Exhibit 99.2
KIRKLAND & ELLIS LLP
Citigroup Center
153 East 53rd Street
New York, New York 10022-4675
Telephone: (212) 446-4800
Facsimile: (212) 446-4900
Richard L. Wynne (RW-5630)
KIRKLAND & ELLIS LLP
777 South Figueroa Street
Los Angeles, California 90017
Telephone: (213) 680-8400
Facsimile: (213) 680-8500
Sharon M. Kopman (SK-3295)
Reorganization Counsel for Debtors and
Debtors in Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- ------------------------------ x Chapter 11
In re: :
: Case No. 03-15261 (SMB)
DDI CORP., et al., :
: (Jointly Administered with Case No. 03-
Debtors. : 15260)
- ------------------------------ x
AMENDMENT TO DEBTORS' FIRST AMENDED JOINT PLAN OF
REORGANIZATION
DATED AS OF AUGUST 30, 2003
I. INTRODUCTION
This amendment (the "Amendment") to the Debtors' First Amended Joint Plan
of Reorganization dated as of August 30, 2003 (as may be further amended,
amended and restated, supplemented or modified from time to time) (the "Plan")
is being filed by DDi Corp. ("DDi Corp.") and DDi Capital Corp. ("DDi Capital",
together with DDi Corp., the "Debtors") to effect certain modifications to (a)
the definition of "Released Claims" to clarify that nothing in the Plan releases
claims of the United States of America or its agencies or subdivisions (the
"United States") against the non-Debtors; and (b) the structure of the issuance
of preferred stock relating to DDi Europe Limited ("DDi Europe"), a non-debtor
wholly-owned subsidiary of DDi Corp. (such modified structure will be referred
to herein as the "Modified Structure"), to holders of Allowed Class 6a Claims
and Allowed Class 6b Claims. Upon the occurrence of certain events more fully
described below, the Modified Structure will be implemented on the effective
date of the Plan (the "Effective Date"). The Debtors believe that the
modification to the definition of "Released Claims" and the Modified Structure,
if implemented, will not materially impair the treatment of the holders of the
Debtors' Allowed Claims (as defined in the Plan) and Allowed Equity Interests
(as defined in the Plan) (each, a "Holder" and collectively, the "Holders") as
contemplated by the Plan prior to this Amendment.
II. DEFINITIONS
The following defined terms are used in this document. Capitalized terms
used but not defined herein shall have the meaning ascribed to such terms in the
Plan.
2.1 BOS. The Governor and Company of the Bank of Scotland, in its various
capacities under the BOS Credit Facility.
2.2 BOS Consent. The consent of BOS, pursuant to the BOS Credit Facility,
to the issuance of New Preferred Stock by DDi Europe, which shall be in form and
substance reasonably
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satisfactory to the Co-Sponsors and the Required Lenders; provided, however,
that if BOS consents to the issuance of the New Preferred Stock that is in
strict conformity with the terms and conditions set forth in Exhibit "3" to the
Plan, and no other terms and conditions of such consent shall modify the terms
and conditions set forth in such Exhibit "3", such consent shall be deemed in
form and substance reasonably satisfactory to the Required Lenders provided that
a copy of such consent shall have been provided to the Secured Lenders within a
reasonable time prior to it becoming effective.
2.3 BOS Credit Facility. That certain Amended and Restated Facilities
Agreement dated as of May 27, 1999 by and between DDi Europe and BOS.
2.4 New DDi Corp. Preferred Stock. The new preferred stock of Reorganized
DDi Corp., issued on the Effective Date, which shall be governed by the Amended
and Restated DDi Corp. Certificate of Incorporation and shall represent all of
the New DDi Corp. Preferred Stock. The New DDi Corp. Preferred Stock shall have
substantially the terms and conditions set forth in Exhibit "1" hereto. The
precise terms and conditions of the New DDi Preferred Stock shall be agreed upon
by the Co-Sponsors and the Required Lenders and described in an Exhibit to the
Plan Documentary Supplement. However, the New DDi Corp. Preferred Stock shall be
a preferred equity obligation of Reorganized DDi Corp and shall have an initial
aggregate liquidation preference of $15,000,000. In addition, the New DDi Corp.
