Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLORADO
IN RE: )
)
ATLAS CORPORATION, ) Case No. 98-23331 DEC
a Delaware corporation ) Chapter 11
EIN #: 15-5503312)
)
ATLAS GOLD MINING INC., a Nevada Corp. ) Case No. 99-10889 DEC
EIN #:84-1023843) Chapter 11
)
ATLAS PRECIOUS METALS INC., a Nevada ) Case No. 99-10890 SBB
Corp., EIN #: 87-0400332) Chapter 11
)
Debtors. ) (Jointly Administered Under
) Case No. 98-23331 DEC)
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ATLAS CORPORATION'S SECOND AMENDED PLAN OF REORGANIZATION
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Atlas Corporation, Debtor in Possession, by and through its counsel Sender
& Wasserman, P.C., proposes this Amended Plan of Reorganization pursuant to 11
U.S.C. (S) 1121(a) (hereinafter referred to as the "Atlas Plan"):
ARTICLE I
DEFINITIONS
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All capitalized terms used herein shall have the respective meanings set
forth below or as otherwise assigned in the Plan. All other terms shall have
the meanings assigned to such terms in the Bankruptcy Code or the Bankruptcy
Rules, or if none, by common usage.
1.1 "ACSTAR" shall mean ACSTAR Insurance Company. ACSTAR has issued bonds
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to secure the Moab Cleanup Obligation and the Other Cleanup Obligations of Atlas
and certain of its subsidiaries.
1.2 "ACSTAR Bonds" shall mean Bond #6149 for the Carter Raymond Property,
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Bond #6039, #6876 and Bond #6907 for the Grassy Mountain property, Bonds #5659,
#5660 and #5661 for the Gold Bar property, and any other bonds issued by ACSTAR
for the benefit of Atlas, AGMI or APMI, except those bonds defined as the ACSTAR
Moab Bonds, having a collective face amount of $1,790,000 and $5,675,000 (less
approximately $189,000) held in an escrow account for the benefit of ACSTAR with
Colorado State Bank as the escrow agent (the "Escrow Fund"). The
security for the ACSTAR Bonds and the ACSTAR Moab Bond are cross-collateralized
and represent joint and several obligations of Atlas, APMI and AGMI.
1.3 "ACSTAR Moab Bond" shall mean Bond #5652 for the Moab Utah Site
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Cleanup Obligations in the face amount of $6,500,000 and secured by the Escrow
Fund. The security for the ACSTAR Bonds and the ACSTAR Moab Bond is the same and
are cross-collateralized and constitute joint and several obligations of Atlas,
APMI and AGMI.
1.4 "Administrative Expense" shall mean any cost or expense of
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administration of Chapter 11 allowed under 11 U.S.C. (S) 503(b) of the Code.
1.5 "Affiliate" shall mean any entity affiliated with Atlas pursuant to 11
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U.S.C. (S) 101(2).
1.6 "AGMI" shall mean Atlas Gold Mining Inc., a Nevada corporation, the
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Chapter 11 Debtor under Case No. 99-10889 DEC.
1.7 "AGMI Plan" shall mean the Plan of Reorganization, as amended
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submitted by the Debtor, Atlas Gold Mining Inc.
1.8 "Allowed Claim" shall mean (a) an unsecured claim against Atlas which
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is set forth in Atlas' schedules other than an unsecured claim against Atlas
scheduled by Atlas as disputed, contingent or unliquidated; (b) an unsecured
claim against Atlas which has been filed pursuant to 11 U.S.C. (S) 501, and with
respect to which no objection to the allowance thereof has been interposed
within sixty (60) days after the Effective Date, or as to which any objection
has been determined by Final Order; provided however, that interest which would
have accrued on or after September 22, 1998, shall not be a part of any Allowed
Claim. Allowed Claims may include, but are not limited to, claims that arise
from the rejection of executory contracts.
1.9 "Allowed Secured Claim" shall mean an Allowed Claim secured by
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property of Atlas.
1.10 "American Reclamation and Dismantling Receivable" or "ARD Claim" shall
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mean a claimed receivable of Atlas, for reimbursement of $560,000 filed with the
Department of Energy and not approved to date, representing 56% of the amount
expended by Atlas and reimbursable pursuant to Title X of Pub. L. 102-486, Title
X, (S) 1001, Oct. 24, 1992, 106 Stat. 2946, codified at 42 U.S.C. (S) 2296(a).
1.11 "APMI" shall mean Atlas Precious Metals Inc., a Nevada corporation,
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the Chapter 11 Debtor under Case No. 99-10890 SBB.
1.12 "APMI Plan" shall mean the Plan of Reorganization, as amended
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submitted by the Debtor, Atlas Precious Metals Inc.
1.13 "Arisur" shall mean Arisur Inc., a Grand Cayman corporation which is
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a wholly owned subsidiary of Atlas, and which operates lead, zinc and silver
mines in Bolivia.
1.14 "Atlas" shall mean Atlas Corporation, a Delaware corporation, the
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Chapter 11 Debtor under Case No. 98-23331 DEC.
1.15 "Atlas Plan" shall mean this Plan of Reorganization, as amended,
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submitted by the Debtor, Atlas.
1.16 "Bankruptcy Case" shall mean the Atlas Chapter 11 case pending in the
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United States Bankruptcy Court for the District of Colorado.
1.17 "Bankruptcy Code" or "Code" shall mean Title II of the Bankruptcy
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Reform Act of 1978, 11 U.S.C. (S)(S) 101, et seq., as amended.
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1.18 "Bar Date" shall mean January 15, 1999.
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1.19 "CGL Claims" shall mean any and all rights held by Atlas for recovery
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from or on account of any comprehensive general liability insurance policies.
1.20 "Chapter 11" shall mean Chapter 11 of the Code.
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1.21 "Claim" shall mean a claim against Atlas as defined in 11 U.S.C. (S)
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101(5).
1.22 "Confirmation" shall mean the entry by the Court of an order
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confirming the Plan in accordance with Chapter 11 of the Code.
1.23 "Contested Claim" shall mean shall mean any Claim which has been
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scheduled by Atlas as disputed, contingent, or unliquidated or any Claim as to
which an objection to the allowance thereof has been or will be filed within
sixty (60) days after the Effective Date regardless of whether the Claim was
scheduled as disputed, contingent or unliquidated by the Debtor. Contested
Claims shall be treated under the provisions of Article X of this Plan until
allowance or disallowance of such claim has been determined by a Final Order.
Contested claims include claims which Atlas believes should be objected to in
whole or in part. Contested claims further include any claims held by
creditors against whom Atlas believes actions may be brought under Sections 544,
547, 548 or 549 of the Bankruptcy Code.
1.24 "Court" shall mean the United States District Court for the District
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of Colorado in Bankruptcy.
1.25 "Creditors Committee" shall mean the Official Unsecured Creditors
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Committee appointed by the United States Trustee.
