ISOMURA" means Isomura Sangyo Keisha Ltd., a Japanese corporation and
the holder of all of Marker's Series A Bonds.
"ISOMURA NOTE" means the five (5) year unsecured promissory note in
the aggregate principal amount of $5,750,000 to be issued by Newco to Isomura on
the Effective Date in full and complete satisfaction of the Series A Bonds
Claim. The Isomura Note shall have the following principal terms: (i) principal
amortization in four (4) equal annual installments of $750,000 commencing on the
first anniversary of the date on which the Confirmation Order shall become a
Final Order (hereafter, the "Final Confirmation Date") and the remaining
principal amount of $2,750,000 to be payable on the fifth anniversary of the
Final Confirmation Date; (ii) interest shall be paid annually until the second
anniversary of the Final Confirmation Date and semi-annually thereafter at an
interest rate of 2% per annum both before and after default until the fourth
anniversary of the Final Confirmation Date and thereafter, the interest rate,
both before and after default shall be the rate Isomura pays to the bank or
other financial institution that funded the purchase of the Series A Bonds by
Isomura or has taken over said position from the original funding bank or
institution, provided said rate of interest does not exceed the prime lending
rate extended by said bank or other financial institution on commercial loans in
Japan from time to time plus one-half of one percent (.5%); and (iii) interest
shall accrue under the Isomura Note commencing April 1, 1999. The Isomura Note
shall be substantially in the form annexed to this Plan as Exhibit 2.
"HYPO VEREINSBANK TERM LOAN AGREEMENT" means, collectively, (i) the
Third Restated and Amended Promissory Note between Marker and Hypo Vereinsbank
(acting through its New York Branch) dated April 15, 1998, and (ii) the Pledge
Agreement and Conditional Assignment to Hypo Vereinsbank, effective as of June
26, 1995, as amended, pursuant to which Hypo Vereinsbank agreed to loan Marker
the amount of DM 6,397,919.38 (U.S. $3.5 million).
"KEYBANK NOTE" means the five (5) year unsecured promissory note in
the aggregate principal amount of $364,694 to be issued jointly and severally by
Newco and Marker Japan Co. Ltd. to KeyBank on the Effective Date. The KeyBank
Note shall have the following other principal terms: (i) Principal Payments: (x)
$273,520 annually during each of the first four years of the term (paid in 16
consecutive equal quarterly installments of $17,095, the first of which shall be
paid ninety (90) days after the Effective Date); and (y) $91,172 during the
fifth year of the term (in consecutive equal quarterly installments of $22,793);
and (ii) interest shall be paid quarterly (together with each principal
installment) at the rate of 2% per annum until the fourth anniversary of the
Effective Date and thereafter until the maturity date at the prime lending rate
extended by commercial banks on commercial loans in Japan from time to time plus
one-half (1/2) of one (1) percent. The KeyBank Note shall be substantially in
the form of the M&T Bank Note annexed to this Plan
.
"M&T BANK NOTE" means the five (5) year unsecured promissory note in
the aggregate principal amount of $1,050,000 to be issued jointly and severally
by Newco and Marker Japan Co. Ltd. to M&T Bank on the Effective Date. The M&T
Bank Note shall have the following other principal terms: (i) Principal
Payments: (x) $200,000 annually during each of the first four years of the term
(in consecutive equal quarterly installments of $50,000, the first of which
shall be paid ninety (90) days after the Effective Date); and (y) $250,000
during the fifth year of the term (in consecutive equal quarterly installments
of $62,500); and (ii) interest shall be paid quarterly (together with each
principal installment) at the rate of 2% per annum until the fourth anniversary
of the Effective Date and thereafter until the maturity date at the prime
lending rate extended by commercial banks on commercial loans in Japan from time
to time plus one-half (1/2) of one (1) percent. The M&T Bank Note shall be
substantially in the form annexed to this Plan as Exhibit 3.
