EXHIBIT 2.3
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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REVISED SECOND AMENDED PLAN OF REORGANIZATION OF
ATLAS GOLD MINING INC.
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Atlas Gold Mining Inc., Debtor in Possession, ("AGMI") 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
"AGMI 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 AGMI 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 this 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 AGMI which
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is set forth in AGMI's schedules other than an unsecured claim against AGMI
scheduled by AGMI as disputed, contingent or unliquidated; (b) an unsecured
claim against AGMI 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 AGMI.
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 the 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 AGMI 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 APMI.
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 AGMI 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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AGMI 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 AGMI believes should be objected to in whole or in
part. Contested claims further include any claims held by creditors against
whom AGMI 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
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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.
1.24 "Debtor" and "Debtor-in-Possession" shall mean AGMI.
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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 AGMI 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 "Insider" means any entity defined in 11 U.S.C. (S) 101(31)(B).
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1.31 "Late Filed Claims" shall mean any claim filed in the AGMI Bankruptcy
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Case after April 30, 1999.
1.32 "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
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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.
1.33 "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.
1.34 "Moab License" shall mean Source Material License SUA-917.
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1.35 "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.
1.36 "NRC" shall mean the Nuclear Regulatory Commission, an agency of the
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federal government having jurisdiction over the Moab Utah Site.
1.37 "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.
1.38 "Post-petition" shall mean anytime on or subsequent to January 26,
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1999.
1.39 "Pre-petition" shall mean anytime prior to January 26, 1999.
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1.40 "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.
1.41 "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.
1.42 "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.
1.43 "Reorganized AGMI" shall mean the reorganized Atlas Gold Mining Inc.
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under the confirmed AGMI Plan.
1.44 "Utah" shall mean the State of Utah.
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1.45 "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
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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 1-39 under the AGMI 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 40. Allowed Administrative Expense Claims as defined in 11
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U.S.C. (S) 503 of the Code against AGMI. All fees payable to the U.S. Trustee
shall be paid in full as they become due.
Class 41. Any allowed unsecured and/or secured priority tax claims
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of any taxing authority, including the claims asserted by Eureka County Nevada,
holding claims under 11 U.S.C. (S)507(a)(8) against AGMI.
Class 42. Unimpaired Claims of Holders of Unexpired Leases and
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Executory Contracts against AGMI.
Class 43 Impaired Secured Claims of Gerald E. Davis.
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Class 44 Unimpaired Secured Claims of Bureau of Land Management for
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Cleanup obligations associated with the Gold Bar Property.
Class 45 a. Impaired Secured Claims of ACSTAR.
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Class 45 b. Impaired Unsecured and Administrative Claims of ACSTAR.
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Class 46 Unimpaired Secured Claims of Norwest Bank.
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Class 47 Impaired Contingent Secured Claims of United States Fire
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Insurance Company.
Class 48. 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 49. Impaired Claims of General Unsecured Creditors of AGMI.
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Class 50. Impaired Claims held by APMI.
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Class 51. Impaired Claims held by any taxing authority for penalties
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not related to actual pecuniary loss.
Class 52. Late filed claims.
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Class 53. Impaired interests of common stockholders of AGMI.
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ARTICLE III
TREATMENT OF CLAIMS NOT IMPAIRED UNDER THE PLAN
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301 Class 40. Allowed Administrative Expenses pursuant to 11 U.S.C.
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(S)503. Class 40 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 AGMI 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 44
and 45 claimants that their claims are entitled to priority under Section 503(b)
of the Bankruptcy Code, the Class 44 and 45 claims shall be treated under Class
44 and 45 respectively of this Plan and not as Class 40 Administrative Expenses.
In the event that AGMI does not have sufficient cash to pay the administrative
claims in full on the Effective Date, the administrative expense claims will,
with the agreement of the Claimant, be paid from the proceeds of the sale of the
property at Gold Bar or at such date as AGMI has sufficient funds to pay the
claim in full.
