EXHIBIT 2.2
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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SECOND AMENDED PLAN OF REORGANIZATION
OF ATLAS PRECIOUS METALS INC.
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Atlas Precious Metals Inc., Debtor in Possession, ("APMI") by and through
its counsel Sender & Wasserman, P.C., proposes this Second Amended Plan of
Reorganization pursuant to 11 U.S.C. (S) 1121(a) (hereinafter referred to as the
"APMI 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 APMI 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 APMI which
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is set forth in APMI's schedules other than an unsecured claim against APMI
scheduled by APMI as disputed, contingent or unliquidated; (b) an unsecured
claim against APMI 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 January 26, 1999, 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 APMI.
1.10 "APMI" shall mean Atlas Precious Metals Inc., a Nevada corporation,
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the Chapter 11 Debtor under Case No. 99-10890 SBB.
1.11 "APMI Plan" shall mean this Plan of Reorganization, as amended,
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submitted by the Debtor, Atlas Precious Metals Inc.
1.12 "Atlas" shall mean Atlas Corporation, a Delaware corporation, the
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Chapter 11 Debtor under Case No. 98-23331 DEC.
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1.13 "Atlas Plan" shall mean the Plan of Reorganization, as amended,
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submitted by the Debtor, Atlas.
1.14 "Bankruptcy Case" shall mean the APMI Chapter 11 case pending in the
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United States Bankruptcy Court for the District of Colorado which has been
jointly administered with the cases of Atlas and AGMI.
1.15 "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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1.16 "Bar Date" shall mean April 30, 1999.
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1.17 "Chapter 11" shall mean Chapter 11 of the Code.
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1.18 "Claim" shall mean a claim against APMI as defined in 11 U.S.C. (S)
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101(5).
1.19 "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.
1.20 "Contested Claim" shall mean any Claim which has been scheduled by
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APMI 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 APMI believes should be objected to in whole or in
part. Contested claims further include any claims held by creditors against
whom APMI believes actions may be brought under Sections 544, 547, 548 or 549 of
the Bankruptcy Code.
1.21 "Court" shall mean the United States District Court for the District
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of Colorado in Bankruptcy.
1.22 "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 captioned Atlas Corporation, Atlas Gold Mining
Inc., and Atlas Precious Metals, Inc. v. Gerald E. Davis.
1.23 "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 dated August 24, 1999:
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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
------------------------ ---------------- -------- -----
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.
1.24 "Debtor" and "Debtor-in-Possession" shall mean APMI.
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1.25 "Disclosure Statement" shall mean the Amended Joint Disclosure
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Statement 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.
1.26 "Effective Date" shall mean the first business day following thirty
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(30) days after the date the order confirming the APMI Plan becomes a Final
Order.
1.27 "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.
1.28 "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.
1.29 "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.
1.30 "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.
1.31 "Insider" means any entity defined in 11 U.S.C. (S) 101(31)(B).
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1.32 "Late Filed Claims" shall mean any claim filed in the APMI Bankruptcy
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Case after April 30, 1999.
1.33 "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.
1.34 "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.
1.35 "Moab License" shall mean Source Material License SUA-917.
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1.36 "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.
1.37 "NRC" shall mean the Nuclear Regulatory Commission, an agency of the
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federal government having jurisdiction over the Moab Utah Site.
1.38 "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.
1.39 "Post-petition" shall mean anytime on or subsequent to January 26,
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1999.
1.40 "Pre-petition" shall mean anytime prior to January 26, 1999.
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1.41 "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.
1.42 "Reclamation Trust" shall mean the trust to be formed pursuant to
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paragraph 4.3 of the Atlas Plan in compliance with the consent and approval of
the NRC.
1.43 "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, prior to the
Effective Date.
1.44 "Reorganized APMI" shall mean the reorganized Atlas Precious Metals
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Inc. under the confirmed APMI Plan.
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1.45 "Utah" shall mean the State of Utah.
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1.46 "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
201 Claims.
There are no Classes 1-19 under the APMI Plan as Classes 1-19 have been
reserved for the classes under the Atlas Plan. Classes 20-39 have been reserved
for classes under the APMI Plan. Classes 40 through 59 have been reserved for
classes under the AGMI Plan. The reserved classes have been implemented to
avoid confusion in the discussion of the treatment of the classes under the
Atlas, AGMI and APMI plans in the Disclosure Statement.
