Document/Exhibit Description Pages Size
1: 8-K Form 8-K Dated April 1, 1997 5 25K
2: EX-2.1 Debtor's First Amended Plan of Reorganization 49 126K
3: EX-2.2 First Modification to Plan of Reorganization 3 11K
4: EX-2.3 Asset Purchase Agreement 27 129K
5: EX-99.1 Engineering Services Agreement 10 35K
6: EX-99.2 Facilities and Equipment Agreement 8 29K
7: EX-99.3 License Agreement 11 38K
EX-2.1 — Debtor’s First Amended Plan of Reorganization
Exhibit Table of Contents
Exhibit 2.1
[MURRAY & MURRAY LETTERHEAD]
JANICE M. MURRAY, #099996
MAUREEN C. HARRISON, #162063
MURRAY & MURRAY
A Professional Corporation
Attorneys at Law
3030 Hansen Way, Suite 200
Palo Alto, CA 94304-1009
(415) 852-9000
Attorneys for Debtor
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
In re )
) Case No. 96-59552-JRG-11
WEITEK CORPORATION, a )
California corporation, ) Chapter 11
)
Debtor. )
)
Employer's Tax Identification )
No.: 94-2709963 )
_______________________________________)
DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION
DATED JANUARY 30, 1997
TABLE OF CONTENTS
Page
1. INTRODUCTION........................................................ 1
2. DEFINITIONS......................................................... 2
3. DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS...................... 13
3.1 Class 1....................................................... 13
3.2 Class 2....................................................... 13
3.3 Class 3....................................................... 13
3.4 Class 4....................................................... 13
3.5 Class 5....................................................... 13
3.6 Class 6....................................................... 13
3.7 Class 7....................................................... 13
4. TREATMENT OF UNCLASSIFIED CLAIMS.................................... 14
4.1 Allowed Administrative Claims................................. 14
4.2 Tax Claims.................................................... 14
5. CLASSES OF CLAIMS AND INTERESTS NOT IMPAIRED UNDER THE
PLAN................................................................ 15
6. TREATMENT OF CLASSES OF CLAIMS AND INTERESTS THAT ARE
IMPAIRED UNDER THE PLAN............................................. 15
6.1 Class 1 Claims (Priority Claims).............................. 15
6.2 Class 2 Claim (Silicon Valley Bank)........................... 15
6.3 Class 3 Claim (Renco)......................................... 15
6.4 Class 4 Claim (Hewlett Packard Company)....................... 16
6.5 Class 5 Claims (Unsecured Creditors).......................... 16
6.6 Class 6 Interests (Common Stock).............................. 17
6.7 Class 7 Interests (Options)................................... 17
7. MEANS FOR IMPLEMENTATION OF THE PLAN................................ 17
7.1 Conditions to Confirmation.................................... 17
7.2 Conditions to the Effective Date.............................. 18
7.3 Consummation of the Rockwell Transaction...................... 19
7.4 Disposition of Assets Not Subject to Rockwell
Agreement..................................................... 19
7.5 Disbursement of Funds......................................... 19
7.6 Responsible Person............................................ 19
7.7 Expedited Procedure for Compromise of
Controversy, Sale or Abandonment.............................. 21
7.8 Avoidance and Other Actions................................... 22
7.9 Corporate Formalities......................................... 22
7.10 Compensation and Reimbursement of Professionals............... 23
7.11 Amendment of Charter to Prohibit the Issuance of
Non-Voting Equity Securities.................................. 23
7.12 Unclaimed Property............................................ 24
7.13 Dissolution of Corporation.................................... 24
8. COMPETING BID; BIDDING PROCEDURES................................... 24
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9. EXECUTORY CONTRACTS AND UNEXPIRED LEASES............................ 28
9.1 Assumption of Executory Contracts and Unexpired
Leases........................................................ 28
(a) Assumption of the Rockwell Agreement.................... 28
(b) Assumption and Assignment to Rockwell................... 28
(c) Assumption of Additional Executory Contracts
........................................................ 28
(d) Effect of Assumption.................................... 29
(e) Cure.................................................... 29
(f) Assumption Conditioned Upon Confirmation of
the Plan and Closing of the Rockwell
Transaction............................................. 29
9.2 Rejection of Executory Contracts and Unexpired
Leases........................................................ 30
9.3 Treatment of Executory Contracts and Unexpired
Leases........................................................ 30
9.4 Rejection Claims.............................................. 30
10. PROOFS OF CLAIM; EVIDENCE OF EQUITY SECURITY;
OBJECTIONS.......................................................... 31
10.1 Time for Filing Proofs of Claim............................... 31
10.2 Evidence of Claim or Interest................................. 31
10.3 Time for Filing Objections.................................... 31
10.4 Disputed Claims and Disputed Interests........................ 32
11. RESERVATION OF POWERS............................................... 33
12. WAIVER.............................................................. 33
13. REQUEST FOR CONFIRMATION............................................. 33
14. RETENTION OF JURISDICTION........................................... 34
15. EFFECT OF CONFIRMATION.............................................. 36
15.1 Binding Effect................................................ 36
15.2 Vesting of Property........................................... 36
15.3 Discharge..................................................... 36
16. CHAPTER 11 POST-CONFIRMATION REPORTS AND FINAL DECREE............... 36
16.1 Post-Confirmation Reports..................................... 36
16.2 Service of Reports............................................ 37
16.3 Final Decree.................................................. 37
17. MISCELLANEOUS....................................................... 38
17.1 Headings...................................................... 38
17.2 Singular/Plural............................................... 38
17.3 Gender........................................................ 38
17.4 Revocation and Withdrawal..................................... 38
17.5 Exhibits...................................................... 38
17.6 Notices....................................................... 38
17.7 Reservation of Rights......................................... 40
17.8 Computation of Time Periods................................... 40
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TABLE OF EXHIBITS
EXHIBIT "A": Executory Contracts And Unexpired Leases To Be Assumed By
Debtor And Assigned To Rockwell
EXHIBIT "B": Executory Contracts And Unexpired Leases To Be Assumed By
Debtor
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Weitek Corporation, a California corporation ("Weitek", the "Debtor" or
the "Company") proposes this First Amended Plan of Reorganization (the "Plan")
pursuant to the provisions of Chapter 11 of the Bankruptcy Code.
1. INTRODUCTION
1.1 On December 11, 1996, the Debtor filed its Voluntary Petition
under Chapter 11 of the Bankruptcy Code. Chapter 11 sets forth the rules and
procedures under which financially distressed entities may be reorganized or
liquidated pursuant to a plan of reorganization presented to creditors and
stockholders for consideration and approval. Confirmation of the Plan is the
culmination of that process.
1.2 The Plan sets forth a proposal for the satisfaction, discharge
and/or cancellation of all Claims against and Interests in the Debtor. With the
Plan, Creditors and Equity Security Holders will receive a Ballot for voting on
the Plan, and a Disclosure Statement that provides information concerning the
Debtor and the Plan. The Disclosure Statement includes a summary of the Debtor's
history, a summary of significant events during the Chapter 11 case, an estimate
of what certain Creditors and Interest holders will receive under the Plan and a
summary of the procedures and voting requirements necessary for confirmation of
the Plan. You should thoroughly review both the Plan and the Disclosure
Statement before deciding whether you will accept or reject the Plan.
/ / /
/ / /
/ / /
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1.3 CREDITORS AND EQUITY SECURITY HOLDERS WISHING TO VOTE ON THE PLAN
SHOULD COMPLETE THE BALLOT PROVIDED AND RETURN IT NO LATER THAN MARCH 11, 1997
TO:
MURRAY & MURRAY
A PROFESSIONAL CORPORATION
3030 HANSEN WAY, SUITE 200
PALO ALTO, CALIFORNIA 94304-1009
ATTN.: JANICE M. MURRAY
IF YOUR BALLOT IS NOT RETURNED BY MARCH 11, 1997, IT MAY NOT BE CONSIDERED.
BALLOTS WHICH ARE RETURNED BUT NOT PROPERLY EXECUTED WILL NOT BE CONSIDERED.
BALLOTS WHICH ARE EXECUTED BUT WHICH FAIL TO INDICATE EITHER ACCEPTANCE OR
REJECTION OF THE PLAN WILL BE CONSIDERED AS ACCEPTING THE PLAN.
2. DEFINITIONS
The following terms used in this Plan shall, unless the context
otherwise clearly requires, have the meanings specified below, and such meanings
shall be equally applicable to both the singular and plural forms of such terms.
