Attached files
| file | filename |
|---|---|
| 8-K - TETON ENERGY CORP | v172020_8k.htm |
| EX-3.1 - TETON ENERGY CORP | v172020_ex3-1.htm |
| EX-2.2 - TETON ENERGY CORP | v172020_ex2-2.htm |
| EX-99.1 - TETON ENERGY CORP | v172020_ex99-1.htm |
Exhibit
2.1
IN
THE UNITED STATES BANKRUPTCY COURT
FOR
THE DISTRICT OF DELAWARE
|
In
re
TETON
ENERGY CORPORATION, et
al.,1
Debtors.
|
Chapter
11
Case
No. 09-13946 (PJW)
(Jointly
Administered)
|
Debtors’
Second Amended Joint Chapter 11 Plan of reorganization
|
Paul
Rachmuth
Gersten
Savage LLP
600
Lexington Avenue, 9th Floor
New
York, New York 10022
Telephone: 212-752-9700
Facsimile: 212-980-5192
|
Gregory
W. Werkheiser
Morris,
Nichols, Arsht & Tunnell LLP
1201
North Market Street, 18th Floor
P.O.
Box 1347
Wilmington,
DE 19899-1347
Telephone: 302-658-9200
Facsimile: 302-658-3989
|
Counsel
to the Debtors
and
Debtors-in-Possession
Dated: January
14, 2010
1 The
Debtors, along with the last four digits of their federal tax identification
numbers, are: Teton Energy Corporation (2290), Teton North America LLC (2290),
Teton Piceance LLC (2290), Teton DJ LLC (2290), Teton Williston LLC (2290),
Teton Big Horn LLC (2290), Teton DJCO LLC (2290), and Teton ORRI LLC
(2290). The Debtors’ mailing address for purposes of these cases is
600 17th Street, Suite 1600 North, Denver, Colorado
80202.
TABLE
OF CONTENTS
|
Page
|
||
|
INTRODUCTION
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1
|
|
|
ARTICLE
I DEFINITIONS, RULES OF INTERPRETATION AND COMPUTATION OF
TIME
|
1
|
|
|
A.
|
Rules
of Construction
|
1
|
|
B.
|
Definitions
|
1
|
|
C.
|
Rules
of Interpretation
|
12
|
|
|
||
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D.
|
Computation
of Time
|
13
|
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E.
|
Governing
Law
|
13
|
|
ARTICLE
II CLASSIFICATION OF CLAIMS AND INTERESTS
|
14
|
|
|
A.
|
Introduction
|
14
|
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B.
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Unclassified
Claims (not entitled to vote on this Plan)
|
14
|
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C.
|
Unimpaired
Classes of Claims (deemed to have accepted this Plan and not entitled to
vote on this Plan)
|
14
|
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D.
|
Impaired
Classes of Claims (entitled to vote on this Plan)
|
14
|
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E.
|
Classes
of Interests
|
14
|
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ARTICLE
III TREATMENT OF CLAIMS AND INTERESTS
|
15
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|
|
A.
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Unclassified
Claims
|
15
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B.
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Unimpaired
Claims
|
15
|
|
C.
|
Impaired
Claims
|
16
|
|
D.
|
Interests
|
17
|
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E.
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Allowed
Claims; Deemed Allowed Claims
|
17
|
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F.
|
Reservation
of Rights to Object to Claims
|
17
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G.
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Objections
to Claims
|
18
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ARTICLE
IV ACCEPTANCE OR REJECTION OF THIS PLAN
|
18
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|
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A.
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Impaired
Classes of Claims Entitled to Vote
|
18
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PLAN - i
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B.
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Acceptance
by an Impaired Class
|
18
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C.
|
Presumed
Acceptances by Unimpaired Classes
|
18
|
|
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||
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D.
|
Classes
Deemed to Reject Plan
|
18
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|
|
||
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E.
|
Summary
of Classes Voting on this Plan
|
18
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|
|
||
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F.
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Confirmation
Pursuant to Bankruptcy Code section 1129(b)
|
19
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ARTICLE
V MEANS FOR IMPLEMENTATION OF THIS PLAN
|
19
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|
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A.
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Continued
Corporate Existence and Re-vesting of Assets
|
19
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B.
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Re-vesting
of Assets
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19
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C.
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Consolidation
of Debtors’ Estates for Plan Purposes:
|
19
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D.
|
Consummation
of the Transactions Contemplated by the Caerus Plan Sponsorship
Agreement
|
20
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E.
|
Plan
Funding and Distributions
|
20
|
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F.
|
Execution
of Documents and Limited Liability and Corporate Action
|
22
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G.
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Purchase
Price Adjustment
|
25
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H.
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Release
of Liens
|
25
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|
|
||
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I.
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Exemption
from Certain Transfer Taxes
|
25
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J.
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Transfer
of Causes of Action; Settlement of Causes of Action
|
25
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K.
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Effectuating
Documents; Further Transactions
|
25
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ARTICLE
VI PROVISIONS GOVERNING DISTRIBUTIONS
|
26
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|
|
A.
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Distributions
for Claims Allowed as of the Effective Date
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26
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B.
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Delivery
of Undeliverable or Unclaimed Distributions
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26
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C.
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Prepayment
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26
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D.
|
Means
of Cash Payment
|
27
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E.
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Interest
on Claims
|
27
|
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F.
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Withholding
and Reporting Requirements
|
27
|
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G.
|
Setoffs
|
28
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PLAN - ii
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H.
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Procedure
for Treating and Resolving Disputed, Contingent, and/or Unliquidated
Claims
|
28
|
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I.
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Fractional
Dollars
|
28
|
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J.
|
Allocation
of Plan Distributions Between Principal and Interest
|
28
|
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ARTICLE
VII TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
|
29
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|
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A.
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Assumption
and Rejection of Executory Contracts and Unexpired Leases
|
29
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B.
|
Cure
Procedures
|
29
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C.
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Reservation
of Rights
|
30
|
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D.
|
Dispute
Regarding Executory Nature of Contracts
|
31
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E.
|
Rejection
Damages
|
31
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ARTICLE
VIII CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THIS
PLAN
|
31
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|
|
A.
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Conditions
to Confirmation
|
31
|
|
B.
|
Conditions
to Effective Date
|
32
|
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C.
|
Waiver
of Conditions
|
33
|
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ARTICLE
IX ALLOWANCE AND PAYMENT OF CERTAIN ADMINISTRATIVE CLAIMS
|
33
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|
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A.