1.26 "Gerald E. Davis" or "Davis" shall mean the former officer and
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director of Atlas, and former officer of AGMI and APMI who was the defendant in
Adversary Case No. 99-1122 MSK
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captioned Atlas Corporation, Atlas Gold Mining Inc., and Atlas Precious Metals,
Inc. v. Gerald E. Davis.
1.27 "Davis Collateral" shall mean that property described below in which
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a security interest was granted in a portion of the Gold Bar property, under the
Settlement Agreement between the Atlas Parties and Davis dated July 9, 1999
approved by Order of the Bankruptcy Court on August 24, 1999:
Section 27, T22 N-R 49 E. MDM, situated in the Roberts Mountain
Mining District, Eureka County, Nevada,
Patented Millsite Claims Mineral Survey # Patent # Acres
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AM 108 5005 27-89-0038 5.0
AM 109 5005 27-89-0038 5.0
AM 115 5005 27-89-0038 5.0
AM 116 5005 27-89-0038 5.0
AM 117 5005 27-89-0038 5.0
together with all of the equipment, books and records related to the above
described property. The property subject to said security interests shall
include the Mill Building, Mill equipment, and other fixtures in the Mill
Building, including the attached refinery located on the patented Millsite
claims described above.
1.28 "Debtor" and "Debtor-in-Possession" shall mean Atlas.
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1.29 "Disclosure Statement" shall mean the joint disclosure statement
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describing the Atlas Plan, the AGMI Plan and the APMI Plan, approved by the
Court, and distributed to the various classes as provided in 11 U.S.C. (S) 1125.
1.30 "Effective Date" shall mean the first business day following thirty
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(30) days after the date the order confirming the Atlas Plan becomes a Final
Order.
1.31 "Escrow Fund" shall mean the $5,675,000 (less approximately $189,000)
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held in an escrow account for the benefit of ACSTAR with Colorado State Bank as
the escrow agent.
1.32 "Final Order" shall mean an order or a judgment as to which the time
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to appeal or seek review or rehearing has expired. In the event that an appeal
or petition for rehearing is filed, an order or judgment shall be final unless
an order enters granting a stay pending appeal or petition for rehearing.
1.33 "Future Title X Receivables" shall mean those sums which accrue in
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the name of Atlas or the Reclamation Trust, subsequent to the Effective Date of
the Atlas Plan from the Department of Energy under the provisions of 42 U.S.C.
2296a.
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1.34 "Gold Bar property" shall mean the gold resource, mill facilities and
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any other real and personal property located on the gold mining property located
in Eureka County, Nevada commonly referred to as Gold Bar, owned by AGMI and
APMI.
1.35 "Grassy Mountain property" shall mean the gold mining project is
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located in northern Malheur County, Oregon, approximately 22 miles southwest of
Vale, Oregon, owned by APMI, commonly referred to as Grassy Mountain
1.36 "Insider" means any entity defined in 11 U.S.C. (S) 101(31)(B).
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1.37 "Interim Reclamation Trustee" shall mean the person or entity
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selected by the NRC to serve as trustee of the Reclamation Trust for a period
not to exceed 180 days after the Effective Date in the event that the NRC and
Utah cannot agree on the choice of the Reclamation Trustee.
1.38 "Late Filed Claims" shall mean any claim filed in the Atlas
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Bankruptcy Case after January 15, 1999.
1.39 "Management Compensation Plan" shall mean the compensation plan
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formed in accordance with Article XI of this Plan to compensate current key
management and employees for their efforts in reorganizing Atlas and to
facilitate the orderly transition to future management, as may be required.
1.40 "Mill" shall mean the former uranium processing mill which was
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dismantled and previously located on the Moab Land.
1.41 "Mill Operations" shall mean the prior operations of the Mill.
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1.42 "Moab Cleanup Obligation" shall mean any obligation of Atlas under
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the Moab License or under any federal, state or municipal rules, regulations or
statutes to pay for or perform any remediation or cleanup at the Moab Utah Site
or any other location which is currently or in the past been operated or owned
by Atlas.
1.43 "Moab Land" and "Moab Utah Site" shall mean that certain real
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property owned by Atlas and consisting of approximately 430 acres, located in
Grand County, Utah together with all buildings, structures, improvements,
appurtenances, fixtures and easements.
1.44 "Moab License" shall mean Source Material License SUA-917.
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1.45 "Moab Uranium Millsite Transfer Agreement" or "MUMTA" shall mean that
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certain Agreement negotiated between Atlas, the Creditors Committee, the NRC,
the State of Utah and ACSTAR approved by Order of the Bankruptcy Court dated
June 22, 1999.
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1.46 "Modified License Transfer Order" shall mean that Order entered by
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the NRC providing for the transfer of the assets of the Moab Utah Site under the
terms of this Plan and the Moab Uranium Millsite Transfer Agreement.
1.47 "NRC" shall mean the Nuclear Regulatory Commission, an agency of the
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federal government having jurisdiction over the Moab Utah Site.
1.48 "Other Cleanup Obligations" shall mean any obligation of Atlas, APMI
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or AGMI under any federal, state or municipal rules, regulations or statutes to
pay for or perform any remediation or cleanup at any location other than the
Moab Utah Site which is currently or in the past been owned or operated,
including, but not limited to, the Carter Raymond, Gold Bar and Grassy Mountain
properties.
1.49 "Post-petition" shall mean anytime on or subsequent to September 22,
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1998.
1.50 "Pre-petition" shall mean anytime prior to September 22, 1998.
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1.51 "Pro Rata" shall mean with respect to any claimant, the percentage
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which the Allowed Claim of a creditor bears to the sum of all Allowed Claims in
the same class as such Allowed Claim.
1.52 "Reclamation Trust" shall mean the trust to be formed pursuant to
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paragraph 4.3 of the Atlas Plan under the guidelines and regulations of the NRC
in compliance with the consent and approval of the NRC.
1.53 "Reclamation Trustee" shall mean the person or entity selected by the
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NRC with the agreement of the designated representative of Utah, on or before
the Effective Date.
1.54 "Reorganized Atlas" shall mean the reorganized Atlas under the
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confirmed Atlas Plan.
1.55 "Retiree Medical Plan" shall mean that medical plan issued for the
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benefit of retirees of Atlas.
1.56 "Shipes Parties" shall mean Harold R. Shipes, Eileen Shipes, Danielle
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N. Shipes, John A. McKinney, Lynette R. McKinney, Raymond S. Birch, Rochelle M.
Birch, Herbert E. Dunham, Ana M. Dunham, Alexandra McKinney, Justin S. Birch,
Ashley McKinney, Tyler Birch, H. Edward Dunham, P. Brian Dunham, Rachel A.
Dunham, Elizabeth M. Dunham, Suramco Holdings, Inc. who have agreed to treatment
as Class 10 and Class 12 creditors under the terms of the Settlement Agreement
dated January, 1999, approved by the Bankruptcy Court, which closed on or about
March 25, 1999.
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1.57 "Stock Incentive Plan" shall mean that plan which may be established
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in accordance with Article XI of this Atlas Plan as a future incentive to future
management pursuant to which management may receive stock or earn stock as a
performance bonus.