Preferred Stock shall be subject, without limitation, to the following terms and
conditions:
(i) any and all rights, claims, liens, and interests of the Secured Lenders
or other holders under the New DDi Corp. Guarantee and Pledge Agreement and any
other Restructuring Loan Document to the extent that it creates a claim against
DDi Corp. or lien on any asset of DDi Corp. will be subordinate contractually to
any and all rights, claims and interests (including,
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without limitation, unpaid dividends and other accretions both before and after
any insolvency case or proceeding of Reorganized DDi Corp.) under the New DDi
Corp. Preferred Stock with respect to the (A) the capital stock of DDi Europe
and (B) any cash, property, or other assets of DDi Europe or any of its
subsidiaries that is transferred to Reorganized DDi Corp. by way of dividend or
otherwise ((A) and (B) are collectively referred to herein as the "DDi Europe
Value") until the New DDi Corp. Preferred Stock is fully redeemed;
(ii) any and all rights, claims, liens, or interests of the Holders of
Allowed Class 5 Claims or other holders under the New Senior Accreting Notes
shall be subordinate structurally and contractually to any and all rights,
claims, and interests (including, without limitation, unpaid dividends and other
accretions both before and after any insolvency case or proceeding of
Reorganized DDi Corp.) under the New DDi Corp. Preferred Stock with respect to
the DDi Europe Value (the form and substance of such contractual subordination
shall be reasonably acceptable to holders of a majority of the aggregate
principal amount of the Senior Discount Notes);
(iii) no DDi Europe Value will be paid to or held by the holders of claims,
liens, or interests under the Pre-Restructuring Loan Documents, the
Restructuring Loan Documents, or the New Senior Accreting Notes until the New
DDi Corp. Preferred Stock is fully redeemed; provided, however, that after the
New DDi Corp. Preferred Stock is fully redeemed, all of the DDi Europe Value
shall be available, without limitation, to satisfy obligations under Reorganized
DDi Corp.'s then existing agreements;
(iv) in the event that the Debtors are able to obtain the BOS Consent on or
after the date the Modified Structure is implemented, the New DDi Corp.
Preferred Stock shall convert into or
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be exchanged for New Preferred Stock consistent with the terms and conditions
set forth in the Amended and Restated DDi Europe Articles of Association;
(v) only DDi Europe Value shall be used to effect any distributions and/or
redemptions under the New DDi Corp. Preferred Stock; and
(vi) the New DDi Corp. Preferred Stock shall have no rights, claims and
interests in and to any other assets and equity interests, whether direct or
indirect, of Reorganized DDi Corp.
III. MODIFIED STRUCTURE
The Debtors will implement the Modified Structure on the Effective Date in
the event that BOS, on or prior to five (5) Business Days preceding the
Effective Date, does not provide the BOS Consent. Under the Modified Structure,
Reorganized DDi Corp. (not DDi Europe) shall on the Effective Date issue all of
the New DDi Corp. Preferred Stock to Holders of Allowed Class 6a Claims and
Allowed Class 6b Claims.
The subordination and rights described in the definition of New DDi Corp.
Preferred Stock shall be effected pursuant to the Plan, the New DDi Corp.
Guarantee and Pledge Agreement and any other Restructuring Loan Document to the
extent it creates a claim against DDi Corp. or lien on any asset of DDi Corp.,
and the New Senior Accreting Note Indenture.
IV. MODIFICATIONS TO CERTAIN EXISTING PLAN PROVISIONS
The following provisions in the Plan will be modified as follows to account
for the Modified Structure.
4.1 Definitions. Sections 2.1 to 2.4 above are hereby inserted into Section
II of the Plan. In addition, Section 2.1.93 of the Plan is amended and restated
in its entirety as follows:
"New DDi Corp. Securities. Collectively, the New Common Stock, the New
Warrants, the New DDi Corp. Preferred Stock (if the Modified Structure is
implemented) and the Management Options."
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Section 2.1.104 of the Plan is amended and restated in its entirety as
follows:
"Plan Documents. Collectively, the Amended and Restated DDi Corp.
