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Disclosure Statement with Respect to Fourth Amended Joint Plan of Reorganization
Disclosure Statement with Respect to Fourth Amended Joint Plan of Reorganization (1,101K)
Doc #171287: Click preview link for longer preview.
THE FOURTH AMENDED JOINT PLAN OF REORGANIZATION FOR OWENS CORNING AND ITS
AFFILIATED DEBTORS AND DEBTORS-IN-POSSESSION (THE "PLAN"), WHICH IS ATTACHED AS
APPENDIX A TO THIS DISCLOSURE STATEMENT, CONTAINS AN ASBESTOS PERSONAL INJURY
PERMANENT CHANNELING INJUNCTION UNDER 11 U.S.C. SECTION 524(g). THE PLAN ALSO
CONTAINS AN INJUNCTION UNDER 11 U.S.C. SECTION 105, WHICH CHANNELS ALL ASBESTOS
PROPERTY DAMAGE CLAIMS AGAINST FIBREBOARD CORPORATION, AN INJUNCTION UNDER 11
U.S.C. SECTION 105 WITH RESPECT TO CLAIMS AGAINST THE HARTFORD ENTITIES AND AN
INJUNCTION WITH RESPECT TO CLAIMS AGAINST RELATED PERSONS OF THE DEBTORS BY
HOLDERS OF CLAIMS WHO VOTE IN FAVOR OF THE PLAN, WHICH ARE INJUNCTIONS AGAINST
CONDUCT NOT OTHERWISE ENJOINED UNDER THE BANKRUPTCY CODE. FOR A DESCRIPTION OF
THE ACTS TO BE ENJOINED AND THE IDENTITY OF THE ENTITIES THAT WOULD BE SUBJECT
TO EACH OF THESE INJUNCTIONS, SEE THE FOLLOWING SECTIONS OF THIS DISCLOSURE
STATEMENT:
(1) THE ASBESTOS PERSONAL INJURY PERMANENT CHANNELING INJUNCTION: SECTION VIII.C
OF THIS DISCLOSURE STATEMENT ENTITLED "THE ASBESTOS PERSONAL INJURY TRUST--THE
ASBESTOS PERSONAL INJURY PERMANENT CHANNELING INJUNCTION" AND SECTION 5.14(b) OF
THE PLAN;
(2) THE INJUNCTION CHANNELING FB ASBESTOS PROPERTY DAMAGE CLAIMS: SECTION IX.C
OF THIS DISCLOSURE STATEMENT ENTITLED "THE FB ASBESTOS PROPERTY DAMAGE TRUST--
INJUNCTION CHANNELING FB ASBESTOS PROPERTY DAMAGE CLAIMS " AND SECTION 3.3(g) OF
THE PLAN;
(3) THE INJUNCTION WITH RESPECT TO CLAIMS AGAINST THE HARTFORD ENTITIES: SECTION
VII.J.6 OF THIS DISCLOSURE STATEMENT ENTITLED "INJUNCTION WITH RESPECT TO CLAIMS
AGAINST THE HARTFORD ENTITIES" AND SECTION 5.13(d) OF THE PLAN; AND
(4) THE INJUNCTION WITH RESPECT TO CLAIMS AGAINST RELATED PERSONS OF THE DEBTORS
BY HOLDERS OF CLAIMS WHO SUBMIT A BALLOT AND DO NOT ELECT TO WITHHOLD CONSENT TO
RELEASES OF THE RELEASED PARTIES BY MARKING THE APPROPRIATE BOX ON THE BALLOT:
SECTION VII. J.2 OF THIS DISCLOSURE STATEMENT ENTITLED "CERTAIN RELEASES AND
INJUNCTIONS UNDER THE PLAN -- RELEASES BY HOLDERS OF CLAIMS AND INTERESTS" AND
SECTION VII. J.3 ENTITLED "INJUNCTIONS RELATED TO RELEASES" AND SECTIONS 5.13(b)
AND (c) OF THE PLAN.
i
{Page}
DISCLAIMER
THE INFORMATION CONTAINED IN THIS DISCLOSURE STATEMENT IS INCLUDED HEREIN
FOR PURPOSES OF SOLICITING ACCEPTANCES OF THE THIRD AMENDED JOINT PLAN OF
REORGANIZATION FOR OWENS CORNING AND ITS AFFILIATED DEBTORS AND
DEBTORS-IN-POSSESSION (THE "PLAN"), FILED BY OWENS CORNING ("OCD") AND THOSE
ENTITIES LISTED ON SCHEDULE I OF THE PLAN (COLLECTIVELY, THE "SUBSIDIARY
DEBTORS" AND, TOGETHER WITH OCD, THE "DEBTORS"), JAMES J. MCMONAGLE, THE LEGAL
REPRESENTATIVE FOR FUTURE CLAIMANTS ("FUTURE CLAIMANTS' REPRESENTATIVE"), AND
THE OFFICIAL COMMITTEE OF ASBESTOS CLAIMANTS ("ASBESTOS CLAIMANTS' COMMITTEE")
(THE DEBTORS, THE FUTURE CLAIMANTS' REPRESENTATIVE, AND THE ASBESTOS CLAIMANTS'
COMMITTEE, COLLECTIVELY, THE "PLAN PROPONENTS"). THE INFORMATION CONTAINED IN
THIS DISCLOSURE STATEMENT MAY NOT BE RELIED UPON FOR ANY PURPOSE OTHER THAN TO
DETERMINE HOW TO VOTE ON THE PLAN. NO PERSON MAY GIVE ANY INFORMATION OR MAKE
ANY REPRESENTATIONS, OTHER THAN THE INFORMATION AND REPRESENTATIONS CONTAINED IN
THIS DISCLOSURE STATEMENT, REGARDING THE PLAN OR THE SOLICITATION OF ACCEPTANCES
OF THE PLAN.
ALL CREDITORS ARE ADVISED AND ENCOURAGED TO READ THIS DISCLOSURE STATEMENT
AND THE PLAN IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN. PLAN
SUMMARIES AND STATEMENTS MADE IN THIS DISCLOSURE STATEMENT ARE QUALIFIED IN
THEIR ENTIRETY BY REFERENCE TO THE PLAN AND THE EXHIBITS AND SCHEDULES ANNEXED
TO THE PLAN AND THIS DISCLOSURE STATEMENT. THE STATEMENTS CONTAINED IN THIS
DISCLOSURE STATEMENT ARE MADE ONLY AS OF THE DATE HEREOF, AND THERE CAN BE NO
ASSURANCE THAT THE STATEMENTS CONTAINED HEREIN WILL BE CORRECT AT ANY TIME
BEFORE OR AFTER THE DATE HEREOF.
THIS DISCLOSURE STATEMENT HAS BEEN PREPARED IN ACCORDANCE WITH SECTION 1125
OF THE UNITED STATES BANKRUPTCY CODE, 11 U.S.C. Sections 101-1330 (AS AMENDED,
THE "BANKRUPTCY CODE") AND RULE 3016 OF THE FEDERAL RULES OF BANKRUPTCY
PROCEDURE (THE "BANKRUPTCY RULES") AND NOT NECESSARILY IN ACCORDANCE WITH
FEDERAL OR STATE SECURITIES LAWS OR OTHER NON-BANKRUPTCY LAWS.