1.58 "Title X Receivables for Past Claims" shall mean the sum of $552,000
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which accrued to Atlas prior to the Effective Date of the Plan from the
Department of Energy under the provisions of Pub. L. 102-486, Title X, (S) 1001,
Oct. 24, 1992, 106 Stat. 2946, codified at 42 U.S.C. (S) 2296(a), including pre-
petition and post petition claims, exclusive of the American Reclamation and
Dismantling Receivable.
1.59 "Uranium Tailings Pile" shall mean the tailings pile of approximately
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10.5 million tons impounded on the Moab Land.
1.60 "Utah" shall mean the State of Utah.
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1.61 "Water Rights" shall mean Atlas' rights to water located at the Moab
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Land, listed as 6.3 cfs from the Colorado River, Grand County, Utah, Water Right
No. 01-40, Application 30032, Certificate No. 6111 and possible water rights in
the following: (a) Water Right Number 01-1121 for 31 acre-feet, a segregation
application from Water Right Number 01-40; (b) Water Right Number 09-199 for
3.33 cfs in the San Juan River; (c) Water Right Number 05-982 for .015 cfs for a
well in the Monticello Mining District; and (d) Water Right Number 99-32 for
.004 cfs from Seep Springs (approx. 4 miles from Fry Canyon).
ARTICLE II
2.1 Claims.
Class 1. Allowed Administrative Expense Claims as defined in 11
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U.S.C. (S) 503 of the Code against Atlas. To the extent the Class 4 and/or 5
creditors have or could have asserted administrative expense claims they shall
be treated under Class 4 or 5 respectively of the Atlas Plan. All fees payable
to the U.S. Trustee shall be paid in full as they become due.
Class 2. Unsecured Impaired Claims for Wages against Atlas to the
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extent of $4,300 pursuant to 11 U.S.C. (S) 507(a)(3)(A) and (B). Class 2 Wage
Claims shall include claims for unpaid wages, including severance pay or
vacation pay earned but unpaid within ninety (90) days prior to the filing of
the petition.
Class 3. Any allowed unsecured and/or secured priority tax claims of
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the Internal Revenue Service, Colorado Department of Revenue and any taxing
authority holding claims under 11 U.S.C. (S)507(a)(8) against Atlas.
Class 4. Impaired claims of NRC and Utah arising from the Mill
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Operations and the Cleanup Obligations of Atlas at the Moab Utah Site.
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Class 5 a. Secured Claims of ACSTAR.
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Class 5 b. Unsecured and Administrative Claims of ACSTAR.
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Class 6. Allowed Secured Claims against Atlas.
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Class 7. Unimpaired Claims of Retirees against Atlas for Medical
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Benefits.
Class 8. Unimpaired Claims of Holders of Unexpired Leases and
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Executory Contracts against Atlas.
Class 9. Impaired Personal Injury or Tort Claims against Atlas.
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Class 10. Impaired Claims of General Unsecured Creditors of Atlas.
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Class 11. Impaired Claims held by AGMI.
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Class 12. Impaired Claims of Subordinated Debt.
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Class 13 Impaired Claims Held by Gerald E. Davis pursuant to the
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terms of the Settlement Agreement dated July 9, 1999.
Class 14. Impaired Claims held by the Internal Revenue Service,
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Colorado Department of Revenue and any other taxing authority for penalties not
related to actual pecuniary loss.
Class 15. Impaired interests of Atlas common stockholders holding
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less than 1,000 shares.
Class 16. Impaired interests of Atlas common stockholders holding at
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least 1,000 shares or more.
Class 17. Impaired interests of any holders of Warrants and Stock
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Options issued by Atlas Pre-Petition.
Class 18. Late filed claims.
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ARTICLE III
TREATMENT OF CLAIMS NOT IMPAIRED UNDER THE PLAN
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3.1 Class 1. Allowed Administrative Expenses pursuant to 11 U.S.C.
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(S)503. Class 1 Allowed Administrative Expenses as defined by 11 U.S.C. (S)503
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shall be paid in cash in full on the Effective Date or shall by paid upon such
other terms as may be agreed upon by Atlas and the respective holder of the
claim for Administrative Expenses. All fees payable to the U.S. Trustee program
shall be paid as they become due. Notwithstanding an assertion by the Class 4
or Class 5 claimants that their claims are entitled to priority under Section
503(b) of the Bankruptcy Code, the Class 4 and 5 claims shall be treated under
Class 4 and 5 respectively of this Plan and not as Class 1 Administrative
Expenses.
3.2 Class 6. Allowed Secured Claims. Class 6 is comprised of the Allowed
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Secured Claims against Atlas except for the claims of the Class 4 and 5
creditors. The Class 6 claimants and Debtor shall retain all rights, without
modification, under the notes and related security agreements. The Class 6
creditors rights are unimpaired and shall be paid by Reorganized Atlas in full
in accordance with the terms of their respective agreements.
In the event that Atlas contests the extent, validity or priority of any
security interest asserted by a Class 6 creditor through the filing of an
adversary proceeding or seeks to void any security interest under 11 U.S.C.
(S)(S)544, 547, 548 or 549, the claim of that creditor shall be treated in
accordance with the provisions of Article X of the Atlas Plan. In the event that
a Final Order enters in favor of the claimant upholding the validity of the
secured claim, the claim shall be unimpaired to the extent allowed. If a Final
Order enters holding that there is no valid security interest or voiding a
security interest, the claim shall be treated as a Class 10 unsecured claim,
unless otherwise ordered by the Court.
3.3 Class 7. Allowed Claims of Retirees for Medical Benefits. Class 7 is
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comprised of the allowed claims of Retirees for Medical Benefits as that term is
defined in 11 U.S.C. (S)1114. Atlas or Reorganized Atlas shall fulfill its
obligations under the Retiree Medical Plan in compliance with the provisions of
11 U.S.C. (S)1114. The Class 7 claims are unimpaired.
3.4 Class 8. Executory Contracts and Unexpired Leases. Class 8 is
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comprised of the claims held by parties to unexpired leases or executory
contracts. Atlas, prior to the hearing on confirmation, shall file motions to
assume or reject its unexpired leases and executory contracts subject to the
provisions of 11 U.S.C. (S)365 and notice under Fed. R. Bankr. P. 2002 and 6006.
If Atlas moves to assume the unexpired leases and executory contracts, the
claims shall be treated in accordance with the order of the Court granting the
assumption. Any unexpired leases or executory contracts for which a Motion to
Assume has not been filed by Atlas prior to the hearing on confirmation shall be
deemed rejected. Under the terms of the lease agreements, in the event that a
lease is rejected, the equipment or property will be returned to the lessor,
unless Atlas and the lessor otherwise agree. Any Class 8 claimant asserting a
claim for damages arising from rejection of a lease shall file a proof of claim
with the Bankruptcy Court by the later of the Effective Date or thirty days
after entry of the Order granting the Motion to Reject or the claim shall be
forever barred. The claims held by holders of rejected leases or executory
contracts shall be treated as a Class 10 unsecured claim subject to the
limitations of Section 502 of the Code.