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Professional
Fee Claims
|
33
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ARTICLE
X EFFECTS OF CONFIRMATION
|
34
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|
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A.
|
Binding
Effect
|
34
|
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B.
|
Discharge
|
34
|
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C.
|
Injunction
|
35
|
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D.
|
Term
of Bankruptcy Injunction or Stays
|
35
|
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E.
|
Compromises
and Settlements
|
35
|
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F.
|
Satisfaction
of Subordination Rights
|
36
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PLAN -
iii
|
G.
|
Release
of Prepetition Secured Lenders, Prepetition Agent, DIP Lenders, DIP Agent,
Holders of Convertible Debentures and Indenture Trustee
|
36
|
|
H.
|
Release
by Holders of the Convertible Debentures
|
36
|
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I.
|
Exculpation
and Limitation of Liability
|
37
|
|
ARTICLE
XI RETENTION OF JURISDICTION
|
37
|
|
|
ARTICLE
XII MISCELLANEOUS PROVISIONS
|
39
|
|
|
A.
|
Modifications
and Amendments
|
39
|
|
B.
|
Severability
of Plan Provisions
|
40
|
|
C.
|
Successors
and Assigns
|
40
|
|
D.
|
Payment
of Statutory Fees
|
40
|
|
E.
|
Payment
of Fees and Expenses of Indenture Trustee
|
40
|
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F.
|
Revocation,
Withdrawal, or Non-Consummation
|
41
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|
G.
|
Service
of Documents
|
41
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H.
|
Plan
Supplement(s)
|
42
|
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I.
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Waiver
of Stay
|
43
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PLAN - iv
INTRODUCTION
Teton
Energy Corporation (“TEC”), Teton North
America LLC (“TNA”), Teton Piceance
LLC (“TP”),
Teton DJ LLC (“TDJ”), Teton
Williston LLC (“TW”), Teton Big Horn
LLC (“TBH”),
Teton ORRI LLC (“TORRI”) and Teton
DJCO LLC (“Teton
DJ” collectively with TEC, TNA, TP, TDJ, TW, TBH and TORRI, the “Debtors”), the
debtors and debtors-in-possession in the above-captioned bankruptcy cases,
respectfully propose the following second amended joint chapter 11 plan of
reorganization (this “Plan”) pursuant to
Bankruptcy Code section 1121(a). This Plan provides for (i) the
emergence of the Debtors from bankruptcy as Reorganized Debtors and the
re-vesting of the Debtors’ assets in the Reorganized Debtors free and clear of
any liens, claims, encumbrances or other interests; (ii) the funding of the
Debtors’ obligations under this Plan through a transfer of the Assets pursuant
to a Court approved auction process; and (iii) the resolution of all outstanding
Claims against and Interests in the Debtors. The Debtors are the sole
proponents of this Plan within the meaning of Bankruptcy Code section
1129. Please refer to the Disclosure Statement for a discussion of
the Debtors’ history and businesses, the background, a summary and analysis of
this Plan, and certain related matters. All holders of Claims who are
eligible to vote on this Plan are encouraged to read this Plan and Disclosure
Statement in their entirety before voting to accept or reject this
Plan.
ARTICLE
I
DEFINITIONS,
RULES OF INTERPRETATION AND COMPUTATION OF TIME
|
|
A.
|
Rules
of Construction
|
For
purposes of this Plan, except as expressly provided herein or unless the context
otherwise requires, all capitalized terms not otherwise defined shall have the
meanings ascribed to them in Article I of this Plan or any Exhibit
hereto. Any term used in this Plan that is not defined herein, but is
defined in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning
ascribed to that term in the Bankruptcy Code or the Bankruptcy Rules, as
applicable. Whenever the context requires, such terms shall include
the plural as well as the singular number.
|
|
B.
|
Definitions
|
(1) “Administrative
Claim” means a Claim against the Debtors for payment of an administrative
expense of a kind specified in Bankruptcy Code section 503(b) and entitled to
priority under Bankruptcy Code section 507(a)(1), including, but not limited to:
(a) the actual, necessary costs and expenses, incurred after the Petition Date,
of preserving the Debtors’ bankruptcy Estates and operating the business of the
Debtors, including wages, salaries, or commissions for services rendered after
the Petition Date, (b) Professional Fee Claims, and (c) all fees and charges
assessed against the Estates under 28 U.S.C. § 1930.
(2) “Allowed”
means, when used in reference to a Claim within a particular Class, an Allowed
Claim in the specified Class or of a specified type.
PLAN-1
(3) “Allowed
Claim” means a Claim or any portion thereof (a) that has been allowed by a Final
Order of the Court (or such court as the Debtors and the holders of any such
Claim agree may adjudicate such Claim and any objections thereto), (b) that
either (x) has been Scheduled as a liquidated, non-contingent, and undisputed
Claim in an amount greater than zero on the Schedules, or (y) is the subject of
a timely filed Proof of Claim as to which either (i) no objection to its
allowance has been filed (either by way of objection or amendment to the
Schedules) within the periods of limitation fixed by the Bankruptcy Code, this
Plan or by any order of the Court or (ii) any objection to its allowance has
been settled, waived through payment, or withdrawn, or has been denied by a
Final Order, or (c) that is expressly allowed in a liquidated amount in this
Plan; provided, however, that with respect to an Administrative Claim, “Allowed
Claim” means an Administrative Claim as to which a timely written request for
payment has been made in accordance with applicable bar dates for such requests
set by the Court (if such written request is required) in each case as to which
the Debtors, or any other party in interest (x) has not interposed a timely
objection or (y) has interposed a timely objection and such objection has been
settled, waived through payment, or withdrawn, or has been denied by a Final
Order; provided, further, however, that for purposes of determining the status
(i.e., Allowed or Disputed) of a particular Claim prior to the expiration of the
period fixed for filing objections to the allowance or disallowance of Claims,
any such Claim which has not been previously allowed or disallowed by a Final
Order of the Court or this Plan shall be deemed a Disputed Claim unless such
Claim is specifically identified by the Debtors as being an Allowed
Claim.
(4) “Assets”
means (i) 100% of the Membership Interests in Reorganized Teton, (ii) 100%
of the Interests in the Reorganized Debtors, (iii) the assets of the
Reorganized Debtors, and (iv) any and all Causes of Action and any proceeds
thereof.
(5) “Assumed
Contracts Schedule” means the schedule of Executory Contracts and Unexpired
Leases that the Debtors intend to assume under this Plan and the Debtors’
associated proposed Cure Amounts, as filed by the applicable date set forth in
the Disclosure Statement Approval Order and as amended, modified or supplemented
from time to time through the Confirmation Hearing.
(6) “Assumed
Executory Contracts” means collectively, the Executory Contracts and Unexpired
Leases that (a) will or have been assumed by a Final Order, including the
Confirmation Order; (b) are identified in the Assumed Contracts Schedule, as the
same may be amended, modified or supplemented from time to time through the
Confirmation Date, to be filed by the applicable deadline set forth in the
Disclosure Statement Approval Order; or (c) are the subject of a motion to
assume pending on or before the Effective Date.
(7) “Auction”
means the auction described in the Bidding Procedures Order.
(8) “Auction
Proceeds” means net Cash and non-cash consideration available to the Debtors as
a result of the Auction.
(9) “Available
Cash” has the meaning given in the DIP Loan Agreement.
