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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of Report (Date of Earliest Event Reported): September 25, 2003
ACTERNA CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE
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(State or Other Jurisdiction of Incorporation)
000-0748 04-2258582
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(Commission File Number) (I.R.S. Employer Identification No.)
12410 MILESTONE CENTER DRIVE
GERMANTOWN, MARYLAND 20876
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(Address of Principal Executive Offices) (Zip Code)
(240) 404-1550
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(Registrant's Telephone Number, Including Area Code)
N/A
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 3. BANKRUPTCY OR RECEIVERSHIP.
As previously disclosed, on May 6, 2003, Acterna Corporation (the
"Company") and its domestic subsidiaries (collectively, the "Debtors") filed
voluntary petitions under chapter 11 of title 11, United States Code (the
"Bankruptcy Code") in the United States Bankruptcy Court for the Southern
District of New York (the "Court") (Case Nos. 12836 (BRL) through 12843 (BRL)).
The Company and its domestic subsidiaries remain in possession of their assets
and properties, and continue to operate their businesses and manage their
properties as debtors-in-possession pursuant to sections 1107(a) and 1108 of the
Bankruptcy Code.
On August 26, 2003, the Debtors received approval from the Court of
their Joint Disclosure Statement (the "Disclosure Statement"). A copy of the
Disclosure Statement is attached hereto as Exhibits 2.1 and incorporated by
reference herein.
On September 25, 2003 (the "Confirmation Date"), the Court entered an
order (the "Confirmation Order") confirming the Debtors' Joint Plan of
Reorganization and Modification to the Debtors' Joint Plan of Reorganization
(collectively, the "Plan"). Following the satisfaction of various conditions,
the Company will emerge from bankruptcy on the effective date (the "Effective
Date") of the Plan. A copy of the Debtors' Joint Plan of Reorganization,
Modification to Debtors' Joint Plan of Reorganization and the Confirmation Order
are attached hereto as Exhibits 2.2, 2.2 and 2.3, respectively, and incorporated
by reference herein.
The following is a summary of the matters contemplated to occur
either pursuant to or in connection with the confirmation and implementation of
the Plan. This summary only highlights certain of the substantive provisions of
the Plan and is not intended to be a complete description of, or a substitute
for a full and complete reading of, the Plan. This summary is qualified in its
entirety by reference to the full text of the Plan and as modified pursuant to
the Confirmation Order. Capitalized terms used but not defined in this Form 8-K
have the meanings set forth in the Plan.
The Plan designates eights Classes of Claims and one Class of
Interests. These Classes take into account the differing nature and priority
under the Bankruptcy Code of the various Claims and Interests. The Plan provides
for the treatment of Claims and Interests as follows:
1. Unclassified Claims.
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(a) Administrative Expense Claims. On the Effective Date (or on the
first business day after the date that is thirty (30) days after the date such
Administrative Expense Claim becomes allowed), except to the extent that a
holder of an Allowed Administrative Expense Claim agrees to a different
treatment, the Debtors shall pay to each holder of an Allowed Administrative
Expense Claim Cash in an amount equal to such Claim to be paid in full;
provided, however, that Allowed Administrative Expense Claims representing
liabilities incurred in the ordinary course of business by the Debtors, as
debtors in possession, or liabilities arising under loans or advances to or
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other obligations incurred by the Debtors, as debtors in possession, whether or
not incurred in the ordinary course of business, shall be paid by the Debtors in
the ordinary course of business, consistent with past practice and in accordance
with the terms and subject to the conditions of any agreements governing,
instruments evidencing or other documents relating to such transactions. On the
Effective Date, all DIP Claims under or evidenced by the DIP Agreement shall be
an Allowed Administrative Expense Claim and shall be paid in Cash in an amount
equal to the amount of such DIP Claims, or in the case of outstanding letters of
credit will either be replaced or cash collateralized at 105% of the face amount
in accordance with the provisions of the DIP Agreement.