Certificate of Incorporation; the Amended and Restated DDi Corp. Bylaws, the
Amended and Restated DDi Europe Articles of Association (to be effective only if
the Modified Structure is not implemented), the New Warrant Agreements, the
Management Incentive Plan, the Registration Rights Agreements, the New Senior
Accreting Note Indenture and any other documents required by the Plan, excluding
any of the Restructuring Loan Documents (other than the Secured Lender Warrant
Agreement, the New Common Stock Registration Rights Agreement and the New DDi
Corp. Guarantee and Pledge Agreement), or determined by the Co-Sponsors and the
Required Lenders to be necessary or advisable to implement the Plan. The Plan
Documents shall be in form and substance acceptable to the Co-Sponsors and the
Required Lenders. Final or near-final versions of the Plan Documents shall be
filed with the clerk of the Bankruptcy Court as part of the Plan Documentary
Supplement as early as practicable (but in no event later than ten (10) Business
Days prior to the commencement of the Confirmation Hearing or on such other date
as the Bankruptcy Court may establish)."
Section 2.1.113 of the Plan is amended and restated in its entirety as
follows:
"Released Claims. Any and all of the following Claims and Causes of Action
that arose up to and including the Effective Date and/or relate to, in any way,
any Claims or Causes of Action that arose up to and including the Effective
Date:
(i) actions or omissions or courses of conduct of any Released Party with
respect to any indebtedness arising under or with respect to any credit facility
or any other arrangement under which any of the Debtors or any of their
respective subsidiaries is or was a borrower or guarantor, the Pre-Restructuring
Loan Documents, the 5.25% Convertible Subordinated Notes, the
5
6.25% Convertible Subordinated Notes, the Senior Discount Notes or any
investment (direct or indirect) in any common or preferred equity of any of the
Debtors (including, without limitation, any action or omission of any Released
Party with respect to the issuance, acquisition, holding, voting or disposition
of any such investment),
(ii) actions or omissions or courses of conduct of any Released Party as an
officer, director, employee or agent of, or advisor to, any of the Debtors, the
Debtors' respective subsidiaries, the Senior Debt Parties, the 5.25% Convertible
Subordinated Debt Parties, the 6.25% Convertible Subordinated Debt Parties or
the Senior Discount Parties,
(iii) disclosures made or not made by any person to any current or former
Holder of any indebtedness arising under or with respect to any credit facility
or any other arrangement under which any of the Debtors or any of the Debtors'
respective subsidiaries is or was a borrower or a guarantor, the
Pre-Restructuring Loan Documents, the 5.25% Convertible Subordinated Notes, the
6.25% Convertible Subordinated Notes or the Senior Discount Notes,
(iv) consideration paid in respect of any investment (direct or indirect)
by any Person in any indebtedness arising under or with respect to any credit
facility or any other arrangement under which any of the Debtors or any of the
Debtors' respective subsidiaries is or was a borrower or a guarantor,
Pre-Restructuring Loan Documents, the 5.25% Convertible Subordinated Notes, the
6.25% Convertible Subordinated Notes, the Senior Discount Notes, any common or
preferred equity investment (direct or indirect) in any of the Debtors or in
respect of any services provided or to be provided to any of the Debtors under
any management agreement or otherwise,
(v) Claims for equitable subordination or other recharacterization of any
claim of any of the Senior Debt Parties, the 5.25% Convertible Subordinated Debt
Parties, the 6.25% Convertible Subordinated Debt Parties and the Senior Discount
Parties,
6
(vi) avoidance Claims the Debtors and their respective Estates have or may
have against any of the Senior Debt Parties, the 5.25% Convertible Subordinated
Debt Parties, the 6.25% Convertible Subordinated Debt Parties and the Senior
Discount Parties under Sections 542, 543, 544, 547, 548, 549, 553, or 724(a) of
the Bankruptcy Code, under applicable state law or otherwise, in respect of any
payments or transfers made, obligations incurred or any contracts, agreements or
arrangements involving any of the Released Parties,
(vii) any fiduciary duty of any of the Released Parties to any of the
Debtors or their respective Estates or which the Estates might have asserted or
any of their creditors or Holders,
(viii) actions taken or not taken or course of conduct in connection with
the contemplated Plan, the restructuring and the petitions or otherwise in
respect in the Chapter 11 Cases, including but not limited to, any act taken or
omitted to be taken in connection with or related to the formulation,
preparation, dissemination, implementation, administration, Confirmation or
Consummation of the Plan, the Disclosure Statement or any contract, instrument,
release or other agreement or document created or entered into in connection