(10) “Avoidance
Action(s)” means, individually and collectively, all avoidance or recovery
actions under Bankruptcy Code sections 502, 510, 541, 542, 544, 545, 547, 548,
549, 550, 551, and/or 553, or under similar or related state or federal statutes
and common law, including, without limitation, fraudulent transfer or conveyance
laws; excluding, however, any and all such actions against any of (i) the DIP
Lenders, (ii) the Prepetition Agent, and/or (iii) the Prepetition Secured
Lenders, all of which shall be released.
PLAN-2
(11) “Ballot”
means each of the ballot forms distributed with the Disclosure Statement to
holders of Impaired Claims entitled to vote in connection with the Solicitation
of acceptances of this Plan.
(12) “Bankruptcy
Cases” means the Bankruptcy Cases of the Debtors, being jointly administered
under Case No. 09-13946 (PJW) in the Court, commenced on the Petition
Date.
(13) “Bankruptcy
Code” means the Bankruptcy Reform Act of 1978, as codified in title 11 of the
United States Code, 11 U.S.C. § 101–1532, as now in effect or hereafter amended
prior to the Confirmation of this Plan, to the extent that such amendments apply
to the Bankruptcy Cases.
(14) “Bankruptcy
Rules” means, collectively, the Federal Rules of Bankruptcy Procedure and the
Official Bankruptcy Forms, as amended, the Federal Rules of Civil Procedure, as
amended, as applicable to the Bankruptcy Cases or proceedings therein, and the
Local Rules of the Court, as applicable to the Bankruptcy Cases or proceedings
therein, as the case may be.
(15) “Bar
Date” means the date designated by the Court through its entry of the Order
(I) Establishing Bar Dates for Filing Proofs of Claim, (II) Approving
Proof of Claim Form, Bar Date Notices and Mailing and Publication Procedures and
(III) Providing Certain Supplemental Relief (D.I. 110) as the last
date for filing proofs of claim or interest in the Bankruptcy
Cases. For prepetition Claims (other than those of “governmental
units” as defined by the Bankruptcy Code) and Interests, the Bar Date shall be
December 28, 2009, at 4:00 p.m. (prevailing Eastern Time). For
prepetition Claims of governmental units, in accordance with Bankruptcy Code
section 502(b)(9), the Bar Date is May 7, 2010, at 4:00 p.m. (prevailing Eastern
Time).
(16) “Bidding
Procedures Motion” means the Debtors’ Motion for an Order (I) Approving Bidding
Procedures for the Transfer of Substantially All of the Assets of the Debtors,
(II) Approving Certain Bid Protections, and (III) Scheduling an Auction filed in
the Bankruptcy Cases on the Petition Date (D.I. 19).
(17) “Bidding
Procedures Order” means the Court’s order granting the Bidding Procedures Motion
(D.I. 108).
(18) “Big
Horn Interest” means a contractual right to 50% of the net profits (net of the
costs for acquisition, exploration, development, operation and maintenance) of
TBH, as reorganized, or a newly formed entity, owned directly or indirectly by
Caerus, holding the Big Horn Assets, pursuant to the terms of a contractual net
profits agreement in the form attached as exhibit A to the Caerus Plan
Sponsorship Agreement.
(19) “Big
Horn Assets” means the assets listed on Schedule 4(a)(iii) to the Caerus Plan
Sponsorship Agreement.
PLAN-3
(20) “Break-up
Fee” means the obligation, pursuant to, and subject to the conditions set forth
in, the Rise Plan Sponsorship Agreement and Bidding Procedures Order, to pay
Rise $750,000 in the event Rise was not selected as the successful bidder at the
Auction and Debtors close a transaction with another purchaser.
(21) “Board
of Directors” means the boards of directors for the Debtors.
(22) “Business
Day” means a day other than a Saturday, Sunday, “legal holidays” (as defined in
Bankruptcy Rule 9006(a)), or other day on which commercial banks in New York
City are authorized or required by Law to close. Any event the
scheduled occurrence of which would fall on a day that is not a Business Day
shall be deferred until the next succeeding Business Day.
(23) “Caerus”
means Caerus Oil and Gas LLC.
(24) “Caerus
Plan Sponsorship Agreement” means that certain Amended Plan Sponsorship
Agreement, by and between Caerus and the Debtors, dated effective
December 15, 2009, pursuant to which Caerus agrees to fund this Plan as
provided for in such agreement.
(25) “Cash”
means legal tender of the United States.
(26) “Causes
of Action” means any and all claims, actions, proceedings, causes of action,
Avoidance Actions, suits, accounts, controversies, agreements, promises, rights
to legal remedies, rights to equitable remedies, rights to payment and Claims
(as defined in Bankruptcy Code section 101(5)), whether known, unknown, reduced
to judgment, not reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured and
whether asserted or assertable directly or derivatively, in law, equity or
otherwise, that the Debtors and/or the Estates may hold against any Person or
entity, excluding, however, any and all such actions against (i) the DIP
Lenders, (ii) the Prepetition Agent, and/or (iii) the Prepetition Secured
Lenders, all of which shall be released.
(27) “Certificate
of Formation” means the certificate of formation for Reorganized
Teton.
(28) “Claim”
means a right, claim, cause of action, right of recovery and rights of set-off,
recoupment or counterclaim of any kind against the Debtors, whether or not
asserted, as defined in section 101(5) of the Bankruptcy Code.
(29) “Claimholder”
means the holder of a Claim.
(30) “Class”
means a category of holders of Claims or Interests, as described in Article II
hereof.
(31) “Collateral”
means any property or interest in property of the Debtors’ Estates that is
subject to a Lien to secure the payment or performance of a Claim, which Lien is
not subject to avoidance under the Bankruptcy Code or otherwise invalid under
the Bankruptcy Code or applicable state law.
PLAN-4
(32) “Confirmation”
means entry by the Court of the Confirmation Order.
(33) “Confirmation
Date” means the date of entry of the Confirmation Order.
(34) “Confirmation
Order” means the order entered by the Court confirming this Plan under
Bankruptcy Code section 1129, and constituting an approval of all its terms, the
operation or effect of which has not been stayed, reversed, or amended and as to
which Order (or any revision, modification, or amendment thereof) any motion
seeking review or rehearing has been denied or overruled.
(35) “Contract
Objection” means any objection filed by a non-Debtor party to an Assumed
Executory Contract to (i) the Cure Amounts listed by the Debtors in the Assumed
Contracts Schedule and (ii) the proposed assumption of the Assumed Executory
Contracts.
(36) “Contract
Objection Deadline” means the deadline specified in the Disclosure Statement
Approval Order for the filing of Contract Objections
(D.I. 140).
(37) “Convertible
Debentures” means those certain 10.75% Secured Convertible Debentures due on
June 18, 2013, issued pursuant to the Indenture.
(38) “Convertible
Debenture Claim” means the Claims of the holders of the Convertible Debentures
and the Indenture Trustee arising under or as a result of the Convertible
Debentures and the Indenture.
(39) “Court”
means the United States Bankruptcy Court for the District of Delaware or such
other court as may have jurisdiction over the Bankruptcy Cases.
(40) “Creditor”
means any Person who holds a Claim against the Debtors.