EXCEPT WHERE SPECIFICALLY NOTED, THE FINANCIAL INFORMATION CONTAINED HEREIN
HAS NOT BEEN AUDITED BY A CERTIFIED PUBLIC ACCOUNTING FIRM AND HAS NOT BEEN
PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
THIS DISCLOSURE STATEMENT HAS NEITHER BEEN APPROVED NOR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION (THE "SEC") OR THE SECURITIES REGULATORS OF
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Akzo Nobel
As referenced in this Disclosure Statement with Respect to Fourth Amended Joint Plan of Reorganization:
Akzo Nobel – former owner/operator; a Proof of Claim in the amount of
$3,000,000 by Akzo Nobel Coatings, Inc. seeking indemnification for cleanup
costs that it incurred with respect to the Mercer
dt 54224
;
Electronic Arts
As referenced in this Disclosure Statement with Respect to Fourth Amended Joint Plan of Reorganization:
Electronic Arts Inc. – Baseball. He assumed his current position with Major
League Baseball in 1999. Mr. Coleman is a director of H. J. Heinz Company, the
Omnicom Group, New Jersey Resources, Cendant Corporation, Electronic Arts Inc. ,
Aramark Corporation, and Churchill Downs Incorporated. He also serves as a
director of The Metropolitan Opera, The Schumann Fund, The Jackie Robinson
Foundation and The Children's Defense Fund.
_____________
dt 1485020
;
|
Enron
As referenced in this Disclosure Statement with Respect to Fourth Amended Joint Plan of Reorganization:
Enron Corp. – Court approval to amend the previously-assumed Enron
agreements so as to, among other things, expand the services provided thereunder
to additional facilities of the Debtors. On December 2, 2001, Enron Corp. and
certain of its affiliates filed Chapter 11 bankruptcy petitions in the United
States Bankruptcy Court for the Southern District of New York. Prior to Enron
Corp.'s bankruptcy
_____________
Enron
Corp. – December 2, 2001, Enron Corp. and
certain of its affiliates filed Chapter 11 bankruptcy petitions in the United
States Bankruptcy Court for the Southern District of New York. Prior to Enron
Corp. 's bankruptcy filing, the Debtors sent one or more notices to Enron by
which the Debtors terminated their various contractual agreements with Enron.
Enron has asserted significant post-petition
_____________
Enron Corp. – asserted significant post-petition claims against OCD as a result of
the foregoing contract terminations. By motion filed on May 9, 2003, OCD sought
Court approval of a settlement with Enron Corp. and certain of its affiliates
that would resolve all disputes among the parties. Among other things, such
settlement resolved the following issues: (i) the amount, if any, owed by
_____________
dt 1336270
;
Owens Corning
As referenced in this Disclosure Statement with Respect to Fourth Amended Joint Plan of Reorganization:
OWENS CORNING, – IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
-----------------------------------
IN RE: )
) Chapter 11
OWENS CORNING, et al., )
) Case No. 00-03837 (JKF)
Debtors. )
) Jointly Administered
)
-----------------------------------
DISCLOSURE STATEMENT WITH RESPECT
OWENS CORNING – Debtors. )
) Jointly Administered
)
-----------------------------------
DISCLOSURE STATEMENT WITH RESPECT TO FOURTH AMENDED JOINT PLAN
OF REORGANIZATION FOR OWENS CORNING AND
ITS AFFILIATED DEBTORS AND DEBTORS-IN-POSSESSION
SAUL EWING LLP SKADDEN, ARPS, SLATE, MEAGHER
OWENS CORNING – Table}
{Page}
NOTICE WITH RESPECT TO INJUNCTIONS
THE FOURTH AMENDED JOINT PLAN OF REORGANIZATION FOR OWENS CORNING AND ITS
AFFILIATED DEBTORS AND DEBTORS-IN-POSSESSION (THE "PLAN"), WHICH IS ATTACHED AS
APPENDIX
OWENS CORNING – HEREIN
FOR PURPOSES OF SOLICITING ACCEPTANCES OF THE THIRD AMENDED JOINT PLAN OF
REORGANIZATION FOR OWENS CORNING AND ITS AFFILIATED DEBTORS AND
DEBTORS-IN-POSSESSION (THE "PLAN"), FILED BY OWENS CORNING ("OCD")
OWENS CORNING – FOR OWENS CORNING AND ITS AFFILIATED DEBTORS AND
DEBTORS-IN-POSSESSION (THE "PLAN"), FILED BY OWENS CORNING ("OCD") AND THOSE
ENTITIES LISTED ON SCHEDULE I OF THE PLAN (COLLECTIVELY, THE "SUBSIDIARY
dt 29053
;
More... |
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| 2003 |
Debtors' Disclosure Statement Describing Chapter 11 Plan [Amended No. 2]
Debtors' Disclosure Statement Describing Chapter 11 Plan [Amended No. 2] (337K)
Doc #248573: Click preview link for longer preview.
MARC J. WINTHROP - State Bar No. 63218
ROBERT E. OPERA - State Bar No. 101182
SEAN A. O'KEEFE - State Bar No. 122417
GARRICK A. HOLLANDER - State Bar No. 166316
WINTHROP COUCHOT
PROFESSIONAL CORPORATION
660 Newport Center Drive, Fourth Floor
Newport Beach, CA 92660
Telephone: (949) 720-4100
Facsimile: (949) 720-4111
General Insolvency Counsel for
Debtors and Debtors-in-Possession
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SANTA ANA DIVISION
In re Bk. No. SA 03-13593 JR;
SA 03-13594 JR
INTERDENT SERVICE CORPORATION, a Washington In a Case Under Chapter
Corporation; INTERDENT, INC., a Delaware Corporation; 11 of the Bankruptcy Code
(11 U.S.C.ss.101 et seq.)
Debtors and
Debtors-in-Possession.
DEBTORS' SECOND AMENDED DISCLOSURE STATEMENT DESCRIBING
SECOND AMENDED CHAPTER 11 PLAN [As Modified on July 22, 2003]
Disclosure Statement Hearing
Date: July 22, 2003
Time: 3:30 p.m.
