UNCLAIMED DISTRIBUTIONS
On the first anniversary of the Effective Date, Reorganized Minorplanet
will publish the names of Holders of unclaimed Distributions in the national
edition of the Wall Street Journal. Any Distributions under this Plan in the
form of Cash remaining unclaimed as of two years after the Effective Date will
be released for Reorganized Minorplanet's use in its ordinary business
operations, and any unclaimed Distributions under this Plan in the form of New
Common Stock will be canceled.
ARTICLE XIII
CLAIMS RESOLUTION
13.01. OBJECTIONS TO CLAIMS
The Debtors and Reorganized Minorplanet will have exclusive authority
to object to and contest the allowance of any Claims filed with the Bankruptcy
Court. The Debtors and Reorganized Minorplanet will use their best efforts to
prosecute objections to Claims as
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 23 OF 33
warranted. All objections to Claims must be filed by the Objection Deadline,
which shall be ninety (90) days after the Effective Date unless extended by
order of the Bankruptcy Court. If the Debtors or Reorganized Minorplanet file an
objection to a Claim, such Claim will become a Disputed Claim. Disputed Claims
may become Allowed Claims by entry of a Final Order allowing the Claim in whole
or in part.
13.02. DISPUTED CLAIMS RESERVE
Pending the resolution of Disputed Claims, Reorganized Minorplanet will
hold the Distributions for the benefit of Holders of Disputed Claims in trust in
the Disputed Claims Reserve. The amount held in the Disputed Claims Reserve will
be calculated based on the smaller of (a) the amount claimed, (b) the amount
estimated by the Bankruptcy Court for purposes of distribution or (c) the amount
determined by the Bankruptcy Court in a claims allowance hearing, even if there
is a pending appeal concerning allowance of the Claim. When a Disputed Claim
becomes an Allowed Claim by a Final Order, Reorganized Minorplanet will cause
the Distribution owed on such Allowed Claim to be paid out of the Disputed
Claims Reserve within ten (10) Business Days after such order becomes a Final
Order. Any Distribution that would have been due to the part of the Claim that
is disallowed will be released from the Disputed Claims Reserve and distributed
Pro Rata to Allowed Claims of the same class as the Disputed Claim that has
become Allowed. These supplemental distributions will be made on the six month
anniversary of the Effective Date and every six months thereafter as applicable.
The Disputed Claim Reserve shall not include any New Common Stock.
ARTICLE XIV
ASSERTION OF CLAIMS
14.01. ASSERTION OF ESTATE ACTIONS, DEFENSES AND COUNTERCLAIMS
Except as otherwise provided in the Plan, the Confirmation Order, or in
any contract, instrument, release, indenture or other agreement entered into in
connection with the Plan, in accordance with section 1123(b)(3) of the
Bankruptcy Code, Reorganized Minorplanet shall retain and may exclusively
prosecute, settle, or compromise any Estate Action. Reorganized Minorplanet
shall also retain and may prosecute and enforce all defenses, counterclaims, and
rights against or with respect to all Claims asserted against the Debtors,
Reorganized Minorplanet, or the Estates. Notwithstanding the foregoing, in the
event any of the Debtors or Reorganized Minorplanet is determined by the
Bankruptcy Court to be solvent, Reorganized Minorplanet will not commence any
action to prosecute an Estate Action if such Estate Action requires proof of the
insolvency of any of the Debtors or Reorganized Minorplanet.
14.02. SETOFFS
Reorganized Minorplanet may, but will not be required to, set off
against any Claim, and the payments or other Distributions to be made pursuant
to this Plan in respect of the Claim, claims of any nature whatsoever that the
Debtors or Reorganized Minorplanet may have against the Holder of the Claim,
provided, however, that neither the failure to do so nor the allowance of any
Claim hereunder will constitute a waiver or release by the Debtors or
Reorganized Minorplanet of any claim that the Debtors or Reorganized Minorplanet
may have against the
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 24 OF 33
Holder. The Holder of a Disputed Claim who asserts a right of setoff will retain
the right, subject to any defenses of the Debtors or Reorganized Minorplanet,
until the earlier of the time when (a) the Disputed Claim becomes Allowed, in
whole or in part, or (b) the Claim is expunged by entry of an order of the
Bankruptcy Court.