with the Plan, including the RSA, PSA or SDNPSA, or any other act taken or
omitted to be taken in connection with or in contemplation of the Restructuring
of the Pre-Restructuring Bank Indebtedness, the Convertible Subordinated Notes,
or the Senior Discount Notes, and
(ix) Claims, obligations, rights, Causes of Action and liabilities which
the Debtors and any of their respective successors, assigns, affiliates and
subsidiaries (other than DDi Europe and its European subsidiaries) may assert
against the Released Parties, whether for tort, fraud, contract, violations of
federal or state securities laws, or otherwise, whether known or unknown,
foreseen or unforeseen, existing or hereafter arising, based in whole or in part
upon any act or omission, transaction, or other occurrence taking place on or
before the Confirmation Date, in any way
7
relating to the Chapter 11 Cases, the Restructuring or the Plan; provided,
however, that Released Claims shall not include Claims or Causes of Action
arising out of any such Released Party's gross negligence or willful misconduct,
provided, however, that notwithstanding anything contained herein to the
contrary, nothing in this Plan or the transactions contemplated by and
authorized pursuant to the Plan release any non-Debtor from any claims of the
United States, or modify, alter, impair, or in any way affect the claims and
rights of the United States or the application of any laws or regulations of the
United States as to any person or entity other than the Debtors."
4.2 Treatment of Claims and Equity Interests. Section 6.6 of the Plan is
amended and restated in its entirety as follows:
"Class 6a - Allowed Class 6a Claims - 5.25% Convertible Subordinated Notes
(Impaired). Class 6a consists of Allowed Class 6a Claims. All Class 6a Claims
are Allowed Class 6a Claims. On the Effective Date, on account of and in full
and complete satisfaction of all Allowed Class 6a Claims asserted against any
and all Debtors, each Holder of an Allowed Class 6a Claim shall receive, (i) a
Pro Rata share of 43.24% of the outstanding shares of New Common Stock, subject
to dilution for (A) all New Common Stock issuable under the Management Incentive
Plan upon the exercise of the Management Options therein, and (B) all New Common
Stock issuable upon the exercise of the New Warrants; and (ii) a Pro Rata share
of (A) 45.45% of the outstanding shares of New Preferred Stock (only if the
Modified Structure is not implemented) or (B) 50% of the outstanding shares of
New DDi Corp. Preferred Stock (only if the Modified Structure is implemented)."
Section 6.7 of the Plan is amended and restated in its entirety as follows:
8
"Class 6b - Allowed Class 6b Claims - 6.25% Convertible Subordinated Notes
(Impaired). Class 6b consists of Allowed Class 6b Claims. All Class 6b Claims
are Allowed Class 6b Claims. On the Effective Date, on account of and in full
and complete satisfaction of all Allowed Class 6b Claims asserted against any
and all Debtors, each Holder of an Allowed Class 6b Claim shall receive, (i) a
Pro Rata share of 50.76% of the outstanding shares of New Common Stock subject
to dilution for (A) all New Common Stock issuable under the Management Incentive
Plan upon the exercise of the Management Options therein and (B) all New Common
Stock issuable upon the exercise of the New Warrants; and (ii) a Pro Rata share
of (A) 45.45% of the outstanding shares of New Preferred Stock (if the Modified
Structure is not implemented) or (B) 50% of the outstanding shares of New DDi
Corp. Preferred Stock (if the Modified Structure is implemented)."
4.3 Means for Implementing the Plan. Section 8.7 of the Plan is amended and
restated in its entirety as follows:
"Issuance of New Preferred Stock or New DDi Corp. Preferred Stock. On the
Effective Date, DDi Europe shall issue the New Preferred Stock (only if the
Modified Structure is not implemented) or Reorganized DDi Corp. shall issue the
New DDi Corp. Preferred Stock (only if the Modified Structure is implemented) in
accordance with the Plan, consistent with the Amended and Restated DDi Europe
Articles of Association or the Amended and Restated DDi Corp. Certificate of
Incorporation, as the case may be, and other Plan Documents, which shall be
distributed as described herein. On the Effective Date, the New Preferred Stock
or the New DDi Corp. Preferred Stock, as the case may be, shall be issued to the
Holders of Allowed Class 6a Claims and Allowed Class 6b Claims in accordance
with sections 6.6 and 6.7 of the Plan. The Amended and Restated DDi Europe
Articles of Association and the Amended and Restated DDi
9
Corp. Certificate of Incorporation shall be substantially in the forms attached
as Exhibits to the Plan Documentary Supplement. All shares of New Preferred
Stock or New DDi Corp. Preferred Stock, as the case may be, issued pursuant to
the Plan will be, upon such issuance, validly issued, and non-assessable and
fully paid. The terms of the New Preferred Stock are more fully described in the
term sheet attached as Exhibit "3" to the Plan. The terms of the New DDi Corp.