(b) Compensation and Reimbursement Claims. All entities seeking an
award by the Bankruptcy Court of compensation for services rendered or
reimbursement of expenses incurred through and including the Effective Date
under sections 330, 503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the
Bankruptcy Code (a) shall file their respective final applications for
allowances of compensation for services rendered and reimbursement of expenses
incurred by the date that is sixty (60) days after the Effective Date and,
subject to the provisions of Section 2.3 of the Plan, (b) shall be paid in full
in such amounts as are allowed by the Bankruptcy Court (i) upon the later of (A)
the Effective Date and (B) the date upon which the order relating to any such
Administrative Expense Claim becomes a Final Order or (ii) upon such other terms
as may be mutually agreed upon between such holder of an Administrative Expense
Claim and the Debtors or, on and after the Effective Date, Reorganized Acterna.
The Debtors are authorized to pay compensation for services rendered and
reimbursement of expenses incurred after the Confirmation Date and until the
Effective Date in the ordinary course and without the need for Bankruptcy Court
approval.
(c) Payment of Interim Amounts. Subject to any unpaid professional
fee holdbacks and subject to the terms of the DIP Order, on the Effective Date,
the Debtors or Reorganized Debtors shall pay amounts owing to estate
professionals for all outstanding amounts payable relating to prior fee periods
through and including the Effective Date. In order to receive payment on the
Effective Date for unbilled fees and expenses incurred through such date, the
professionals shall estimate fees and expenses due for periods that have not
been billed as of the Effective Date and shall deliver such estimate to the
Debtors and the United States Trustee. Within 60 days after the Effective Date,
a professional receiving payment for the estimated period shall submit a final
fee application for allowance of compensation for services rendered and
reimbursement of expenses incurred, as provided for in Section 2.2 of the Plan.
Should the estimated payment received by any professional exceed the actual fees
and expenses for such period, this excess amount will be credited against the
amount of fees held back for such professional or, if and to the extent the
holdback amount is insufficient, disgorged by such professional.
(d) Priority Tax Claims. On the Effective Date, except to the extent
that a holder of an Allowed Priority Tax Claim agrees to a different treatment,
each holder of an Allowed Priority Tax Claim shall receive, at the sole option
of the respective Debtors, (a) Cash in an amount equal to such Allowed Priority
Tax Claim or (b) equal annual Cash payments in an aggregate amount equal to such
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Allowed Priority Tax Claim, together with interest at a fixed annual rate equal
to 5.0%, over a period through the sixth anniversary of the date of assessment
of such Allowed Priority Tax Claim, or upon such other terms determined by the
Bankruptcy Court to provide the holder of such Allowed Priority Tax Claim
deferred Cash payments having a value, as of the Effective Date, equal to such
Allowed Priority Tax Claim. Unless an Allowed Priority Tax Claim is of a kind
that is supported by the personal liability of an employee or a former employee
of the Debtors, the Debtors must obtain the consent of the Administrative Agent
to elect option (a). All Allowed Priority Tax Claims that are not due and
payable on or before the Effective Date shall be paid in the ordinary course of
business as such obligations become due. Section 2.4 of the Plan shall not
affect the valid liens of any holder of an Allowed Priority Tax Claim.
2. Classified Claims and Interests.
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(a) Priority Non Tax Claims (Class A) (Subclasses A1 A8). Except to
the extent that a holder of an Allowed Priority Non Tax Claim against any of the
Debtors has agreed to a different treatment of such Claim, each such holder
shall receive on the Effective Date, in full satisfaction of such Claim, Cash in
an amount equal to such Claim.
(b) Other Secured Claims (Class B) (Subclasses B1 - B8). Except to
the extent that a holder of an Allowed Other Secured Claim against any of the
Debtors has agreed to a different treatment of such Claim, each holder of an
Allowed Other Secured Claim shall receive, at the option of the Debtors, either
(i) the Collateral securing such Allowed Other Secured Claim, (ii) Cash in an
amount equal to the value of the Collateral securing such Allowed Other Secured
Claim, or (iii) the treatment required under section 1124(2) of the Bankruptcy
Code for such Claim to be reinstated or rendered unimpaired.
(c) Senior Lender Claims (Class C) (Subclasses C1(a) and (b)-C8(a)
and (b)).