ARTICLE XV
VOTING AND EFFECT OF REJECTION BY
ONE OR MORE CLASSES OF CLAIMS
15.01. IMPAIRED CLASSES TO VOTE
Except as provided in section 5.03 of this Plan, each impaired class of
Claims and Interests will be entitled to vote separately to accept or reject
this Plan. For purposes of voting to accept or reject this Plan, a Person is a
Holder as of the Voting Record Date. A Holder of an Allowed Claim or Interest as
of the Voting Record Date may vote to accept or reject this Plan. A Holder of a
Claim or Interest as to which an objection has been filed that has not been
temporarily allowed for purposes of voting on this Plan may not vote. A Holder
of a contingent or unliquidated Claim or Interest may vote on this Plan in an
amount based on the portion, if any, of the Claim or Interest shown as fixed,
liquidated and undisputed in the Schedules, or equal to $1.00 or one share, if
not so shown.
15.02. ACCEPTANCE BY CLASSES OF CLAIMS AND INTERESTS
A class of Claims will have accepted this Plan if its members vote to
accept by at least two-thirds in amount and more than one-half in number of the
Allowed Claims in the class actually voting to accept or reject this Plan. A
class of Interests will have accepted this Plan if its members vote to accept by
at least two-thirds in amount of the Allowed Interests in the class actually
voting to accept or reject this Plan.
15.03. SECTION 1129(b) CRAMDOWN
If any impaired class of Claims or Interests fails to accept this Plan
in accordance with section 1129(a) of the Bankruptcy Code, the Debtors reserve
the right to request the Bankruptcy Court to confirm this Plan in accordance
with the provisions of section 1129(b) of the Bankruptcy Code. The Debtors
assert that this Plan provides for fair and equitable treatment of all Classes
of Claims and Interests.
ARTICLE XVI
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THIS PLAN
16.01. CONDITIONS TO CONFIRMATION
The Bankruptcy Court will not enter the Confirmation Order unless and
until each of the following conditions has been satisfied or duly waived (if
waivable) pursuant to section 16.03 of this Plan:
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 25 OF 33
(a) The documents implementing this Plan listed in section 11.08 of the
Plan will be in form and substance acceptable to the Debtors, and will have been
provided to the Bankruptcy Court.
(b) The Confirmation Order is in a form and substance acceptable to the
Debtors and, among other things, makes findings that particular subsections of
section 1129 of the Bankruptcy Code have been met, including (i) that the
Debtors and their representatives have proposed and obtained confirmation of
this Plan in good faith; (ii) that this Plan is in the best interests of
creditors and (iii) that this Plan is fair and equitable to Holders of Claims
and Interests.
(c) The Confirmation Order authorizes and directs the Debtors and
Reorganized Minorplanet to take all actions necessary or appropriate to enter
into, implement and consummate the contracts, instruments, releases, leases and
other agreements or documents created in connection with this Plan, including
those documents described in section 11.08 of the Plan.
(d) The Debtor has received binding commitments, in form and substance
acceptable to the Debtors in their sole discretion, for the issuance and closing
of the Credit Facility.
16.02. CONDITIONS TO CONSUMMATION
This Plan will not be consummated and the Effective Date will not occur
unless and until each of the following conditions has been satisfied or duly
waived (if waivable) pursuant to section 16.03 of the Plan:
(a) The Confirmation Order is a Final Order and provides that (i)
Reorganized Minorplanet is authorized to issue the New Common Stock and the New
Management Stock, and (ii) the New Common Stock issued under the Plan in
exchange for Claims against any of the Debtors or Interests in Minorplanet
attributable to Existing Common Stock, and the New Management Stock issued under
the Plan, are exempt from registration under the Securities Act pursuant to, and
to the extent provided by, section 1145(a) of the Bankruptcy Code.