(41) “Cure
Amount” means the amount due to a non-Debtor contracting party based upon a
Debtor’s defaults under an Executory Contract or Unexpired Lease at the time
such Executory Contract or Unexpired Lease is assumed pursuant to Bankruptcy
Code section 365.
(42) “Debtors”
means collectively, TEC, TNA, TP, TDJ, TW, TBH, TORRI and Teton DJ.
(43) “Delaware
LLC Act” means the Delaware Limited Liability Company Act, as
amended.
(44) “Deposit”
means $750,000 Caerus has deposited pursuant to the Bidding Procedures Order,
subject to a separate escrow account agreement between JPMorgan Chase Bank,
N.A., Caerus, and the Debtors.
(45) “DIP
Agent” means JPMorgan Chase Bank, N.A., as agent under the DIP Loan
Agreement.
PLAN-5
(46) “DIP
Loan Agreement” or “DIP Loan” means that certain Debtor in Possession Financing
Amendment and Fourth Amendment to Second Amended and Restated Credit Agreement
among the Debtors, certain financial institutions as lenders and JPMorgan Chase
Bank, N.A. as lender and agent, as the same may have been modified or amended
from time to time, and as approved by the Final DIP Order, to provide Debtor
with a debtor-in-possession working capital line of credit in the sum of
$750,000.
(47) “DIP
Loan Claim” means a Claim of the DIP Lenders arising under or as a result of the
DIP Loan Agreement and/or the Final DIP Order, classified under this Plan as
Class 4.
(48) “DIP
Lender(s)” means the “Lender(s)” as defined in the DIP Loan
Agreement.
(49) “Disallowed”
with reference to a Claim means a Claim, or any portion thereof, that (a) has
been disallowed by a Final Order, (b) is Scheduled at zero or as contingent,
disputed or unliquidated and as to which no Proof of Claim has been filed by the
Bar Date or deemed timely filed with the Court pursuant to either the Bankruptcy
Code or any Final Order, or otherwise deemed timely filed with the Court
pursuant to either the Bankruptcy Code or any Final Order or under applicable
law, or (c) is not Scheduled, and as to which (i) no Proof of Claim has been
filed by the Bar Date or deemed timely filed with the Court pursuant to either
the Bankruptcy Code or any Final Order or under applicable law, or (ii) no
request for payment of an Administrative Claim has been filed timely or deemed
timely filed with the Court pursuant to either the Bankruptcy Code or any Final
Order or under applicable law.
(50) “Disclosure
Statement” means the written disclosure statement that relates to this Plan, as
approved by the Court under Bankruptcy Code Section 1125 and Bankruptcy Rule
3017, as such disclosure statement may be amended, modified, or supplemented
from time to time.
(51) “Disclosure
Statement Approval Order” means that certain Order (I) Approving Disclosure
Statement, (II) Establishing Procedures For Solicitation And Tabulation Of Votes
To Accept Or Reject Debtors' Amended Joint Chapter 11 Plan Of Reorganization,
(III) Establishing Voting Record Date, (IV) Scheduling A Hearing On Confirmation
Of Joint Plan Of Reorganization, (V) Approving The Form Of Ballots And
Solicitation Materials, (VI) Approving Related Notice Procedures, (VII)
Approving The Balloting Agent, (VIII) Approving Cure Procedures And (IX)
Granting Related Relief (D.I. 140).
(52) “Disputed”
with reference to a Claim means a Claim, or any portion thereof, that has not
been Allowed pursuant to this Plan or a Final Order, and:
(a) if
no Proof of Claim has been filed, or deemed to have been filed, by the
applicable Bar Date, which has been or hereafter is listed on the Schedules as
unliquidated, contingent or disputed, and which has not been resolved by written
agreement of the parties or an order of the Court;
(b) if
a Proof of Claim has been filed, or deemed to have been filed, by the applicable
Bar Date (i) a Proof of Claim for which a corresponding Claim has been listed on
the Schedules as unliquidated, contingent or disputed; (ii) a Proof of Claim for
which a corresponding Claim has been listed on the Schedules as other than
unliquidated, contingent, or disputed, but the amount of such Claim as asserted
in the Claim varies from the amount of such Claim as listed in the Schedules; or
(iii) a Proof of Claim as to which any party in interest has timely filed an
objection or request for estimation in accordance with this Plan, the Bankruptcy
Code, the Bankruptcy Rules and any orders of the Court, or which is otherwise
disputed by the Debtors in accordance with applicable law; or
PLAN-6
(c) for
which a claim was required to be filed by order of the Court, but as to which a
Claim was not timely or properly filed.
(53) “Disputed
Claim Amount” means (a) if a liquidated amount is set forth in the Proof of
Claim relating to a Disputed Claim, (i) the liquidated amount set forth in the
Proof of Claim relating to the Disputed Claim; (ii) an amount agreed to by the
Debtors and the holder of such Disputed Claim; or (iii) if a request for
estimation is filed by any party, the amount at which such Claim is estimated by
the Court; (b) if no liquidated amount is set forth in the Proof of Claim
relating to a Disputed Claim, (i) an amount agreed to by the Debtors or
Reorganized Teton and the holder of such Disputed Claim, or (ii) the amount
estimated by the Court with respect to such Disputed Claim; or (c) if the Claim
was listed on the Schedules as unliquidated, contingent or disputed and no Proof
of Claim was filed, or deemed to have been filed, by the applicable Bar Date and
the Claim has not been resolved by written agreement of the parties or an order
of the Court, zero.
(54) “Effective
Date” means the first Business Day on which all conditions to the consummation
of this Plan set forth in Article VIII hereof have been satisfied or waived and
is the day upon which this Plan is substantially consummated.
(55) “Encumbrance”
means any claim to or lien against any portion of the Assets.
(56) “Estates”
means the bankruptcy estates of the Debtors in these Bankruptcy Cases created
under Bankruptcy Code section 541.
(57) “Executory
Contract” means a contract (other than an Unexpired Lease) to which one or more
of the Debtors is a party that is subject to assumption or rejection under
Bankruptcy Code section 365.
(58) “Excess
Auction Proceeds” means the Auction Proceeds, if any, remaining after the
satisfaction of the Prepetition Secured Lender Claims and the DIP Loan
Claims.
(59) “Exhibit”
means an exhibit attached to either this Plan or attached as an appendix to the
Disclosure Statement.
(60) “Expense
Reimbursement” means the obligation pursuant to, and subject to the conditions
set forth in, the Rise Plan Sponsorship Agreement and Bidding Procedures Order
to pay Rise up to $200,000 for reimbursement of Rise’s expenses related to the
Auction in the event Rise was not selected as the successful bidder at the
Auction, and Debtors close a transaction with another
purchaser.
PLAN-7
(61) “Face
Amount” means (i) when used in reference to a Disputed or Disallowed Claim, the
Disputed Claim Amount, and (ii) when used in reference to an Allowed Claim, the
allowed amount of such Claim.
(62) “File,
Filed, or Filing” means file, filed, or filing with the Court or its authorized
designee in the Bankruptcy Cases.