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ARTICLE IV
TREATMENT OF CLAIMS IMPAIRED UNDER THE PLAN
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4.1 Class 2. Unsecured Impaired Claims for Wages to the extent of $4,300
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pursuant to 11 U.S.C. (S) 507(a)(3)(A) and (B). Class 2 Wage Claims shall
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include claims for unpaid wages, including severance pay or vacation pay earned
but unpaid within ninety (90) days prior to the filing of the petition.
Claimants with allowed wage claims shall receive 100% of the wage portion of
their claims without interest up to a maximum of $4,300.00 per claimant on the
Effective Date. Any allowed wage claims in excess of $4,300 or which were
incurred prior to ninety days before the filing of the petition shall be treated
as a Class 10 unsecured claim.
4.2 Class 3. Allowed Unsecured Tax Claims pursuant to 11 U.S.C. (S)
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507(a)(8). Class 3 is comprised of Allowed Unsecured Tax Claims under U.S.C.
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(S)507(a)(8) excluding claims for penalties not related to actual pecuniary
loss. The Class 3 claimants shall receive 100% of their secured and unsecured
priority claims in quarterly installments with interest at 8% per annum. The
Class 3 claims shall be paid in full within six years from the date of
assessment. Claims for penalties not related to actual pecuniary loss shall be
treated under Class 14. Payments to the Class 3 claimants shall commence within
fifteen days after the close of the first calendar quarter ending after the
Effective Date of the Atlas Plan. The Class 3 claimants shall retain their
prepetition liens, if any, on property of the Reorganized Atlas pending payment
in full of the Class 3 claims.
4.3 Class 4. Allowed Claims of the Nuclear Regulatory Commission and the
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State of Utah for Reclamation of the Moab Utah Site. Class 4 is comprised of
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any and all claims of any kind or nature, whether filed, unfiled or to be
accrued, known or unknown based upon any and all federal, state, municipal or
other governmental units rules, regulations or statutes whether now in existence
or enacted in the future of the NRC and Utah, or any other agency or entity,
whether public or private, with the same or similar claims for the construction,
maintenance, holding, transfer and/or final disposal and containment of the
Uranium Tailings Pile at the Moab Utah Millsite owned by Atlas on the Moab Land,
or in any way related to the Mill, the Mill Operations or the Moab Cleanup
Obligations, subject to a reduced amount under MUMTA. Atlas' Moab Cleanup
Obligations are secured by the ACSTAR Moab Bond in the amount of $6,500,000.
A Reclamation Trust shall be established by the NRC, on or before
confirmation of the Atlas Plan under the regulations of the NRC, with the
concurrence of Atlas and a designated representative of Utah. The Reclamation
Trustee shall be selected by the NRC with the agreement of the designated
representative of Utah. If NRC and Utah cannot reach agreement on the terms of
the Trust or on the choice of the Trustee:
(A) The Trust shall nonetheless be established, and the trust instrument
establishing the Trust shall reflect all of those matters on which NRC
and Utah can reach agreement; and
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(B) An Interim Trustee, selected by NRC, shall be appointed for a period
not to exceed 180 days after the Effective Date; and
(C) NRC and Utah shall continue to negotiate on those areas on which they
cannot reach agreement; and
(D) Once NRC and Utah reach agreement on matters on which they cannot
presently agree, the trust instrument establishing the Trust shall be
amended to reflect those subsequent agreements; and
(E) Atlas shall transfer the monies and assets to the Trust on or before
the Effective Date as are called for under this Plan and the Moab
Uranium Millsite Transfer Agreement, notwithstanding the possibility
that the trust instrument establishing the Trust may be amended after
the date of the Moab Uranium Millsite Transfer Agreement, after the
date of the disclosure statement, or after the Effective Date; and
The assets transferred to the Trust under the terms of the Plan shall be
held in compliance with the regulations and requirements of NRC as stipulated in
a Modified License Transfer Order and shall be distributed or utilized in
accordance with the regulations, Modified License Transfer Order requirements,
and requirements of the NRC as stipulated in a Modified License Transfer Order
and relevant Trust documents according to the authority of the Reclamation
Trustee.
On the Effective Date of the Atlas Plan, Atlas and ACSTAR as indicated
shall transfer to the Reclamation Trust the following assets (hereinafter the
"Reclamation Trust Assets") in full satisfaction of any and all claims of any
kind and nature, under Class 4:
1. Title X Receivables for past claims; less the $552,000 which was
received by Atlas from the Department of Energy in 1999;
2. 50% of any net recovery from collection of the disputed Title X claim
for mill dismantling performed by American Reclamation and Dismantling Inc.
(ARD Claim);
3. Any and all rights of Atlas to Future Title X Receivables;
4. Atlas' Water Rights located at the Moab Land, listed as 6.3 cfs from
the Colorado River, Grand County; Utah, Water Right No. 01-40, Application
30032, Certificate No. 60111;
5. Atlas' Possible Water Rights in the following: (A.) Water Right
Number 01-1121 for 31 acre-feet, a segregation application from Water Right
Number 01-40; (B.) Water Right Number 09-199 for 3.33 cfs in the San Juan
River; (C.) Water Right Number 05-982
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for .015 cfs for a well in the Monticello Mining District; (D.) Water Right
Number 99-32 for .004 cfs from Seep Springs (approx. 4 miles from Fry
Canyon).
6. Atlas' interest in the Moab Land together with all buildings,
structures, improvements, appurtenances fixtures and easements;
7. ACSTAR shall transfer the sum of $5,250,000 to the Reclamation Trust
in full and complete satisfaction of the obligations under the ACSTAR Moab
Bond and upon receipt of said payment, NRC shall provide to ACSTAR a full,
final and complete discharge of all of ACSTAR's obligations at the Moab
Utah Site and ACSTAR's surety bond issued in connection therewith; the form
of said release to be mutually acceptable to NRC and ACSTAR;
8. Shares representing two and one half percent (2.5%) of the common
stock of the Reorganized Atlas shall be issued to the Reclamation Trust.
Except for item 7, all assets shall be transferred in kind, by way of quit
claim deed or similar document, without representations, warranties or
indemnification rights of any kind.
The Class 4 claims shall be satisfied in full by the transfer of the
Reclamation Trust Assets. NRC and the State of Utah shall waive and release any
and all claims against Atlas, the Reorganized Atlas, ACSTAR and their respective
officers, directors, employees, agents and representatives which shall be
represented by a separate release signed by the NRC and Utah. Upon transfer of
the Reclamation Trust Assets to the Reclamation Trust, the Reclamation Trust
shall assume the obligations of Atlas for the Moab Utah Site and the Moab
License, in accordance with the terms of an Order Modifying and Transferring
Licence to be issued by the NRC, on or before the confirmation of the Atlas
Plan. The Moab License issued to Atlas by the NRC relative to the Mill and Mill
Operations shall either be terminated or transferred to the Reclamation Trust,
in accordance with the terms of the Order Modifying and Transferring Licence.
