EXHIBIT 10.16
WORKOUT AGREEMENT FOR INTERNATIONAL MICROCOMPUTER SOFTWARE,INC.
This Workout Agreement ("Agreement") is made between International Microcomputer
Software, Inc., a California corporation, ("Debtor") and each of the creditors
of the Debtor which executes a Consent in the form attached hereto as Exhibit A
(individually, a Creditor and, collectively, the "Creditors").
BACKGROUND
As of February 1, 2000, ("Workout Date"), the Debtor was indebted to the holders
of unsecured claims totaling approximately $12.3 million, not including
approximately $4.3 million of deferred revenue.
On February 4, 2000, the Debtor executed a security agreement ("Security
Agreement") in which the Debtor granted a security interest ("Security
Interest") in substantially all of its assets to CMA Business Credit Services
("CMA") as trustee for its creditors.
The Debtor convened a meeting on February 18, 2000, to which its unsecured
creditors were invited. At that meeting, the management of Debtor discussed the
Debtor's financial condition and its future prospects. At the conclusion of that
meeting, the creditors formed a committee of creditors ("Committee") which is
currently composed of the following creditors:
Americ Disc, Inc.
Microweb
Xxxx Xxxxxx & Associates, Inc.
Interim Credit Services
D. Thereafter, the Debtor met with its secured creditors and the Committee and
developed a plan for satisfaction of its financial obligations. This Agreement
embodies such plan. The Committee supports this Agreement and recommends that
all creditors consent to the provisions for payment of claims contained herein.
ARTICLE I
Description and Determination of Claims
1.1 CLAIMS TREATED UNDER THIS AGREEMENT. Claims subject to this Agreement
("Unsecured Claims") shall include all unsecured claims against the
Debtor which existed on the Workout Date and all claims that existed on
such date which are unsecured but for (a) the value of their beneficial
interest under the Security Agreement or (b) any value of their interest
under a judgment lien, attachment lien, or similar charge in connection
with their claim which is subordinate to the Security Interest.
Unsecured Claims shall include (a) all unsecured claims arising under
leases or executory contracts entered into prior to the Workout Date
except to the extent of the reasonable value of the use of goods,
services or space actually used or occupied by the Debtor after the
Workout Date and (b) interest at the annual rate of six percent (6%)
accruing on or before September 30, 2000. Unsecured Claims shall not
include those claims described in Exhibit B hereto ("Schedule of
Excluded Claims") or an amendment to such Schedule B which is approved
by the Debtor and the Committee on or before the Effective Date.
1.2 DESIGNATION OF CLAIM AMOUNT BY CREDITOR. Upon execution of a Consent in
the form attached hereto as Exhibit A, each Creditor shall state thereon
the amount of its Unsecured Claim. Such Unsecured Claim
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shall not include late charges or similar amounts accrued after the
Workout Date nor interest accruing after September 30, 2000, all of
which accruals shall be deemed waived by the execution of the Consent.
1.3 DELIVERY OF CONSENT. The Creditor shall deliver such Consent to CMA at
the address or facsimile number shown thereon. CMA shall note on each
Consent the date it is received and shall immediately transmit a copy of
such Consent to the Debtor.
1.4 NOTICE OF DISPUTE. Not later than twenty-one days after the Effective
Date (see Section 4.2 below), if the Debtor disputes any portion of the
Unsecured Claim asserted by a Creditor in its Consent, the Debtor shall
transmit written notice to the Creditor stating the amount in dispute.
1.5 DETERMINATION OF ALLOWED CLAIM. If the Debtor gives timely notice of a
disputed claim, the portion of such claim which the Debtor disputes
shall be deemed a "Disputed Claim." Any Unsecured Claim, or portion
thereof, which the Debtor does not timely dispute shall be deemed an
Allowed Claim.
1.6 TREATMENT OF DISPUTED CLAIMS.
(a) RESOLUTION THROUGH ARBITRATION. The allowability of each
Disputed Claim shall be determined by either (i) agreement
between the Debtor and the Creditor or (ii) binding arbitration
pursuant to the Commercial Arbitration Rules of the American
Arbitration Association upon demand submitted to the Association
by either party. The award of the arbitrator in such proceeding
shall be a declaration only of the amount of the Creditor's
Allowed Claim under this Agreement and shall specify that it may
be satisfied only in accordance with this Agreement. The
allocation of the cost of such arbitration (including the fees,
if any, of the arbitrator) shall be determined by the arbitrator
in the award.
(b) RESERVE FOR DISPUTED CLAIMS. At the time when any distribution
is to be made to the holders of Allowed Claims, the Disbursing
Agent shall withhold an amount equal to the distribution that
would have been made on all Disputed Claims if they had been
Allowed Claims. The Disbursing Agent shall hold such amount in
an interest bearing, federally insured deposit account ("Claims
Reserve") pending resolution of the Disputed Claim as provided
herein.
(c) DISTRIBUTIONS ON DISPUTED CLAIMS. Not later than thirty days
after the Disbursing Agent receives written notice that the
allowability of a Disputed Claim is resolved, the Disbursing
Agent shall pay to the Creditor holding such claim , from the
Claims Reserve, (a) the portion of the distributions that were
withheld on account of the Disputed Claim to which the holder
thereof is entitled and (b) the interest accrued in the Claims
Reserve on account of such portion. The portion of such
distributions to which the holder is not entitled shall be
returned to the Debtor.