Ctrm: 5A
Plan Confirmation Hearing
Date:
Time:
Ctrm:
{PAGE}
{TABLE}
{CAPTION}
TABLE OF CONTENTS
PAGE
{S} {C} {C}
I. INTRODUCTION ...............................................................................1
II. DEFINITIONS AND RULES OF INTERPRETATION..........................................................3
2.1 Definitions.............................................................................3
2.2 Rules of Construction...................................................................29
2.3 Plan Documentary Supplement.............................................................30
2.4 Exhibits ...............................................................................30
III. PLAN CONFIRMATION DEADLINES......................................................................31
3.1 Time and Place of the Confirmation Hearing..............................................31
3.2 Deadline For Voting For or Against the Plan.............................................31
3.3 Deadline For Objecting to the Confirmation of the Plan..................................31
3.4 Identity of Person to Contact for More Information Regarding
the Plan ...............................................................................32
3.5 Disclaimer..............................................................................32
IV. BACKGROUND OF THE DEBTORS........................................................................33
4.1 Corporate Structure.....................................................................33
4.2 Summary of Business Services............................................................35
4.3 Overview of Operating Data; Related Facts...............................................35
4.4 Industry Overview.......................................................................37
4.5 Strategy ...............................................................................37
4.6 Summary of Selected Consolidated Financial Data.........................................39
4.7 Summary of Overall Debt Structure.......................................................41
4.8 Description of Primary Debt Positions...................................................41
4.9 Seller Notes and Other Unsecured Debt...................................................44
4.10 Equity Ownership........................................................................47
4.11 Management of The Debtors...............................................................48
4.12 Pre-Petition Legal Proceedings..........................................................51
V. THE CHAPTER 11 CASES.............................................................................54
5.1 Events Leading to Chapter 11 Filing.....................................................54
5.2 Debtor-in Possession Status.............................................................55
5.3 The Automatic Stay......................................................................56
5.4 Entry of First Day Orders...............................................................56
5.5 Actual and Projected Recovery of Preferential or Fraudulent Transfers...................57
5.6 Projected Objections to Claims Filed Against the Estates................................61
VI. SUMMARY OF THE PLAN OF REORGANIZATION............................................................62
6.1 What Creditors and Interest Holders Will Receive Under The
Proposed Plan...........................................................................62
6.2 Unclassified Claims.....................................................................62
6.3 Classification of Claims And Interests..................................................65
6.4 Summary Of Treatment Of Claims And Interests Under The Plan.............................67
VII. MEANS OF IMPLEMENTATION..........................................................................76
7.1 Introduction............................................................................76
7.2 The Reorganized Debtors.................................................................76
7.3 Issuance of New Plan Securities.........................................................76
7.4 Amended and Restated Articles or Certificate of Incorporation
and Bylaws..............................................................................77
7.5 Management/Board of Directors...........................................................78
7.6 Election of Future Directors............................................................79
7.7 Initial Senior Officers.................................................................79
7.8 Revesting of Assets.....................................................................80
7.9 Cancellation of Existing Securities and Agreements......................................80
7.10 Issuance of New Class A Preferred Stock And The Issuance of
The New Class B Preferred Stock.........................................................81
7.11 Issuance of New Common Stock/Transfer Restriction/Forced Sale...........................81
7.12 Issuance of New Warrants and Class 6 Warrants...........................................82
7.13 Management Stock Options................................................................82
7.14 Section 1145 Exemption For New Common Stock And Warrants................................83
7.15 Illiquidity of New Common Stock, New Warrants And
Class 6 Warrants........................................................................85
7.16 Exit Facility...........................................................................85
7.17 New Shareholder Agreement...............................................................87
7.18 Committee...............................................................................87
7.19 Risks...................................................................................88
VIII. DISTRIBUTIONS ...............................................................................91
8.1 Distribution Agent......................................................................91
8.2 Distributions...........................................................................91
8.3 Treatment of Disputed Claims............................................................92
IX. EXECUTORY CONTRACTS AND UNEXPIRED LEASES.........................................................94
9.1 Executory Contracts Being Assumed.......................................................94
9.2 Executory Contracts Being Rejected......................................................95
9.3 Retention of Property Rights By Reorganized Debtors.....................................95
9.4 Bar Date for Rejection Damages..........................................................96
9.5 Cure Statements.........................................................................96
9.6 Changes in Rates Subject to Regulatory Commission Approval..............................96
X. TAX CONSEQUENCES OF PLAN.........................................................................97
10.1 Introduction............................................................................97
10.2 Federal Income Tax Consequences to the Debtors..........................................98
10.3 Tax Consequences To Creditors...........................................................101
10.4 Tax Consequences To Shareholders........................................................107
XI. CONFIRMATION REQUIREMENTS AND PROCEDURES.........................................................107
11.1 Introduction............................................................................107
11.2 Who May Object to Confirmation of the Plan..............................................108
11.3 Who May Vote to Accept/Reject the Plan..................................................108
11.4 Who is Not Entitled to Vote.............................................................109
11.5 Who Can Vote in More Than One Class.....................................................109
11.6 Votes Necessary to Confirm the Plan.....................................................109
11.7 Votes Necessary for a Class to Accept the Plan..........................................109
11.8 Treatment of Nonaccepting Classes.......................................................109
11.9 Request for Confirmation Despite Nonacceptance by Impaired Class(es)....................110
11.10 Liquidation Analysis....................................................................110
11.11 Feasibility.............................................................................116
XII. EFFECT OF CONFIRMATION OF PLAN...................................................................116
12.1 Discharge...............................................................................116
12.2 Injunction..............................................................................117
XIII. LIMITATION OF LIABILITY AND RELEASES.............................................................118
13.1 No Liability for Solicitation or Participation..........................................118
13.2 Limitation of Liability.................................................................118
13.3 Release by Debtors and Related Parties..................................................119
XIV. CONDITIONS TO CONFIRMATION AND EFFECTIVENESS.....................................................120
14.1 Conditions Precedent to Plan Confirmation...............................................120
14.2 Conditions Precedent to Plan Effectiveness..............................................120
14.3 Waiver of Conditions....................................................................121
XV. RETENTION OF JURISDICTION........................................................................121
15.1 Retention of Jurisdiction...............................................................121
XVI. MODIFICATION OR WITHDRAWAL OF PLAN...............................................................123
16.1 Modification of Plan....................................................................123
16.2 Termination Events......................................................................123
16.3 Nonconsensual Confirmation..............................................................123
XVII. MISCELLANEOUS ...............................................................................124
17.1 Payment of Statutory Fees...............................................................124
17.2 Plan Sponsorship........................................................................124
17.3 Payment Dates...........................................................................124
17.4 Headings ...............................................................................124
17.5 Other Documents and Actions.............................................................124
17.6 Notices ...............................................................................124
17.7 Governing Law...........................................................................126
17.8 Binding Effect..........................................................................127
17.9 Successors and Assigns..................................................................127
17.10 Severability of Plan Provisions.........................................................127
17.11 No Waiver...............................................................................127
17.12 Exemption from Securities Laws..........................................................127
17.13 Inconsistencies.........................................................................127
17.14 Exemption from Certain Transfer Taxes and Recording Fees................................128
17.15 Post-Confirmation Status Report.........................................................128
17.16 Post-Confirmation Conversion/Dismissal..................................................128
17.17 Final Decree............................................................................129
{/TABLE}
{PAGE}
I
INTRODUCTION
NOTE TO SELLER DENTISTS AND OTHER HOLDERS OF UNSECURED CLAIMS, OTHER
THAN THE SENIOR SUBORDINATED NOTE HOLDERS, CONVERTIBLE SUBORDINATED NOTE HOLDERS
AND AMERIDENT DENTAL CORPORATION: THE TREATMENT OF YOUR UNSECURED CLAIMS
(DESCRIBED AS CLASS 4.1 CLAIMS) IS SET FORTH IN SECTION 6.4 OF THE DEBTORS'
SECOND AMENDED JOINT CHAPTER 11 PLAN OF REORGANIZATION [AS MODIFIED ON JULY 22,
2003] ("Plan") AND IS SUMMARIZED IN SECTION 6.4.6 HEREOF. SECTION 4.9 OF THIS
DISCLOSURE STATEMENT AND EXHIBIT "5" HERETO IDENTIFY THE UNSECURED CLAIMS
CONTAINED IN CLASS 4 OF THE PLAN AND EXHIBIT "6" HERETO STATES THE TREATMENT OF
SELLER NOTES OF DENTISTS UNDER THE PLAN.
NOTE TO HOLDERS OF ADMINISTRATIVE CLAIMS AND TO HOLDERS OF CLAIMS
ARISING FROM THE REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES: THE PLAN
PROVIDES FOR BAR DATES FOR THE FILING OF REQUESTS FOR PAYMENT OF ADMINISTRATIVE
CLAIMS AND FOR THE FILING OF PROOFS OF CLAIM BY HOLDERS OF CLAIMS ARISING FROM
THE REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES. THE BAR DATE FOR
FILING REQUESTS FOR PAYMENT OF ADMINISTRATIVE CLAIMS IS SET FORTH IN SECTION
4.1.2(B) OF THE PLAN, AND IS DESCRIBED IN SECTION 6.2.1 HEREOF. THE BAR DATE FOR
FILING PROOFS OF CLAIM ARISING FROM THE REJECTION OF EXECUTORY CONTRACTS AND
UNEXPIRED LEASES IS SET FORTH IN SECTION 11.4 OF THE PLAN, AND IS DESCRIBED IN
SECTION 9.4 HEREOF.