(b) Substantially all of the Cash payments required to be made on or as
soon as practicable after the Initial Distribution Date to the Holders of
Allowed Administrative Claims and Other Priority Claims are paid.
(c) Reorganized Minorplanet shall have entered into the Credit Facility
and all conditions precedent to the consummation thereof shall have been waived
or satisfied in accordance with the terms thereof.
(d) The Notes are canceled and the New Common Stock is issued to
Holders of Allowed General Unsecured Claims and Holders of Allowed Interests in
Minorplanet attributable to the Existing Common Stock.
(e) All Interests in the Debtors are canceled.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 26 OF 33
(f) Substantially all of the actions, documents and agreements
necessary to implement this Plan, including those documents set forth in section
11.08 of the Plan, will have been effected or executed.
16.03. WAIVER OF CONDITIONS
The conditions to the confirmation and consummation of the Plan as set
forth above may be waived in whole or in part by the Debtors upon approval of
the Bankruptcy Court.
16.04. EFFECT OF NON-OCCURRENCE OF CONDITIONS TO CONSUMMATION
Each of the conditions to consummation and the Effective Date must be
satisfied or duly waived, as provided above, within ninety (90) days after the
Confirmation Date. If each condition to consummation has not been satisfied or
duly waived, pursuant to this Plan, within ninety (90) days after the
Confirmation Date, then on motion by any party in interest made before the time
that each condition has been satisfied or duly waived and on notice to the
parties in interest as the Bankruptcy Court may direct, the Confirmation Order
will be vacated by the Bankruptcy Court; provided, however, that,
notwithstanding the filing of such a motion, the Confirmation Order may not be
vacated if each of the conditions to consummation is either satisfied or duly
waived before the Bankruptcy Court enters an order granting the motion. If the
Confirmation Order is vacated pursuant to this section, this Plan will be deemed
null and void, including the discharge of Claims and cancellation of Interests
pursuant to section 1141 of the Bankruptcy Code and the assumptions, assignments
or rejections of Contracts pursuant to this Plan, and, in this event, nothing
contained in this Plan will (a) constitute a waiver or release of any Claims by
or against, or any Interests in, the Debtors or (b) prejudice in any manner the
rights of the Debtors.
ARTICLE XVII
RETENTION OF JURISDICTION
17.01. JURISDICTION
Until the Cases are closed, the Bankruptcy Court will retain the
jurisdiction as is legally permissible under applicable law, including under
sections 105(a) and 1142 of the Bankruptcy Code, including that necessary to
ensure that the purpose and intent of this Plan are carried out and to hear and
determine all Claims and Interests and objections thereto that could have been
brought before the entry of the Confirmation Order. The Bankruptcy Court will
retain jurisdiction to hear and determine all Claims against and Interests in
the Debtors and to enforce all causes of action that may exist on behalf of
Debtors, over which the Bankruptcy Court otherwise has jurisdiction. Nothing
contained in this Plan will prevent Reorganized Minorplanet from taking any
action as may be necessary in the enforcement of any cause of action that may
exist on behalf of the Debtors and that may not have been enforced or prosecuted
by the Debtors.
17.02. EXAMINATION OF CLAIMS AND INTERESTS
Following the Confirmation Date, the Bankruptcy Court will retain
jurisdiction to decide disputes concerning the classification and allowance of
any Claim or Interest and the re-examination of Claims or Interests that have
been allowed for the purposes of voting, and the
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 27 OF 33
determination of any objections as may be filed to Claims or Interests. The
failure by the Debtors to object to, or to examine, any Claim or Interest for
the purposes of voting will not be deemed a waiver of their right or the right
of Reorganized Minorplanet to object to, or to re-examine, the Claim or Interest
in whole or in part.