(i) Subclass (a) - The Senior Lender Claims
In the event that the Debtors or the Reorganized Debtors receive net
cash proceeds from Designated Asset Sales at any time before or after the
Effective Date, the Debtors or the Reorganized Debtors (as the case may be)
shall pay in Cash to the holders of Senior Lender Claims an amount of such
proceeds in accordance with the terms of Section 4.3(b) of the Plan. Such
amounts shall be distributed to the holders of Senior Lender Claims in
proportion to the principal amount of the respective Commitments (as defined in
the Bank Credit Agreement) as of the Effective Date (without giving effect to
any distributions hereunder).
In the event that the net cash proceeds are received on or prior to
the Effective Date, the amount of such proceeds available for distribution
hereunder on the Effective Date shall be determined by the Debtors and the
Administrative Agent on the Effective Date. Such amount may be reduced by
certain reserves in amounts and for purposes acceptable to the Administrative
Agent and the Debtors (such reserves, to the extent ultimately not utilized, to
be included in subsequent Distributions to holders of Senior Lenders Claims).
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In the event that Reorganized Acterna LLC receives net cash proceeds
from Designated Asset Sales that occur after the Effective Date, Reorganized
Acterna LLC shall pay in Cash to the holders of Senior Lender Claims as promptly
as is practicable upon receipt of such proceeds such portion (or all) of such
proceeds as shall have been determined on the Effective Date by the Debtors and
the Administrative Agent. The right of holders of Senior Lender Claims (other
than the German L/C Participants) to receive Cash payments after the Effective
Date on account of Designated Asset Sales that occur after the Effective Date is
referred to herein as the "Contingent Payment Right." Such Contingent Payment
Right shall be evidenced by a certificate and shall be subject to such transfer
restrictions as shall be set forth in such certificate.
Any amounts received by the German L/C Participants on the Effective
Date or post-Effective Date in respect of Designated Asset Sales shall be
applied to reduce, dollar-for-dollar, principal outstanding amounts under the
Restructured German Term Debt. Any such amounts received by the holders of the
Senior Lender Claims (excluding amounts received on account of Claims of the
German L/C Participants) on account of the Contingent Payment Right shall
constitute a distribution to such holders on account of their Senior Lender
Claims. For the purposes of these distributions, "net cash proceeds" shall mean
the cash proceeds (including the cash proceeds of any non-cash proceeds received
from such sales) of such sale after the payment of or reservation for expenses
that are directly related to the transaction of sale.
(ii) Subclass (b) - The German L/C Participants
In addition to amounts received by holders of Senior Lender Claims
described above, each German L/C Participant shall receive its Ratable
Proportion of the Restructured German Term Debt. The Restructured Term Debt
Guaranty shall remain unimpaired and, notwithstanding anything herein or in the
Confirmation Order to the contrary, the guaranty obligations of each Debtor and
each Reorganized Debtor, as set forth in the Bank Credit Agreement and the
Restructured German Term Documents, shall remain in full force and effect at all
times from and after the Effective Date. The Restructured German Term Debt may
be secured by additional collateral to be agreed between the Administrative
Agent and the Debtors.
(d) General Unsecured Claims (Class D) (Subclasses D1 D8). Each
holder of an Allowed General Unsecured Claim shall receive its Ratable
Proportion of the lesser of $5,000,000 and 10% of the aggregate Allowed General
Unsecured Claims, provided, however, that no less than $3,500,000 shall be
distributed to the holders of General Unsecured Claims.
(e) Convertible Notes Claims (Class E) (Subclasses E1 E8). The
Convertible Notes Claims shall be deemed allowed in the aggregate amount of
$89,252,818. The holders of Class E Claims shall receive no distribution of
property under the Plan on account of such Claims.
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(f) Subordinated Notes Claims (Class F) (Subclasses F1 F2). The
Subordinated Notes Claims shall be deemed allowed in the aggregate amount of
$176,479,264. If Class F accepts the Plan, each holder of an Allowed
Subordinated Notes Claim shall receive its Ratable Proportion of the New
Warrants. If the releases set forth in Section 5.11 of the Plan and the
exculpation in Section 10.6 of the Plan are approved, CD&R will waive in its
entirety, its right to receive any recovery as a holder of a Class E or Class F
Claim and assign such right of distribution so as to allow the distribution
which would have been otherwise provided to CD&R to be provided to the other
holders of the Subordinated Notes Claims. If Class F does not vote to accept the
Plan by the requisite statutory majorities, the holders of Subordinated Notes
Claims shall not receive any distributions on account of such Claims, and the
New Warrants will not be issued.