InterDent, Inc., a Delaware corporation ("InterDent"), and InterDent
Service Corporation, Inc., a Washington Corporation ("ISC") (collectively the
"Debtors") filed voluntary petitions under Chapter 11 of the United States
Bankruptcy Code (the "Bankruptcy Code") on May 9, 2003. Since this date both
corporations have continued to operate their businesses in the ordinary course
as debtors-in-possession. On May 9, 2003, the United States Bankruptcy Court
(the "Bankruptcy Court") entered an order authorizing the joint administration
of the Debtors' Chapter 11 cases.
Chapter 11 allows a debtor, and under some circumstances, creditors and
others parties in interest, to propose a plan of reorganization. The Debtors in
the instant Chapter 11 proceedings are the parties proposing the Debtors' Plan
sent to you in the same envelope as this document. The Plan being proposed by
the Debtors is a reorganizing Plan. Through this Plan, the Debtors seek to
continue operating their business and to satisfy and discharge the claims of
their creditors, on the terms provided for in the Plan. Although the Plan is
being proposed jointly by the Debtors, the Debtors' respective Chapter 11
Estates remain legally separate under the Plan. Each Debtor is assuming
liability under the Plan only for the claims properly chargeable to such Debtor,
and for no others. THE DOCUMENT YOU ARE READING IS THE DISCLOSURE STATEMENT FOR
THE ENCLOSED PLAN.
DDJCM and the LL Entities (each as defined below) are co-sponsors of
the Plan (the "Co-Sponsors"). This means that these creditors have participated
in the development of the Plan, and they have agreed to perform certain
obligations in connection with the Plan, if the Plan is confirmed by the
Bankruptcy Court and certain other conditions are satisfied. The Co-Sponsors are
not liable for any obligations being incurred under the Plan by the Debtors or
for any other obligations of the Debtors or Reorganized Debtors.
This Disclosure Statement summarizes what is in the Plan, and tells you
certain information relating to the Plan and the process the Bankruptcy Court
follows in determining whether or not to confirm the Plan.
READ THIS DISCLOSURE STATEMENT CAREFULLY IF YOU WANT TO KNOW ABOUT:
------------------------------------------------------------------
WHO CAN VOTE OR OBJECT TO THE PLAN
HOW YOUR CLAIM IS TREATED
HOW THIS TREATMENT COMPARES TO WHAT YOUR CLAIM WOULD RECEIVE IN
LIQUIDATION
THE HISTORY OF THE DEBTORS AND SIGNIFICANT EVENTS DURING THE BANKRUPTCY
WHAT FACTORS THE BANKRUPTCY COURT WILL CONSIDER TO DECIDE WHETHER OR
NOT TO CONFIRM THE PLAN
WHAT IS THE EFFECT OF CONFIRMATION, AND
WHETHER THE PLAN IS FEASIBLE.
This Disclosure Statement cannot tell you everything about your rights.
You should consider consulting your own lawyer to obtain more specific advice on
how this Plan will affect you and your best course of action.
Be sure to read the Plan as well as the Disclosure Statement. If there
are any inconsistencies between the Plan and the Disclosure Statement, the Plan
provisions will govern.
The Bankruptcy Code requires a Disclosure Statement to contain
"adequate information" concerning the Plan. On or about July 22, 2003, the
Bankruptcy Court entered an order approving the Disclosure Statement, based upon
a finding that this document contained "adequate information" to enable parties
affected by the Plan to make an informed judgment regarding the Plan. Any party
can now solicit votes for or against the Plan.
II
DEFINITIONS AND RULES OF INTERPRETATION
2.1 Definitions. The following defined terms are used in this document.
Any capitalized term that is not defined herein, but that is defined in the
Bankruptcy Code or the Bankruptcy Rules shall the have the meaning ascribed to
that term in the Bankruptcy Code or Bankruptcy Rules.
2.1.1 Administrative Claim. Any Claim for any cost or expense of administration
of the Cases allowable under section 330, 331, 503(b), or 507(a)(1) of the
Bankruptcy Code, including, without limitation, any actual and necessary
post-petition expenses of preserving the Estates of the Debtors, any actual and
necessary post-petition expenses of operating the business of the
Debtors-in-Possession, all compensation or reimbursement of expenses to the
extent allowed by the Bankruptcy Court under section 330, 331, or 503 of the
Bankruptcy Code and any fees or charges assessed against the Estates of the
Debtors under section 1930 of title 28 of the United States Code.
2.1.2 Administrative Claims Bar Date. The last date or dates fixed by the Plan
or the Bankruptcy Court for filing proofs or requests for payment of certain
Administrative Claims pursuant to Section 4.1.2.B. of the Plan, Rule 3003(c)(3)
of the Bankruptcy Rules, or any order of the Bankruptcy Court.
2.1.3 Affiliate. As to any Person, any other Person that directly or indirectly
owns or controls, is owned or controlled by, or is under common ownership or
control with, such Person. The term "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as applied
to any Person, means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or other ownership interest, by
contract or otherwise.
2.1.4 Allowed Amount shall mean:
A. With respect to any Administrative Claim (i) if the
Claim is based upon a Fee Application, the amount of such Fee
Application that has been approved by a Final Order of the Bankruptcy
Court; (ii) if the Claim is based upon any indebtedness or obligation
incurred in the ordinary course of business of the Debtors and is not
otherwise subject to an Administrative Claim Bar Date, the amount of
such Claim that has been agreed to by the Debtors and such creditor,
failing which, the amount thereof as fixed by a Final Order of the
Bankruptcy Court; or (iii) if the Holder of such Claim was required to
file and has filed proof thereof with the Bankruptcy Court prior to an
Administrative Claim Bar Date, (1) the amount stated in such proof if
no objection to such proof of claim is interposed within the applicable
period of time fixed by the Bankruptcy Code, the Bankruptcy Rules or
the Bankruptcy Court, or (2) the amount thereof as fixed by Final Order
of the Bankruptcy Court if an objection to such proof was interposed
within the applicable period of time fixed by the Bankruptcy Code, the
Bankruptcy Rules or the Bankruptcy Court. The Allowed Amount of any
Administrative Claim which is subject to an Administrative Claims Bar
Date and not filed by the applicable Administrative Claims Bar Date
shall be zero, and no distribution shall be made on account of any such
Administrative Claim.
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AlixPartners
As referenced in this Debtors' Disclosure Statement Describing Chapter 11 Plan [Amended No. 2]:
Alix Partners – developing a culture of communication, teamwork
and accountability throughout the Debtors' organization.
In May 2001, the Debtors engaged the national turnaround consulting
firm, Alix Partners (formerly Jay Alix and Associates) to identify several areas
of needed improvement in the Debtors' operations. In September 2001, InterDent
replaced its
_____________
dt 272749
;
QuadraMed
As referenced in this Debtors' Disclosure Statement Describing Chapter 11 Plan [Amended No. 2]:
QuadraMed Corp. – Chhina was President & COO of ChartOne, Inc., a private, healthcare
technology and service provider to over 1,400 U.S. hospitals. Mr. Chhina led its
spin-off and LBO from QuadraMed Corp. , a public healthcare technology company
for which Mr. Chhina was a Division President. Prior to QuadraMed, Mr. Chhina
was the CFO for PHG, Inc., a national litigation support and
_____________
dt 1542579
;
 AmSouth Bank
As referenced in this Debtors' Disclosure Statement Describing Chapter 11 Plan [Amended No. 2]:
AmSouth Bank. – functions including
managing the company's external relationships with the financial community.