Atlas' obligations shall be limited to executing any and all documents necessary
to effectuate the terms of the Atlas Plan.
4.4 Class 5a. The Class 5a claims are comprised of the Allowed Secured
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Claims of ACSTAR which were secured by certain letters of credit in the
aggregate amount of $5,425,000 plus the Escrow Fund. The ACSTAR Allowed Secured
Claims are based upon the ACSTAR Bonds and ACSTAR Moab Bond in the aggregate
amount of $8,290,000 to secure Moab Cleanup Obligations and Other Cleanup
Obligations. ACSTAR's secured claims against Atlas, AGMI and APMI are cross
collateralized. ACSTAR has drawn on the letter of credit and entitled to use the
proceeds therefrom in order to pay the Class 4 creditors and to reimburse itself
for the actual amount incurred under the ACSTAR Bonds for Other Cleanup
Obligations and its unpaid fees and expenses. Furthermore, any amount remaining
from the Escrow Fund may be used by ACSTAR for the same purposes. To the extent
any funds remain from the Escrow Fund after satisfaction of the Other Cleanup
Obligations secured by the ACSTAR Bonds and any unpaid fees and expenses ACSTAR
has incurred on said Bonds, such funds shall be remitted to the Reorganized
Atlas. ACSTAR shall
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retain its rights under the escrow agreement. The foregoing treatment shall
constitute satisfaction in full of the Class 5a Allowed Secured Claim.
Class 5b. The Class 5(b) claim is comprised of the unsecured deficiency
--------
claim which ACSTAR has for the Other Cleanup Obligations which it has to pay,
and unpaid fees and expenses in excess of its Class 5(a) Allowed Secured Claim,
which claim shall not exceed $500,000. Any claim by ACSTAR that its claims are
entitled to treatment as a Class 1 Administrative Expense, under any theory, and
any potential claim against ARISUR, shall be waived and released. For purposes
of voting and feasibility the Class 5(b) claim shall be estimated at $500,000.
ACSTAR's unsecured claims against Atlas, AGMI and APMI shall collectively not
exceed $500,000. The claims shall be allocated among the estates based upon
actual damage, with the claim applied first to AGMI, then to APMI and then to
Atlas. The actual amount of the Class 5(b) monetary claim allowed against Atlas
shall be paid as a Class 10 Allowed Unsecured Claim. On the later of Effective
Date of the Atlas Plan or at such time as the Class 5(b) creditors claim is
actually determined, it shall receive in full satisfaction of its claim a
monetary claims equal to the actual amount expended for Other Cleanup
Obligations, plus fees and expenses, not to exceed $500,000, which shall be
treated as a Class 10 unsecured claim and shares representing two and one-half
percent (2.5%) of the outstanding common stock of the Reorganized Atlas;
provided that such stock shall be held by a mutually acceptable escrow agent
pending determination of ACSTAR's responsibility for the Other Cleanup
Obligations. If Bonds #5659, #5660 and #5661 for the Gold Bar property are
terminated without being called and/or there is no unsecured deficiency, the
Allowed Class 5(b) claim shall be $0 and the shares which are being held in
escrow shall be assigned for distribution pursuant to the Management
Compensation Plan established under Section 11.3.
4.5 Class 9. Allowed Personal Injury or Tort Claims. Class 9 is comprised
------- --------------------------------------
of personal injury and tort claims, including any wrongful death claims or
claims resulting from Atlas' operations or based upon the production of or
exposure to asbestos, uranium or any other materials. All timely filed Class 9
claims are being defended by insurance defense counsel. The Allowed Class 9
Claims shall receive the proceeds from insurance coverage, if any, applicable to
the particular claim. Each Allowed Class 9 Claim shall be deemed to have elected
to pursue the insurance coverage, if any, attributable to its Claim, unless they
affirmatively elect otherwise. In the alternative any Allowed Class 9 Claim may
elect at the time of tendering its ballot to be treated as a Class 10 General
Unsecured Claim. Upon receipt of such election, the Debtor will file a claims
estimation proceeding, should such a proceeding be necessary. Barring such
election, each such claim shall be estimated at zero for voting purpose and
shall receive nothing from the Reorganized Atlas. Any late filed claims shall be
barred and shall receive only the proceeds of any applicable insurance coverage.
4.6 Class 10. Allowed Unsecured Claims. Class 10 is comprised of the
-------- ------------------------
Allowed Unsecured Claims against Atlas, including any claims of the Atlas
Corporation 1978 Retirement Plan (the "Pension Plan"), or its successors and
assigns including the Pension Benefit Guaranty Corporation, for any liability
for funding under the Pension Plan. The Allowed Class 10 creditors shall receive
the following:
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(A) All cash held by Atlas sixty days after the Effective Date, net
of the following amounts: (a) up to $800,000 which shall be
retained as working capital; (b) an amount necessary to satisfy
all Class 1 administrative expenses and/or operating expenses
accrued and unpaid as of the Effective Date; and (c) an amount
necessary to satisfy all Class 2 claims. The net cash shall be
distributed on a Pro Rata basis between the Class 10, and 11
creditors, who shall be treated as one class for such purposes.
In the event that the Atlas Plan is confirmed by cramdown,
resulting in a voiding in all of the interests of Class 15 and
Class 16 and a resulting percentage increase in the shares issued
to Class 10, the cash withheld from distribution shall be
increased from $800,000 to $1,000,000;
(B) Seventy-Five percent of any and all net proceeds received by the
Reorganized Atlas, directly or indirectly from APMI and/or AGMI,
from the sale or disposition of the Gold Bar and/or Grassy
Mountain properties;
(C) Ten percent of the first $1,500,000 recovered by Atlas on account
of its CGL claims and fifty percent of all recoveries in excess
of $1,500,000, net of costs of recovery.
(D) Shares representing sixty-seven and one-half percent (67.5%) of
the common stock to be issued by the Reorganized Atlas. The stock
shall be distributed on a Pro Rata basis between the allowed
Class 10, 11 and 12 creditors for purposes of this distribution
to the Class 10, 11 and 12 Creditors who shall be treated as one
class for such purposes.
4.7 Class 11. Claims Held by AGMI. Class 11 is comprised of the
-------- -------------------
claims held by AGMI for an inter-company payable for cash advanced to Atlas. The
allowed claim of AGMI shall first be offset against AGMI's obligations to APMI
which will reduce the accounts receivable owed by APMI to Atlas. To the extent
there is any amount still owed by Atlas to AGMI, the net Allowed Class 11 Claim
shall be treated on a Pro Rata basis with the Class 10 creditors.