Preferred Stock will be substantially similar to the terms of the New Preferred
Stock and are more fully described in Exhibit "1" hereto and in an Exhibit to
the Plan Documentary Supplement."
Section 8.12 of the Plan is amended and restated in its entirety as
follows:
"Management/Board of Directors. On the Effective Date, the operation of the
Reorganized Debtors shall become the general responsibility of the Reorganized
Debtors' newly constituted Board of Directors (each a "Board" and collectively,
the "Boards"), who shall thereafter have the responsibility for the management
and control of the Reorganized Debtors. Immediately following the Effective
Date, the New Board of Reorganized DDi Corp. shall consist of seven members,
comprised as follows: (a) Bruce McMaster, (b) David Blair, (c) two Convertible
Subordinated Note Holder designees (designated by the Ad Hoc Convertible Note
Holder Committee prior to distribution of the Plan) which designees will be
included in the Plan as sent to the Convertible Subordinated Note Holders for
approval and (d) three Convertible Subordinated Note Holder designees (selected
by the Ad Hoc Convertible Note Holder Committee prior to distribution of the
Plan) which designees will be included in the Plan as sent to the Convertible
Subordinated Note Holders for approval (designees will be selected from list to
be developed in conjunction with Reorganized DDi Corp., the Ad Hoc Convertible
Note Holder Committee and their respective advisors). Prior to or immediately
following the Effective Date of the Plan, Reorganized DDi Corp. shall use
commercially reasonable efforts to provide to the Ad
10
Hoc Convertible Note Holder Committee the names of at least three directors who
meet the "independence" standards of the Securities and Exchange Commission and
the Nasdaq National Market (whether or not Reorganized DDi Corp. or any of the
securities of Reorganized DDi Corp. are subject to such standards). After the
Effective Date of the Plan, and not less than annually thereafter, prior to any
election by the stockholders or appointments by the Board (only if there are not
remaining at the time of any such appointment by the Board, two members of the
Board who have been previously recommended as nominees by the Preferred Stock
Representatives (as defined below)), two Holders of the New Preferred Stock or
New DDi Corp. Preferred Stock (only if the Modified Structure is implemented)
(who in either case initially will be Providence Capital, LLC and Tablerock Fund
Management, LLC (the "Preferred Stock Representatives"), together, shall make
reasonable recommendations in good faith (the "Designation Right") to the Board
(or more frequently in the event any such Holder transfers any of its shares of
New Preferred Stock or New DDi Corp. Preferred Stock, as the case may be, along
with its Designation Right to an unaffiliated third party) with respect to two
nominees, who shall be qualified and otherwise appropriate candidates for the
Board in the event of an election by the stockholders and a number of nominees
necessary to result in there being two acting members of the Board who have been
recommended by such Preferred Stock Representatives in the event of an
appointment by the Board. Such recommendation may be made by delivering notice
thereof to Reorganized DDi Corp. within sixty (60) days after the written
request by the Board of names for consideration (or more frequently in the event
such Holder of New Preferred Stock or New DDi Corp. Preferred Stock, as the case
may be, and any transferee thereof each certify that such Holder of New
Preferred Stock or New DDi Corp. Preferred Stock, as the case may be, has
transferred its shares of New Preferred Stock or New DDi Corp. Preferred Stock,
as the case may be, to such
11
transferee). The Board shall submit a written request for names for
consideration once a year (or more frequently in the event such Holder of New
Preferred Stock or New DDi Corp. Preferred Stock, as the case may be, and any
transferee thereof each certify that such Holder of New Preferred Stock or New
DDi Corp. Preferred Stock, as the case may be, has transferred its shares of New
Preferred Stock or New DDi Corp. Preferred Stock, as the case may be, to such
transferee). If at any time while the New Preferred Stock or New DDi Corp.