Class 20. Allowed Administrative Expense Claims as defined in 11
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U.S.C. (S) 503 of the Code against APMI. All fees payable to the U.S. Trustee
shall be paid in full as they become.
Class 21. Any allowed unsecured and/or secured priority tax claims
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of any taxing authority holding claims under 11 U.S.C. (S)507(a)(8) against
APMI.
Class 22. Unimpaired Claims of Holders of Unexpired Leases and
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Executory Contracts against APMI.
Class 23 Unimpaired Secured Claims of Merrill Lynch.
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Class 24 Unimpaired Secured Claims of the State of Oregon for
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Cleanup obligations associated with the Grassy Mountain Mining Site.
Class 25 a. Impaired Secured Claims of ACSTAR.
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Class 25 b. Impaired Unsecured and Administrative Claims of ACSTAR.
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Class 26 Any unsecured creditors with allowed claims of less than
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$1,000 and any creditors holding claims in excess of $1,000 electing to accept
$1,000 in full payment of their claims.
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Class 27. Impaired Claims of General Unsecured Creditors of APMI.
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Class 28. Impaired Claims held by Atlas.
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Class 29 Impaired Claims of Gerald E. Davis.
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Class 30. Impaired Claims held by any taxing authority for penalties
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not related to actual pecuniary loss.
Class 31. Late filed claims.
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Class 32. Impaired interests of common stockholders of APMI.
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ARTICLE III
TREATMENT OF CLAIMS NOT IMPAIRED UNDER THE PLAN
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3.1 Class 20. Allowed Administrative Expenses pursuant to 11 U.S.C.
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(S)503. Class 20 Allowed Administrative Expenses as defined by 11 U.S.C.
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(S)503 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 APMI 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 24
and 25 claimants that their claims are entitled to priority under Section 503(b)
of the Bankruptcy Code, the Class 24 and 25 claims shall be treated under Class
24 and 25 respectively of this Plan and not as Class 20 Administrative Expenses.
In the event that APMI does not have sufficient cash to pay the administrative
claim in full on the Effective Date, the administrative expense claim will, with
the agreement of the Claimant, be paid from the proceeds of the sale of Grassy
Mountain or APMI's property at Gold Bar or at such date as APMI has sufficient
funds to pay the claim in full.
3.2 Class 22. Executory Contracts and Unexpired Leases. Class 22 is
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comprised of the claims held by parties to unexpired leases or executory
contracts. APMI, 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. 6006. If APMI
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 APMI 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 APMI
and the lessor otherwise agree. Any Class 22 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
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holders of rejected leases or executory contracts shall be treated as a Class 27
unsecured claim subject to the limitations of Section 502 of the Code.
3.3 Class 23. Unimpaired Claims of Merrill Lynch. Class 23 is comprised
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of the allowed secured claim of Merrill Lynch. The claim of Merrill Lynch arises
from a letter of credit pledged to secure Bond #6907 issued by ACSTAR, the Class
25 claimant to secure the cleanup obligations of APMI at Grassy Mountain. The
letter of credit has been called. The Class 23 Claimant and the Debtor shall
retain all rights, without modification, under the related documents. The Class
23 Claimant is unimpaired and any allowed claim shall be paid by the Reorganized
APMI under the terms of the agreement.
3.4 Class 24. Unimpaired Secured Claims of the State of Oregon for
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Cleanup obligations associated with the Grassy Mountain Property. Class 24 is
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comprised of the Allowed secured claims of the State of Oregon for Cleanup
obligations associated with the Grassy Mountain Property under permit numbers
23-1095 and 423,0224. The Class 24 claim is secured by Bond #6907 issued by
ACSTAR, the Class 25 claimant. The Class 24 claimant and the Debtor shall retain
all rights, without modification, under Permit Numbers 23-1095 and 423,0224 and
Bond #6907. The Class 24 Claimant is unimpaired.