17.03. DETERMINATION OF DISPUTES
The Bankruptcy Court will retain jurisdiction after the Confirmation
Date to determine all questions and disputes regarding title to the assets of
the Estates, disputes concerning the allowance of Claims and Interests, and
determination of all causes of action, controversies, disputes, or conflicts,
whether or not subject to any pending action, as of the Confirmation Date, for
the Debtors or Reorganized Minorplanet to recover assets pursuant to the
provisions of the Bankruptcy Code.
17.04. ADDITIONAL PURPOSES
The Bankruptcy Court will retain jurisdiction for the following
additional purposes after the Effective Date:
(a) to hear and determine any modification of the Plan pursuant to
section 1127 of the Bankruptcy Code, to cure any defect or omission or reconcile
any inconsistency in the Plan, the Disclosure Statement, or any order of the
Bankruptcy Court, including the Confirmation Order, in such a manner as may be
necessary or appropriate to carry out the purposes and effects thereof;
(b) to assure the performance by Reorganized Minorplanet of its
obligations to make Distributions under the Plan and with respect to the New
Common Stock to be issued;
(c) to issue injunctions, enter and implement other orders and take
such other actions as may be necessary or appropriate to execute, interpret,
implement, consummate, or enforce the terms and conditions of the Plan and the
transactions contemplated thereunder, the Plan Documents, the Confirmation
Order, or any other order of the Bankruptcy Court, or to maintain the integrity
of the Plan following confirmation;
(d) to hear and determine disputes arising in connection with the
execution, interpretation, implementation, consummation, or enforcement of the
Plan, the Plan Documents, the Confirmation Order, any transactions or payments
contemplated hereby, or any agreement, instrument or other document governing or
relating to any of the foregoing;
(e) to construe and apply any findings of fact and/or conclusions of
law made in the Confirmation Order;
(f) to adjudicate matters arising in the Cases, including matters
relating to the formulation and consummation of this Plan;
(g) to enter any orders, including injunctions, as are necessary to
enforce the title, rights, and powers of Reorganized Minorplanet and to impose
any limitations, restrictions, terms and conditions on the title, rights, and
powers as the Bankruptcy Court may deem necessary;
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 28 OF 33
(h) to hear and determine any dispute involving or affecting the
validity and enforceability of the discharges, releases, injunctions, and
exculpatory relief referred to in Article 10 of the Plan;
(i) to enter a final decree closing the Cases;
(j) to correct any defect, cure any omission, or reconcile any
inconsistency in the Plan or the Confirmation Order as may be necessary to carry
out the purposes and intent of the Plan;
(k) to enter, implement or enforce such orders as may be appropriate in
the event the Confirmation Order is for any reason stayed, reversed, revoked,
modified, or vacated;
(l) to hear and allow applications for fees and expenses pursuant to
sections 330, 331, 503(b), 1103 and 1129(a)(4) of the Bankruptcy Code;
(m) to decide issues concerning federal tax reporting and withholding
that arise in connection with the confirmation or consummation of the Plan;
(n) to decide issues concerning state, local and federal taxes in
accordance with sections 346, 505 and 1146 of the Bankruptcy Code;
(o) to decide issues concerning all disputes involving the existence,
nature or scope of the Debtors' discharge;
(p) to adjudicate any issues concerning assumption or rejection of
Contracts, including any disputes concerning Rejection Damage Claims or Cure
Claims;
(q) to hear and determine any and all objections to any Claims,
including Administrative Claims, or Interests, including the allowance,
classification, priority, secured status, compromise, estimation, or payment
thereof;
(r) to hear and determine any litigation or causes of action belonging
to the Debtors; and
(s) to hear and to determine any other matter related hereto and not
inconsistent with the Bankruptcy Code and title 28 of the United States Code.