Prior to Gruma, Mr. Hill held various positions at ARCO and AmSouth Bank.
4.11.4 Paul Keckley, Ph.D. Dr. Keckley has been a director of InterDent
since March 12, 1999. Prior to that
_____________
dt 215602
;
|
Houlihan Lokey
As referenced in this Debtors' Disclosure Statement Describing Chapter 11 Plan [Amended No. 2]:
Houlihan Lokey Howard & Zukin, – 2001 to only thirty-four percent (34%) in 2002.
Additionally, in early 2002, the Debtors engaged the national financial
restructuring investment banking firm, Houlihan Lokey Howard & Zukin, to assist
them in either attracting new equity investment, or negotiating an internal
financial restructuring agreement with the Debtors' existing debt holders.
_____________
dt 197637
;
JPMorgan Chase
As referenced in this Debtors' Disclosure Statement Describing Chapter 11 Plan [Amended No. 2]:
JPMorgan Chase – is included in the Plan
Documentary Supplement as an Exhibit.
2.1.17 Bank Lenders. JPMorgan Chase Bank, and U.S. Bank National Association (in
each case, only so long as such
_____________
JPMorgan Chase – Opera
Winthrop & Couchot, P.C.
660 Newport Center Drive, Suite 400
Newport Beach, CA 92660
JPMorgan Chase Bank and /or U.S. Bank National Association to:
Billie Prue
JPMorgan Chase Bank
Special
_____________
JPMorgan Chase – CA 92660
JPMorgan Chase Bank and /or U.S. Bank National Association to:
Billie Prue
JPMorgan Chase Bank
Special Loan Group
270 Park Avenue, 20th Floor
New York, NY 10017
Eric Groberg
_____________
JPMorgan Chase – Bank
Special Loan Group
270 Park Avenue, 20th Floor
New York, NY 10017
Eric Groberg
JPMorgan Chase Bank
Middle Market Financial Sponsors Group
1166 Avenue of The Americas, 16th Floor
New York,
_____________
dt 75390
;
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| 2003 |
Opinion and Order [Amended]
Opinion and Order [Amended] (92K)
Doc #258071: Click preview link for longer preview.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SIMON PROPERTY GROUP, INC., et al.,
Plaintiffs,
Honorable: Victoria A. Roberts
vs. Case No. 02-74799
TAUBMAN CENTERS, INC., et al.,
Defendants,
and
LIONEL Z. GLANCY,
Plaintiff,
vs. Case No. 02-75120
ROBERT S. TAUBMAN, et al.,
. . .
258071
|
IFF
As referenced in this Opinion and Order [Amended]:
INTERNATIONAL FLAVORS – of different States." 28
U.S.C. ss.1332(a)(1). "The diversity statute has been interpreted to require
'complete diversity' of citizenship." INTERNATIONAL FLAVORS AND TEXTURES, LLC V
GARDNER, 966 F.Supp. 552, 553 (W.D. Mich. 1997). "[C]omplete diversity requires
that no party share citizenship
_____________
INTERNATIONAL FLAVORS – to
the litigation." AETNA, 44 F.Supp. 2d at 876.
Limited partnerships are citizens of each state in which its partners are
residents. INTERNATIONAL FLAVORS AND TEXTURES, LLC V GARDNER, 966 F.Supp. 552,
554 (W.D. Mich. 1997). Where limited partnerships are named parties, the Sixth
Circuit
_____________
dt 139871
;
Liquid Audio
As referenced in this Opinion and Order [Amended]:
LIQUID AUDIO, INC, – of both BLASIUS and UNOCAL applies. Under such scrutiny, the
burden is on the board to first demonstrate that there is a compelling
justification for its actions. MM COMPANIES V LIQUID AUDIO, INC, 813 A.2d 1118,
1131 (Del. 2003). Thereafter, the court may consider whether the acts are
reasonable and proportional. ID at 1132.
Here, Defendants have not offered compelling justification
_____________
dt 1510008
;
Liquid Audio
As referenced in this Opinion and Order [Amended]:
LIQUID AUDIO, INC, – of both BLASIUS and UNOCAL applies. Under such scrutiny, the
burden is on the board to first demonstrate that there is a compelling
justification for its actions. MM COMPANIES V LIQUID AUDIO, INC, 813 A.2d 1118,
1131 (Del. 2003). Thereafter, the court may consider whether the acts are
reasonable and proportional. ID at 1132.
Here, Defendants have not offered compelling justification
_____________
dt 1510035
;
|
NCR
As referenced in this Opinion and Order [Amended]:
NCR
CORP – arising out of completed actions involving operational issues." ID.
However, uninformed or unadvised decisions by a board are considered inherently
unreasonable and, therefore, not protected by the business judgment rule. NCR
CORP V AMERICAN TELEPHONE AND TELEGRAPH CO, 761 F.Supp. 475, 491 (S.D. OH.
1991).
The Unocal standard of enhanced judicial scrutiny is applied when the
conduct being scrutinized is
_____________
dt 1449792
;
Simon Property
As referenced in this Opinion and Order [Amended]:
SIMON PROPERTY GROUP, INC – 99
{SEQUENCE}3
{FILENAME}may9amendedopinion.txt
{DESCRIPTION}EXHIBIT (A)(67)
{TEXT}
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SIMON PROPERTY GROUP, INC ., et al.,
Plaintiffs,
Honorable: Victoria A. Roberts
vs. Case No. 02-74799
TAUBMAN CENTERS, INC., et al.,
Defendants,
and
LIONEL Z. GLANCY,
_____________
SIMON PROPERTY GROUP, INC – filed on May
1, 2003.
I. INTRODUCTION
This matter is before the Court on joint Motions for Preliminary Injunction
by the Plaintiffs in SIMON PROPERTY GROUP, INC ., ET AL V TAUBMAN CENTERS, INC.,
ET AL, case no. 02-7499, and LIONEL Z. GLANCY V ROBERT S. TAUBMAN, ET AL,
_____________
Simon Property Group, Inc – Court GRANTS the Simon Plaintiffs' motion in part and
DENIES it in part; and, the Court DENIES the Glancy motion.
II. BACKGROUND
Plaintiffs Simon Property Group, Inc ., Simon Property Acquisitions, Inc.
("Simon") and Randall J. Smith(1) filed their complaint against Taubman Centers,
Inc. (TCI), A. Alfred Taubman, and
_____________
dt 131605
;
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| 2003 |
Opinion and Order [Amended]
Opinion and Order [Amended] (92K)
Doc #258075: Click preview link for longer preview.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SIMON PROPERTY GROUP, INC., ET AL.,
PLAINTIFFS,
HONORABLE: VICTORIA A. ROBERTS
VS. CASE NO. 02-74799
TAUBMAN CENTERS, INC., ET AL.,
DEFENDANTS. FILED
MAY 8-2003
AND CLERK'S OFFICE
. . .
258075
|
IFF
As referenced in this Opinion and Order [Amended]:
INTERNATIONAL FLAVORS – of different States." 28 U.S.C.