2.1 "ADMINISTRATIVE CLAIM" means a Claim for any cost or expense of
administration of a kind specified in Section 503(b) of the Bankruptcy Code that
is entitled to priority under Section 507(a)(1) of the Bankruptcy Code,
including, without limitation, any actual and necessary costs and expenses of
preserving the Bankruptcy Estate incurred on or after the Petition Date and
through and including the Effective Date, any cure amounts that must be paid in
connection with the assumption of any executory contract or unexpired lease of
the Debtor under Section 365 of the Bankruptcy Code, Bankruptcy Fees, and
allowance of compensation for legal or other services and reimbursement of
expenses under Sections 330 and 331 of the
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Bankruptcy Code or otherwise allowed by the Bankruptcy Court.
2.2 "ALLOWED ADMINISTRATIVE CLAIM" means all or any portion of an
Administrative Claim that has either been (i) allowed by a Final Order or (ii)
has not been objected to within the time period established by the Plan or by an
order of the Bankruptcy Court.
2.3 "ALLOWED CLAIM" means a Claim (a) which is an Allowed Claim
pursuant to the terms of the Plan; (b) with respect to which a Proof of Claim
has been filed with the Bankruptcy Court within the time ordered by the
Bankruptcy Court, or if no time is ordered by the Bankruptcy Court, within the
time prescribed by the Plan, the Bankruptcy Code, the Bankruptcy Rules or by
Local Rules, and to which no objection has been filed within the time fixed by
the Plan or the Bankruptcy Court; (c) which has been listed on Schedule D, E or
F of the Debtor's Schedules filed with the Bankruptcy Court pursuant to Section
521(1) of the Bankruptcy Code and Bankruptcy Rule 1007(b), as may be amended,
(the "Schedules"), and is not listed as disputed, contingent, unliquidated or
unknown as to amount; or (d) which is allowed by a Final Order of the Bankruptcy
Court. Except for a Claim which is allowed pursuant to the terms of the Plan, no
Claim shall be considered an Allowed Claim if an objection to the allowance
thereof is interposed by the Debtor or other party in interest within the time
fixed by the Plan or the Bankruptcy Court, and such objection has not been
denied by a Final Order of the Bankruptcy Court.
2.4 "ALLOWED INTEREST" means the Interest of an Equity Security Holder
(a) which is an Allowed Interest pursuant to the
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terms of the Plan; (b) in respect to which a Proof of Interest has been filed
with the Bankruptcy Court within the time ordered by the Bankruptcy Court, or if
no time is ordered by the Bankruptcy Court, within the time prescribed by the
Plan, the Bankruptcy Code, the Bankruptcy Rules or by Local Rules, and to which
no objection has been filed within the time fixed by the Plan or the Bankruptcy
Court; or (c) which has been listed on the Debtor's List of Equity Security
Holders filed with the Bankruptcy Court pursuant to Bankruptcy Rule 1007(a)(3),
as may be amended, (the "List of Equity Security Holders"), and is not listed as
disputed, contingent, unliquidated or unknown as to class or amount. Except for
an Interest which is allowed pursuant to the terms of the Plan, no Interest
shall be considered an Allowed Interest if an objection to the allowance thereof
is interposed by the Debtor or other party in interest within the time fixed by
the Plan or the Bankruptcy Court, and such objection has not been denied by a
Final Order of the Bankruptcy Court. Pursuant to Bankruptcy Rule 3021, only
Allowed Class 6 Interests of Equity Security Holders as of the Distribution Date
shall be entitled to receive a Distribution under this Plan.
2.5 "ALLOWED SECURED CLAIM" means an Allowed Claim secured by a lien,
security interest, or other charge against or interest in property in which the
Debtor has an interest or that is subject to setoff under Section 553 of the
Bankruptcy Code, to the extent of the value (as specified in the Plan, or if no
value is specified, as determined in accordance with Section 506(a) of the
Bankruptcy Code) of the interest of a holder of
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such Allowed Claim in the Debtor's interest in such property or to the extent of
the amount subject to setoff, as the case may be.
2.6 "ALLOWED UNSECURED CLAIM" means any Allowed Claim, including a
Rejection Claim, but excluding Allowed Secured Claims, Allowed Administrative
Claims, Priority Claims, and Tax Claims.
2.7 "BALLOT" means the form distributed to holders of Claims and
Interests on which an acceptance or rejection of the Plan is to be stated.
2.8 "BANKRUPTCY CASE" or "CASE" means the bankruptcy case commenced by
the Debtor's filing with the Bankruptcy Court of a Voluntary Petition under
Chapter 11 of the Bankruptcy Code.
2.9 "BANKRUPTCY CODE" OR "CODE" means Title 11 of the United States
Code and also includes Sections 157, 158, 1334, 1408-1412, and 1452 of Title 28
of the United States Code.
2.10 "BANKRUPTCY COURT" OR "COURT" means the United States Bankruptcy
Court for the Northern District of California, San Jose Division, having
jurisdiction over the Bankruptcy Case and, to the extent of any reference made
pursuant to 28 U.S.C. Section 157(a) and Local Rule 5011-1, the unit of such
District Court constituted pursuant to 28 U.S.C. Section 151, commonly referred
to as the United States Bankruptcy Court for the Northern District of
California, San Jose Division, and any other courts or panels having competent
jurisdiction to hear the Bankruptcy Case or appeals from orders entered therein.
2.11 "BANKRUPTCY ESTATE" means the estate created by the commencement
of the Bankruptcy Case and comprised of the
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property described in Section 541 of the Bankruptcy Code.
2.12 "BANKRUPTCY FEES" mean the quarterly fees payable under Section
1930 of Title 28 of the United States Code.
2.13 "BANKRUPTCY RULES" means the Federal Rules of Bankruptcy Procedure
promulgated under 28 U.S.C. Section 2075, as amended, as applicable to this
Bankruptcy Case.
2.14 "BOHNET EMPLOYMENT AGREEMENT" means that certain Employment
Agreement dated April 25, 1996 by and between Richard H. Bohnet and the Debtor.
2.15 "CLAIM" means any right to payment, or right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment, from the Debtor, whether or not such right to payment or right to an
equitable remedy is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured.
2.16 "CLAIMS BAR DATE" means February 10, 1997, the date established by
order of the Bankruptcy Court pursuant to Bankruptcy Rule 3003(c) as the
deadline for filing proofs of Claim in the Bankruptcy Case.
2.17 "CLASS" means a category or group of holders of Claims or
Interests as designated pursuant to the Plan.
2.18 "CLOSING" means the date on which all documents and consideration
are exchanged pursuant to the Rockwell Transaction and at which time the
Rockwell Transaction is consummated.
2.19 "COMPANY" or "DEBTOR" means Weitek Corporation, a California
corporation.
2.20 "COMPETING BID" means an offer for the purchase of the
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Rockwell Assets from a Competing Bidder.
2.21 "COMPETING BIDDER" means a third party making a Competing Bid for
the Rockwell Assets.
2.22 "CONFIRMATION" means the entry by the Bankruptcy Court of the
Confirmation Order.
2.23 "CONFIRMATION DATE" means the date on which the Bankruptcy Court
enters the Confirmation Order.
2.24 "CONFIRMATION HEARING" means the hearing held before the
Bankruptcy Court in which the Debtor will seek Confirmation of this Plan,
including any and all adjournments thereof.
2.25 "CONFIRMATION ORDER" means the order entered by the Bankruptcy
Court approving and confirming the Plan in accordance with the provisions of
Chapter 11 of the Bankruptcy Code.
2.26 "CREDITOR" means any entity holding a Claim against the Debtor.
2.27 "DEBTOR'S PROFESSIONALS" collectively means Murray & Murray, A
Professional Corporation and Wilson, Sonsini, Goodrich & Rosati and/or their
successors, if any; such professional as the Debtor may select to complete the
Debtor's final tax returns; such other professionals whose employment by the
Debtor is approved by order of the Bankruptcy Court; and, following the
Effective Date, any professionals engaged by the Debtor to represent or assist
it in fulfilling the duties and obligations of the Debtor under the Plan after
the Effective Date, and administering the Plan, the Bankruptcy Case and the
Bankruptcy Estate, reviewing Claims and Interests, objecting to Disputed Claims
and Disputed Interests as appropriate, supervising the preparation and filing of
the Debtor's final tax returns, and
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closing the Bankruptcy Case.