ARTICLE II
Treatment of Claims
2.1 ACCEPTANCE OF AGREEMENT AS NOVATION; CONSIDERATION. By execution of a
Consent, a Creditor accepts this Agreement and the payment of an amount
equal to ten percent (10%) of its allowed Unsecured Claims, as
contemplated hereby, in full settlement of its Unsecured Claims.
Effective upon CMA's receipt of the funds identified in Article III
below and subsequent distribution to Creditor of its pro rata portion
thereof, Creditor hereby releases and discharges Debtor from any and all
amounts due to Creditor in respect of its Unsecured Claims.
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ARTICLE III
Distributions
PROVISIONS FOR PAYMENT OF ALLOWED CLAIMS. Not later than the date on which the
Debtor's secured creditors, Union Bank of California and Silicon Valley Bank,
are paid approximately $3.5 million and $1.5 million, respectively, the Debtor
shall pay to CMA, as Disbursing Agent, cash in an amount sufficient to pay ten
percent of the sum of Allowed Claims and Disputed Claims. Upon such payment, the
Security Interest shall be terminated. The Disbursing Agent's reasonable
expenses and a fee equal to five percent (5%) of the first $100,000 in
distributions by the Disbursing Agent, three percent (3%) of the next $900,000,
and one-half of one percent (.5%) of additional distributions shall be paid by
the Debtor. The Disbursing Agent shall serve as the agent and trustee of the
Creditors.
ARTICLE IV
Effective Date
4.1 ACCEPTANCE OF CREDITORS. This Agreement shall become effective only if
it is accepted by the holders of 93% or more in dollar amount of
Unsecured Claims or by such lower percentage to which the Debtor and the
Committee agree. In determining such percentage, Unsecured Claims held
by creditors who do not submit Consents shall be deemed to be in the
amounts shown in the Debtor's books and records.
4.2 DEFINITION OF EFFECTIVE DATE. The "Effective Date" of this Agreement
shall be the day on which the Disbursing Agent certifies that the
required percentage of acceptances has been received. If such percentage
has not been received by December 31, 2000, this Agreement shall be null
and void and of no further effect.
ARTICLE V
General Provisions
5.1 GOVERNING LAW. This Agreement and all controversies relating to the
subject matter hereof shall be governed by and determined in accordance
with the laws of the State of California.
5.2 COUNTERPARTS. This Agreement, when executed by the Debtor and the
Committee, and the Consents, when executed by Creditors, shall
constitute a single agreement.
5.3 ENTIRE AGREEMENT. This Agreement and the Consents shall constitute the
entire agreement of the Debtor, the Creditors, and the Committee, and
supersede and replace all prior and contemporaneous agreements,
documents, or understandings, whether written or oral. All such prior
and contemporaneous agreements, documents, and understandings shall have
no legal effect.
IN WITNESS WHEREOF, the Debtor and the Committee have executed this Agreement as
of the date written below, and each Creditor shall be deemed to have executed
this Agreement by execution of a Consent.
Dated: November 6, 2000
International Microcomputer Software, Inc. Committee of Creditors
By: /s/ By: /s/
------------------------------------- -------------------------------
Xxxxxxxx Xxxxxxx, CEO Xxxx Xxxxxx, Chair
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International Microcomputer Software, Inc.
EXHIBIT A (REVISED)
to
WORKOUT AGREEMENT
Consent to Workout Agreement
The undersigned Creditor ("Creditor") hereby accepts all of the terms and
conditions of the Workout Agreement of International Microcomputer Software,
Inc. ("Debtor") dated November 6, 2000 ("Workout Agreement"). I certify that I
have read the Workout Agreement and understand all of its terms, including the
provision that the cash I receive in the amount of 10% of my Unsecured Claim
will be in full satisfaction of such Unsecured Claim (as defined in the Workout
Agreement).
I further certify that, as of February 1, 2000, the amount of my Unsecured Claim
was $_____________ and that interest on such amount, at an annual rate of 6%, to
September 30, 2000, is $_________ so that the total of my claim is $__________ .
[Do not include late charges or similar fees after February 1, 2000, nor
interest after September 30, 2000.]
Legal Name of Creditor ____________________________________
Signature of Creditor or Authorized
Representative /s/_________________________________
Printed or Typed Name of Person Signing ____________________________________
Title of Person Signing ____________________________________
Address of Creditor ____________________________________
____________________________________
Telephone Number (____) ____________________________
Facsimile Number (____) ____________________________
PLEASE SIGN AND RETURN TO: Adjustment Bureau
CMA Business Credit Services
X.X. Xxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
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INTERNATIONAL MICROCOMPUTER SOFTWARE, INC.
EXHIBIT B
to
Workout Agreement
SCHEDULE OF EXCLUDED CLAIMS
The claims of the following persons and entities shall not be included as
Unsecured Claims subject to this Workout Agreement, notwithstanding their
existence on February 1, 2000:
1. Accrued salaries, wages, vacation pay, and similar benefits (but not
severance pay/benefits) payable to persons employed by the Debtor on
November 1, 2000, and all employment taxes relating thereto.
2. Insurance premiums and other amounts payable with respect to the
Debtor's life and health insurance policies.
3. Accrued utility charges for gas, electricity, telephone, waste disposal,
and other similar services.
4. Reimbursement of out-of-pocket expenses incurred by employees and
directors.
5. Personal property tax claims.
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