Section 1332(a)(1). "The diversity statute has been interpreted to require
`complete diversity' of citizenship." INTERNATIONAL FLAVORS AND TEXTURES, LLC V
GARDNER, 966 F.Supp. 552, 553 (W.D. Mich. 1997). "[C]omplete diversity requires
that no party share citizenship
_____________
INTERNATIONAL FLAVORS – to
the litigation." AETNA, 44 F.Supp. 2d at 876.
Limited partnerships are citizens of each state in which its partners are
residents. INTERNATIONAL FLAVORS AND TEXTURES, LLC V. GARDNER, 966 F.Supp, 552,
554 (W.D. Mich. 1997). Where limited partnerships are named parties, the Sixth
Circuit
_____________
dt 139872
;
Liquid Audio
As referenced in this Opinion and Order [Amended]:
LIQUID AUDIO, INC, – of both BLASIUS and UNOCAL applies. Under such scrutiny, the
burden is on the board to first demonstrate that there is a compelling
justification for its actions. MM COMPANIES V LIQUID AUDIO, INC, 813 A.2d
1118,1131 (Del. 2003). Thereafter, the court may consider whether the acts are
reasonable and proportional. ID at 1132.
Here, Defendants have not offered a compelling
_____________
dt 1510009
;
Liquid Audio
As referenced in this Opinion and Order [Amended]:
LIQUID AUDIO, INC, – of both BLASIUS and UNOCAL applies. Under such scrutiny, the
burden is on the board to first demonstrate that there is a compelling
justification for its actions. MM COMPANIES V LIQUID AUDIO, INC, 813 A.2d
1118,1131 (Del. 2003). Thereafter, the court may consider whether the acts are
reasonable and proportional. ID at 1132.
Here, Defendants have not offered a compelling
_____________
dt 1510036
;
|
NCR
As referenced in this Opinion and Order [Amended]:
NCR
CORP – arising out of completed actions involving operational issues." ID.
However, uninformed or unadvised decisions by a board are considered inherently
unreasonable and, therefore, not protected by the business judgment rule. NCR
CORP V AMERICAN TELEPHONE AND TELEGRAPH CO, 761 F.Supp. 475,491 (S.D. OH.
1991).
The UNOCAL standard of enhanced judicial scrutiny is applied when the
conduct being scrutinized is
_____________
dt 1449793
;
Simon Property
As referenced in this Opinion and Order [Amended]:
SIMON PROPERTY GROUP, INC – 99(A)(5)(VV)
{TEXT}
{Page}
EXHIBIT 99(a)(5)(VV)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SIMON PROPERTY GROUP, INC ., ET AL.,
PLAINTIFFS,
HONORABLE: VICTORIA A. ROBERTS
VS. CASE NO. 02-74799
TAUBMAN CENTERS, INC., ET AL.,
DEFENDANTS. FILED
MAY 8-2003
_____________
SIMON PROPERTY GROUP, INC – filed on May
1, 2003.
I. INTRODUCTION
This matter is before the Court on joint Motions for Preliminary Injunction
by the Plaintiffs in SIMON PROPERTY GROUP, INC ., ET AL v TAUBMAN CENTERS, INC.,
ET AL, case no. 02-7499, and LIONEL Z. GLANCY v ROBERT S. TAUBMAN, ET AL,
_____________
Simon Property Group, Inc – Court GRANTS the Simon Plaintiffs' motion in part and
DENIES it in part; and, the Court DENIES the Glancy motion.
II. BACKGROUND
Plaintiffs Simon Property Group, Inc ., Simon Property Acquisitions, Inc.
("Simon") and Randall J. Smith(1) filed their complaint against Taubman Centers,
Inc. (TCI), A. Alfred Taubman, and
_____________
dt 131606
;
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| 2003 |
Opinion and Order
Opinion and Order (80K)
Doc #258078: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-99
{SEQUENCE}3
{FILENAME}may2opinionandorder.txt
{DESCRIPTION}EXHIBIT (A)(65)
{TEXT}
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SIMON PROPERTY GROUP, INC., ET AL.,
PLAINTIFFS,
VS. HONORABLE: VICTORIA A. ROBERTS
CASE NO. 02-74799
TAUBMAN CENTERS, INC., ET AL.,
DEFENDANTS.
AND
LIONEL Z. GLANCY,
PLAINTIFF,
VS. CASE NO. 02-75120
ROBERT S. TAUBMAN, ET AL.,
DEFENDANTS.
---------------------------------------/
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on joint Motions for Preliminary Injunction
by the Plaintiffs in SIMON PROPERTY GROUP, INC., ET AL V TAUBMAN CENTERS, INC.,
ET AL, case no. 02-7499, and LIONEL Z. GLANCY V ROBERT S. TAUBMAN, ET AL, case
no. 02-75120. For the reasons set forth below:
1. The Court dismisses the Glancy case without prejudice and dismisses Smith
-1-
{PAGE}
from the Simon case, both for lack of subject matter jurisdiction;
2. The Simon Plaintiffs' claims which are based on breach of fiduciary duty
in connection with the 1998 restructuring and issuance of the l998 Series B
stock are dismissed for lack of standing;
3. The Simon Plaintiffs' allegations that Defendants interfered with their
right to vote are individual harms which are not subject to the demand
requirements of F.R.C.P. 23.1;
4. The balance of Simon's claims allege breaches of fiduciary duty of care
and loyalty which are excused from the demand requirements of F.R.C.P. 23.1;
5. The business judgment rule entitles the Taubman Centers Inc. Board of
Directors to the benefit of the presumption that it acted in good faith and in
accordance with its fiduciary obligations in rejecting the Simon/Westfield offer
in 2003, and the Simon Plaintiffs' have failed to rebut the presumption;
6. The Taubman Centers Inc. Board of Directors' action taken on December 20,
2002 to amend the bylaws, which thwarted Simon's attempts to call a special
meeting of shareholders to consider the Excess Share Provision, had no
compelling justification under the rule announced in BLASIUS;
7. The 33.6% controlling block of shares obtained by Defendant Robert
Taubman via voting agreements, constitutes the formation of a group under the
Michigan Control Share Acquisitions Act, MCL 450.1790 ET SEQ. Therefore, the
shares may not be voted without a disinterested shareholder vote, pursuant to
that statute;
8. The Simon Plaintiffs have satisfied the requirements for injunctive
relief. Defendants are enjoined from:
-2-
{PAGE}
(A) enforcing the December 20, 2002 Special Meeting Amendment; and
(B) honoring voting agreements previously entered with Robert Taubman and
referenced in the November 15, 2002 Schedule 13D that was filed with
the Securities and Exchange Commission, whether they are formal or
informal, and the affected shares may not be voted unless and until
voting rights are conferred by a majority of disinterested
shareholders, pursuant to the requirements of the Michigan Control
Share Acquisitions Act.
Accordingly, the Court GRANTS the Simon Plaintiffs' motion in part and
DENIES it in part; and, the Court DENIES the Glancy motion.
II. BACKGROUND
Plaintiffs Simon Property Group, Inc., Simon Property Acquisitions, Inc.
("Simon") and Randall J. Smith[1] filed their complaint against Taubman Centers,
Inc. (TCI), A. Alfred Taubman, and members of the TCI Board of Directors-Robert
S. Taubman, Lisa A. Payne, Graham T. Allison, Peter Karmanos, Jr., William
Taubman, Allan J. Bloostein, Jerome A. Chazen and S. Parker Gilbert ("the
Board"). Simon and TCI are competitors in the regional shopping center business.
Smith is a TCI shareholder.