2.28 "DISCLOSURE STATEMENT" means that informational disclosure
statement issued by the Debtor pursuant to Section 1125 of the Bankruptcy Code
and accompanying this Plan, and which has heretofore been approved by the
Bankruptcy Court pursuant to the Order Approving Disclosure Statement.
2.29 "DISPUTED CLAIM" means a Claim against the Debtor (a) that has
been listed in the Debtor's Schedules as disputed, contingent or unliquidated,
or; (b) as to which an objection or adversary proceeding has been filed within
the time fixed by the Bankruptcy Court and which objection or adversary
proceeding has not been withdrawn or disposed of by a Final Order of the
Bankruptcy Court.
2.30 "DISPUTED CLAIMS RESERVE ACCOUNT" means a segregated
interest-bearing account maintained and administered by the Debtor at a
depository approved by the Office of the United States Trustee for the purpose
of holding cash payments attributable to Disputed Claims.
2.31 "DISPUTED INTERESTS" means an Interest in the Debtor (a) that has
been listed on the List of Equity Security Holders (as may be amended) as
disputed, contingent or unliquidated, or (b) as to which an objection or
adversary proceeding has been filed within the time fixed by the Bankruptcy
Court and which objection or adversary proceeding has not been withdrawn or
disposed of by a Final Order of the Bankruptcy Court.
2.32 "DISPUTED INTERESTS RESERVE ACCOUNT" means a segregated
interest-bearing account maintained and administered by the Debtor at a
depository approved
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by the Office of the United States Trustee for the purpose of holding cash
payments attributable to Disputed Interests.
2.33 "DISTRIBUTION(S)" means the monies to be distributed under the
Plan to holders of Allowed Claims and Allowed Interests.
2.34 "DISTRIBUTION DATE" means the date of commencement of
Distribution(s) under the Plan.
2.35 "EFFECTIVE DATE" means: the later of (a) the first business day
which is eleven (11) calendar days after the Confirmation Date, provided the
Confirmation Order has become a Final Order; or (b) the first date following the
Confirmation Date on which all of the conditions to the Closing of the Rockwell
Transaction are satisfied or waived.
2.36 "EQUITY SECURITY" means (a) a share in the Debtor, whether or not
transferable or denominated "stock", or similar security; or (b) a warrant or
right (other than a right to convert) to purchase, sell, or subscribe to a
share, security, or interest of a kind specified in subparagraph (a) of this
section.
2.37 "EQUITY SECURITY HOLDER" means a holder of record, or if
appropriate, the beneficial owner, of any Equity Security of the Debtor as of
(a) the Petition Date, (b) the date the Order Approving Disclosure Statement is
entered, or (c) the Distribution Date, as the context requires.
2.38 "FINAL ORDER" means an order entered on the docket by the
Bankruptcy Court which is no longer subject to appeal, certiorari proceedings or
other proceedings for review or rehearing, and as to which no appeal, certiorari
proceedings, or
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other proceedings for review or rehearing are pending.
2.39 "INTEREST" means the rights and property interests represented by
an Equity Security of the Debtor.
2.40 "LOCAL RULES" means the Local Rules of the United States District
Court for the Northern District of California, as amended, as applicable to this
Bankruptcy Case.
2.41 "ORDER APPROVING DISCLOSURE STATEMENT" means the Order Approving
Disclosure Statement, Fixing Time for Filing Acceptances or Rejections of Plan,
Fixing Time for Confirmation, Combined with Notice Thereof entered by the
Bankruptcy Court with respect to the Debtor's Disclosure Statement, a copy of
which accompanies this Plan.
2.42 "PETITION DATE" means December 11, 1996, the date on which this
Bankruptcy Case was commenced.
2.43 "PLAN" means this First Amended Plan of Reorganization, including
any modification(s) hereof and/or amendment(s) hereto that comply with Section
1127 of the Bankruptcy Code and Bankruptcy Rule 3019.
2.44 "POST-PETITION INTEREST" means interest at the federal statutory
rate set by 28 U.S.C. Section 1961, accruing from the Petition Date. As of the
Petition Date, said interest rate was 5.49%.
2.45 "PRIORITY CLAIM" means any Allowed Claim entitled to priority
pursuant to Section 507(a) of the Bankruptcy Code, but not including
Administrative Claims and Tax Claims.
2.46 "PRO RATA" means the ratio that an Allowed Claim or Allowed
Interest in a particular Class bears to the aggregate amount of all Allowed
Claims or Allowed Interests in such Class.
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2.47 "PURCHASE PRICE" means the purchase price payable by Rockwell
pursuant to Article III of the Rockwell Agreement.
2.48 "REJECTION CLAIM" means an Allowed Unsecured Claim arising from
the Debtor's rejection of an unexpired lease or executory contract pursuant to
the Plan or pursuant to an order of the Bankruptcy Court.
2.49 "RENCO" means Renco Associates, a California Partnership, the
Debtor's landlord for the premises located at 2801 Orchard Parkway, San Jose,
California.
2.50 "RENCO LEASE" means that certain Industrial Space Lease dated
November 9, 1995 by and between Renco and the Debtor.
2.51 "RENCO LETTER OF CREDIT" means the Letter of Credit No.
SVB95ISO231, dated November 9, 1995 established by Silicon Valley Bank in favor
of Renco and all amendments thereto.
2.52 "RESPONSIBLE PERSON" means the individual designated by the Debtor
under the Plan, or as otherwise designated by order of the Bankruptcy Court, to
assist the Debtor in (a) fulfilling the duties and obligations of the Debtor
under the Plan, and (b) fully administering the Bankruptcy Estate as required by
the Plan, the Confirmation Order, the Bankruptcy Code and the Bankruptcy Rules,
which duties and obligations include, without limitation, the facilitation of
Distributions pursuant to the Plan, reviewing Claims and Interests, objecting to
Disputed Claims and Disputed Interests, supervising the preparation and filing
of the Debtor's final tax returns and closing the Bankruptcy Case.
2.53 "ROCKWELL" means Rockwell Semiconductor Systems, Inc.
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2.54 "ROCKWELL AGREEMENT" means, collectively, that certain Asset
Purchase Agreement by and between Rockwell Semiconductor Systems, Inc. and
Weitek Corporation Dated as of December 11, 1996, that certain Addendum to
License Agreement dated as of January 23, 1997, and other documents, in form and
substance satisfactory to the Debtor and Rockwell, which set forth the terms and
conditions of the Rockwell Transaction, which shall be submitted to the
Bankruptcy Court prior to the Confirmation Date and attached to the Order of
Confirmation and specifically approved thereby.
2.55 "ROCKWELL ASSETS" means the assets of the Bankruptcy Estate which
are the subject of the Rockwell Agreement.
2.56 "ROCKWELL TRANSACTION" means that transaction contemplated by the
Rockwell Agreement.
2.57 "STOCK OPTION PLAN" means the Debtor's 1991 Stock Option Plan.
2.58 "TAX CLAIM" means any Allowed Claim entitled to priority pursuant
to section 507(a)(8) of the Bankruptcy Code.
2.59 "TRANSFER AGENT" means Boston EquiServe Limited Partnership.
2.60 "UNCLAIMED PROPERTY" means any Distribution that cannot be
delivered to, or is not accepted by (i) the holder of an Allowed Claim and/or
(ii) the holder of an Allowed Interest of an Equity Security Holder as of the
Distribution Date, and shall include, without limitation, checks (and the funds
represented thereby) that are returned as undeliverable without a proper
forwarding address, are not cashed, or not delivered because of the absence of a
proper address to which to deliver
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the Distribution together with any interest on said funds.
2.61 "U. S. TRUSTEE" means the office of the United States Trustee for
Region 17 of the United States.
A term used in the Plan that is not herein defined but is used in the
Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to such
term in the Bankruptcy Code or the Bankruptcy Rules.
3. DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS
The Allowed Claims against and Allowed Interests in the Debtor are
designated and classified below for purposes of the Plan. Except to the extent
the Plan provides otherwise, a Claim or Interest that is properly includable in
more than one Class is classified in a particular Class only to the extent that
it qualifies within the description of that Class, and is placed in a different
Class to the extent it qualifies within the description of such different Class.
3.1 Class 1. All Priority Claims.
3.2 Class 2. The Allowed Secured Claim of Silicon Valley Bank.
3.3 Class 3. The Allowed Secured Claim of Renco.
3.4 Class 4. The Allowed Secured Claim of Hewlett Packard Company.
3.5 Class 5. All Allowed Unsecured Claims.
3.6 Class 6. All Allowed Interests (common stock) of Equity Security
Holders as of the Distribution Date.
