Debtor's 3rd Amended Liquidating Plan Of Reorg

UNITED STATES BANKRUPTCY COURT
DISTRICT OF COLORADO


In re: ) Case No. 95 12697 CEM
) CRAY COMPUTER CORPORATION, ) (Chapter 11)
)
Debtor. )


I.D. No. 84-1120275


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DEBTOR'S THIRD AMENDED LIQUIDATING PLAN OF REORGANIZATION
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Cray Computer Corporation, the Debtor and Debtor in Possession, submits the following Third Amended Liquidating Plan of Reorganization pursuant to 11 U.S.C. (S)1121(a):


ARTICLE I
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DEFINITIONS
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The following terms, when used in this Plan or in the accompanying Disclosure Statement, shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):


1.1 "Administrative Expense" shall mean any cost or expense of administration of Chapter 11 allowed under 11 U.S.C. (S)503(b).


1.2 "Allowed Claim" shall mean:


(a) a Claim against the Debtor which is set forth in the Debtor's Bankruptcy Schedules other than those scheduled by the Debtor as disputed, contingent or unliquidated; or


(b) a Claim against the Debtor which is filed pursuant to 11 U.S.C. (S)501 on or before the Bar Date, with respect to which no objection to the allowance thereof is filed within any applicable period of limitation, or which is allowed after objection by Final Order. Allowed Claims may include, but are not limited to, Claims that arise from the rejection of executory contracts.


1.3 "Allowed Interest" shall mean an equity interest allowed under Section 502 of the Bankruptcy Code of a holder of the Debtor's stock.


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1.4 "Bankruptcy Code" shall mean Title 11, United States Code, as amended.


1.5 "Bar Date" shall mean the last date for the filing of proofs of claim, as set by order of the Court, which was September 30, 1995, or, with respect to any claim arising from the rejection of an unexpired lease or executory contract or the avoidance of a voidable transfer, 30 days after the entry of an order approving such rejection or avoidance.


1.6 "Case" shall mean this bankruptcy case, In Re Cray Computer
------------------- Corporation, Case Number 95-12697 CEM in the United States Bankruptcy Court - ----------- for the District of Colorado.


1.7 "Claim" shall mean a claim against the Debtor as defined in 11 U.S.C. (S)101(5). For purposes of classification (under Article III of the Plan), distribution (under Article IV of the Plan), balloting on the Plan and confirmation of the Plan, all claims in the same Class held by the same Creditor shall be treated as a single Claim by that Creditor in the aggregate amount of all of that Creditor's separate Claims.


1.8 "Class" shall mean a category of holders of Allowed Claims or Interests as classified in this Plan.


1.9 "Confirmation" shall mean the entry by the Court of an order confirming this Plan.


1.10 "Confirmation Date" shall mean the date of entry by the Court of the Confirmation Order.


1.11 "Confirmation Order" shall mean the order of the Court confirming this Plan in accordance with Chapter 11 of the Bankruptcy Code.


1.12 "Court" or "Bankruptcy Court" shall mean the United States Bankruptcy Court for the District of Colorado.


1.13 "Creditor" shall mean the holder of a Claim as defined in 11 U.S.C. (S)101(10).


1.14 "Creditors Committee" shall mean the official committee of unsecured Creditors appointed by the United States Trustee in this Case pursuant to 11 U.S.C. (S)1102.


1.15 "Debtor" shall mean the debtor in this Case, Cray Computer Corporation.


1.16 "Disclosure Statement" shall mean the Disclosure Statement approved by the Court and accompanying this Plan pursuant to 11 U.S.C. (S)1125.


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1.17 "Disputed Claim" shall mean any Claim as to which an objection to the allowance thereof has been filed and allowance or disallowance of such Claim has not been determined by Final Order of the Court.


1.18 "Effective Date" shall mean the first business day following 11 days after the entry of the Confirmation Order, unless the Confirmation Order has been stayed by the Bankruptcy Court or other court of appropriate jurisdiction, in which case the Effective date shall be the first business day following 11 days after the first date upon which the Confirmation Order is no longer stayed.


1.19 "Estate" shall mean the bankruptcy estate created in this Case as provided by 11 U.S.C. (S) 541.


1.20 "Final Order" shall mean an order or judgment as to which time to appeal or seek appellate review or rehearing has expired and no appeal or rehearing is pending.


1.21 "Liquidating Trustee" means the Liquidating Trustee established and appointed pursuant to Section 5.4 of the Plan.


1.22 "M/A-COM" shall mean M/A-COM, Inc., a Massachusetts corporation, which is the prospective buyer of certain property of the Estate as set forth in Section 5.3 of the Plan.


1.23 "M/A-COM Contract" shall mean the Purchase and Sale Agreement dated December 27, 1995 between the Debtor, as seller, and M/A-COM, as buyer.