Simon sought judicial intervention in their takeover effort after the Board
rejected their unsolicited offer to purchase all of TCI's outstanding common
stock at $18 per
----------------------------
[1]Smith joined later in this action, under Fed. R. Civ. P. 20. Smith and
Simon will collectively be referred to as "the SPG Plaintiffs" or "SPG."
-3-
{PAGE}
share on December 5, 2002. Westfield America ("Westfield")[2] joined the Simon
offer on January 15, 2003 (the "Simon/Westfield Offer"). Then, the offer was
increased to $20.00 per share. The Plaintiffs contend that more than 85% of
TCI's common shares were tendered into this offer.[3]
258078
|
CTS
As referenced in this Opinion and Order:
CTS CORP – 1798,
450.1794.
Michigan's Control Share statute is substantially similar to an analogous
statute in Indiana, the constitutionality of which was upheld by the United
States Supreme Court in CTS CORP V DYNAMICS CORP OF AMERICA, 481 U.S. 69 (1987).
Ind Code s.23-1-42-1, ET SEQ.[25] For guidance, state and federal courts
in Michigan have looked
_____________
dt 1463704
;
IFF
As referenced in this Opinion and Order:
INTERNATIONAL FLAVORS – of different States." 28 U.S.C.
s.l332(a)(1). "The diversity statute has been interpreted to require
'complete diversity' of citizenship." INTERNATIONAL FLAVORS AND TEXTURES, LLC V
GARDNER, 966 F.Supp. 552, 553 (W.D. Mich. 1997). "(C]omplete
-14-
{PAGE}
diversity requires that no party
_____________
INTERNATIONAL FLAVORS – to
the litigation." AETNA, 44 F.Supp. 2d at 876.
Limited partnerships are citizens of each state in which its partners are
residents. INTERNATIONAL FLAVORS AND TEXTURES, LLC V. GARDNER, 966 F.Supp. 552,
554 (W.D. Mich. 1997). Where limited partnerships are named parties, the Sixth
Circuit
_____________
dt 139873
;
Liquid Audio
As referenced in this Opinion and Order:
LIQUID AUDIO, INC, – 34-
{PAGE}
BLASIUS and UNOCAL applies. Under such scrutiny, the burden is on the board to
first demonstrate that there is a compelling justification for its actions. MM
COMPANIES V LIQUID AUDIO, INC, 813 A.2d 1118, 1131 (Del. 2003). Thereafter,
the court may consider whether the acts are reasonable and proportional. ID at
1132.
Here, Defendants have not offered a compelling
_____________
dt 1510010
;
|
Liquid Audio
As referenced in this Opinion and Order:
LIQUID AUDIO, INC, – 34-
{PAGE}
BLASIUS and UNOCAL applies. Under such scrutiny, the burden is on the board to
first demonstrate that there is a compelling justification for its actions. MM
COMPANIES V LIQUID AUDIO, INC, 813 A.2d 1118, 1131 (Del. 2003). Thereafter,
the court may consider whether the acts are reasonable and proportional. ID at
1132.
Here, Defendants have not offered a compelling
_____________
dt 1510037
;
NCR
As referenced in this Opinion and Order:
NCR
CORP – arising out of completed actions involving operational issues." ID.
However, uninformed or unadvised decisions by a board are considered inherently
unreasonable and, therefore, not protected by the business judgment rule. NCR
CORP V AMERICAN TELEPHONE AND TELEGRAPH CO, 761 F.Supp. 475, 491 (S.D. OH.
1991).
----------------------------
[22]UNOCAL CORP. V MESA PETROLEUM CO, 493 A.2d 946 (Del. 1985).
[23]The
_____________
dt 1449794
;
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Opinion and Order
Opinion and Order (81K)
Doc #258081: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-99.(A)(5)(TT)
{SEQUENCE}3
{FILENAME}a2110130zex-99_a5tt.txt
{DESCRIPTION}EXHIBIT 99(A)(5)(TT)
{TEXT}
{Page}
EXHIBIT 99(a)(5)(TT)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SIMON PROPERTY GROUP, INC., ET AL.,
PLAINTIFFS,
HONORABLE: VICTORIA A. ROBERTS
VS. CASE NO. 02-74799
TAUBMAN CENTERS, INC., ET AL.,
DEFENDANTS.
AND
LIONEL Z. GLANCY,
PLAINTIFF,
VS. CASE NO. 02-75120
ROBERT S. TAUBMAN, ET AL.,
DEFENDANTS.
------------------------------------/
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on joint Motions for Preliminary Injunction
by the Plaintiffs in SIMON PROPERTY GROUP, INC., ET AL V TAUBMAN CENTERS, INC.,
ET AL, case no. 02-7499, and LIONEL Z. GLANCY V ROBERT S. TAUBMAN, ET AL, case
no. 02-75120. For the reasons set forth below:
1. The Court dismisses the Glancy case without prejudice and dismisses
Smith
-1-
{Page}
from the Simon case, both for lack of subject matter jurisdiction;
2. The Simon Plaintiffs' claims which are based on breach of fiduciary duty
in connection with the 1998 restructuring and issuance of the1998 Series B stock
are dismissed for lack of standing;
3. The Simon Plaintiffs' allegations that Defendants interfered with their
right to vote are individual harms which are not subject to the demand
requirements of F.R.C.P. 23.1;
4. The balance of Simon's claims allege breaches of fiduciary duty of care
and loyalty which are excused from the demand requirements of F.R.C.P. 23.1;
5. The business judgment rule entitles the Taubman Centers Inc. Board of
Directors to the benefit of the presumption that it acted in good faith and in
accordance with its fiduciary obligations in rejecting the Simon/Westfield offer
in 2003, and the Simon Plaintiffs' have failed to rebut the presumption;
6. The Taubman Centers Inc. Board of Directors' action taken on December
20, 2002 to amend the bylaws, which thwarted Simon's attempts to call a special
meeting of shareholders to consider the Excess Share Provision, had no
compelling justification under the rule announced in BLASIUS;
7. The 33.6% controlling block of shares obtained by Defendant Robert
Taubman via voting agreements, constitutes the formation of a group under the
Michigan Control Share Acquisitions Act, MCL 450.1790 ET SEQ. Therefore, the
shares may not be voted without a disinterested shareholder vote, pursuant to
that statute;
8. The Simon Plaintiffs have satisfied the requirements for injunctive
relief. Defendants are enjoined from:
-2-
{Page}
(A) enforcing the December 20, 2002 Special Meeting Amendment; and
(B) honoring voting agreements previously entered with Robert Taubman and
referenced in the November 15, 2002 Schedule 13D that was filed with
the Securities and Exchange Commission, whether they are formal or
informal, and the affected shares may not be voted unless and until
voting rights are conferred by a majority of disinterested
shareholders, pursuant to the requirements of the Michigan Control
Share Acquisitions Act.
Accordingly, the Court GRANTS the Simon Plaintiffs' motion in part and
DENIES it in part; and, the Court DENIES the Glancy motion.
II. BACKGROUND
Plaintiffs Simon Property Group, Inc., Simon Property Acquisitions, Inc.
("Simon") and Randall J. Smith(1) filed their complaint against Taubman Centers,
Inc. (TCI), A. Alfred Taubman, and members of the TCI Board of Directors-Robert
S. Taubman, Lisa A. Payne, Graham T. Allison, Peter Karmanos, Jr., William
Taubman, Allan J. Bloostein, Jerome A. Chazen and S. Parker Gilbert ("the
Board"). Simon and TCI are competitors in the regional shopping center business.