3.7 Class 7. The Allowed Interests of the holders of outstanding,
unterminated options and/or other rights to acquire any Equity Security of the
Debtor.
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4. TREATMENT OF UNCLASSIFIED CLAIMS
Unclassified Claims shall be treated as follows:
4.1 Allowed Administrative Claims. Each holder of an Allowed
Administrative Claim shall receive payment of such Claim, in cash, in full, upon
the latest of (a) the Effective Date, (b) if such Claim is a Disputed Claim,
upon allowance of such Claim by a Final Order of the Bankruptcy Court, (c) if
such Claim is incurred after the Petition Date in the ordinary course of the
Debtor's business, within such time as payment is due pursuant to the terms
giving rise to such Claim, or (d) such other time as may be agreed to by the
holder of such Claim. Any request for allowance of an Administrative Claim
pursuant to Section 503(a) of the Bankruptcy Code, other than by the Debtor's
Professionals and the U.S. Trustee, must be filed within ten (10) days following
the Effective Date or the holder of such Claim will be forever barred from
asserting such Claim or receiving any payment on account of such Claim.
Bankruptcy Fees shall be paid by the Debtor to the U.S. Trustee, for deposit
into the Treasury, for each quarter (including any fraction thereof) until this
Case is converted, dismissed or closed pursuant to a final decree, as required
by 28 U.S.C. Section 1930(a)(6).
4.2 Tax Claims. Each holder of a Tax Claim shall be paid in cash, in
full, on the Effective Date, but in no event shall the holder of a Tax Claim be
paid prior to the payment in full or reservation for Allowed Claims entitled to
priority pursuant to Section 507(a)(1) through (a)(7) of the Bankruptcy Code.
/ / /
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5. CLASSES OF CLAIMS AND INTERESTS NOT
IMPAIRED UNDER THE PLAN
There are no classes of Claims and Interests which are not impaired
under the Plan.
6. TREATMENT OF CLASSES OF CLAIMS AND INTERESTS
THAT ARE IMPAIRED UNDER THE PLAN The following classes of
Claims and Interests are impaired under the Plan, and shall be treated
as follows:
6.1 Class 1 Claims (Priority Claims). Each holder of a Claim in Class
1 shall receive payment in cash in full, including Post-Petition Interest, on
the Effective Date.
6.2 Class 2 Claim (Silicon Valley Bank). The holder of the Class 2
Claim shall be treated as follows: On the Effective Date and in conjunction with
the Closing of the Rockwell Transaction, the Renco Letter of Credit shall be
cancelled and the lien of Silicon Valley Bank against the Debtor's certificate
of deposit shall be released and of no further force and effect.
6.3 Class 3 Claim (Renco). The holder of the Class 3 Claim shall be
treated as follows: On the Effective Date in conjunction with the Closing of the
Rockwell Transaction and upon the assumption and assignment of the Renco Lease
as approved by the Bankruptcy Court, the Renco Letter of Credit shall be
cancelled and of no further force and effect. Rockwell (or such other assignee
of the Renco Lease as may be approved by the Bankruptcy Court) shall cause to be
issued a replacement letter of credit in the amount of $250,000.00 in favor of
Renco pursuant to the terms of the Renco Lease, unless Renco, in its discretion,
agrees to waive in writing this requirement.
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/ / /
6.4 Class 4 Claim (Hewlett Packard Company). The Allowed Secured Claim
of Hewlett Packard Company ("HP") secured by a perfected lien on certain
equipment of the Debtor shall be treated as follows: At the Debtor's election,
the property subject to the HP Lease will be sold free and clear of the HP lien
with the HP lien to attach to the proceeds and HP shall receive payment from
such proceeds totalling the allowed amount of HP's Claim, of a value, as of the
Effective Date, of HP's interest in the Bankruptcy Estate's interest in such
property; or such property will be returned to HP in full satisfaction of its
secured Claim and the HP Lease otherwise terminated.
6.5 Class 5 Claims (Unsecured Creditors). The holders of Class 5
Allowed Unsecured Claims shall receive payment in cash in full, including
Post-Petition Interest, as soon as practicable after the Effective Date, but in
no event later than the later of (i) forty (40) days after the Effective Date or
(ii) upon resolution of all Disputed Claims, including Rejection Claims;
provided, however, no payment shall be made to members of Class 5 until after
the payment of or reservation for all Allowed Administrative Claims, Allowed
Secured Claims, Tax Claims, Priority Claims, any other senior Claims, and post-
Confirmation expenses of implementing the Plan, winding up the affairs of the
Debtor and closing the Bankruptcy Case. In the unlikely event there are
insufficient funds available to pay Class 5 Claims in full with Post-Petition
Interest as described herein, holders of Class 5 Allowed Unsecured Claims shall
be paid pro rata from the funds available for the payment of Class
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5 Claims.
6.6 Class 6 Interests (Common Stock). Each Equity Security Holder with
an Allowed Class 6 Interest as of the Distribution Date shall receive a pro rata
distribution from available funds, as soon as practicable after (i) the payment
of or reservation for all Allowed Administrative Claims, Allowed Secured Claims,
Tax Claims, Priority Claims, Allowed Unsecured Claims, any other senior Claims,
and post-Confirmation expenses of implementing the Plan, winding up the affairs
of the Debtor and closing the Bankruptcy Case and (ii) resolution of all
Disputed Claims and Disputed Interests. All Class 6 Interests shall otherwise be
cancelled and extinguished on the Distribution Date.
6.7 Class 7 Interests (Options). The holders, as of the Effective
Date, of outstanding, unterminated options to acquire the Debtor's common stock
shall be entitled to exercise said options through and including thirty (30)
days after the Effective Date pursuant to the terms of the Stock Option Plan,
and upon such exercise will be treated as holders of Class 6 Interests. All
options representing Class 7 Interests which have not been exercised by such
date shall be cancelled and extinguished.
7. MEANS FOR IMPLEMENTATION OF THE PLAN
7.1 Conditions to Confirmation. In addition to any other conditions to
Confirmation set forth in the Plan and the Bankruptcy Code, Confirmation of the
Plan is subject to the further conditions that the Bankruptcy Court shall have
made the following findings and determinations at the Confirmation
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Hearing so that the Confirmation Order will include provisions:
(a) Approving the Rockwell Transaction and authorizing and
directing consummation of the Rockwell Transaction.
(b) Approving the form, and authorizing and directing the
delivery and performance by all necessary parties, of the Rockwell Agreement.
(c) Approving the form, and authorizing and directing the
execution and delivery by all necessary parties, of all other documents and
agreements contemplated in the Plan and by the Rockwell Agreement.
7.2 Conditions to the Effective Date. It is a condition to the
Effective Date of the Plan that:
(a) The Bankruptcy Court shall have entered the Confirmation
Order, with appropriate findings, in form and substance acceptable to the Debtor
and Rockwell;
(b) The Confirmation Order shall have become a Final Order;
(c) The Confirmation Order shall contain the provisions described
in Section 7.1 above;
(d) All conditions to the obligations of Rockwell set forth in
the Plan and the Rockwell Agreement shall have been satisfied or waived in
writing by the affected party;
(e) All conditions to the obligations of the Debtor set forth in
the Rockwell Agreement shall have been satisfied or waived in writing by the
affected party;
(f) All necessary parties shall have signed all of the documents
contemplated by the Rockwell Agreement, and such
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documents shall be in full force and effect subject only to the entry of the
Confirmation Order and the occurrence of the Effective Date.
7.3 Consummation of the Rockwell Transaction. The Rockwell Transaction
will be consummated which will generate the Purchase Price for the benefit of
the Bankruptcy Estate.
7.4 Disposition of Assets Not Subject to Rockwell Agreement. All
assets of the Debtor which are not subject to the Rockwell Transaction shall be
liquidated; provided, however, that if the Responsible Person determines, in his
discretion, that an asset is burdensome or of inconsequential value, said asset
will be abandoned.
7.5 Disbursement of Funds. Funds attributable to (i) the proceeds from
the Rockwell Transaction, (ii) proceeds from the liquidation of the Debtor's
remaining assets and (iii) monies otherwise property of the Bankruptcy Estate
and the Debtor on the Effective Date shall be utilized to implement the Plan and
to make the disbursements contemplated thereby.
7.6 Responsible Person.
(a) Richard H. Bohnet, the Debtor's President and Chief Executive
Officer, shall be designated as the Responsible Person. The Responsible Person
shall be compensated on an hourly basis at an hourly rate not to exceed $175.00
from and after the Effective Date. Bohnet's employment under the Bohnet
Employment Agreement shall otherwise cease on the Effective Date.