"MARKER/GERMAN BANKS GUARANTEES" means, collectively, (i) the
Guarantee Agreement dated as of August 1, 1990 among Marker, Marker USA and Hypo
Vereinsbank pursuant to which each of Marker and Marker USA guaranteed Marker
Deutschland GmbH 's obligations to Hypo Vereinsbank under the German Bank
Agreements in the amount of DM 80,000,000, and (ii) the Guarantee Agreement
dated as of April 30, 1998 among Marker, Marker USA and Deutsche Bank AG
pursuant to which each of Marker and Marker USA guaranteed Marker Deutschland
GmbH's obligations to Deutsche Bank AG under the German Bank Agreements in the
amount of DM 40,000,000
"PIERO" means Piero G. Ruffinengo, a former employee of Marker, and
the plaintiff in the Piero Lawsuit.
"PIERO CASH PAYMENT" means the Cash payment to be made by Newco to
Piero in the amount of $350,000 pursuant to the terms of the Piero Settlement
and the Plan. Interest shall accrue on the Piero Cash Payment from the date of
payment of the $100,000 initial payment required to be paid by Marker to Piero
under the Piero Settlement until the date of payment of the Piero Cash Payment
authorized by Section 5.7 of this Plan at a rate per annum equal to the prime
rate charged from time to time by First Security Bank plus 1%.
"PIERO CLAIMS" means all the Claims of Piero against Marker and its
Subsidiaries including those claims asserted by Piero in the Piero Lawsuit and
any Claims for unpaid wages and/or severance arising from services rendered by
Piero to Marker and/or any of its Subsidiaries.
"PIERO LAWSUIT" means the civil action commenced by Piero against
Marker and certain of its officers and directors on March 22, 1999, in the Third
Judicial District Court for Salt Lake County, State of Utah, entitled RUFFINENGO
V. MARKER INTERNATIONAL, PETER WEAVER, JOHN G. MCMILLIAN, HANK TAUBER, VINTON
SUMMERVILLE, GRAHAM ANDERSON AND BOB SIND, Civ. No. 990903167, alleging, among
other things, claims of breach of contract and failure to pay wages, and
seeking, among other things, injunctive relief and a declaratory judgment that
Marker does not have authority to demand that Piero transfer his rights to
certain intellectual property to Marker or any other person or entity, including
any of its Subsidiaries.
"PIERO SETTLEMENT" means the settlement embodied in the letter
agreement between Marker and Piero dated August 17, 1999, the material economic
terms of which are summarized in the Disclosure Statement and Section 5.7 of
this Plan.
PREFERRED STOCK INTERESTS" means all the issued and outstanding
shares of Marker Series B Preferred Stock, $0.01 par value, issued by Marker to
Henry E. Tauber.
"SUBSIDIARIES" means Marker Ltd., Marker USA, Marker Deutschland GmbH,
Marker AG, Marker Japan Co., Ltd., Marker Austria, GmbH, Marker Canada, DNR
Japan Co., Ltd., DNR USA and DNR N.A.
"SUBSIDIARY COMMON STOCK INTERESTS" means, collectively, the issued
and outstanding shares of common stock of the Subsidiaries.
"TAX NOTE" means a note to be issued by Newco in the amount of an
Allowed Priority Tax Claim payable over a period of six years from the date of
assessment, bearing interest at the applicable statutory interest rate
commencing on the Effective Date.
"TAUBER CLAIM" means Tauber's Allowed Claim against Marker in the
principal amount of $1,500,000 arising on account of Tauber's Preferred Stock
Interests.
"TAUBER PAYMENT OBLIGATIONS" means Newco's obligations under this Plan
to assume and pay the Tauber Claim as follows: (a) three equal annual
consecutive installments of the principal of the Tauber Claim of $150,000 each,
the first of which shall be due and payable on June 1, 2000 and the second and
third on the same day of each succeeding year; and (b) four equal annual
consecutive installments of the principal of the Tauber Claim of $262,500 each,
the first of which shall be due and payable on June 1, 2003 and the remaining
three on the same day of each succeeding year until paid in full on June 1,
2006. Simple interest at the rate of 5% per annum shall accrue on all
installments of the principal of the Tauber Claim that have not been paid, in
whole or in part, on their respective due dates; provided that interest shall
only commence as and from the later of June 1, 2003 and the date such
installment was due and payable. Newco shall have the right any time and from
time to time to defer, without premium or penalty, the payment (in whole or in
part) of any installment of principal and the payment of any accrued interest
thereon up to and including June 1, 2007. Tauber shall have no recourse against
Newco for failure to pay Tauber any principal installment when due; provided
that all amounts due Tauber under this Plan shall be paid on or before June 1,
2007. |