4.8 Class 12. Subordinated Debt Claims of the Shipes Parties. Class
-------- ----------------------------------------------
12 is comprised of the subordinated debt claims in the amount of $2,250,000
against Atlas and an Allowed Unsecured Claim of $580,000 held by the Shipes
Parties. The $580,000 claim shall be treated and paid as a Class 10 Claim. The
remaining Class 12 Claim shall not share in any cash distribution until the
Class 10 and 11 Allowed Unsecured Claims have been paid in full. The
subordinated Class 12 Debt Claim, however, shall share in the distribution of
the stock of the Reorganized Atlas as set forth in paragraph 4.6(D) on a Pro
Rata basis with the Class 10 and 11 Creditors.
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4.9 Class 13. Claim of Gerald E. Davis. Class 13 is comprised of the
-------- ------------------------
claims of Gerald E. Davis which arise under the terms of the Settlement
Agreement dated July 9, 1999 between the parties resolving the disputes and
claims between Gerald E. Davis and Atlas raised in the Chapter 11 proceeding and
in Adversary Case No. 99-1122 MSK captioned Atlas Corporation, Atlas Gold
Mining Inc., and Atlas Precious Metals, Inc. v. Gerald E. Davis. The Class 13
claim against Atlas shall be treated as follows:
(A) Atlas shall pay Davis the sum of $5,000 upon the Effective Date.
(B) Davis shall be paid the sum of $60,000 upon the sale of the Davis
Collateral at Gold Bar as a Class 43 claim under the AGMI Plan,
from the proceeds of any sale (if and when that sale occurs )
after satisfaction of the tax claims of Eureka County and any
administrative expenses. Davis shall be granted a security
interest by Atlas AGMI and APMI in the Davis Collateral at Gold
Bar described herein to the extent of $60,000. The security
interest granted to Davis shall be subordinate to the tax claims
of Eureka County and any administrative expenses.
(C) Davis shall be allowed an unsecured claim against Atlas which
shall be treated and paid as a Class 10 claim in the amount of
$120,246.
4.10 Class 14. Claims Held by the Internal Revenue Service, Colorado
-------- -----------------------------------------------------
Department of Revenue and Any Other Taxing Authority for Penalties Not Related
- ------------------------------------------------------------------------------
to Actual Pecuniary Loss. The Class 13 Claims are comprised of any penalty
- ------------------------
claims held by the Internal Revenue Service, the Colorado Department of Revenue
or any other taxing authority which are not related to actual pecuniary loss.
The allowed Class 13 claims shall be treated and paid as Class 10 general
unsecured claims except the Class 13 claims shall not share in any distribution
of stock of the Reorganized Atlas.
4.11 Class 15. Common Stockholders Holding Less than 1,000 Shares. Class
-------- --------------------------------------------------
15 is comprised of the interests of common stockholders holding less than 1,000
shares of Atlas stock on the Effective Date. The interests of all Class 15
interest holders shall be voided unless the shareholder pays the cost of
maintaining the shares of $15 per year per shareholder. If the annual payment is
made the interest holder shall be treated in accordance with Class 16. Any
Class 15 shareholding electing to maintain shares through payment of the $15 per
year shall serve notice upon the Debtor by the deadline set by the Court for
submitting ballots on the Plan. In the event that the Atlas Plan is confirmed by
cramdown, without the acceptance of each class of creditors, the interests of
the Class 15 interest holders shall be voided and the Class 15 interest holders
shall not have the option of retaining their shares by paying the maintenance
fee.
By the Effective Date, Atlas shall serve notice upon those Class 15
Interest Holders who submitted written elections to pay the maintenance fees to
be treated on a pro rata basis with the Class 16 Interest Holders advising them
that the Plan has been confirmed by cramdown or with
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acceptance of each class. The notice to the Class 15 interest holders shall
advise them that their shares shall be voided if Atlas does not receive payment
of the stock maintenance fee within thirty days after the date of the notice and
on an annual basis thereafter.
4.12 Class 16. Common Stockholders Holding 1,000 Shares or More. Class 16
-------- ------------------------------------------------
is comprised of the common stockholders holding 1,000 shares or more of the
common stock of Atlas on the Effective Date. The Class 16 interest holders shall
retain their shares of common stock which shall be diluted such that the shares
which they collectively own shall constitute fifteen percent (15%) of the
outstanding stock of the Reorganized Atlas on the Effective Date. In the event
that the Plan is confirmed by cramdown, the interests of the Class 16
Stockholders shall be voided, and the stock interest shall be held by the
Reorganized Atlas as authorized but unissued shares.
4.13 Class 17. Warrants and Stock Options. Class 17 is comprised of any and
-------- --------------------------
all outstanding warrants of Atlas Corporation and any and all outstanding stock
options. All such warrants and stock options shall be voided as of the Effective
Date.
4.14 Class 18. Late Filed Claims. Class 18 is comprised of all late filed
-------- -----------------
claims against Atlas. The Class 18 claims shall be disallowed and shall receive
no distribution under the Atlas Plan.
ARTICLE V
DEFAULT AND PLAN MODIFICATION
-----------------------------
5.1 In the event of any default by the Reorganized Atlas of any payment to
any class of claimants arising under the terms of the Atlas Plan, the
Reorganized Atlas shall have thirty (30) days within which to cure any default
in payments due under this Plan after the date of issuance of written notice
from any claim holder. Written notice shall be provided to the Reorganized Atlas
and to Debtor's counsel. The notice to Debtor's counsel shall be served upon
Sender & Wasserman, P.C., 1999 Broadway, Suite 2305, Denver, Colorado 80202,
unless written notice of substitution of legal counsel is served upon the claim
holder at least fifteen (15) days prior to the date notice is sent.
5.2 In the event that the Reorganized Atlas fails to cure any default in
the requirements to make payment under the Plan, within forty-five days from the
date that written notice is sent in compliance with paragraph 5.1, the
Reorganized Atlas shall be in default under the terms of the Plan.
5.3 At any time after Confirmation of the Plan but before substantial
consummation of the Plan, the Plan may be modified upon the request of the
Reorganized Atlas, after notice and a hearing, only to the extent allowed by 11
U.S.C. (S) 1127.
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ARTICLE VI
MEANS FOR THE IMPLEMENTATION AND EXECUTION OF THE PLAN
------------------------------------------------------
6.1 On or about the Effective Date, all assets of Atlas shall be
transferred to the Reorganized Atlas free and clear of all liens, claims, and
interests of creditors, equity holders, and other parties in interest, except as
otherwise provided herein with respect to the assets to be transferred to the
Reclamation Trust in payment of the Class 4 Claims. Specifically, the assets
shall be transferred subject to the liens held by the Class 5, 6 and 13 secured
creditors and any Class 2 creditor with perfected liens. The Reorganized Atlas
shall not, except as otherwise provided in this Plan, be liable to repay any
debts which accrued prior to the Confirmation Date. Except as provided in this
Atlas Plan, on the Confirmation Date Atlas shall be granted a discharge under 11
U.S.C. (S) 1141.