3.2 Class 42. Executory Contracts and Unexpired Leases. Class 42 is
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comprised of the claims held by parties to unexpired leases or executory
contracts. AGMI, 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 AGMI 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 AGMI 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 AGMI and the lessor otherwise agree. Any Class 42 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 49 unsecured claim subject to the
limitations of Section 502 of the Code.
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3.3 Class 44. Unimpaired Secured Claims of Bureau of Land Management for
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Cleanup obligations associated with the Gold Bar Property. Class 44 is
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comprised of the Allowed secured claims of the Bureau of Land Management for
Cleanup obligations associated with the Gold Bar Property under Plan numbers
N64, 92-003P, N64, 89-004P and 87-008P. The Class 44 claim is secured by Bond
#5661 issued by ACSTAR, the Class 45 claimant and United States Fire Insurance
Company Bond Numbers 6101757263 and 6101757189. The Class 44 claimant and the
Debtor shall retain all rights, without modification, under Plan numbers N64,
92-003P; N64, 89-004P and 87-008P and Bond #5661 issued by ACSTAR, and United
States Fire Insurance Company Bond Numbers 6101757263 and 6101757189. AGMI
believes that the bonds will be sufficient to satisfy the Class 44 claim in
full. To the extent that the bonds are sufficient to pay the allowed claims of
the Class 44 Claimant in full, the Class 44 Claimant is unimpaired. To the
extent that the bonds are insufficient to pay the allowed claims of the Class 44
Claimant in full, the deficiency claims shall be treated as a Class 49 unsecured
claim.
3.4 Class 46. Unimpaired Secured Claims of Norwest Bank. Class 46 is
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comprised of Allowed Secured Claims of Norwest Bank of Colorado which issued a
letter of credit in the amount of $750,000 secured by a Certificate of Deposit
for the benefit of United Fire Insurance Company. The value of the Certificate
of Deposit securing the claims of the Class 46 creditor is $750,000. The letter
of credit has been called and the Class 46 creditor has applied the Certificate
of Deposit to the outstanding balance. AGMI believes that the rights and
obligations of the Class 46 creditor have been satisfied in full. The Class 46
Claimant and the Debtor shall retain all rights, without modification, under the
related documents. The Class 46 Claimant is unimpaired and any allowed claim
shall be paid out of the collateral held by the Class 46 claimants under the
terms of the agreements. The value of the collateral securing the Class 46
claim is $750,000.
ARTICLE IV
TREATMENT OF CLAIMS IMPAIRED UNDER THE PLAN
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4.1 Class 41. Allowed Secured and Unsecured Tax Claims pursuant to 11
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U.S.C. (S) 507(a)(8). Class 41 is comprised of Allowed Secured and Unsecured Tax
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Claims under U.S.C. (S)507(a)(8) excluding claims for penalties not related to
actual pecuniary loss. The treatment of Class 41 tax claims shall be subject to
the stipulation between AGMI and Eureka County, Nevada, set forth herein.
Secured Tax Claims The Class 41 claimants shall retain their prepetition
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liens, if any, on property of the Reorganized AGMI pending payment in full of
the Class 41 secured claims. The Class 41 claimants with secured claims shall
be paid from the proceeds of the sale, joint venture or other agreement related
to the collateral subject to the liens held by the Class 41 creditors the
assets secured by the liens within four years after the date of assessment or
the Class 41 claimants shall be released from the injunction entered upon
Confirmation and shall have the right to pursue its rights and remedies arising
from its prepetition liens under state law.
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Unsecured Tax Claims The Class 41 claimants shall receive 100% of their
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unsecured priority claims with interest at 8% per annum. The Class 41 unsecured
claims shall be paid in full through annual installments within six years from
the date of assessment. Payments to the Class 41 claimants on account of
unsecured claims shall commence within fifteen days after the close of the first
annual anniversary of the Effective Date of the AGMI Plan.