Smith is a TCI shareholder.
Simon sought judicial intervention in their takeover effort after the Board
rejected their unsolicited offer to purchase all of TCI's outstanding common
stock at $18 per
----------
(1) Smith joined later in this action, under Fed. R. Civ. P. 20. Smith and
Simon will collectively be referred to as "the SPG Plaintiffs" or "SPG."
-3-
{Page}
share on December 5, 2002. Westfield America ("Westfield")(2) joined the Simon
offer on January 15, 2003 (the "Simon/Westfield Offer"). Then, the offer was
increased to $20.00 per share. The Plaintiffs contend that more than 85% of
TCI's common shares were tendered into this offer.(3)
Likewise, TCI shareholder Lionel Z. Glancy ("Glancy") seeks relief from
current and former actions by the Board, including its rejection of the
Simon/Westfield offer. Glancy's complaint is on behalf of himself and other TCI
shareholders, as well as derivatively on behalf of TCI. Glancy's complaint does
not name A. Alfred Taubman as a Defendant. It is filed against the Board only
and TCI (as a nominal defendant).
The SPG Plaintiffs and Glancy assert claims that are similar but not
identical. In a five-count complaint, the SPG Plaintiffs allege that: (1) the
Taubman family does not have the right to vote Series B Preferred Stock acquired
by the Taubman family in 1998 (Count I)(4); (2) the Taubman family does not
have the right to vote shares recently acquired, their Series B Preferred Stock,
or exercise irrevocable proxies to vote the shares of others, because it gives
258081
|
CTS
As referenced in this Opinion and Order:
CTS CORP – 1798,
450.1794.
Michigan's Control Share statute is substantially similar to an analogous
statute in Indiana, the constitutionality of which was upheld by the United
States Supreme Court in CTS CORP V DYNAMICS CORP OF AMERICA, 481 U.S. 69 (1987).
Ind Code Section 23-1-42-1, ET SEQ.(25) For guidance, state and federal courts
in Michigan have looked
_____________
dt 1463705
;
IFF
As referenced in this Opinion and Order:
INTERNATIONAL FLAVORS – of different States." 28 U.S.C.
Section 1332(a)(1). "The diversity statute has been interpreted to require
'complete diversity' of citizenship." INTERNATIONAL FLAVORS AND TEXTURES, LLC V
GARDNER, 966 F.Supp. 552, 553 (W.D. Mich. 1997). "[C]omplete
-14-
{Page}
diversity requires that no party
_____________
INTERNATIONAL FLAVORS – to
the litigation." AETNA, 44 F.Supp. 2d at 876.
Limited partnerships are citizens of each state in which its partners are
residents. INTERNATIONAL FLAVORS AND TEXTURES. LLC V. GARDNER, 966 F.Supp. 552,
554 (W.D. Mich. 1997). Where limited partnerships are named parties, the Sixth
Circuit
_____________
dt 139874
;
|
Liquid Audio
As referenced in this Opinion and Order:
LIQUID AUDIO, INC, – 34-
{Page}
BLASIUS and UNOCAL applies. Under such scrutiny, the burden is on the board to
first demonstrate that there is a compelling justification for its actions. MM
COMPANIES V LIQUID AUDIO, INC, 813 A.2d 1118, 1131 (Del. 2003). Thereafter, the
court may consider whether the acts are reasonable and proportional. ID at 1132.
Here, Defendants have not offered a compelling
_____________
dt 1510011
;
Liquid Audio
As referenced in this Opinion and Order:
LIQUID AUDIO, INC, – 34-
{Page}
BLASIUS and UNOCAL applies. Under such scrutiny, the burden is on the board to
first demonstrate that there is a compelling justification for its actions. MM
COMPANIES V LIQUID AUDIO, INC, 813 A.2d 1118, 1131 (Del. 2003). Thereafter, the
court may consider whether the acts are reasonable and proportional. ID at 1132.
Here, Defendants have not offered a compelling
_____________
dt 1510038
;
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Monthly Operating Report
Monthly Operating Report (71K)
Doc #276961: Click preview link for longer preview.
Trenwick America Corporation
UNITED STATES BANKRUPTCY COURT
_______________DISTRICT OF_______________
In re: Trenwick America Corporation Case No. 03-12635(MFW)
Reporting Period: January 2004
MONTHLY OPERATING REPORT
File with Court and submit copy to United States Trustee within 20 days
after end of month.
Submit copy of report to any official committee appointed in the case. . . .
276961
|
Kelly Services
As referenced in this Monthly Operating Report:
Kelly Services, Inc – Machines, Inc
107998 7,137.05 Imagistics International Inc.
107999 453.91 Ios Capital
108000 524.64 Ios Capital
108001 4,786.57 Kelly Services, Inc .
108002 11.20 MCI
108003 1,996.50 Milliman USA
108004 5,277.25 Network Synergy
108005 411.58 New England Office
_____________
Kelly Services, Inc – Corporation
108027 190.80 Ios Capital
108028 3,888.26 Iron Mountain
108029 728.00 Joyce Van Lines, Inc.
108030 5,295.07 Kelly Services, Inc .
108031 611.55 Lason System Inc.
108032 195.00 Mail Delivery Service of Stamford, LLC
108033 1,628.26 New England Office
_____________
Kelly Services, Inc – Delta Dental
108099 518.91 Federal Express Corporation
108100 618.63 Imagistics International Inc.
108101 134.04 Ios Capital
108102 10,276.99 Kelly Services, Inc .
108103 639.73 Lason System Inc.
108104 17.15 Marks Bros. Stationers, Inc.
108105 63.13 Network Synergy
108106 1,088.19
_____________
dt 269522
;
TOTAL
As referenced in this Monthly Operating Report:
Total S – State and Local
----------------------------------------------------------------------------------------------------------------
Withholding -- 34,739 34,739 1/14, 1/29 EFT --
----------------------------------------------------------------------------------------------------------------
Sales -- -- -- --
----------------------------------------------------------------------------------------------------------------
Excise -- -- -- --
----------------------------------------------------------------------------------------------------------------
Unemployment -- 22,842 22,842 1/14, 1/29 EFT --
----------------------------------------------------------------------------------------------------------------
Real Property -- -- -- --
----------------------------------------------------------------------------------------------------------------
Personal Property -- -- -- --
----------------------------------------------------------------------------------------------------------------
Other: -- -- -- --
----------------------------------------------------------------------------------------------------------------
Total S tate and Local -- 57,581 57,581 --
----------------------------------------------------------------------------------------------------------------
Total Taxes -- 294,597 294,597 -- --
----------------------------------------------------------------------------------------------------------------
{/TABLE}
SUMMARY OF UNPAID POSTPETITION DEBTS
Attach aged listing of accounts payable
{TABLE}
{CAPTION}
---------------------------------------------------------------------------------------------------------------
Number of Days
_____________
Total
---------------------------------------------------------------------------------------------------------------
{S – 294,597 -- --
----------------------------------------------------------------------------------------------------------------
{/TABLE}
SUMMARY OF UNPAID POSTPETITION DEBTS
Attach aged listing of accounts payable
{TABLE}
{CAPTION}
---------------------------------------------------------------------------------------------------------------
Number of Days Past Due
=============================================================
Current 0-30 31-60 61-90 Over 90 Total
---------------------------------------------------------------------------------------------------------------
{S } {C} {C} {C} {C} {C} {C}
Accounts Payable -- 535,353 -- -- -- 535,353
---------------------------------------------------------------------------------------------- |