ARTICLE XVIII
GENERAL NOTICES AND DEFAULT UNDER THIS PLAN
18.01. GENERAL NOTICES
All notices required to be given in connection with this Plan should be
delivered by United States certified mail, postage prepaid, return receipt
requested addressed to each Debtor to receive the notice, and to Reorganized
Minorplanet, at the following address:
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 29 OF 33
Mr. J. Raymond Bilbao
Senior Vice President, General Counsel & Secretary
Minorplanet Systems USA, Inc.
1155 Kas Drive, Suite 100
Richardson, TX 75081
and to counsel for the Debtors at the following address:
Patrick J. Neligan, Jr.
Neligan Tarpley Andrews & Foley LLP
1700 Pacific Avenue, Suite 2600
Dallas, TX 75201
and to counsel for the Creditors' Committee at the following address:
Jack R. Bird
Bergman & Bird LLP
4514 Travis Street
Suite 300
Dallas, TX 75205
and to the United States Trustee at the following address:
William Parkinson
Office of the United States Trustee
1100 Commerce Street
9th Floor
Dallas, TX 75242
18.02. ASSERTING AND CURING DEFAULT UNDER THE PLAN
If the Debtors or Reorganized Minorplanet default under the provisions
of the Plan (as opposed to default under the documentation executed in
implementing the terms of the Plan, which documents may provide independent
bases for relief concerning the assertion and cure of defaults), any creditor or
party in interest desiring to assert a default will provide the Debtors and
Reorganized Minorplanet with written notice of the alleged default. The Debtors
or Reorganized Minorplanet will have thirty (30) days from receipt of written
notice to cure the alleged default. If the default is not cured, any creditor or
party in interest may then file with the Bankruptcy Court and serve on counsel
for the Debtors, Reorganized Minorplanet, and the Creditors' Committee a motion
to compel compliance with the applicable provision of this Plan. The Bankruptcy
Court, on finding a material default, will issue orders compelling compliance
with the pertinent provisions of the Plan.
18.03. TERMINATION OF CREDITORS' COMMITTEE'S DUTIES
The duties of the Creditors' Committee will terminate on the Effective
Date except with respect to any appeal of an order in the Cases, the preparation
and prosecution of fee
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 30 OF 33
applications, and any matters related to any proposed post-confirmation
modification of this Plan.
18.04. COMPLIANCE WITH TAX REQUIREMENTS
In connection with this Plan, the Debtors will comply with any
withholding and reporting requirements imposed by federal, state, and local
taxing authorities, and Distributions will be subject to the withholding and
reporting requirements.
18.05. MODIFICATION OR REVOCATION OF THIS PLAN
The Debtors reserve the right to modify the Plan either before or after
Confirmation to the fullest extent permitted under section 1127 of the
Bankruptcy Code and Bankruptcy Rule 3019, including but not limited to
modifications necessary to negotiate the resolution of an objection to
Confirmation of this Plan. The Debtors may withdraw the Plan at any time before
the Confirmation Date, or thereafter prior to the Effective Date. This Plan may
be amended by the Debtors before or after the Effective Date as provided in
section 1127 of the Bankruptcy Code.
18.06. REVOCATION OF THIS PLAN
The Debtors reserve the right to revoke and withdraw this Plan at any
time before the Confirmation Date.
18.07. EFFECT OF WITHDRAWAL OR REVOCATION
If the Debtors revoke or withdraw this Plan before the Confirmation
Date, or if the Confirmation Date or the Effective Date does not occur, then
this Plan will be null and void. In such event, nothing contained in this Plan
will be deemed to constitute a waiver or release of any Claims by or against the
Debtors or any other Person, or to prejudice in any manner the rights of Debtors
or any Person in any further proceedings involving Debtors.