6.2 On the Effective Date, Atlas shall begin implementing its Plan of
Reorganization pursuant to the terms for each class of claimants set forth above
under Articles III and IV above. All payments under the Atlas Plan shall come
from the cash held by the Reorganized Atlas sixty days after the Effective Date
less amounts withheld pursuant to paragraph 4.6, from the sale of Cornerstone,
the Old Title X Receivables, of $552,000 paid prior to the Effective Date, and
from amounts collected post confirmation including 75% of the amounts received
directly or indirectly from AGMI and APMI from the sale of the Gold Bar and
Grassy Mountain properties and 10 percent of the CGL recoveries up to net
recoveries (after costs of collection) of $1,500,000 and fifty percent of the
net recoveries thereafter. On the due date for payments set forth in Articles
III and IV above, the Reorganized Atlas shall distribute the required Pro Rata
amount to each claimant holding an Allowed Secured or Unsecured Claim and escrow
the same Pro Rata amount to creditors holding disputed claims as provided in
Article X herein.
6.3 By the Effective Date, Atlas shall serve notice upon the known Class
16 Interest Holders and those Class 15 Interest Holders electing to pay the
annual costs of maintaining the shares advising them that the Plan of
Reorganization has been confirmed and whether the Plan was confirmed by cramdown
or with the acceptance of each class. The notice to Class 15 Interest Holders
shall advise them that their shares shall be voided if Atlas does not receive
payment of the stock maintenance fee within thirty days after the date of the
notice and on an annual basis thereafter.
6.4 Distributions of the cash required under paragraph 4.6(A) of the Plan
shall be mailed by the 60th day after the Effective Date. Distributions of the
funds required under paragraphs 4.6(B) and 4.6(C) shall be mailed within fifteen
days after the close of the quarter in which the funds were received.
6.5 The Reorganized Atlas may pursue any claims or recovery actions held
by Atlas, including but not limited to recovery under 11 U.S.C. (S)(S)544, 547,
548 and 549. The Reorganized Atlas may abandon any claim Atlas has against any
third party if it determines that the claim is burdensome or of inconsequential
value and benefit. The Reorganized Atlas is authorized to employ counsel to
represent Atlas in the litigation or any cause of action or claims held by
Atlas.
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6.6 All funds held by the Reorganized Atlas for distribution under the
Atlas Plan shall be held in accounts which meet the insurance and guaranty
requirements 11 U.S.C. (S)345(b).
6.7 Following the Effective Date, the Reorganized Atlas may compromise
objections to Claims or causes of action referred to in this Atlas Plan without
notice and hearing for claims or causes of action asserted in the original
amount of $25,000 or less. Settlements or compromises of any claims or causes of
action asserted in the amount of $25,000 or more shall be subject to notice and
an opportunity for hearing under the provisions after notice in compliance with
the Local Rules of Bankruptcy Procedure.
6.8 After the Effective Date, the Reorganized Atlas exercising its
business judgment may sell, operate or abandon any of its assets.
6.9 Atlas shall receive a discharge to the extent permitted by 11 U.S.C.
(S) 1141 and Atlas shall be entitled to seek injunctive relief from the Court,
if necessary, to enforce any and all provisions of the Plan.
6.10 If the Atlas Plan is confirmed with the acceptance of the classes, the
Class 16 Interest Holders and the Class 15 Interest Holders who have paid the
annual maintenance fee will retain their interests and new stock shall be issued
by the Reorganized Atlas to the Class 4, 5, 10, 11, and 12 creditors and
pursuant to the Management Compensation Plan within 90 days after the Effective
Date. In determining the Pro Rata share to be distributed to Contested Claims
under Article X, the shares shall be reserved as if the Contested Claims were
allowed in full and held by the Reorganized Atlas pending resolution of the
dispute. If Atlas' objections to the claims are sustained by Final Order, the
shares shall not be issued.
ARTICLE VII
CRAM DOWN
---------
7.1 If all of the applicable requirements for confirmation of the Atlas
Plan are met as set forth in 11 U.S.C. (S) 1129(a)(1)-(11) except Subparagraph
(8), Atlas (subject to the acceptance of the Atlas Plan by at least one class
which is impaired) hereby requests the Court confirm the Atlas Plan pursuant to
11 U.S.C. (S) 1129(b), notwithstanding the requirements of Subparagraph (8), as
the Atlas Plan is fair and equitable and does not discriminate unfairly with
respect to any dissenting, impaired class.
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ARTICLE VIII
GENERAL PROVISIONS
------------------
8.1 The Reorganized Atlas shall be vested with ownership to all property
of Atlas upon the Effective Date except for those assets to be transferred to
the Reclamation Trust.
8.2 The payment of Allowed Claims, Allowed Administrative Claims and
Allowed Secured Claims shall be in exchange for all claims against Atlas and the
Reorganized Atlas and shall constitute full settlement, release, discharge, and
satisfaction of all such claims against Atlas and the Reorganized Atlas.
8.3 Nothing herein contained shall prevent Atlas from taking any action as
may be necessary to the enforcement of any cause of action which may exist on
behalf of Atlas and which may not have been enforced or prosecuted by Atlas
prior to the Effective Date.
8.4 Atlas reserves the right to modify the Plan prior to the Confirmation,
and thereafter to modify the Plan in accordance with 11 U.S.C. (S) 1127(b) and
(P) 5.2 hereunder.
8.5 Atlas reserves the right to reopen the Chapter 11 case after
Confirmation and dismissal for the purposes set forth in Article XII.
8.6 To the extent that the provisions of the Disclosure Statement are
inconsistent with the provisions of this Plan, the provisions of this Plan shall
control.
8.7 Atlas' obligation to pay the quarterly fees owing to the Office of the
United States Trustee pursuant to 28 U.S.C. (S)1930(a)(6) is a continuing
obligation which does not terminate until the Bankruptcy Case is closed.
ARTICLE IX
PROVISION FOR ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS
------------------------------------------------------------
9.1 All unexpired leases and executory contracts between Atlas and any
other party which have not prior to the Effective Date of the Atlas Plan been
affirmatively assumed by Atlas by the filing of an appropriate motion are hereby
rejected.
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ARTICLE X
PROVISION AS TO CONTESTED CLAIMS
--------------------------------
10.1 Atlas or the Reorganized Atlas may, at any time within ninety (90)
days after the Effective Date file an objection to any claim which in its
opinion should be objected to as improper, in whole or in part, regardless of
whether the claim was scheduled as disputed, contingent or unliquidated. Atlas
may further designate claims held by creditors against whom they believe actions
may be brought under Sections 544, 547, 548 or 549 of the Bankruptcy Code as
Contested Claims by sending notice in writing to the Claimant within sixty (60)
days after the Effective Date.
Upon the filing of such objection or service of said written notice, such
claim shall be considered a Contested Claim, and any cash or other instruments
or property otherwise distributable to such creditor under this Atlas Plan shall
be held by Atlas in escrow until final disposition of the objection to the claim
either by settlement or entry of a Final Order. If the claim is only contested
in part, payment shall be made to the claimant on the uncontested portion under
the provisions of Article IV and the balance shall be treated as a Contested
Claim under the provisions of Article X. If the objection is overruled or
denied, in whole or in part, or the claim is allowed by stipulation of Atlas and
the claimant, such claimant shall receive the amount of cash or property
provided in this Atlas Plan to the extent of the amount of the claim finally
allowed, including back installments.