ARTICLE IV
TREATMENT OF CLAIMS IMPAIRED UNDER THE PLAN
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4.1 Class 21. Allowed Secured and Unsecured Tax Claims pursuant to 11
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U.S.C. (S) 507(a)(8). Class 21 is comprised of Allowed Unsecured Tax Claims
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under U.S.C. (S)507(a)(8) excluding claims for penalties not related to actual
pecuniary loss. The Class 21 claimants shall receive 100% of their secured and
unsecured priority claims in quarterly installments with interest at 8% per
annum. The Class 21 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 30. Payments to the Class 21 claimants shall commence
within fifteen days after the close of the first calendar quarter ending after
the Effective Date of the APMI Plan. The Class 21 claimants shall retain their
prepetition liens, if any, on property of the Reorganized APMI pending payment
in full of the Class 21 claims. The allowed amount of any Class 21 claim shall
be subject to determination under Section 505 of the Bankruptcy Code. The Debtor
shall file any requests for determination under Section 505 within sixty days of
the Effective Date of the Plan. Any disputed portion of a Class 21 Claim shall
be treated as a Contested Claim in accordance with the provisions of Article X
of this Plan.
4.2 Class 25a. Allowed Secured Claims of ACSTAR The Class 25a claims are
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comprised of the Allowed Secured 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 including the
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cleanup obligations owing to the Class 25 claimant under the APMI Plan. ACSTAR's
secured claims against Atlas, AGMI and APMI are cross collateralized. ACSTAR has
drawn on the letters of credit and is entitled to use the proceeds from the
letters of credit in order to pay the Class 4 creditors under the Atlas Plan and
to reimburse itself for the actual amount incurred under the ACSTAR Bonds for
Other Cleanup Obligations including the cleanup obligations owing to the Class
25 claimant under the APMI Plan, 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 in 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 retain its rights under the escrow
agreement. The foregoing treatment shall constitute satisfaction in full of the
Class 25a Allowed Secured Claim.
4.3 Class 25b. Impaired Unsecured and Administrative Claims of ACSTAR
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The Class 25(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 25(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 20 Administrative Expense, under any theory,
and any potential claim against ARISUR, shall be waived and released. For
purposes of voting and feasibility the Class 25(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 25(b) monetary claim
allowed against APMI shall be paid as a Class 27 Allowed Unsecured Claim. On the
later of Effective Date of the APMI Plan or at such time as the Class 25(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 27 unsecured claim and shall receive shares representing
its pro rata share (determined with respect to Class 27 and 28 claimants) of the
outstanding common stock of the Reorganized APMI; provided that distributions to
the Class 25(b) creditor 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 25(b) claim shall be $0 and the shares which are being held in
escrow shall remain treasury stock.
4.4 Class 26. Administrative Convenience Class. Class 26 is comprised of
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the claims of unsecured creditors with allowed claims of $1,000 or less and
unsecured creditors holding claims in excess of $1,000 electing to accept $1,000
in full payment of their claims. The Class 26 claims shall be paid in full
without interest on the Effective Date. Creditors wishing to elect to have their
claim treated under Class 26 shall make an election in writing to be received by
undersigned counsel for the Debtor on or before the due date for tendering
ballots to this Plan.
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4.5 Class 27. Allowed Unsecured Claims. Class 27 is comprised of the
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Allowed Unsecured Claims against APMI. The Allowed Class 27 creditors shall
receive:
(A) Their pro rata share of the proceeds of from the sale or joint venture
of APMI's interests in the Gold Bar and/or Grassy Mountain properties after
payment of costs of sale and after satisfaction of the Allowed Class 20 and
21 Claims. The funds shall be distributed on a Pro Rata basis between the
Allowed Claims of the Class 27 and 28 creditors who for shall be treated as
one class.
(B) Their pro rata share of the common stock to be issued by the
Reorganized APMI. The stock shall be distributed on a Pro Rata basis
between the Allowed Claims of the Class 27 and 28 creditors. For purposes
of this distribution, the Class 27 and 28 Creditors shall be treated as one
class.
(C) The Class 27 and 28 claims shall bear interest at the rate of 8
percent per annum from the Effective Date. Interest shall be payable only
if the proceeds of the sale as provided in (A) above are sufficient to pay
the Allowed Class 27 and 28 claims in full.