(g) Intercompany Claims (Class G) (Subclasses G1 G8). The legal,
equitable, and contractual rights of holders of Intercompany Claims are
unaltered by the Plan, except to the extent determined by the Debtors.
(h) Securities Litigation Claims (Class H) (Subclass H1). The holders
of the Securities Litigation Claims shall receive no distribution of property
under the Plan on account of such Claims.
(i) Equity Interests (Class I) (Subclasses I1 I8). The holders of the
Equity Interests shall receive no distribution of property under the Plan on
account of such Equity Interests.
3. Restructuring Transactions. On or as of the Effective Date, the
distributions provided for under the Plan shall be effectuated pursuant to the
following transactions described in this Article V (the "Restructuring
Transactions"), all of which shall occur in seriatim, and the documentation for
which shall be satisfactory to the Debtors and the Administrative Agent:
(a) Newco shall be formed (but no shares of capital stock shall be
issued prior to the issuances set forth below);
(b) Acterna LLC shall transfer certain assets to be identified by the
Acterna LLC and the Administrative Agent (the "Designated Assets") to Acterna
Business Trust in partial satisfaction of a certain intercompany note between
Acterna LLC and Acterna Business Trust (the "Intercompany Note") in an amount
equal to the fair market value of the Designated Assets;
(c) Acterna Business Trust shall enter into, or cause to be entered
into, an arrangement with Acterna LLC granting to Acterna LLC the right to use
the Designated Assets on arm's length terms and conditions;
(d) Acterna Business Trust shall distribute the balance of the
Intercompany Note to Acterna LLC;
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(e) Acterna LLC shall distribute its ownership interests in Acterna
Business Trust to Acterna Corporation;
(f) On the Effective Date, Acterna Corporation shall transfer, or
cause to be transferred, to Newco all of its ownership interests in Acterna LLC
(the "LLC Interests"), which represents 100% of the ownership of Acterna LLC,
and all of the other assets of Acterna Corporation other than (i) its ownership
interests in Acterna Business Trust and (ii) possibly a portion of its preferred
stock interest in CMSI Holdings Corp. or its interest in other assets related to
the Designated Assets. The LLC Interests and other assets transferred to Newco
pursuant to the preceding sentence shall be subject to, and Newco shall assume
sole and exclusive responsibility for (a) all claims, liabilities and
obligations of Acterna Corporation and Acterna Business Trust incurred after the
Petition Date (including, without limitation, any claims liabilities and
obligations incurred pursuant to the Plan) to the extent not paid on or prior to
the Effective Date, and (b) any tax liabilities of Acterna Corporation and
Acterna Business Trust for periods (or portions thereof) ending on or before the
Effective Date to the extent payable after the Effective Date (whether or not
relating to the transferred assets), including, without limitation, any taxes
incurred in connection with the transfer of the assets to Newco. Immediately
after the Effective Date, the net asset value of Reorganized Acterna will be
approximately $5 million;
(g) In consideration for, and in connection with, the transfer of the
LLC Interests:
(i) Newco shall transfer to Acterna all of the Newco Common Stock,
New Secured Term Notes, New Warrants, and the Contingent Payment Rights; and
(ii) In accordance with Article IV of the Plan, Acterna shall
distribute (A) to the holders of Senior Lender Claims, all of the New Common
Stock, the New Secured Term Notes, and the Contingent Payment Rights, and (B) to
the holders of Allowed Subordinated Notes Claims, all of the New Warrants.