Preferred Stock, as the case may be, remains outstanding, those nominees
recommended by such Holders of the New Preferred Stock or New DDi Corp.
Preferred Stock, as the case may be, are not appointed by the Board to the Board
(if the appointments are determined by the Board) or nominated by the Board or
management of Reorganized DDi Corp. for election by the stockholders of
Reorganized DDi Corp. to the Board, then as a remedy to the Holders of the New
Preferred Stock or the New DDi Corp. Preferred Stock, as the case may be, for
breach of the Designation Right, the New Preferred Stock or the New DDi Corp.
Preferred Stock, as the case may be, shall bear a dividend rate equal to 17% per
annum effective retroactively to the date of issuance (until such time as two
nominees recommended to the Board pursuant to the foregoing procedures are
appointed or nominated, whereupon the dividend rate shall be decreased to 15%
per annum commencing on the date of such complying appointments or nominations.)
Notwithstanding the foregoing, if (i) any member of the Board who holds New
Preferred Stock or New DDi Corp. Preferred Stock, as the case may be (or who is
a stockholder, director, member, partner, employee or otherwise an affiliate of
a person or entity who holds New Preferred Stock or New DDi Corp. Preferred
Stock, as the case may be) (each, a "Preferred Stock Board Member") votes
against an appointment or nominee to the Board recommended by such holders of
the New Preferred Stock or New DDi Corp. Preferred Stock, as the case may be
(the "Recommended Board Member") in accordance with the foregoing
12
provisions, (ii) such Recommended Board Member is not appointed or nominated to
the Board because one or more Preferred Stock Board Members votes against such
Recommended Board Member and (iii) such Recommended Board Member would have been
appointed or nominated to the Board had such Preferred Stock Board Member voted
for such Recommended Board Member, then there shall be no increase in the
dividend rate pursuant to the provisions of this section."
Section 8.13 of the Plan is amended and restated in its entirety as
follows:
"Corporate Actions. On the Effective Date, all actions contemplated by the
Plan shall be deemed authorized and approved in all respects (subject to the
provisions of the Plan) by virtue of the entry of the Confirmation Order, in
accordance with the Bankruptcy Code and applicable State law (including but not
limited to section 303 of the Delaware General Corporations Law, to the extent
applicable, and any analogous provision of the business corporation law or code
of each other State in which any Reorganized Debtor is incorporated or
organized) and without any requirement of further action by the stockholders,
officers or directors of the Debtors or the Reorganized Debtors or DDi Europe,
including, without limitation, the following: (a) the adoption and the filing
with the Secretary of State of the State of Delaware of the Amended and Restated
DDi Corp. Certificate of Incorporation; (b) the adoption of the Amended and
Restated DDi Corp. Bylaws; (c) the adoption and filing with Companies House of
the Amended and Restated DDi Europe Articles of Association (only if the
Modified Structure is not implemented); (d) the issuance by DDi Europe of the
New Preferred Stock (only if the Modified Structure is not implemented), (e) the
issuance by Reorganized DDi of the New Common Stock, the New DDi Corp. Preferred
Stock (only if the Modified Structure is implemented), the New Warrants and the
Management Options contemplated under the Management Incentive Plan; (f) the
execution and the delivery of, and the performance under, each of the Plan
Documents, the Restructuring Loan
13
Documents and all documents and agreements contemplated by or relating to any of
the foregoing; and (g) the removal of all members of the respective Boards of
Directors of the Debtors and the election of all members of the Boards of
Directors of the Reorganized Debtors designated pursuant to the Plan. All
matters provided for under the Plan involving the corporate structure of the
Debtors or Reorganized Debtors and any corporate action required by the Debtors
or Reorganized Debtors in connection with the Plan shall be deemed to have
occurred and shall be in effect pursuant to the Bankruptcy Code, without any
requirement of further action by the shareholders, officers or directors of the
Debtors or Reorganized Debtors. On the Effective Date, the appropriate officers
of the Reorganized Debtors are authorized and directed to execute and to deliver
the Plan Documents, the Restructuring Loan Documents and any other agreements,
documents and instruments contemplated by the Plan, the Plan Documents or the
Restructuring Loan Documents in the name and on behalf of the Reorganized
Debtors."