1.24 "Petition Date" shall mean March 24, 1995, the date the petition commencing this case was filed.


1.25 "Plan" shall mean this Liquidating Plan of Reorganization, as amended from time to time.


1.26 "Plan Committee" shall mean the committee of Creditors established to serve after the Effective Date as provided in paragraph 5.4 of the Plan.


1.27 "Postpetition" shall mean any time subsequent to the time at which the Debtor filed its petition commencing this Case.


1.28 "Prepetition" shall mean any time prior to the time at which the Debtor filed its petition commencing this Case.


1.29 "Priority Tax Claim" shall mean any Allowed Claim of a governmental unit entitled to treatment under (S)507(a)(8) of the Bankruptcy Code.


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1.30 "Pro Rata" shall mean with respect to any Creditor (other than Class 9 Creditors), the percentage which the Allowed Claim of the Creditor bears to the sum of all Allowed Claims in the Same Class as such Allowed Claim. With respect to any holder of an Allowed Interest or Allowed Claim included in Class 9, "Pro Rata" shall mean the percentage which the number of shares of the Debtor's stock held by that holder bears to the sum of all shares held by holders of Allowed Interests and Class 9 Claimants.


1.31 "Secured Claim" shall mean a Claim validly secured by property of the Estate, but only to the extent of the value of the Estate's interest in such property. To the extent that the value of such interest is less than the amount of the Claim, such difference is an Unsecured Claim unless the Class of which such Claim is a part makes a valid and timely election under (S)1111(b) of the Bankruptcy Code to have the Claim treated as a Secured Claim to the extent allowed.


1.32 "Unsecured Claim" shall mean a Claim not secured by any property of the Estate.


ARTICLE II
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ADMINISTRATIVE EXPENSES AND NON-CLASSIFIED PRIORITY CLAIMS
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2.1 Administrative Expenses. All Administrative Expenses or Claims of a
----------------------- kind specified in (S)507(a)(1) of the Bankruptcy Code shall be paid in full in cash on the Effective Date, except to the extent the holder of any such Claim has agreed to a different treatment of such Claim. To the extent Administrative Expenses for professional fees and disbursements have not been approved and allowed by Final Order of the Court as of the Effective Date, such Administrative Expenses shall be paid in such amounts and at such times as they are approved by Final Order pursuant to (S)(S)330 and 331 of the Bankruptcy Code.


2.2 Priority Tax Claims. Each Priority Tax Claim, to the extent it is not
------------------- entitled to payment as a Secured Claim as otherwise set forth in this Plan, shall be paid in full in cash on the Effective Date, except to the extent the holder of any such Claim has agreed to a different treatment of such Claim.


ARTICLE III
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CLASSIFICATION OF CLAIMS AND INTERESTS
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3.1 Class 1 - Real Property Taxes. Class 1 shall consist of the Allowed
----------------------------- Secured Claim of El Paso County, Colorado, for real property taxes secured by a statutory lien on the Debtor's real property.


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3.2 Class 2 - Personal Property Taxes. Class 2 shall consist of the
--------------------------------- Allowed Secured Claim of El Paso County, Colorado, for personal property taxes secured by a statutory lien on the Debtor's personal property and proceeds thereof.


3.3 Class 3 - Congress Financial Corporation. Class 3 shall consist of the
---------------------------------------- Allowed Secured Claim, if any, of Congress Financial Corporation, which is secured by a security interest in the Debtor's personal property, real property, and proceeds thereof, including cash collateral.


3.4 Class 4 - Burnham Leasing. Class 4 shall consist of the Allowed
------------------------- Secured Claim, if any, of Burnham Leasing Corp., which is secured by a security interest in certain of the Debtor's equipment.


3.5 Class 5 - Employee Priority Wage and Benefit Claims. Class 5 shall
--------------------------------------------------- consist of the Allowed Claims of employees and former employees of the Debtor for unpaid wages and benefits entitled to priority under (S)507(a)(3) of the Bankruptcy Code.


3.6 Class 6 - Employee Benefit Plans. Class 6 shall consist of Allowed
-------------------------------- Claims for contributions to employee benefit plans entitled to priority under (S)507(a)(4) of the Bankruptcy Code.


3.7 Class 7 - General Unsecured Claims Not Exceeding $2,500.00. Class 7
---------------------------------------------------------- shall consist of all Allowed Unsecured Claims not entitled to priority each of which does not exceed $2,500.00 in amount, and all Allowed Unsecured Claims not entitled to priority exceeding $2,500.00 which are voluntarily reduced by the holders thereof to the sum of $2,500.00.


3.8 Class 8 - General Unsecured Claims Exceeding $2,500.00. Class 8 shall
------------------------------------------------------ consist of all Allowed Unsecured Claims which are not otherwise classified under the Plan or provided for in Article II of the Plan.