18.08. DUE AUTHORIZATION
Each and every Holder of an Allowed Claim or Allowed Interest who
elects to participate in the Distributions provided for in this Plan warrants
that it is authorized to accept in consideration of such Claim or Interest the
Distributions provided for in this Plan and that there are no outstanding
commitments, agreements, or understandings, express or implied, that may or can
in any way defeat or modify the rights conveyed or obligations undertaken by it
under this Plan.
18.09. IMPLEMENTATION
The Debtors and Reorganized Minorplanet will be authorized to take all
necessary steps, and perform all necessary acts, to consummate the terms and
conditions of this Plan.
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 31 OF 33
18.10. RATIFICATION
The Confirmation Order will ratify all transactions effected by the
Debtors during the pendency of the Cases.
18.11. TERM OF INJUNCTIONS OR STAYS
Unless otherwise provided herein or in the Confirmation Order, all
injunctions or stays provided for in the Cases under sections 105 or 362 of the
Bankruptcy Code or otherwise, and extant on the Confirmation Date (excluding any
injunctions or stays contained in this Plan or the Confirmation Order), will
remain in full force and effect until the Effective Date.
18.12. INTEGRATION CLAUSE
This Plan is a complete, whole, and integrated statement of the binding
agreement between the Debtors, their creditors, their Interest Holders and other
parties in interest upon the matters herein. Parol evidence shall not be
admissible in an action regarding this Plan or any of its provisions.
18.13. INTERPRETATION
Unless otherwise specified, all section, article and exhibit references
in the Plan are to the respective section in, article of or exhibit to the Plan,
as the same may be amended, waived, or modified from time to time. The headings
of the articles, paragraphs and sections of the Plan and table of contents in
the Plan are inserted for convenience of reference only and shall not limit or
otherwise affect the provisions of the Plan or its interpretation.
18.14. SEVERABILITY OF PLAN PROVISIONS
If any term or provision of this Plan is held by the Bankruptcy Court
to be invalid, void, or unenforceable before the Confirmation Date, the
Bankruptcy Court, at the request of the Debtors, will have the power to alter
and interpret the term or provision to make it valid or enforceable to the
maximum extent practicable, consistent with the original purpose of the term or
provision held to be invalid, void, or unenforceable, and the term or provision
will then be applicable as altered or interpreted. Notwithstanding any such
holding, alteration, or interpretation, the remainder of the terms and
provisions of this Plan will remain in full force and effect and will in no way
be affected, impaired, or invalidated by the holding, alteration, or
interpretation. The Confirmation Order will constitute a judicial determination
and will provide that each term and provision of this Plan, as it may have been
altered or interpreted in accordance with the foregoing, is valid and
enforceable pursuant to its terms.
18.15. GOVERNING LAW
Unless a rule of law or procedure is supplied by federal law (including
the Bankruptcy Code and the Bankruptcy Rules), the laws of (i) the State of
Texas shall govern the construction and implementation of the Plan and any
agreements, documents, and instruments executed in
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 32 OF 33
connection with the Plan and (ii) the laws of the state of incorporation of each
Debtor shall govern corporate governance matters and any causes of action
arising under state law with respect to such Debtor, in either case without
giving effect to the principles of conflicts of law thereto.
DATED: April 26, 2004
Minorplanet Systems USA, Inc.
Caren (292) Limited
Minorplanet Systems USA Limited
By: /s/ Dennis R. Casey
--------------------------------
Dennis R. Casey
President and Chief
Executive Officer
1155 Kas Drive, Suite 100
Richardson, TX 75081
NELIGAN TARPLEY ANDREWS &
FOLEY LLP
By: /s/ Patrick J. Neligan
--------------------------------
Patrick J. Neligan
State Bar No. 14866000
David Ellerbe
State Bar No. 06530600
dellerbe@neliganlaw.com
Omar J. Alaniz
State Bar No. 24040402
1700 Pacific Avenue, Suite 2600
Dallas, Texas 75201
DEBTORS' JOINT PLAN OF REORGANIZATION PAGE 33 OF 33