Stipulated Treatment of Claims of Eureka County, Nevada Any sales proceeds
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from the sale of property of the Reorganized AGMI shall be placed in escrow up
to the maximum amount of the pre-petition and administrative claims asserted by
Eureka County, pending final resolution of the allowance of the Eureka County
property tax claims. The funds in escrow shall be subject to Eureka County's
tax liens. AGMI shall pay Eureka County's allowed tax claims from the escrow
account up to the amount of funds held in such escrow account within ten days
after entry of a Final Order determining the allowance of such property tax
claims. No other administrative claims shall be paid out of the escrowed funds
until Eureka County's allowed administrative tax claim for the year 1999-2000
shall be paid in full. Nothing in the Plan affects Eureka County's right to
enforce its post-petition property tax claims.
Claims for penalties not related to actual pecuniary loss shall be treated
under Class 51. The allowed amount of any Class 41 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 41 Claim shall be
treated as a Contested Claim in accordance with the provisions of Article X of
this Plan.
4.2 Class 43. Claims of Gerald E. Davis Class 43 is comprised of the
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claims of Davis which arise under the terms of the Settlement Agreement dated
July 9, 1999 between the parties resolving the disputes and claims between 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 claims of Davis shall also be treated as a
Class 13 claim under the Atlas Plan and a Class 29 claim under the APMI 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 Class 41 tax claims of
Eureka County and any administrative expenses. If the collateral securing the
claims of the Class 43 creditor has not been sold within five years after the
Effective Date for a value sufficient to pay the Allowed Secured Claims held by
the Class 43 creditor, the injunction shall be lifted as provided herein at
paragraph 6.4.
4.3 Class 45a. Allowed Secured Claims of ACSTAR. The Class 45a claims
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are comprised of the Allowed Secured Claims of ACSTAR which are 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 cleanup obligations
owing to the Class 45 claimant under the AGMI Plan. ACSTAR's secured claims
against Atlas, AGMI and APMI are cross collateralized. ACSTAR has drawn on the
letters
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of credit and is entitled to use the proceeds therefrom 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 45 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
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
retain its rights under the escrow agreement. The foregoing treatment shall
constitute satisfaction in full of the Class 45a Allowed Secured Claim.
4.4 Class 45b. Impaired Unsecured and Administrative Claims of ACSTAR.
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The Class 45(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 45(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 40 Administrative Expense, under any theory,
and any potential claim against ARISUR, shall be waived and released. For
purposes of voting and feasibility the Class 45(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 45(b) monetary claim
allowed against AGMI shall be paid as a Class 49 Allowed Unsecured Claim. On
the later of Effective Date of the AGMI Plan or at such time as the Class 45(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 49 unsecured claim and shall receive shares representing
its pro rata share (determined with respect to Class 49 and 50 claimants) of the
outstanding common stock of the Reorganized AGMI; provided that distributions
to the Class 45(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 45(b) claim shall be $0 and the shares which are being held in
escrow shall remain treasury stock.
4.5 Class 47. Impaired Secured Claims of United States Fire Insurance
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Company. Class 47 is comprised of the Allowed secured claims of United States
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Fire Insurance Company which issued Bond Numbers 6101757263 and 6101757189 which
were secured by a letter of credit to secure the Debtor's cleanup obligations at
the Gold Bar property. The Class 47 Claimant has called the letter of credit.
The Class 47 claimant and the Debtor shall retain all rights, without
modification, under Bond Numbers 6101757263 and 6101757189 and the proceeds from
the letter of credit. Demand has not been made upon the Bonds, and therefore
the claims of the Class 47 creditor are contingent. To the extent that the
Bonds are called and the proceeds of the letter of credit are insufficient to
pay the allowed claims of the Class 47 Claimant in full, the Class 47 claims are
impaired and the deficiency claims shall be treated as a Class 49 unsecured
claim.