(63) “Final
DIP Order” means the order entered by the Court authorizing and approving the
DIP Loan and the agreements related thereto on a final basis
(D.I. 123).
(64) “Final
Order” means an order or judgment of the Court, as entered on the docket in the
Bankruptcy Cases, or any order or judgment of a court properly having
jurisdiction over the Debtors and/or the Estates, the operation or effect of
which has not been stayed, reversed, or amended and as to which order or
judgment (or any revision, modification, or amendment thereof) the time to
appeal or seek review or rehearing has expired, notwithstanding the pendency of
any appeal.
(65) “General
Unsecured Claim” means a Claim against the Debtors that is not an Administrative
Claim, Priority Tax Claim, Other Priority Claim, Other Secured Claim,
Prepetition Secured Lender Claim, DIP Loan Claim, Convertible Debenture Claim,
or Trade Claim.
(66) “General
Unsecured Claim and Debenture Claim Consideration” shall have the meaning given
to it in Article V.E.2(b) of this Plan.
(67) “Hydrocarbons”
means property containing or thought to contain oil and gas deposits whether
currently producing or not.
(68) “Impaired”
when used with reference to a Claim, interest or a Class, means a Claim,
interest or a Class that is impaired within the meaning of Bankruptcy Code
section 1124.
(69) “Indenture”
means that certain Indenture, dated as of September 19, 2008, by and among Teton
Energy Corporation, as issuer, and the guarantors named therein, and The Bank of
New York Mellon Trust Company, N.A., as trustee, as may have been amended,
modified or supplemented.
(70) “Indenture
Trustee” means The Bank of New York Mellon Trust Company, N.A., as trustee, or
such other entity acting as the indenture trustee for the Convertible
Debentures.
(71) “Interests”
means the legal and equitable rights of ownership and any document or writing
evidencing such right of ownership, including any equity security in a Debtor,
or any issued, unissued, authorized, or outstanding shares of stock or other
forms of equity interests, together with any warrants, options, or contractual
rights to purchase or acquire such equity securities at any time and all rights
arising with respect thereto, or a partnership, limited liability company, or
similar interest in a Debtor or rights to purchase or acquire such other form of
ownership interests.
PLAN-8
(72) “Interest
Holder” means the holder of an Interest.
(73) “Lien”
means a charge against or interest in property to secure payment of a debt or
performance of an obligation.
(74) “Membership
Agreement” means the limited liability company agreement of Reorganized Teton in
accordance with the Delaware LLC Act.
(75) “Membership
Interests” shall mean the membership interests of Reorganized Teton to be issued
pursuant to this Plan.
(76) “Net
Working Capital” means the difference between (i) the Reorganized Debtors’
Current Assets, and (ii) the Reorganized Debtors’ Current Liabilities, each as
determined in accordance with generally accepted accounting principles and the
terms of the Caerus Plan Sponsorship Agreement.
(77) Other
Priority Claim” means a Claim against the Debtors entitled to priority under
Bankruptcy Code section 507(a), other than an Administrative Claim, a Priority
Tax Claim, or a DIP Loan Claim.
(78) “Other
Secured Claim” means a Claim (a) secured by a Lien on property in which the
Estate has an interest other than a Prepetition Secured Lender Claim, or (b)
that is subject to setoff under section 553 of the Bankruptcy Code and such
right of setoff has been asserted by the holder of such right prior to the
Confirmation Date in a properly filed motion for relief from the automatic stay,
to the extent of the value of the Claimholder’s interest in the Estate’s
interest in such property or to the extent of the amount subject to setoff, as
applicable, as determined pursuant to section 506(a) of the Bankruptcy
Code. For the avoidance of doubt, no Prepetition Secured Lender Claim
shall be an Allowed Other Secured Claim.
(79) “Person”
means person as defined in Bankruptcy Code section 101(41).
(80) “Petition
Date” means the date on which the Debtors filed their petitions for relief
commencing the Bankruptcy Cases.
(81) “Plan
Funding Obligation” means the obligation of Caerus to fund this Plan as
summarized in Article V.E.1 and set forth in the Caerus Plan Sponsorship
Agreement.
(82) “Plan
Supplement(s)” means the compilation(s) of documents and forms of documents,
specified in this Plan, that the Debtors will file with the Court on or before
the date that is (a) five (5) days prior to the Voting Deadline, or (b) set by
the Court for the filing of such documents and forms of documents.
(83) “Post-Closing
Reconciliation” means the post-closing reconciliation of Net Working Capital
provided by the Reorganized Debtors by the Post-Closing Reconciliation
Date.
(84) “Post-Closing
Reconciliation Date” means the date within thirty (30) days after consummation
of this Plan.
PLAN-9
(85) “Prepetition
Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent
and lender under the Senior Credit Facility.
(86) “Prepetition
Secured Indebtedness” means the indebtedness under the Senior Credit Facility in
the principal amount of $22,484,296.00 plus accrued and unpaid interest to the
Petition Date, and other fees and expenses payable pursuant to the Senior Credit
Facility. The Prepetition Secured Indebtedness shall be an Allowed
Claim for all purposes hereunder, with all rights and benefits provided
therefore in the Final DIP Order.
(87) “Prepetition
Secured Lenders” means the lenders party to the Senior Credit Facility,
including the Prepetition Agent.
(88) “Prepetition
Secured Lender Claims” means Claims under and pursuant to the Senior Credit
Facility, classified under this Plan as Class 3.
(89) “Priority
Tax Claim” means a Claim that is entitled to priority under Bankruptcy Code
section 507(a)(8).
(90) “Pro
Rata” means, at any time, the proportion that the Face Amount of a Claim in a
particular Class bears to the aggregate Face Amount of all Claims (including
Disputed Claims, but excluding Disallowed Claims) in such Class, unless this
Plan provides otherwise; provided, however, with respect to distributions to
holders of Allowed Class 5 Claims and Allowed Class 6 Claims of the General
Unsecured Claim and Debenture Claim Consideration, “Pro Rata” means the
proportion that the Face Amount of a Class 5 or 6 Claim bears to the aggregate
Face Amount of all Claims in Classes 5 and 6.
(91) “Professional”
means any professional employed in the Bankruptcy Cases pursuant to Bankruptcy
Code sections 327 or 1103.
(92) “Professional
Fee Claim” means a Claim of a Professional pursuant to Bankruptcy Code sections
327, 328, 330, 331, 503(b), or 1103 for compensation or reimbursement of costs
and expenses relating to services performed after the Petition Date and prior to
and including the Effective Date.
(93) “Proof
of Claim” means the proof of claim that must be filed by creditors on or before
the Bar Date.
(94) “Rejection
Claims Bar Date” means the first Business Day that is thirty (30) days after the
Effective Date or such earlier date that may be set by the Court concerning a
particular Executory Contract or Unexpired Lease.
(95) “Reorganized
Debtors” means collectively TEC, TNA, TP, TDJ, TW, TBH, TORRI, and Teton DJ, as
they exist on and after the Effective Date of this Plan.