(b) In the event that Bohnet is unable to serve as the Responsible
Person, the Debtor's Board of Directors will
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appoint an individual to serve as the Responsible Person.
(c) The Responsible Person, on behalf of the Debtor, is authorized
to liquidate the remaining assets of the Bankruptcy Estate and/or abandon such
assets which the Responsible Person determines to be burdensome or of
inconsequential value to the Debtor.
(d) The Responsible Person is authorized to review and object to
claims, enter into compromises to allow and satisfy Disputed Claims and Disputed
Interests, settle and liquidate any claim or cause of action of the Debtor
against a third party.
(e) The Responsible Person is authorized to retain, employ and
utilize such professionals as may be necessary without further approval of the
Bankruptcy Court.
(f) The Responsible Person shall be responsible for moving for the
entry of a final decree in this case and preparing and filing status reports as
may be required by the Bankruptcy Court in connection with the final decree. The
Responsible Person shall be discharged from all duties and responsibilities of
the Plan upon the issuance of the final decree. The Responsible Person shall be
entitled to destroy all records in his possession upon entry of the final
decree, except for such corporate formation documents, minutes and other records
as the Responsible Person considers to be material and original executed copies
of documents filed with the Securities and Exchange Commission, all of which
shall be retained for five (5) years, and tax returns and related records, which
shall be retained for six (6) years.
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/ / /
(g) The Responsible Person shall review and approve the
Distribution amounts to Creditors and Equity Security Holders. The Responsible
Person shall be responsible for making Distributions pursuant to the Plan and
shall obtain a guaranty or fiduciary bond for all of the monies of the
Bankruptcy Estate within thirty (30) days of the Confirmation Date.
(h) The Responsible Person shall do all things necessary and
appropriate to assist the Debtor in fulfilling the duties and obligations of the
Debtor under the Plan and fully administering the Bankruptcy Estate as required
by the Plan, the Confirmation Order, the Bankruptcy Code and the Bankruptcy
Rules, which duties and obligations include, without limitation, the
facilitation of Distributions pursuant to the Plan, reviewing Claims and
Interests, objecting to Disputed Claims and Disputed Interests, supervising the
preparation of filing of the Debtor's final tax returns and closing the
Bankruptcy Case.
7.7 Expedited Procedure for Compromise of Controversy, Sale or
Abandonment. Subject to the notice procedures set forth in this Section , the
Responsible Person is authorized to (i) enter into binding compromises to allow
and satisfy Disputed Claims and Disputed Interests or settle and liquidate any
claim or cause of action of the Debtor, (ii) sell the Debtor's remaining assets,
and/or (iii) abandon property of the Bankruptcy Estate which the Responsible
Person determines to be burdensome or of inconsequential benefit to the
Bankruptcy Estate. The Responsible Person shall mail written notice of any such
compromise, disposition, or abandonment to Rockwell,
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members of any committee appointed in this case, counsel to such committee, the
U.S. Trustee and those parties who have filed a written request that all notices
be mailed to them. If no party serves on the Responsible Person and Debtor's
counsel a written objection or demand for a hearing on the compromise,
disposition, or abandonment within ten (10) days of mailing of such notice, the
compromise, disposition or abandonment shall be effective, final and binding on
all parties, Creditors, Equity Security Holders, Rockwell and other parties in
interest in this Case without further approval or action by the Court. The time
for serving written objections shall not be extended pursuant to Rule 9006(f) of
the Bankruptcy Rules. If timely notice of an objection to the compromise,
disposition or abandonment is served on the Responsible Person and Debtor's
counsel, the Responsible Person shall (i) withdraw the proposed compromise,
disposition or abandonment wherein it will be without force and effect, or (ii)
move for the approval of the compromise, disposition or abandonment on notice to
Rockwell, any committee appointed in this case, counsel to such committee, the
U.S. Trustee and those parties who have filed a written request that all notices
be mailed to them.
7.8 Avoidance and Other Actions. The Responsible Person shall be
authorized to prosecute any action, including actions for recovery of avoidable
transfers pursuant to the provisions of the Bankruptcy Code for the benefit of
the Bankruptcy Estate.
7.9 Corporate Formalities. The Responsible Person is authorized on
behalf of the Debtor to execute all instruments, agreements and documents and to
take all action by the Debtor
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necessary to effectuate the provisions of the Plan without further action by the
Debtor's board of directors or shareholders.
7.10 Compensation and Reimbursement of Professionals. All professionals
shall be entitled to payment of their post- Confirmation fees and reimbursement
of expenses on a monthly basis. Professionals shall serve a detailed statement
of unpaid fees and expenses on the Responsible Person, members of any committee
appointed in the case and committee counsel. If there is no objection to the
requested fees and expenses within ten (10) days of service by the professional,
the Responsible Person shall pay the requested amount in full. If the
Responsible Person or such committee objects to a portion of the fees or
expenses submitted by any professional, the Responsible Person shall timely pay
the undisputed portion of such fees and expenses and shall reserve monies in the
amount of the disputed fees and expenses pending resolution of said objection by
(i) written agreement between the party requesting such fees and expenses and
the disputing party, or (ii) resolution of the disputed amount by the Bankruptcy
Court pursuant to a Final Order. Professionals shall not otherwise be required
to file applications for Court approval of post-Confirmation fees and expenses.
7.11 Amendment of Charter to Prohibit the Issuance of Non- Voting
Equity Securities. Pursuant to the requirements of Section 1123(a)(6) of the
Bankruptcy Code, the Certificate of Incorporation of the Debtor shall be, and it
hereby is deemed amended as of the Effective Date to conform to the Bankruptcy
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Code provision which prohibits the issuance of non-voting equity securities and
requires, among other things, the distribution of voting power equitably among
the classes of voting securities.
7.12 Unclaimed Property. With respect to each Allowed Claim and Allowed
Interest, the existence of Unclaimed Property on the 90th day following a
Distribution shall cause the respective Allowed Claim or Allowed Interest to be
disallowed, and the amount of the Unclaimed Property shall become available for
distribution pursuant to the Plan.
7.13 Dissolution of Corporation. Pursuant to authority contained in
Section 1400 of the California Corporations Code, the Debtor shall be dissolved
and its corporate existence terminated without further corporate action upon the
entry of a final decree in this case pursuant to Rule 3022 of the Bankruptcy
Rules. The Confirmation Order shall be deemed an order authorizing and directing
the Responsible Person to file a certificate of dissolution as required by
Section 1401 of the California Corporations Code and the Responsible Person
shall file such certificate concurrently with the request for entry of a final
decree.
8. COMPETING BID; BIDDING PROCEDURES
8.1 In order to facilitate the consummation of an orderly sale
pursuant to the Rockwell Transaction and to maximize value for the Bankruptcy
Estate, any Competing Bids must comply with the following bidding procedures or
such other bidding procedures as established pursuant to Bankruptcy Court order:
(a) A Competing Bid for the purchase of all or a portion of the
Rockwell Assets shall not be eligible for
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consideration by the Debtor or for approval by the Bankruptcy Court unless the
following conditions are met:
(i) The Competing Bidder must provide to the Debtor
satisfactory evidence of its financial ability to fully and timely consummate
the sale on the terms of the Competing Bid no later than March 6, 1997.
(ii) The Debtor will consider satisfactory evidence of the
Competing Bidder's ability to perform to be as follows:
(1) Liquid assets, which are readily convertible to cash at
the date the sale is consummated, at least equal to the Rockwell Purchase Price,
plus $100,000.00, plus all expense reimbursement fees required to be paid to
Rockwell under Section 13.2 of the Rockwell Agreement; and/or
(2) An unconditional, enforceable written commitment from a
reputable and financially sound financial institution to provide sufficient
funds to the Competing Bidder at the date the sale is consummated; and
(3) To the extent the Competing Bidder assumes the Renco
Lease or other obligations of the Debtor, recent audited financial statements
which would provide assurance of the Competing Bidder's ability to meet future
obligations under the Renco Lease or other liabilities assumed.
(iii) The Competing Bid may be for all or a portion of the
Rockwell Assets and may include offers to purchase assets in addition to those
comprising the Rockwell Assets, provided, however, that the Competing Bid for
such assets be for a purchase price which complies with Paragraph
-25-
8.1(a)(vi) below;
(iv) The Competing Bid must be in writing setting forth all
material terms and conditions of the Competing Bid which is received by the
Debtor and Rockwell no later than March 6, 1997, addressed as follows:
DEBTOR: Weitek Corporation
c/o Richard H. Bohnet
2801 Orchard Parkway
San Jose, CA 95134-2301
(408) 526-0300
Fax: (408) 474-1900
WITH COPIES TO: Janice M. Murray, Esq.