4.6 Class 28. Claims Held by Atlas. Class 28 is comprised of the claims
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held by Atlas other than its claims as an interest holder treated under Class
30. Class 28 claims arise from an inter-company payable for cash advanced to
APMI. The allowed claim of AGMI under the Atlas Plan shall first be offset
against AGMI's obligations to APMI which will reduce the accounts receivable
owed by APMI to Atlas. The net Allowed Class 28 Claim shall be treated on a Pro
Rata basis with the Class 27 creditors and shall receive its pro rata share of
the distributions of proceeds of sale of APMI's interest in the Gold Bar and
Grassy Mountain properties and stock issued by the Reorganized APMI.
4.7. Class 29. Claims Held by Gerald E. Davis Class 29 is comprised of
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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, AGMI and APMI 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
claims of Gerald E. Davis shall also be treated as a Class 13 claim under the
Atlas Plan and a Class 43 claim under the AGMI Plan. 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.
4.8 Class 30. Claims Held by Any Taxing Authority for Penalties Not
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Related to Actual Pecuniary Loss. The Class 30 Claims are comprised of any
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penalty claims held by any taxing authority which are not related to actual
pecuniary loss. The allowed Class 30 claims shall be treated and paid as Class
27 general unsecured claims except the Class 30 claims shall not share in any
distribution of stock of the Reorganized Atlas.
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4.9 Class 31. Late Filed Claims. Class 31 is comprised of all late filed
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claims against APMI. The Class 31 claims shall be disallowed and shall receive
no distribution under the APMI Plan unless and until the Class 27 and 28 claims
have been paid in full with interest at 8 percent per annum.
4.10 Class 32. Interests of Atlas Corporation. Class 32 is comprised of
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the interests of Atlas Corporation which holds one-hundred percent of the stock
of APMI. The interests of the Class 30 interest holder shall be voided. The
Class 32 Interest Holder shall receive no distributions on account of its
interests unless and until the Class 27, 28 and allowed Class 31 claims have
been paid in full with interest at 8% per annum.
ARTICLE V
DEFAULT AND PLAN MODIFICATION
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5.1 In the event of any default by the Reorganized APMI of any payment to
any class of claimants arising under the terms of the APMI Plan, the Reorganized
APMI 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 APMI 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 APMI 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 APMI 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 APMI, 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
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6.1 On or about the Effective Date, all assets of APMI shall be
transferred to the Reorganized APMI free and clear of all liens, claims, and
interests of creditors, equity holders, and other parties in interest, except as
otherwise provided herein. Specifically, the assets shall be transferred subject
to the liens held by the Class 25(a) and 29 secured creditors and any Class 21
creditor with perfected liens. The Class 23 and 24 creditors shall be entitled
to retain the collateral securing their claims. The Reorganized APMI 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 APMI Plan, on
the Confirmation Date APMI shall be granted a discharge under 11 U.S.C. (S)
1141.
6.2 On the Effective Date, APMI shall begin implementing its Plan of
Reorganization pursuant to the terms for each class of claimants set forth above
under III and IV above. All payments under the APMI Plan shall come from the
cash held by the Reorganized APMI or proceeds of the sale of its interests in
the Gold Bar and Grassy Mountain properties after costs of sale. The Class 20
administrative expenses may be paid from advances by the Reorganized Atlas.
6.3 The Reorganized APMI shall distribute the proceeds of the sale of its
interests in the Gold Bar and Grassy Mountain properties, after payment of costs
of sale, in order of priority as established in Sections III and IV above within
fifteen days after the close of the calendar quarter in which the proceeds were
received.
6.4 If the Allowed Secured Claims secured by APMI's interests in the Gold
Bar and/or Grassy Mountain properties have not been satisfied through the sale,
joint venture, exploration agreement or other agreement with respect to the
properties, by the five year anniversary of the Effective Date, the injunction
precluding action against APMI and its assets shall be lifted as of the first
business day after the five year anniversary of the Effective Date and the
holders of Allowed Secured Claims shall be entitled to pursue their state court
remedies against the collateral securing their claims.
6.5 The stock to be issued by the Reorganized APMI to the Allowed Claims
of the Class25(b), 27 and 28 creditors shall be issued 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 APMI pending resolution of the
dispute. If APMI' objections to the claims are sustained by Final Order, the
shares shall not be issued.