(96) “Reorganized
Debtors’ Current Assets” has the meaning ascribed to the term Teton Current
Assets in the Caerus Plan Sponsorship Agreement.
PLAN-10
(97) “Reorganized
Debtors’ Current Liabilities” has the meaning ascribed to the term Teton Current
Liabilities in the Caerus Plan Sponsorship Agreement.
(98) “Reorganized
Teton” means TEC as it exists as a limited liability company under the Delaware
LLC Act on and after the Effective Date of this Plan.
(99) “Rise”
means Rise Energy Partners II, LLC, a Delaware limited liability
company.
(100) “Rise
Plan Sponsorship Agreement” means that certain Plan Sponsorship Agreement, by
and between Rise and the Debtors, dated November 6, 2009, pursuant to which Rise
had agreed to fund the Debtors’ plan of reorganization subject to receipt by the
Debtors of a higher and better offer for the sale of the Debtors or their assets
at the Auction.
(101) “Scheduled”
means, with respect to any Claim, the status and amount, if any, of that Claim
as set forth in the Schedules.
(102) “Schedules”
means the schedules of assets and liabilities and the statements of financial
affairs filed by the Debtors on or about the Petition Date, as such schedules or
statements have been or may be further amended or supplemented from time to time
in accordance with Bankruptcy Rule 1009 or any orders of the Court.
(103) “Senior
Credit Facility” means that certain Second Amended and Restated Credit Agreement
as of April 2, 2008, as amended, among TEC, the Prepetition Agent, and the
Prepetition Secured Lenders.
(104) “Solicitation”
means the solicitation by the Debtors of acceptances of this Plan.
(105) “Subsidiaries”
means TNA, TP, TDJ, TW, TBH, TORRI, and Teton DJ.
(106) “Taxes”
means any and all taxes, levies, imposts, assessments or other charges of
whatever nature imposed at any time by any governmental authority or by any
political subdivision or taxing authority thereof or therein and all interest,
penalties or similar liabilities with respect thereto.
(107) “Trade
Claims” means holders of Claims of Creditors who provided goods and services in
connection with the Debtors’ oil and gas operations (but not including the
Claims of Creditors for amounts due under the lease for Debtors’ corporate
office space in Denver, Colorado, and any amounts owed to the Debtors’
prepetition professional or financial advisors) only to the extent identified on
the schedule to be filed on or before the deadline for filing this Plan
Supplement (and which may be filed as part of this Plan Supplement and amended
at any time prior to the Confirmation Date).
PLAN-11
(108) “Trade
Claims Orders” means, as applicable, one or more of the following: (i) the
Interim Order Pursuant To Sections 105(a) And 363(b) Of The Bankruptcy Code For
Authorization To Pay The Prepetition Claims Of Certain Creditors In The Ordinary
Course Of Business (D.I. 52); (ii) the Interim Order Authorizing Debtors To Pay
Or Honor Prepetition And Postpetition Royalty Obligations And Other Obligations
Under Oil & Gas Leases (D.I. 53); (iii) the Final Order Pursuant To Sections
105(a) And 363(b) Of The Bankruptcy Code For Authorization To Pay The
Prepetition Claims Of Certain Creditors In The Ordinary Course Of Business (D.I.
106); (iv) the Final Order Authorizing Debtors To Pay Or Honor Prepetition And
Postpetition Royalty Obligations And Other Obligations Under Oil & Gas
Leases (D.I. 107); and (v) any other Order of the Court authorizing payment of a
Trade Claim prior to the Effective Date of this Plan.
(109) “Unexpired
Leases” means a contract to which one or more of the Debtors is a party that is
subject to assumption or rejection under Bankruptcy Code section
365.
(110) “Unimpaired”
with reference to a Claim or Class, means a Claim or Class that is not impaired
within the meaning of Bankruptcy Code section 1124.
(111) “Voting
Deadline” means the date and time, as fixed by an order of the Court, by which
all Ballots to accept or reject this Plan must be received in order to be
counted.
(112) “Voting
Record Date” means that certain date set by order of the Court.
(113) “WashCo
Interest” means a contractual right to 50% of the profits (net of the costs for
acquisition, exploration, development, operation and maintenance) of Teton DJCO,
as reorganized, or a newly formed entity, owned directly or indirectly by
Caerus, holding the WashCo Assets, pursuant to the terms of a contractual net
profits agreement in the form attached as exhibit A to the Caerus Plan
Sponsorship Agreement.
(114) “WashCo
Assets” means the assets listed on Schedule 4(a)(ii) to the Caerus Plan
Sponsorship Agreement.
(115) “Wind
Down Expenses” means the amounts payable for fees and expenses of the Debtors’
professionals to be incurred in connection with administering and winding down
the Estates after the Effective Date.
|
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C.
|
Rules
of Interpretation
|
For
purposes of this Plan (a) any reference in this Plan to a contract, instrument,
release, indenture, or other agreement or document being in a particular form or
on particular terms and conditions means that such document shall be
substantially in such form or substantially on such terms and conditions, (b)
any reference in this Plan to an existing document or exhibit Filed or to be
Filed means such document or exhibit as it may have been or may be amended,
modified, or supplemented, (c) unless otherwise specified, all references in
this Plan to Sections, Articles, Schedules and Exhibits are references to
Sections, Articles, Schedules and Exhibits of or to this Plan, (d) the words
“herein” and “hereto” refer to this Plan in its entirety rather than to a
particular portion of this Plan, (e) captions and headings to Articles and
Sections are inserted for convenience of reference only and are not intended to
be a part of or to affect the interpretation of this Plan and the rules of
construction set forth in Bankruptcy Code section 102 and in the Bankruptcy
Rules shall apply.
PLAN-12
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D.
|
Computation
of Time
|
In
computing any period of time prescribed or allowed by this Plan, the provisions
of Bankruptcy Rule 9006(a) shall apply.
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E.
|
Governing
Law
|
Unless a
rule of law or procedure is supplied by federal law (including the Bankruptcy
Code and Bankruptcy Rules) and except as otherwise provided herein or therein,
the laws of (i) the State of Delaware shall govern the construction and
implementation of this Plan and any agreements, documents, and instruments
executed in connection with this Plan and (ii) the laws of the State of Delaware
shall govern governance matters with respect to the Debtors.
PLAN-13
ARTICLE
II
CLASSIFICATION
OF CLAIMS AND INTERESTS
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A.
|
Introduction
|
All
Claims and Interests, except Administrative Claims and Priority Tax Claims, are
placed in the Classes set forth below. In accordance with Bankruptcy
Code section 1123(a)(1), Administrative Claims and Priority Tax Claims, as
described below, have not been classified.
A Claim
or Interest is placed in a particular Class only to the extent that the Claim or
Interest falls within the description of that Class, and is classified in other
Classes to the extent that any portion of the Claim or Interest falls within the
description of such other Classes. A Claim is also placed in a
particular Class for the purpose of receiving distributions pursuant to this
Plan only to the extent that such Claim is an Allowed Claim in that Class and
such Claim has not been paid, released, or otherwise settled prior to the
Effective Date.