4.4 Distributions. Section 9.4 of the Plan is amended and restated in its
entirety as follows:
"De Minimis Distributions and Fractional Shares. No Cash payment shall be
made by the Reorganized Debtors to any Holder of Allowed Claims (other than
Administrative Claims) unless a request therefore is made in writing to the
Reorganized Debtors. No fractional shares of New Common Stock and New Preferred
Stock (or New DDi Corp. Preferred Stock if the Modified Structure is
implemented) shall be distributed; any entity that otherwise would be entitled
to receive a fractional share distribution under this Plan shall instead receive
an amount of shares rounded down to the next whole number. Any securities or
other property that is not distributed as a consequence of this section shall,
after the last distribution on account of Allowed Claims in the
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applicable Class be treated as "Unclaimed Property" under the Plan. This section
9.4 shall not apply to any of the Secured Lenders."
Section 9.7 of the Plan is amended and restated in its entirety as follows:
"Disposition of Unclaimed Property. If the Person entitled thereto notifies
the Distribution Agent, the 5.25% Trustee, the 6.25% Trustee or the Senior
Discount Trustee, as the case may be, of such Person's claim to the distribution
of Unclaimed Property within nine (9) months following the Effective Date, the
Unclaimed Property distributable to such Person, together with any interest or
dividends earned thereon, shall be paid or distributed to such Person. Any
Holder of an Allowed Claim, Allowed Administrative Claim, Allowed Class 5 Claim,
Allowed Class 6a Claim or Allowed Class 6b Claim that does not assert a claim in
writing for Unclaimed Property held by the Distribution Agent, the 5.25%
Trustee, the 6.25% Trustee or the Senior Discount Trustee, as the case may be,
within nine (9) months after the Effective Date shall no longer have any claim
to or interest in such Unclaimed Property, and shall be forever barred from
receiving any distributions under this Plan or otherwise from the Distribution
Agent, the 5.25% Trustee, the 6.25% Trustee or the Senior Discount Trustee, as
the case may be. In such cases, any Unclaimed Property held for distribution on
account of such Allowed Claims, Administrative Claims, Allowed Class 5 Claims,
Allowed Class 6a Claims and Allowed Class 6b Claims shall be retained by the
Distribution Agent, the 5.25% Trustee, the 6.25% Trustee or the Senior Discount
Trustee, as the case may be, as follows: pursuant to Bankruptcy Code section
347(b), (a) any undistributed Cash shall be the property of the Distribution
Agent; provided, however, that any undistributed Cash whose distribution is
governed by the Existing Senior Discount Note Indenture shall be returned by the
Senior Discount Trustee to the Distribution Agent and distributed by the
Distribution Agent to DDi Capital, (b) any undistributed New DDi
15
Corp. Securities (other than the Secured Lender Warrants) shall be the property
of the Distribution Agent; provided, however that any undistributed New Common
Stock and New Preferred Stock (or New DDi Corp. Preferred Stock if the Modified
Structure is implemented) which was distributed for the benefit of the
Convertible Subordinated Note Holders shall be retained by or transferred to the
5.25% Trustee or the 6.25% Trustee, as the case may be, and distributed Pro Rata
to Holders of Allowed Class 6a Claims and Allowed Class 6b Claims that have
claimed their initial distributions, in each case, free from any restrictions
thereon, and such undistributed Cash or securities shall not be subject to the
unclaimed property or escheat laws of any State or other governmental unit. This
section 9.7 shall not apply to any of the Secured Lenders.
Date: October 31, 2003 DDi Corp., a Delaware corporation
By: /s/ Timothy J. Donnelly
-----------------------------
Name: Timothy J. Donnelly
Title: Vice President
Date: October 31, 2003 DDi Capital Corp., a California
corporation
By: /s/ Timothy J. Donnelly
-----------------------------
Name: Timothy J. Donnelly
Title: Vice President
Submitted by:
Kirkland & Ellis LLP
By: /s/ Sharon M. Kopman
-----------------------------------------------
Richard L. Wynne (RW-5630)
Sharon M. Kopman (SK-3295)
Christian C. Lymn (CL - 3159)
Attorneys for Debtors and Debtors-In-Possession
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