Murray & Murray
A Professional Corporation
3030 Hansen Way, Suite 200
Palo Alto, CA 94304-1009
(415) 852-9000
Fax: (415) 852-9244
Kenneth M. Siegel, Esq.
Bridget Logterman, Esq.
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
(415) 493-9300
Fax: (415) 493-6811
ROCKWELL: Anthony C. Kalas
Vice President and Controller
Rockwell Semiconductor
Systems, Inc.
4311 Jamboree Road
Newport Beach, CA 92658-8902
(714) 221-4600
Fax: (714) 221-4391
WITH COPIES TO: Kenneth P. Coleman, Esq.
L. Kevin O'Mara, Jr., Esq.
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, NY 10112
(212) 408-5100
Fax: (212) 541-5369
(v) Any Competing Bidder must either agree to close the sale
upon the same terms and conditions as the
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Rockwell Agreement or must submit with the Competing Bid a copy
/ / /
of its proposed purchase agreement;
(vi) The Competing Bid must be for a purchase price equal to or
greater than the sum of the following: (a) cash of not less than the Purchase
Price, plus $100,000; (b) the assumption of the liabilities to be assumed by
Rockwell pursuant to the Rockwell Agreement; and (c) all expense reimbursement
fees set forth in Section 13.2 of the Rockwell Agreement;
(vii) The Competing Bidder must deposit with Debtor's bankruptcy
counsel a good faith deposit of $500,000.00 in verified funds (e.g. by certified
check of a national bank) prior to the conclusion of the Confirmation Hearing;
(viii) In the event of Bankruptcy Court approval of the Competing
Bid, such Competing Bidder's deposit shall become non-refundable;
(ix) All bids for consideration in excess of the minimum
Competing Bid as set forth in paragraph 8.1(a)(vi) above shall increase in cash
increments of not less that $100,000.00;
(x) At every level of bidding, Rockwell will have the right to
acquire the Rockwell Assets by matching the Competing Bid; and
(xi) In the event a Competing Bid is approved but not
consummated within eleven (11) calendar days after entry of the Confirmation
Order approving the sale (or at such time as the Debtor and the Competing Bidder
shall mutually agree), the next highest bid shall be approved without necessity
of further Bankruptcy Court Order.
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(b) Not withstanding the foregoing, no Competing Bid shall be
accepted if it is contingent upon obtaining financing and/or conducting due
diligence. The Debtor will not object to a Competing Bidder who intends to
finance its Competing Bid, but does not make financing a condition of the
Competing Bid.
8.2 In the event a Competing Bid is approved by the Bankruptcy Court
as provided in this Section 8, all relevant sections of the Plan referring to
Rockwell, the Rockwell Transaction, the Rockwell Agreement, and the Rockwell
Assets shall be deemed to be modified to reference the Competing Bid and the
Competing Bidder as may be necessary or appropriate.
9. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
9.1 Assumption of Executory Contracts and Unexpired
Leases.
(a) Assumption of the Rockwell Agreement. The Rockwell Agreement
shall be assumed by the Debtor on the Effective Date. The Rockwell Agreement and
documents executed in connection therewith, shall remain in full force and
effect, be unimpaired by the Plan except as specifically modified by the Plan
and the Confirmation Order (with Rockwell's consent), and be binding on the
parties thereto, on and after the Effective Date.
(b) Assumption and Assignment to Rockwell. In addition to the
foregoing, each executory contract or unexpired lease listed on Exhibit "A"
hereto shall be assumed by the Debtor and assigned to Rockwell on the Effective
Date in conjunction with the Closing of the Rockwell Transaction.
(c) Assumption of Additional Executory Contracts.
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Each executory contract or unexpired lease listed on Exhibit "B" hereto shall be
assumed by the Debtor.
(d) Effect of Assumption. The leases and contracts listed on
Exhibits "A" and "B" hereto, and all documents executed in connection therewith,
shall remain in full force and effect and be unimpaired by the Plan except as
specifically modified by the Plan and the Confirmation Order. The lists set
forth on Exhibits "A" and "B" may be amended, with appropriate notice, by the
Debtor at any time prior to the conclusion of the hearing on Confirmation of the
Plan.
(e) Cure. The Debtor has determined that no defaults exist under
any of the executory contracts or unexpired leases set forth on Exhibits "A" or
"B" hereto. In the event that the Debtor determines that a non-monetary default
exists under any executory contract or unexpired lease to be assumed, other than
the kind specified in 11 U.S.C. Section 365(b)(2), the Debtor shall, on or
before the Effective Date, (a) cure, or provide adequate assurance that it will
promptly cure such default, (b) compensate, or provide adequate assurance that
it will promptly compensate, the other party to such contract or lease, for any
actual pecuniary loss to such party resulting from such default, and (c) provide
adequate assurance of future performance under such contract or lease.
Furthermore, should the Debtor determine that a monetary default exists under
any contract or lease to be assumed, the amount required to cure such default
will be paid to the respective party to the executory contract or unexpired
lease on or before the Effective Date.
(f) Assumption Conditioned Upon Confirmation of the
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Plan and Closing of the Rockwell Transaction. The Debtor desires to assume the
executory contracts and unexpired leases as set forth on Exhibits "A" and "B"
hereto to the extent, and only to the extent, that such contracts or leases
constitute an executory contract or unexpired lease. Additionally, (i) the
assumption of such executory contracts and unexpired leases, and (ii) the
assignment of those executory contracts and unexpired leases set forth on
Exhibit "A" hereto are expressly conditioned upon Confirmation of the Debtor's
Plan and the Closing and consummation of the Rockwell Transaction.
9.2 Rejection of Executory Contracts and Unexpired Leases. Without
admitting the validity of any other executory contract or unexpired lease, any
executory contract or unexpired lease not listed on Exhibits "A" and "B" to the
Plan shall be rejected as of the Effective Date, subject to Section 9.3.
9.3 Treatment of Executory Contracts and Unexpired Leases. The Debtor
reserves the right to apply to the Bankruptcy Court prior to Confirmation to
assume, assume and assign, or reject, pursuant to Bankruptcy Code Section 365,
any and all contracts that are executory and leases that are unexpired. All
executory contracts and unexpired leases of the Debtor that are not (a) assumed
prior to Confirmation, (b) the subject of a pending motion to assume filed prior
to Confirmation, or (c) assumed pursuant to the terms of the Plan are hereby
rejected by the Debtor. Confirmation of the Plan shall be deemed to constitute
Bankruptcy Court approval of such rejection.
9.4 Rejection Claims. Rejection Claims shall be classified as Class 5
Claims. Within thirty (30) days following
-30-
the Effective Date, the holder of a Rejection Claim shall file with the
Bankruptcy Court, and serve on the Debtor's counsel, a proof of Claim evidencing
such Rejection Claim or be forever barred from asserting any such Claim or
receiving any payment on account of such Claim.
10. PROOFS OF CLAIM; EVIDENCE OF EQUITY SECURITY; OBJECTIONS
10.1 Time for Filing Proofs of Claim. Proofs of Claim shall be filed
with the Bankruptcy Court no later than the Claims Bar Date.
10.2 Evidence of Claim or Interest.
(a) As soon as practicable after the Distribution Date, the Debtor
shall obtain a list of all Equity Security Holders and their respective
Interests of record as of the Distribution Date from the Transfer Agent. Said
list shall be conclusively presumed to be complete and accurate in all respects.
The Debtor and the Responsible Person shall be entitled to rely on said list in
connection with any Distributions to be made to Class 6 Interests.
(b) For purposes of any Distribution under the Plan, the Debtor
and the Responsible Person shall have no obligation to recognize any transfer of
Claims or Interests occurring on or after the Distribution Date and the Debtor
and the Responsible Person shall be entitled to recognize and deal for all
purposes with only those holders of record stated on the claims docket
maintained by the Bankruptcy Court and the stock records maintained by the
Transfer Agent.
10.3 Time for Filing Objections. Any objection to any Claim or Interest
shall be filed no later than ninety (90) days
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after the Effective Date.
/ / /
10.4 Disputed Claims and Disputed Interests.
(a) Notwithstanding any of the provisions of this Plan, Disputed
Claims and/or Disputed Interests shall not receive any Distribution, unless and
until the status of an Allowed Claim or Allowed Interest is obtained.