6.6 The Reorganized APMI may pursue any claims or recovery actions held
by APMI, including but not limited to recovery under 11 U.S.C. (S)(S)544, 547,
548 and 549. The Reorganized APMI may abandon any claim APMI has against any
third party if it determines that the claim is
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burdensome or of inconsequential value and benefit. The Reorganized APMI is
authorized to employ counsel to represent APMI in the litigation or any cause of
action or claims held by APMI.
6.7 All funds held by the Reorganized APMI for distribution under the
APMI Plan shall be held in accounts which meet the insurance and guaranty
requirements 11 U.S.C. (S) 345 (b).
6.8 Following the Effective Date, the Reorganized APMI may compromise
objections to Claims or causes of action referred to in this APMI Plan without
notice and hearing for claims or causes of action asserted in the original
amount of $5,000 or less. Settlements or compromises of any claims or causes of
action asserted in the amount of $5,000 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.
6.9 After the Effective Date, the Reorganized APMI exercising its
business judgment may sell, operate or abandon any of its assets.
6.10 APMI shall receive a discharge only to the extent permitted by 11
U.S.C. (S) 1141 and APMI shall be entitled to seek injunctive relief from the
Court, if necessary, to enforce any and all provisions of the Plan
ARTICLE VII
CRAM DOWN
---------
7.1 If all of the applicable requirements for confirmation of the APMI
Plan are met as set forth in 11 U.S.C. (S) 1129(a)(1)-(11) except Subparagraph
(8), APMI (subject to the acceptance of the APMI Plan by at least one class
which is impaired) hereby requests the Court confirm the APMI Plan pursuant to
11 U.S.C. (S) 1129(b), notwithstanding the requirements of Subparagraph (8), as
the APMI Plan is fair and equitable and does not discriminate unfairly with
respect to any dissenting, impaired class.
ARTICLE VIII
GENERAL PROVISIONS
------------------
8.1 The Reorganized APMI shall be vested with ownership to all property
of APMI upon the Effective Date.
8.2 The payment of Allowed Administrative Claims and Allowed Secured
Claims shall be in exchange for all claims against APMI and the Reorganized APMI
and shall constitute full settlement, release, discharge, and satisfaction of
all such claims against APMI and the Reorganized APMI.
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8.3 Nothing herein contained shall prevent APMI from taking any action as
may be necessary to the enforcement of any cause of action which may exist on
behalf of APMI and which may not have been enforced or prosecuted by APMI prior
to the Effective Date.
8.4 APMI 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 APMI 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 APMI's 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 dismissed or
converted.
ARTICLE IX
PROVISION FOR ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS
------------------------------------------------------------
9.1 All unexpired leases and executory contracts between APMI and any
other party which have not prior to the Effective Date of the APMI Plan been
affirmatively assumed by APMI by the filing of an appropriate motion are hereby
rejected.
ARTICLE X
PROVISION AS TO CONTESTED CLAIMS
--------------------------------
10.1 APMI or the Reorganized APMI 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. APMI 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 APMI Plan shall
be held by APMI 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
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APMI and the claimant, such claimant shall receive the amount of cash or
property provided in this APMI 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 APMI 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 APMI shall be amended
on or before the Effective Date to the extent necessary to effectuate the
provisions of the APMI Plan, including but not limited to, reincorporating the
Reorganized APMI under the laws of the State of Colorado, voiding its existing
common stock and issuing new common stock in compliance with the provisions of
this APMI Plan. No fractional shares of stock shall be issued.
11.2 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. 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.
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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 APMI 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 APMI may bring subsequent to the Effective Date or to
which APMI may be made a party.
12.5 To consider any modifications of the APMI Plan, to remedy any defect
or omission or reconcile any inconsistency in the APMI 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 APMI 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
APMI Plan, including any disputes between the plan proponents.
12.8 To consider and act on the compromise and settlement of any claim or
cause of action by or against APMI.
12.9 To issue orders in aid of execution of the APMI Plan as contemplated
by (S) 1142 of the Code.
12.10 To determine such other matters as may be set forth in the Order or
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 Precious Metals Inc.
By:_____________________________
Gregg Shafter, President
SENDER & WASSERMAN, P.C.
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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