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B.
|
Unclassified
Claims (not entitled to vote on this
Plan)
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|
1.
|
Administrative
Claims
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2.
|
Priority Tax
Claims
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C.
|
Unimpaired
Classes of Claims (deemed to have accepted this Plan and not entitled to
vote on this Plan)
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1.
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Class 1: Other
Priority Claims
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2.
|
Class 2: Other
Secured Claims
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3.
|
Class 4: DIP Loan
Claims
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4.
|
Class 7: Trade
Claims
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D.
|
Impaired
Classes of Claims (entitled to vote on this
Plan)
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1.
|
Class
3: Prepetition Secured Lender
Claims
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2.
|
Class 5: General
Unsecured Claims
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3.
|
Class
6: Convertible Debenture
Claims
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E.
|
Classes
of Interests
|
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1.
|
Class 8: Interests
in the Subsidiaries (unimpaired and deemed to have accepted this Plan and
not required to vote)
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2.
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Class 9: Interests
in TEC (impaired and deemed to have rejected this Plan and not entitled to
vote)
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PLAN-14
ARTICLE
III
TREATMENT
OF CLAIMS AND INTERESTS
|
|
A.
|
Unclassified
Claims
|
|
|
1.
|
Administrative
Claims
|
Except as
otherwise provided herein, and subject to the requirements of this Plan, on, or
as soon as reasonably practicable after the later of (i) the Effective Date or
(ii) the date such Administrative Claim becomes an Allowed Administrative Claim,
a holder of an Allowed Administrative Claim shall receive, in full satisfaction,
settlement, release, and discharge of and in exchange for such Allowed
Administrative Claim, (a) Cash equal to the unpaid portion of the Face Amount of
such Allowed Administrative Claim or (b) such other treatment as to which such
holder and the Debtors or the Reorganized Debtors shall have agreed upon in
writing; provided, however, that Allowed Administrative Claims with respect to
liabilities incurred by the Debtors in the ordinary course of business during
the Bankruptcy Cases may be paid in the ordinary course of business in
accordance with the terms and conditions of any agreements relating
thereto.
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2.
|
Priority Tax
Claims
|
Except as
otherwise provided herein, and subject to the requirements of this Plan, on, or
as soon as reasonably practicable after the later of (i) the Effective Date or
(ii) the date such Priority Tax Claim becomes an Allowed Priority Tax Claim, a
holder of an Allowed Priority Tax Claim shall receive, when such claim becomes
payable under applicable law, in full satisfaction, settlement, release, and
discharge of and in exchange for such Allowed Priority Tax Claim, (a) Cash equal
to the unpaid portion of the Face Amount of such Allowed Priority Tax Claim or
(b) such other treatment as to which such holder and the Debtors or the
Reorganized Debtors shall have agreed upon in writing; provided, however, that
the Debtors or the Reorganized Debtors shall have the right to pay any Allowed
Priority Tax Claim, or any remaining balance of any Allowed Priority Tax Claim,
in full at any time on or after the Effective Date without premium or penalty to
the extent permitted under applicable non-bankruptcy law.
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B.
|
Unimpaired
Claims
|
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1.
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Class 1: Other
Priority Claims
|
On or as
soon as reasonably practicable after, the later of (i) the Effective Date, or
(ii) the date such Other Priority Claim becomes an Allowed Other Priority Claim,
a holder of an Allowed Other Priority Claim shall receive from Reorganized
Teton, in full satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Other Priority Claim (i) Cash equal to the unpaid
portion of the Face Amount of such Allowed Other Priority Claim, or (ii) such
other treatment as to which such holder and Reorganized Teton shall have agreed
upon in writing.
PLAN-15
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2.
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Class 2: Other
Secured Claims
|
On the
later of, or as soon as reasonably practicable after the later of (a) the
Effective Date, or (b) the date on which an Other Secured Claim becomes an
Allowed Other Secured Claim, a holder of an Allowed Other Secured Claim shall
receive from Reorganized Teton, in full satisfaction, settlement, release and
discharge of and in exchange for, such Allowed Other Secured Claim, (i) Cash
equal to the value of its Allowed Other Secured Claim, (ii) a return of the
holder’s collateral securing the Other Secured Claim, or (iii) such other
treatment as to which such holder and Reorganized Teton shall have agreed upon
in writing.
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3.
|
Class 4: DIP Loan
Claims
|
All DIP
Loan Claims, if any, shall be paid by Reorganized Teton in Cash on the Effective
Date.
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4.
|
Class 7: Trade
Claims
|
Holders
of Allowed Trade Claims shall receive, in full satisfaction, settlement,
release, and discharge of and in exchange for such Allowed Trade Claim, Cash
equal to the amount of its Allowed Trade Claim (i) as paid pursuant to the Trade
Claim Orders prior to the Effective Date of this Plan, and/or (ii) as paid
pursuant this Plan, which Plan distribution shall be made as soon as reasonably
practicable after the later of (x) the Effective Date, or (y) the date
immediately following the date such Trade Claim becomes an Allowed Trade
Claim.
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C.
|
Impaired
Claims
|
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1.
|
Class
3: Prepetition Secured Lender
Claims
|
On the
Effective Date and such later date(s) as set forth in Article V.E.2(a), the
Prepetition Agent, on behalf and for the benefit of each holder of a Prepetition
Secured Lender Claim, shall receive in full satisfaction, settlement, release,
and discharge of and in exchange for all Prepetition Secured Lender Claims
against the Debtors, that portion of the Auction Proceeds as set forth in
Article V.E.2(a) of this Plan, but in no event less than the sum of $18,150,000
(subject to reduction pursuant to the Post-Closing Reconciliation adjustment)
unless consented to in writing by the Prepetition Agent; provided, however, that the
aggregate amount of Auction Proceeds distributed to the Prepetition Agent, for
the benefit of the holders of Prepetition Secured Lender Claims, shall be
limited to the Prepetition Secured Indebtedness.
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2.
|
Class 5: General
Unsecured Claims
|
On or as
soon as reasonably practicable after the Effective Date, each holder of an
Allowed General Unsecured Claim shall receive a Pro Rata share of the General
Unsecured Claim and Debenture Claim Consideration, subject to adjustment as set
forth in Article V.E.2(b) of this Plan. In addition, any Excess
Auction Proceeds after satisfaction in full of the holders of Allowed
Convertible Debenture Claims will be distributed Pro Rata to the holders of
Allowed General Unsecured Claims until paid in full.
PLAN-16
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3.
|
Class
6: Convertible Debenture
Claims
|
On or as
soon as reasonably practicable after the Effective Date, each holder of an
Allowed Convertible Debenture Claim shall receive a Pro Rata share of the
General Unsecured Claim and Debenture Claim Consideration, subject to adjustment
as set forth in Article V.E.2(b) of this Plan. In addition, any
Excess Auction Proceeds will be distributed Pro Rata to the holders of Allowed
Convertible Debenture Claims until such Claims are paid in full.