(b) The Debtor shall maintain and administer a Disputed Claims
Reserve Account and a Disputed Interests Reserve Account. Cash payments
attributable to Disputed Claims shall be maintained in the Disputed Claims
Reserve Account. Cash payments attributable to Disputed Interests shall be
maintained in the Disputed Interests Reserve Account. In the event that a Claim
or Interest is disputed and has not become an Allowed Claim or Allowed Interest
as of the date of any Distribution to the Class of Creditors or Interests to
which the Disputed Claim or Disputed Interest belongs, the appropriate amount of
cash shall be deposited into the Disputed Claims Reserve Account on account of
the Disputed Claim or into the Disputed Interests Reserve Account on account of
the Disputed Interest, as the case may be. The amounts so deposited will be
equal to the amount that would otherwise be due on account of the Disputed Claim
or the Disputed Interest under this Plan if the Claim or Interest were allowed
in full. On a motion of any party in interest, the Court shall determine what
lesser amount is sufficient to pay into the Disputed Claims Reserve Account or
the Disputed Interests Reserve Account on account of such Disputed Claim or
Disputed Interest. The funds paid into the Disputed Claims
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Reserve Account with respect to the Disputed Claim or funds paid into the
Disputed Interests Reserve Account with respect to the Disputed Interest, shall
be paid to the holder of the Disputed Claim or the Disputed Interest, as the
case may be, if and when such Claim becomes an Allowed Claim or such Interest
becomes an Allowed Interest. As soon as practicable after the date that the
order or judgment of the Court allowing a Disputed Claim or Disputed Interest
becomes a Final Order, any proceeds in the Disputed Claims Reserve Account or
the Disputed Interests Reserve Account that would have been distributed to the
holder of such Disputed Claim or Disputed Interest had such Disputed Claim or
Disputed Interest been allowed on the Effective Date shall be distributed to the
holder of such Claim or Interest.
11. RESERVATION OF POWERS
11.1 Nothing in the Plan shall be deemed to constitute a waiver of the
powers of the Debtor as a debtor in possession under the Bankruptcy Code, the
Bankruptcy Rules or the Local Rules, and the Debtor shall retain after
Confirmation and after the Effective Date, all powers granted by the Bankruptcy
Code, the Bankruptcy Rules and the Local Rules.
12. WAIVER
12.1 After the entry of the Order of Confirmation by the Bankruptcy
Court and except as otherwise specifically set forth in the Plan, any term of
the Plan may be waived only by the party or parties entitled to the benefit of
the term to be waived.
13. REQUEST FOR CONFIRMATION
13.1 The Debtor, as proponent of the Plan, requests
-33-
Confirmation of the Plan.
/ / /
13.2 In the event any impaired Class shall fail to accept this Plan in
accordance with Section 1129(a)(8) of the Bankruptcy Code, the Debtor requests
that the Bankruptcy Court confirm the Plan in accordance with the provisions of
Section 1129(b) of the Bankruptcy Code.
14. RETENTION OF JURISDICTION
14.1 After Confirmation, the Bankruptcy Court shall retain and have all
authority and jurisdiction as is allowed under the Bankruptcy Code and other
applicable law to enforce the provisions, purposes, and intent of this Plan
including, without limitation, matters or proceedings that relate to:
(a) The Rockwell Transaction;
(b) A Competing Bid and Competing Bidder;
(c) Allowance, disallowance, adjustment, treatment, or liquidation
of Claims and Interests and objections thereto;
(d) The assumption, assignment, or rejection of any executory
contract or unexpired lease, or any agreement, lease, contract, sale, purchase,
assignment, or other action taken with regard to property of the Debtor;
(e) The title, rights, or interests of the Debtor in any property;
(f) Any right, power, action, or duty of the Debtor under this
Plan;
(g) Any determination or estimation necessary or appropriate under
Section 505 of the Bankruptcy Code or other determination or estimation relating
to tax returns filed or to
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be filed by the Debtor for periods through the end of the fiscal year in which
the Effective Date occurs, including, without limitation, the determination of
the amount of taxes, net operating losses, tax attributes, tax benefits, tax
refunds, and related matters of the Debtor;
(h) Requests for payment of Claims entitled to priority under
Section 507(a) of the Bankruptcy Code, including compensation and reimbursement
of expenses for professionals, to the extent Bankruptcy Court approval therefor
is required under this Plan or the Confirmation Order;
(i) Resolution of controversies and disputes, including the
correction of any mistake, defect, or omission regarding interpretation or
enforcement of this Plan, the Confirmation Order, and any agreements referred to
herein or executed in contemplation of or to implement this Plan;
(j) Implementation of the provisions of this Plan and entry of
orders in aid of confirmation of this Plan, including, without limitation,
appropriate orders to protect the Debtor from actions by holders of Claims and
Interests;
(k) Modification of this Plan pursuant to the Bankruptcy Code;
(l) Adjudication of any causes of action brought by the Debtor;
(m) The entry of an Order, including injunctions, necessary to
enforce the title, rights, and powers of the Debtor and the purposes and intent
of this Plan, and to impose such limitations, restrictions, terms and conditions
of such title, rights, and powers as the Court may deem necessary;
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(n) Such other matters as may be provided under the Bankruptcy
Code, this Plan, the Confirmation Order, or other applicable law; and
(o) Entry of a final decree closing this Chapter 11 Case,
including provisions for injunctive relief as may be equitable, consistent with
Bankruptcy Rule 3022.
15. EFFECT OF CONFIRMATION
As of the Effective Date, the effect of Confirmation shall be as
provided in Section 1141 of the Bankruptcy Code, and as follows:
15.1 Binding Effect. The provisions of the confirmed Plan shall bind
the Debtor, Rockwell, any other entity acquiring property under the Plan, any
Creditor, and any Equity Security Holder, whether or not the Claim or Interest
of such Creditor or Equity Security Holder is impaired under the Plan and
whether or not any such Creditor or Equity Security Holder has accepted the
Plan.
15.2 Vesting of Property. All property of the Bankruptcy Estate shall
vest in the Debtor subject to the terms and conditions of this Plan. All
property of the Debtor, except as otherwise provided in this Plan, shall be free
and clear of any liens, encumbrances, Claims of Creditors and Interests of
Equity Security Holders.
15.3 Discharge. Due to the liquidating nature of this Plan and pursuant
to Bankruptcy Code 1141(d)(3), the entry of the Confirmation Order shall not act
as a discharge of any debt of the Debtor that arose prior to Confirmation.
16. CHAPTER 11 POST-CONFIRMATION REPORTS AND FINAL DECREE
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16.1 Post-Confirmation Reports. Not later than 90 days after entry of
the Confirmation Order, the Debtor shall file a post-Confirmation status report,
the purpose of which is to explain the progress made toward substantial
consummation of the confirmed Plan. The report shall include a statement of
receipts and disbursements, with the ending cash balance, for the entire 90 day
period. The report shall also include information sufficiently comprehensive to
enable the Court to determine (1) whether the Confirmation Order has become
final; (2) whether deposits, if any, required by the Plan have been distributed;
(3) whether any property proposed by the Plan to be transferred has been
transferred; (4) whether the Debtor under the Plan has assumed the business or
the management of the property dealt with by the Plan; (5) whether the payments
under the Plan have commenced; (6) whether accrued fees due to the U.S. Trustee
under 28 U.S.C. Section 1930(a)(6) have been paid; and (7) whether all motions,
contested matters and adversary proceedings have been finally resolved. Further
reports must be filed every 90 days thereafter until entry of a final decree,
unless otherwise ordered by the Court.
16.2 Service of Reports. A copy of each report shall be served, no
later than the day upon which it is filed with the Court, upon the U.S. Trustee
and such other persons or entities as may request such reports in writing by
special notice filed with the Court.
16.3 Final Decree. After the Bankruptcy Estate is fully administered,
the Debtor shall file an application for a final decree, and shall serve the
application on the U.S. Trustee,
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together with a proposed final decree. The U.S. Trustee shall have twenty (20)
days within which to object or otherwise comment upon the Court's entry of the
final decree.
17. MISCELLANEOUS
17.1 Headings. The headings contained in the Plan are for convenience
of reference only and shall not limit or otherwise affect in any way the meaning
or interpretation of the Plan.
17.2 Singular/Plural. All references in the Plan to the singular shall
be construed to include references to the plural and vice versa.