3.9 Class 9 - Equity Interests. Class 9 shall consist of the Allowed
-------------------------- Interests and all Allowed Claims of holders of Allowed Interests which are subordinated to other Claims under Section 510(b) of the Bankruptcy Code.


ARTICLE IV
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TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS
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4.1 Class 1 - Real Property Taxes. The legal, equitable, and contractual
----------------------------- rights of the holder of the Class 1 Claim shall be unaltered by the Plan. This Class is not impaired by the Plan.


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4.2 Class 2 - Personal Property Taxes. This Class shall be paid in full
--------------------------------- in cash on the Effective Date or as soon thereafter as the Claim comprising this Class is allowed by Final Order of the Bankruptcy Court. This Class is impaired by the Plan.


4.3 Class 3 - Congress Financial Corporation. This Class shall be paid in
---------------------------------------- full in cash on the Effective Date or as soon thereafter as the Claim comprising this Class is allowed by Final Order of the Bankruptcy Court. This Class is impaired by the Plan.


4.4 Class 4 - Burnham Leasing. This Class shall be paid in full in cash on
------------------------- the Effective Date or as soon thereafter as the Claim comprising this Class is allowed by Final Order of the Bankruptcy Court. This Class is impaired by the Plan.


4.5 Class 5 - Employee Priority Wage and Benefit Claims. The Class 5
--------------------------------------------------- Claims shall be paid cash on the Effective Date equal to the allowed amount of such Claims. If 100% of all Class 5, 6 and 8 Allowed Claims are paid and assets or proceeds remain or become available, Class 5 Allowed Claims will share in distribution of interest at the legal rate from the Petition Date on a Pro Rata basis with accrued interest on Class 6 and 8 Allowed Claims. This Class is impaired by the Plan.


4.6 Class 6 - Employee Benefit Plans. The Class 6 Claims shall be paid
-------------------------------- cash on the Effective Date equal to the allowed amount of such Claims. If 100% of all Class 5, 6 and 8 Allowed Claims are paid and assets or proceeds remain or become available, Class 6 Allowed Claims will share in distribution of interest at the legal rate from the Petition Date on a Pro Rata basis with accrued interest on Class 5 and 8 Allowed Claims. This Class is impaired by the Plan.


4.7 Class 7 - General Unsecured Claims Not Exceeding $2,500.00. The Class
---------------------------------------------------------- 7 Claims shall be paid cash on the Effective Date equal to 90% of the allowed amount of such Claims. This Class shall not receive interest. If the holder of an Allowed Claim in Class 7 votes to reject the Plan, that holder's Claim shall automatically be treated as a Class 8 Claim. Any holder of a Class 7 Claim who does not vote to reject the Plan shall be deemed to have accepted the Plan for purposes of 11 U.S.C. (S)1129(a)(7); provided, however, that any such holder who files a written notice with the Court, by the deadline for submission of ballots, electing to be treated as a Class 8 Creditor shall be treated as a Class 8 Creditor. This Class is impaired by the Plan.


4.8 Class 8 - General Unsecured Claims Exceeding $2,500.00. The Class 8
------------------------------------------------------ Claims shall be paid on a Pro Rata basis from proceeds of liquidation of the Debtor's assets, after all unclassified priority Claims and Administrative Expenses and all


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Claims in Classes 1 through 7 have been paid the amounts to which they are entitled (or adequate reserves for any unresolved Disputed Claims in such Classes have been established) pursuant to the terms of the Plan and adequate provision has been made for the payment of the ongoing expenses of liquidation and administration of the Plan (subject to Section 5.4(k) of the Plan). If 100% of all Class 5, 6 and 8 Allowed Claims are paid and assets or proceeds remain or become available, Class 8 Allowed Claims will share in distribution of interest at the legal rate from the Petition Date on a Pro Rata basis with accrued interest on Class 5 and 6 Allowed Claims. This Class is impaired by the Plan.


4.9 Class 9 - Equity Interests. If any assets remain after satisfaction of
-------------------------- all Allowed Claims and Administrative Expenses (including interest as provided in the Plan) and after adequate provision has been made for the payment of the ongoing expenses of liquidation and administration of the Plan, the Class 9 Allowed Interests shall be paid from the proceeds of liquidation of the Debtor's assets on a Pro Rata basis.


ARTICLE V
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MEANS FOR IMPLEMENTATION AND EXECUTION OF THE PLAN
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5.1 Payments on Effective Date. All cash payments to be made on the
-------------------------- Effective Date shall be paid by the Debtor from the Debtor's cash available on the Effective Date. In the event that any Claims to be so paid are not Allowed Claims on the Effective Date, such Claims shall be paid when and in such am ...