c. Newco is organized as a GmbH under the laws of Switzerland.
Newco will have the partnership power and authority to issue the Newco
Equity Securities. The governance of Newco will be carried out in accordance
with Newco's Articles of Association, the Operating Agreement and the applicable
laws of Switzerland.
d. Pursuant to the Plan, Marker will change its name to MKR
Holdings ("MKR") and will remain incorporated in Utah. Pursuant to the
Confirmation Order, Marker is authorized to amend its articles of incorporation
and by-laws to satisfy the provisions of the Agreement (including the name
change), the Plan and the Confirmation Order (including the prohibition against
the issuance of non-voting securities) on or before the Effective Date, without
further authorization and approval from Marker's stockholders, board of
directors or order from the Bankruptcy Court.
e. The following subsidiaries of Marker survive bankruptcy and
upon consummation of the transactions contemplated by the Agreement will
become wholly-owned subsidiaries of Newco: Marker Ltd., Marker USA, Marker
Deutschland GmbH, Marker Japan Co. Ltd., Marker Austria GmbH and DNR Japan Co.
Ltd. In addition, Marker Canada, Ltd. will become a wholly- owned subsidiary of
Newco.
f. The following subsidiaries of Marker will be dissolved
pursuant to the Plan: DNR North America Inc. and DNR USA, Inc.
g. Kevin Hardy, Henry E. Tauber and Louis M. Alpern will be
the three initial directors of MKR. Mr. Hardy will also serve as MKR's
President and Secretary.
(4) CAPITALIZATION.
Prior to the filing of the Plan, there were 11,140,577 shares of
common stock and 1,000,000 shares of Series B preferred stock of Marker issued
and outstanding. On the Effective Date, the authorized capital stock of Marker
will consist only of common stock, with 25,000,000 shares authorized, $0.01 par
value, and approximately 11,120,577 shares outstanding. There are no shares of
stock reserved for future issuance in respect of claims and interests filed and
allowed under the Plan.
(j) Marker shall not engage in the conduct of business and will
operate for the sole purpose of liquidating its assets (including, without
limitation, the Equity Consideration). Without limiting the generality of the
preceding sentence, Marker shall operate in accordance with, and comply with the
terms of, Section 7.4 of the Purchase Agreement and shall dissolve and liquidate
all of its assets (including, without limitation, the Equity Consideration) no
earlier than the third anniversary of the Effective Date and no later than the
fifth anniversary of the Effective Date. Marker is hereby authorized to file and
shall file with the Secretary of State of the State of Utah (which shall accept
and record) a certificate of incorporation and by-laws amended as necessary to
satisfy the provisions of the Purchase Agreement (including Marker=s obligation
to change its name on or prior to the Effective Date), the Plan and this Order
(including the prohibition against the issuance of non-voting securities) and
such amended certificate of incorporation and by-laws shall be the certificate
of incorporation and by-laws of Marker on and after the Effective Date without
further authorization and approval from Marker=s stockholders, board of
directors or order of this Court.
.
18. Each holder of an Allowed Common Stock Interest in Marker shall
retain such Equity Interest and shall not receive any distribution on the
Effective Date under the Plan; PROVIDED, HOWEVER, such holders may receive cash
distributions (subject to offsets and adjustments) on account of their Allowed
Common Stock Interests if Marker=s Equity Consideration is redeemed or otherwise
liquidated by CT and/or Newco in accordance with the terms of the Operating
Agreement.
19. Upon Newco=s issuance to Marker of the Equity Consideration,
Marker shall have such rights and obligations as a minority equity holder in
Newco as set forth in the Operating Agreement and the Equity Consideration shall
be subject to, and governed by, the terms of the Operating Agreement which is
hereby approved in its entirety. Notwithstanding anything herein to the
contrary, this Court shall not retain or otherwise have exclusive jurisdiction
with respect to any controversies, suits or disputes arising under or relating
to the Operating Agreement
.
20. Upon the consummation of the transactions contemplated by the Plan
and the Purchase Agreement, Marker will not be (a) an "investment company" that
is not subject to the exceptions set forth in Section 7(a) of the Investment Act
for transactions which are merely incidental to the dissolution of an investment
company, (b) a company required to be registered under the Investment Act, (c) a
registered company under the Investment Act or (d) an entity "controlled" by an
"investment company" as such terms are defined in the Investment Act.
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