17.3 Gender. All references in the Plan to any one of the masculine,
feminine or neuter genders shall be deemed to include references to both other
such genders.
17.4 Revocation and Withdrawal. The Debtor reserves the right to revoke
or withdraw this Plan at any time before the Confirmation Date. If the Debtor
revokes or withdraws this Plan prior to the Confirmation Date, or if the
Confirmation Date or Effective Date does not occur, then this Plan shall be
deemed null and void. In such event, nothing contained herein or in the
Disclosure Statement shall be deemed to constitute an admission of validity,
waiver or release of any Interests in, or any Claims by or against the Debtor or
any other person or prejudice in any manner the rights of the Debtor or any
person in any proceeding involving the Debtor.
17.5 Exhibits. All exhibits attached to the Plan are, by this
reference, hereby incorporated into the Plan.
17.6 Notices. All notices required or permitted to be made in
accordance with the Plan shall be in writing and shall be
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delivered personally or by first class mail, as follows:
/ / /
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IF TO THE DEBTOR:
Richard H. Bohnet
President & Chief Executive Office
Weitek Corporation
2801 Orchard Parkway
San Jose, CA 95134
WITH COPIES TO:
Janice M. Murray, Esq.
Maureen C. Harrison, Esq.
Murray & Murray, A Professional Corporation
3030 Hansen Way, Suite 200
Palo Alto, CA 94304-1009
Kenneth M. Siegel
Bridget Logterman, Esq.
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
IF TO ROCKWELL:
Anthony C. Kalas
Vice President and Controller
Rockwell Semiconductor Systems, Inc.
4311 Jamboree Road
Newport Beach, CA 92658-8902
WITH COPIES TO:
Kenneth P. Coleman, Esq.
L. Kevin O'Mara, Jr., Esq.
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, NY 10112
and if to a holder of an Allowed Claim or Allowed Interest, at the address set
forth in its proof of Claim or Interest filed with the Bankruptcy Court, or if
none, at its address set forth in the Schedules or List of Equity Security
Holders. Notices shall be deemed given when delivered or mailed. Any entity may
change the address at which such entity is to receive notices under the Plan by
(i) sending written notice, pursuant to the provisions of this section, to the
entity to be charged with knowledge of such change and (ii) filing such notice
with the
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Bankruptcy Court.
17.7 Reservation of Rights. Neither the filing of the Plan nor any
statement or provision contained in the Plan or in the Disclosure Statement, nor
the taking by any party in interest of any action with respect to the Plan,
shall (a) be or be deemed to be an admission against interest, and (b) until the
Effective Date, be or be deemed to be a waiver of any rights any party in
interest may have (i) against any other party in interest, or (ii) in any of the
assets of any other party in interest, and, until the Effective Date, all such
rights are specifically reserved. In the event that the Plan is not confirmed or
fails to become effective, neither the Plan nor the Disclosure Statement nor any
statement contained in the Plan or in the Disclosure Statement may be used or
relied upon in any manner in any suit, action, proceeding or controversy within
or without this Bankruptcy Case involving the Debtor, except with respect to
Confirmation of the Plan.
17.8 Computation of Time Periods. In computing any period of time
prescribed or allowed by the Plan, the day of the act, event, or default from
which the designated period of time begins to run shall not be included. The
last day of the period so computed shall be included unless it is a Saturday, a
Sunday, or a legal holiday, or, when the act to be done is the filing of paper
in the Bankruptcy Court, a day on which weather or other conditions have made
the clerk's office inaccessible, in which event the period runs until the end of
the next day which is not one of the aforementioned days.
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DATED this 30th day of January, 1997
WEITEK CORPORATION, a
California corporation
By: /s/ Richard H. Bohnet
---------------------
Richard H. Bohnet
President and Chief Executive
Officer
MURRAY & MURRAY
A PROFESSIONAL CORPORATION
By /s/ Janice M. Murray
--------------------
Janice M. Murray
Attorneys for Debtor
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Exhibit A
Executory Contracts And Unexpired Leases To Be Assumed By Debtor And
Assigned To Rockwell.
A. Industrial Space Lease dated November 9, 1995 by and between Renco
Associates, a California Partnership, and Weitek Corporation.
B. Software License Agreements
1. Cadence Design Systems, Inc. Software License Agreement dated
September 6, 1989, covering the Cadence Dracula III software,
and any other agreements between Cadence Design Systems, Inc.
(or its predecessors) and Weitek Corporation entered into
prior to September 6, 1989 or at any time thereafter
(including, without limitation, the Software Maintenance
Agreement dated January 19, 1989), under which rights to use
the Cadence Dracula III software (or any improvements or
modifications thereto) have been conveyed to Weitek
Corporation, subject to the consent of the licensor, to the
extent such consent to assignment is required.
2. Cedance Design Systems, Inc. Software License Agreement dated
May 4, 1990, covering the Verilog HDL software, and any other
agreements between Cadence Design Systems, Inc. (or its
predecessors) and Weitek Corporation entered into prior to May
4, 1990 or at any time thereafter, under which rights to use
the Verilog HDL software (or any improvements or modifications
thereto) have been conveyed to Weitek Corporation, subject to
the consent of the licensor, to the extent such consent to
assignment is required.
3. Viewlogic Systems, Inc. Any and all software license
agreements between Viewlogic Systems, Inc. (or its
predecessors) and Weitek Corporation entered into at any time
prior to the date of confirmation, under which rights to use
the Chronologics VCS software (or any improvements or
modifications thereto) at twenty (20) seats have been conveyed
to Weitek Corporation, subject to the consent of the licensor,
to the extent such consent to assignment is required.
4. Synopsys, Inc. Any and all software license agreements between
Synopsys, Inc. and Weitek Corporation entered into at any time
prior to the date of confirmation, under which rights to use
the HDL Compiler, Design Compiler, VHDL Compiler and/or
Library Compiler software (or any improvements or
modifications thereto) have been conveyed to Weitek
Corporation, subject to the consent of the licensor, to the
extent such consent to assignment is required.
5. InterHDL, Inc. End-user License Agreement dated October 2,
1995, covering the Verilint XL 3.0X software, and any other
agreements between InterHDL, Inc. and Weitek Corporation
entered into at prior to October 2, 1995 or at any time
thereafter, under which rights to use the Verilint XL 3.0X
software (or any improvements or modifications thereto) have
been conveyed to Weitek Corporation, subject to the consent of
the licensor, to the extent such consent to assignment is
required.
6. Elpin Systems. Software License Agreement dated August 14,
1995, covering the VGS BIOS software, and any other agreements
between Elpin Systems and Weitek Corporation entered into at
prior to August 14, 1995 or at any time thereafter, under
which rights to use the VGS BIOS software (or any improvements
or modifications thereto) have been conveyed to Weitek
Corporation, subject to the consent of the licensor, to the
extent such consent to assignment is required.
7. Meta-Software, Inc.. Software License Agreement dated November
29, 1989, covering the HSPICE software, and any other
agreements between Meta- Software, Inc. and Weitek Corporation
entered into at prior to November 29, 1989 or at any time
thereafter, under which rights to use the HSPICE software (or
any improvements or modifications thereto) have been conveyed
to Weitek Corporation, subject to the consent of the licensor,
to the extent such consent to assignment is required.
8. Pure Atria. Software License Agreement number 1415269, dated
November 28, 1995, covering the PureLink software, and any
other agreements between Pure Atria (or its affiliates) and
Weitek Corporation entered into at prior to November 28, 1995
or at any time thereafter, under which rights to use the
PureLink software (or any improvements or modifications
thereto) have been conveyed to Weitek Corporation, subject to
the consent of the licensor, to the extent such consent to
assignment is required.
9. Design Acceleration Incorporated. Any and all software license
agreements between Design Acceleration Incorporated and Weitek
Corporation, entered into at any time prior to date of
confirmation, under which rights to use the DAI Signalscan
software (or any improvements or modifications thereto) have
been conveyed to Weitek Corporation, subject to the consent of
the licensor, to the extent such consent to assignment is
required.
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Exhibit B
Executory Contracts and Unexpired Leases to be Assumed by Debtor and
Assigned to Rockwell.
A. Asset Purchase Agreement By and Between Rockwell Semiconductor
Systems, Inc. and Weitek Corporation dated as of December 11, 1996;
Addendum to License Agreement dated as of January 23, 1997.
B Employment Agreement dated April 25, 1996 by and between Richard
Bohnet and Weitek Corporation.
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Dates Referenced Herein and Documents Incorporated by Reference
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