10.2 From and after the Effective Date, the Reorganized Atlas shall reserve
and hold for the benefit of each holder of a Contested Claim cash in an amount
equal to the Pro Rata payments which would have been made to the holder of such
contested claim if it were an Allowed Claim in an amount equal to the lesser of:
(i) the amount of the Contested Claim or (ii) the amount in which the Contested
Claim shall be estimated by the Bankruptcy Court pursuant to (S) 502 of the
Bankruptcy Code for purposes of allowance, which amount shall constitute and
represent the maximum amount in which such claim may ultimately become an
Allowed Claim. No payments or distributions shall be made with respect to all or
any portion of any Contested Claim pending the entire resolution thereof by
Final Order.
ARTICLE XI
AMENDMENT OF ARTICLES OF INCORPORATION AND BYLAWS OF DEBTOR
-----------------------------------------------------------
AND STOCK INCENTIVE PLAN
------------------------
11.1 As may be required, the Articles and Bylaws of Atlas shall be amended
on or before the Effective Date to the extent necessary to effectuate the
provisions of the Atlas Plan, including but not limited to, reincorporating the
Reorganized Atlas under the laws of the State of Colorado, reverse splitting the
common stock such that for every thirty shares of outstanding common stock shall
be converted to one share of common stock in the Reorganized Atlas, maintaining
its authorized common stock at 100,000,000 shares and issuing new common stock
in compliance with the provisions of this Atlas Plan. In consummating the
reverse split of the common stock the
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following rules shall apply: (a) no fractional shares shall be issued; (b) no
compensation shall be paid for fractional shares; and (c) to the extent an
interest holder owns less than 30 shares on the Effective Date, they shall
receive, subject to compliance with Section 4.10 and the treatment of Class 15,
one share of the Reorganized Atlas. All percentages of stock referred to in this
Atlas Plan shall refer to the percentage of issued and outstanding shares as of
the Effective Date. In addition, the certificate of incorporation shall be
amended to include a provision prohibiting the issuance of non-voting equity
securities.
11.2 A Stock Incentive Plan shall be established pursuant to which the
employees, management or officers of Reorganized Atlas may acquire stock based
upon criteria established in the Stock Incentive Plan, to be approved by the
Board of Directors of the Reorganized Atlas. Any stock used for the Stock
Incentive Plan shall be derived from the unissued shares of the Reorganized
Atlas and not from any shares to be issued to any other party in interest.
11.3 A Management Compensation Plan shall be implemented on the Effective
Date to compensate current management and key employees for reorganizing Atlas
and to ensure stability and an orderly transition of management as may be
required. The Reorganized Atlas shall issue shares of stock in the Reorganized
Atlas or options to purchase shares of stock in the Reorganized Atlas up to a
total of 12.5% of the total shares in the Reorganized Atlas (plus any additional
shares transferred from the Class 5(b) creditor) on the tenth business day of
the year 2000 as follows:
Gregg Shafter 2.5%
Richard E. Blubaugh 2.5% plus 1/2 of any shares from the Class 5(b)
claim
James Jensen 2.5% plus 1/4 of any shares from the Class 5(b)
claim
Mario Caron 1.25%
Greg French 1.25% plus 1/4 of any shares from the Class 5(b)
claim
Dale Edwards 1.00%
Janet Wilson 0.5%
Don Canepa 1.00%
The individual recipients listed above shall elect to receive the stock or
options by serving written notice upon the Debtor by the Effective Date of the
Plan. The option to purchase shall be exercisable over a period of five years at
an exercise price equal to $.01 over the market price on the date of issue.
In addition, Richard E. Blubaugh shall receive a two year consulting
contract with a retainer of $30,000 per year payable in six equal monthly
installments due on the 15th day of the month after termination of his regular
employment. The payments to Richard Blubaugh under the consulting contract for
the second year shall be made only if he fulfills his consulting contract for
the first year. Mr. Blubaugh shall perform services such that the number of
hours of services performed, billed at fees customarily charged by consultants
with his experience, shall equal at least the value of the retainer paid.
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11.4 Board of Directors and Annual Shareholders Meeting.
The current Board of Directors shall serve until the next annual or special
meeting of shareholders, called in accordance with the Bylaws, provided that the
Official Creditors Committee shall on the Effective Date appoint new members to
the Board of Directors representing a minimum of two (2) new members up to a
maximum number of new members representing 50% of the Board. The Bylaws shall be
amended to provide that the Board of Directors shall consist of a minimum of 4
and a maximum of 8 members. At the annual or special meeting, the shareholders
shall elect a new Board of Directors.
ARTICLE XII
RETENTION OF JURISDICTION
-------------------------
The Court shall retain jurisdiction over this Chapter 11 case and related
core and non-core proceedings, for the following purposes:
12.1 To hear and determine any and all objections to the allowance of
claims or interests.
12.2 To determine any and all applications for allowances of compensation
and reimbursement of expenses and any other fees and expenses authorized to be
paid or reimbursed under the Code or the Plan.
12.3 To hear and determine any and all pending applications for the
rejection or assumption, or for the assumption and assignment, as the case may
be, of executory contracts or unexpired leases to which Atlas is party, and to
hear and determine any and all claims arising therefrom.
12.4 To hear and determine any and all applications, adversary proceedings,
and contested or litigated matters that may be pending on the Effective Date or
that Atlas may bring subsequent to the Effective Date or to which Atlas may be
made a party.
12.5 To consider any modifications of the Atlas Plan, to remedy any defect
or omission or reconcile any inconsistency in the Atlas Plan or in the orders of
the Bankruptcy Court, including the Order of Confirmation.
12.6 To hear and determine any request under Fed. R. Bankr. P. 2004 to
allow Atlas to complete any pending investigation as to potential assets or
liabilities.
12.7 To hear and determine all controversies, suits, and disputes that may
arise in connection with the interpretation, enforcement, or consummation of the
Atlas Plan, including any disputes between the plan proponents.
-22-
12.8 To consider and act on the compromise and settlement of any claim or
cause of action by or against Atlas.
12.9 To issue orders in aid of execution of the Atlas Plan as contemplated
by (S) 1142 of the Code.
12.10 To determine such other matters as may be set forth in the Order of
Confirmation or which may arise in connection with the Plan or the Order of
Confirmation.
Dated this _____ day of September, 1999.
Respectfully submitted,
DEBTORS:
ATLAS CORPORATION
By:___________________________
Gregg Shafter, President
SENDER & WASSERMAN, P.C.
By:___________________________
Harvey Sender, #7546
John B. Wasserman, #10011
Bonnie A. Bell, #14923
Daniel J. Garfield, #26054
1999 Broadway, Suite 2305
Denver, Colorado 80202
(303) 296-1999 Telephone
(303) 296-7600 Facsimile
E-mail: sender@sendwass.com
ATTORNEYS FOR DEBTOR
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