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4.6 Class 48. Administrative Convenience Class. Class 48 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 48 claims shall be paid in full
without interest on the Effective Date. Creditors wishing to elect to have
their claim treated under Class 48 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.
4.7 Class 49. Allowed Unsecured Claims. Class 49 is comprised of the
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Allowed Unsecured Claims against AGMI. The Allowed Class 49 creditors shall
receive:
(A) Their pro rata share of the proceeds of from the sale or joint venture
of AGMI's interests in the Gold Bar after payment of costs of sale and
after satisfaction of the Allowed Class 40, 41 and 43 Claims. The funds
shall be distributed on a Pro Rata basis between the Allowed Claims of the
Class 49 and 50 creditors who for shall be treated as one class.
(B) Their pro rata share of the common stock to be issued by the
Reorganized AGMI. The stock shall be distributed on a Pro Rata basis
between the Allowed Claims of the Class 49 and 50 creditors. For purposes
of this distribution, the Class 49 and 50 Creditors shall be treated as one
class.
(C) The Class 49 and 50 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 49 and 50 claims in full.
4.8 Class 50. Claims Held by APMI. Class 50 is comprised of the claims
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held by APMI other than its claims as an interest holder treated under Class 53.
Class 50 claims arise from an inter-company payable for cash advanced to AGMI.
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 50 Claim shall be treated on a Pro Rata
basis with the Class 49 creditors and shall its pro rata share of the
distributions of proceeds of sale of AGMI's interest in the Gold Bar property
and stock issued by the Reorganized AGMI.
4.9 Class 51. Claims Held by Any Taxing Authority for Penalties Not
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Related to Actual Pecuniary Loss. The Class 51 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 51 claims shall be treated and paid as Class
49 general unsecured claims except the Class 51 claims shall not share in any
distribution of stock of the Reorganized Atlas.
4.10 Class 52. Late Filed Claims. Class 52 is comprised of all late
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filed claims against AGMI. The Class 52 claims shall be disallowed and shall
receive no distribution under the AGMI Plan unless and until the Class 49 and 50
claims have been paid in full with interest at 8 percent per annum.
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4.11 Class 53. Interests of APMI. Class 53 is comprised of the interests
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of APMI which holds one-hundred percent of the stock of AGMI. The interests of
the Class 53 interest holder shall be voided. The Class 53 Interest Holder
shall receive no distributions on account of its interests unless and until the
Class 49, and 50 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 AGMI of any payment to
any class of claimants arising under the terms of the AGMI Plan, the Reorganized
AGMI 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 AGMI 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 AGMI 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 AGMI 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 AGMI, after notice and a hearing, only to the extent allowed by 11
U.S.C. (S) 1127.
ARTICLE VI
MEANS FOR THE IMPLEMENTATION AND EXECUTION OF THE PLAN
------------------------------------------------------
6.1 On or about the Effective Date, all assets of AGMI shall be
transferred to the Reorganized AGMI 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 stipulated treatment and liens held by Eureka County, Nevada, the
Class 43 secured creditor and any Class 41 creditor with perfected liens. The
Class 44, 45(a) 46 and 47 creditors shall retain the collateral securing their
claims. The Reorganized AGMI 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 AGMI Plan, on the Confirmation Date AGMI shall be
granted a discharge under 11 U.S.C. (S) 1141.
6.2 On the Effective Date, AGMI 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 AGMI Plan shall come from the
cash held by the Reorganized AGMI or
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proceeds of the sale of its interests in the Gold Bar property after costs of
sale. The Class 40 administrative expenses may be paid from advances by the
Reorganized Atlas.