4. Effect of Confirmation.
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(a) Vesting of Assets. Upon the Effective Date, pursuant to sections
1141(b) and (c) of the Bankruptcy Code, all property of the Debtors' bankruptcy
estates shall vest in the Debtors free and clear of all Claims, liens,
encumbrances, charges, and other interests, except as provided herein or in the
Confirmation Order. The Debtors may operate their businesses and may use,
acquire and dispose of property free of any restrictions of the Bankruptcy Code
or the Bankruptcy Rules and in all respects as if there were no pending cases
under any chapter or provision of the Bankruptcy Code, except as provided
herein.
(b) Discharge of Claims and Termination of Equity Interests. Except
as otherwise provided herein or in the Confirmation Order, the rights afforded
in the Plan and the payments and distributions to be made hereunder shall
discharge all existing debts and Claims, and terminate all Equity Interests, of
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any kind, nature or description whatsoever against or in the Debtors or any of
their assets or properties to the fullest extent permitted by section 1141 of
the Bankruptcy Code. Except as provided in the Plan, upon the Effective Date,
all existing Claims against the Debtors and Equity Interests in the Debtors,
shall be, and shall be deemed to be, discharged and terminated, and all holders
of Claims and Equity Interests shall be precluded and enjoined from asserting
against the Debtors, or any of their assets or properties, any other or further
Claim or Equity Interest based upon any act or omission, transaction, or other
activity of any kind or nature that occurred prior to the Effective Date,
whether or not such holder has filed a proof of claim or proof of equity
interest.
(c) Discharge of Debtors. Except as otherwise provided herein or in
the Confirmation Order, upon the Effective Date and in consideration of the
distributions to be made hereunder, each holder (as well as any trustees and
agents on behalf of each holder) of a Claim or Equity Interest and any affiliate
of such holder shall be deemed to have forever waived, released, and discharged
the Debtors, to the fullest extent permitted by section 1141 of the Bankruptcy
Code, of and from any and all Claims, rights, and liabilities that arose prior
to the Effective Date. Upon the Effective Date, all such persons shall be
forever precluded and enjoined, pursuant to section 524 of the Bankruptcy Code,
from prosecuting or asserting against Reorganized Acterna and the Reorganized
Subsidiaries, their successors, their assets or properties, any such discharged
Claim against or terminated Equity Interest in the Debtors.
(d) Term of Injunctions or Stays. Unless otherwise provided, all
injunctions or stays arising under or entered during the Chapter 11 Cases under
sections 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on
the Confirmation Date, shall remain in full force and effect until the Effective
Date.
(e) Injunction. Upon the entry of a Confirmation Order with respect
to the Plan and except as otherwise provided herein or in the Confirmation
Order, all holders of Claims and Equity Interests and other parties in interest,
along with their respective present or former employees, agents, officers,
directors, or principals, shall be enjoined from taking any actions to interfere
with the implementation or consummation of the Plan. Except as otherwise
expressly provided in the Plan, the Confirmation Order or a separate order of
the Bankruptcy Court, all entities who have held, hold or may hold Claims
against or Equity Interests in any Debtor, are permanently enjoined, on and
after the Effective Date, from (a) commencing or continuing in any manner any
action or other proceeding of any kind with respect to any such Claim or Equity
Interest, (b) the enforcement, attachment, collection or recovery by any manner
or means of any judgment, award, decree or order against any Debtor on account
of any such Claim or Equity Interest, (c) creating, perfecting or enforcing any
encumbrance of any kind against any Debtor or against the property or interests
in property of any Debtor on account of any such Claim or Equity Interest, (d)
asserting any right of setoff, subrogation or recoupment of any kind against any
obligation due from any Debtor or against the property or interests in property
of any Debtor on account of any such Claim or Equity Interest and (e) commencing
or continuing in any manner any action or other proceeding of any kind with
respect to any claims and Causes of Action which are extinguished, dismissed or
released pursuant to the Plan. Such injunction shall extend to successors of any
Debtor.