6.3 The Reorganized AGMI shall distribute the proceeds from the sale,
joint venture or other agreement compensating AGMI for its interests in the Gold
Bar property, after payment of costs, 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 Subject to the terms of the Stipulated Treatment of the Claims of
Eureka County, Nevada, if the Allowed Secured Claims secured by AGMI's interests
in the Gold Bar property has not been satisfied through the sale, joint venture,
exploration agreement or other agreement with respect to the property, by the
five year anniversary of the Effective Date, the injunction precluding action
against AGMI 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 AGMI to the Allowed Claims
of the Class 49 and 50 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 AGMI pending
resolution of the dispute. If AGMI' objections to the claims are sustained by
Final Order, the shares shall not be issued.
6.6 The Reorganized AGMI may pursue any claims or recovery actions held by
AGMI, including but not limited to recovery under 11 U.S.C. (S)(S)544, 547, 548
and 549. The Reorganized AGMI may abandon any claim AGMI has against any third
party if it determines that the claim is burdensome or of inconsequential value
and benefit. The Reorganized AGMI is authorized to employ counsel to represent
AGMI in the litigation or any cause of action or claims held by AGMI.
6.7 All funds held by the Reorganized AGMI for distribution under the AGMI
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 AGMI may compromise
objections to Claims or causes of action referred to in this AGMI 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 AGMI exercising its business
judgment may sell, operate or abandon any of its assets.
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6.10 AGMI shall receive a discharge only to the extent permitted by 11
U.S.C. (S) 1141 and AGMI 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 AGMI
Plan are met as set forth in 11 U.S.C. (S) 1129(a)(1)-(11) except Subparagraph
(8), AGMI (subject to the acceptance of the AGMI Plan by at least one class
which is impaired) hereby requests the Court confirm the AGMI Plan pursuant to
11 U.S.C. (S) 1129(b), notwithstanding the requirements of Subparagraph (8), as
the AGMI 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 AGMI shall be vested with ownership to all property
of AGMI upon the Effective Date, subject to the provisions of this Plan.
8.2 The payment of Allowed Administrative Claims and Allowed Secured
Claims shall be in exchange for all claims against AGMI and the Reorganized AGMI
and shall constitute full settlement, release, discharge, and satisfaction of
all such claims against AGMI and the Reorganized AGMI.
8.3 Nothing herein contained shall prevent AGMI from taking any action as
may be necessary to the enforcement of any cause of action which may exist on
behalf of AGMI and which may not have been enforced or prosecuted by AGMI prior
to the Effective Date.
8.4 AGMI 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 AGMI 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 AGMI' 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.
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ARTICLE IX
PROVISION FOR ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS
------------------------------------------------------------
9.1 All unexpired leases and executory contracts between AGMI and any
other party which have not prior to the Effective Date of the AGMI Plan been
affirmatively assumed by AGMI by the filing of an appropriate motion are hereby
rejected.
ARTICLE X
PROVISION AS TO CONTESTED CLAIMS
--------------------------------
10.1 AGMI or the Reorganized AGMI 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. AGMI
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 AGMI Plan shall
be held by AGMI 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 AGMI and
the claimant, such claimant shall receive the amount of cash or property
provided in this AGMI 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 AGMI 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.
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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 AGMI shall be amended
on or before the Effective Date to the extent necessary to effectuate the
provisions of the AGMI Plan, including but not limited to, reincorporating the
Reorganized AGMI 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 AGMI 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.
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 AGMI 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 AGMI may bring subsequent to the Effective Date or to
which AGMI may be made a party.
12.5 To consider any modifications of the AGMI Plan, to remedy any defect
or omission or reconcile any inconsistency in the AGMI Plan or in the orders of
the Bankruptcy Court, including the Order of Confirmation.
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12.6 To hear and determine any request under Fed. R. Bankr. P. 2004 to
allow AGMI 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
AGMI 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 AGMI.
12.9 To issue orders in aid of execution of the AGMI 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.
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Dated this _____ day of November, 1999.
Respectfully submitted,
DEBTORS:
Atlas Gold Mining Inc.
By:_________________________________________
Richard E. Blubaugh, Vice 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