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(f) Exculpation. Neither the Debtors, the Disbursing Agent, the
Creditors' Committee, all present and former holders of the Senior Lender Claims
(or their respective Affiliates or known loan participants), all present and
former DIP Lenders (or their respective Affiliates or known loan participants),
the Administrative Agent, the DIP Agent, all other agents and letter of credit
issuing banks under the Bank Credit Agreement and the DIP Agreement (or their
respective Affiliates), CD&R (or their respective Affiliates), nor any of their
respective members, present or former officers, directors, employees, agents or
professionals shall have or incur any liability to any holder of any Claim or
Equity Interest for any act or omission in connection with, related to, or
arising out of, the Chapter 11 Cases, negotiations regarding or concerning the
Plan, the confirmation of the Plan, the consummation of the Plan or the
administration of the Plan or property to be distributed under the Plan, except
for willful misconduct or gross negligence. The Confirmation Order shall contain
a permanent injunction to effectuate the exculpation set forth in Section 10.6
of the Plan.
(g) Claims Preserved. Except as otherwise provided herein or in a
Final Order entered in these Chapter 11 Cases, the Reorganized Debtors shall
retain any and all avoidance claims accruing to the Debtors under sections
502(d), 544, 545, 547, 548, 549, 550 and 551 of the Bankruptcy Code and
prosecute such claims at the discretion of the Reorganized Debtors.
(h) Injunction Regarding Worthless Stock Deduction. Unless otherwise
ordered by the Bankruptcy Court, on and after the Confirmation Date, any "fifty
percent shareholder" within the meaning of section 382(g)(4)(D) of the Internal
Revenue Code of 1986, as amended, shall be enjoined from claiming a worthless
stock deduction with respect to any Equity Interests held by such entity for any
taxable year of such shareholder ending prior to the Effective Date.
5. Issuance of Common Stock. The Company has 192,257,957 shares of
common stock issued and outstanding as of the date of this report. On the
Effective Date, the currently outstanding shares of the Company's common stock
will be cancelled without any distribution to be made to the holders of such
shares. On the Effective Date, Newco shall transfer to the Company all of the
Newco Common Stock, which, along with shares of common stock of the Company,
shall be distributed to the holders of Senior Lender Claims. As of the Effective
Date, the Company expects that there will be approximately 100,000 shares of the
Company's common stock issued and outstanding and 150,000, shares of Company's
common stock authorized. As of the Effective Date, Newco expects that there will
be approximately 10,000,000 shares of Newco Common Stock issued and outstanding
and 15,000,000, shares of Newco Common Stock authorized.
6. Deregistration. On or shortly after the Effective Date, the
Company will file a Form 15 with the Securities and Exchange Commission (the
"SEC") to withdraw the registration of its common stock under the Securities
Exchange Act of 1934, as amended. The Company will cease to make periodic
filings with the SEC.
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7. Information Regarding Assets and Liabilities. Information
regarding the assets and liabilities of the Company is hereby incorporated by
reference to the Company's monthly operating report attached as Exhibit 99.2 to
the Company's Current Report on Form 8-K filed on August 29, 2003.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibit No. Description
2.1 Disclosure Statement for Debtors' Amended Joint Plan of
Reorganization, dated August 26, 2003
2.2 Debtors' Joint Plan of Reorganization Under Chapter 11 of
the Bankruptcy Code, dated August 26, 2003, as filed with
the U.S. Bankruptcy Court for the Southern District of New
York
2.3 Modification to Debtors' Joint Plan of Reorganization Under
Chapter 11 of the Bankruptcy Code, dated September 24, 2003
2.4 Bankruptcy Court Order, dated September 25, 2003, confirming
the Debtors' Amended Joint Plan of Reorganization Under
Chapter 11 of the Bankruptcy Code
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 10, 2003
ACTERNA CORPORATION
By: /s/ Grant Barber
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Grant Barber
Corporate Vice President and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit No. Description
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2.1 Disclosure Statement for Debtors' Amended Joint Plan of
Reorganization, dated August 26, 2003
2.2 Debtors' Joint Plan of Reorganization Under Chapter 11 of
the Bankruptcy Code, dated August 26, 2003, as filed with
the U.S. Bankruptcy Court for the Southern District of New
York
2.3 Modification to Debtors' Joint Plan of Reorganization Under
Chapter 11 of the Bankruptcy Code, dated September 24, 2003
2.4 Bankruptcy Court Order, dated September 25, 2003, confirming
the Debtors' Amended Joint Plan of Reorganization Under
Chapter 11 of the Bankruptcy Code
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