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D.
|
Interests
|
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|
1.
|
Class 8: Interests
in the Subsidiaries
|
TEC is
the holder of 100% of the Interests in all the Subsidiaries, which constitute
all the Allowed Class 8 Interests. After conversion of TEC from a Delaware
corporation into Reorganized Teton (a Delaware limited liability company) on the
Effective Date, Reorganized Teton will hold 100% of the Interests in the
Subsidiaries. Class 8 is not impaired and is deemed to have accepted
this Plan and, therefore, the holder of Class 8 Interests is not entitled to
vote to accept or reject this Plan.
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2.
|
Class 9: Interests
in TEC
|
On the
Effective Date, all Interests in TEC shall be canceled and each holder thereof
shall not be entitled to, and shall not receive or retain any property or
interest in property on account of, such Interests. Class 9 is deemed
to have rejected this Plan and, therefore, holders of Interests are not entitled
to vote to accept or reject this Plan.
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E.
|
Allowed
Claims; Deemed Allowed Claims
|
Notwithstanding
any provision herein to the contrary, Reorganized Teton shall only make
distributions to holders of Allowed Claims. No holder of a Disputed
Claim will receive any distribution on account thereof until (and then only to
the extent that) its Disputed Claim becomes an Allowed
Claim. Reorganized Teton may, in its discretion, withhold
distributions otherwise due hereunder to any Claimholder until such time as
objections thereto may be filed. Any holder of a Claim that becomes
an Allowed Claim after the Effective Date will receive its distribution in
accordance with the terms and provisions of this Plan. The Claims of
bona fide holders of claims in Classes 3, 4, and 6 are deemed Allowed
Claims.
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F.
|
Reservation
of Rights to Object to Claims
|
Unless a
Claim is expressly described as an Allowed Claim pursuant to or under this Plan,
or otherwise becomes an Allowed Claim prior to or after the Effective Date, the
Debtors and the Reorganized Debtors reserve any and all objections to any and
all Claims and motions or requests for the payment of Claims, whether
administrative expense, priority, secured, or unsecured, including, without
limitation, any and all objections to the validity or amount of any and all
alleged Claims and security interests, whether under the Bankruptcy Code, other
applicable law or contract. The Debtors’ or the Reorganized Debtors’
failure to object to any Claim in the bankruptcy cases shall be without
prejudice to the Reorganized Debtors’ rights to contest or otherwise defend
against such Claim in the Court when and if such Claim is sought to be enforced
by the holder of such Claim. The Debtors and Reorganized Debtors
reserve the right to utilize any Cause of Action against any claimholder as a
setoff against such claimholder’s Claim or Claims.
PLAN-17
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G.
|
Objections
to Claims
|
Unless
otherwise provided in this Plan or by order of the Court, any objections to
Claims will be filed and served not later than 120 days after the Effective
Date, provided that the Reorganized Debtors may request (and the Court may
grant) an extension of such deadline by filing a motion with the Court, based
upon a reasonable exercise of the Reorganized Debtors’ business
judgment. A motion seeking to extend the deadline to object to any
Claim shall not be deemed an amendment to this Plan.
ARTICLE
IV
ACCEPTANCE
OR REJECTION OF THIS PLAN
|
|
A.
|
Impaired
Classes of Claims Entitled to Vote
|
Subject
to Article III of this Plan, Claimholders in each Impaired Class of Claims as of
the Voting Record Date are entitled to vote as a Class to accept or reject this
Plan.
|
|
B.
|
Acceptance
by an Impaired Class
|
In
accordance with Bankruptcy Code section 1126(c) and except as provided in
Bankruptcy Code section 1126(c), an Impaired Class of Claims shall have accepted
this Plan if this Plan is accepted by the holders of at least two-thirds in
dollar amount and more than one-half in number of the Allowed Claims of such
Class that have timely and properly voted to accept or reject this
Plan.
|
|
C.
|
Presumed
Acceptances by Unimpaired Classes
|
Classes
1, 2, 4, 7, and 8 are Unimpaired by this Plan. Under Bankruptcy Code
section 1126(f), such Claimholders are conclusively presumed to accept this
Plan, and the votes of such Claimholders will not be solicited.
|
|
D.
|
Classes
Deemed to Reject Plan
|
Interest
Holders in Class 9 are not entitled to receive or retain any property under this
Plan. Under Bankruptcy Code section 1126(g), holders of Interests in
Class 9 are deemed to reject this Plan, and the votes of such Interest Holders
will not be solicited.
|
|
E.
|
Summary
of Classes Voting on this Plan
|
As a
result of the provisions of Articles II and III of this Plan, the votes of
Claimholders in Classes 3, 5, and 6 will be solicited with respect to this
Plan.
PLAN-18
|
|
F.
|
Confirmation
Pursuant to Bankruptcy Code section
1129(b)
|
Because
Class 9 is deemed to reject this Plan, and because other impaired Classes may
reject this Plan, the Debtors will seek Confirmation of this Plan from the Court
under the procedures set forth in section 1129(b) of the Bankruptcy
Code. The Debtors reserve the right to alter, amend, modify, revoke,
or withdraw this Plan or any Plan Supplement or schedule as may be necessary to
satisfy the requirements of Bankruptcy Code section 1129(b).
ARTICLE
V
MEANS
FOR IMPLEMENTATION OF THIS PLAN
|
|
A.
|
Continued
Corporate Existence and Re-vesting of
Assets
|
Except as
otherwise provided in this Plan or as may be directed by Caerus, each of the
Debtors will continue to exist after the Effective Date as a limited liability
company, with all of the powers of a limited liability company under applicable
law in the jurisdiction in which each particular Debtor is organized or
otherwise formed and pursuant to its certificate of formation or articles of
organization, and other organizational documents, as such documents are amended
by or pursuant to this Plan.
|
|
B.
|
Re-vesting
of Assets
|
On the
Effective Date, all assets held by the Debtors immediately before the Effective
Date shall re-vest in the pre-petition owners of those same assets, as
Reorganized Debtors, free and clear of all liens, claims, encumbrances and other
interests.
|
|
C.
|
Consolidation
of Debtors’ Estates for Plan
Purposes:
|
1. Purpose and
Limitation: Pursuant to sections 1123(b)(3) and (6) of the Bankruptcy
Code, this Plan treats the Debtors as comprising a single Estate solely for
purposes of voting on this Plan, confirmation of this Plan and making
distributions under this Plan in respect of Claims against and Interests in the
Debtors under this Plan. Such treatment shall not affect any Debtor’s
status as a separate legal entity, change the organizational structure of the
Debtors’ business enterprise, constitute a change of control of any Debtor for
any purpose, cause a merger or consolidation of any legal entities, nor cause
the transfer of any assets; and, except as otherwise
provided by or permitted in this Plan, all Debtors shall continue to exist as
separate legal entities. The above treatment serves only as a
mechanism to effect a fair distribution of value to the Debtors’
constituencies.
2. Result of
Consolidation: As a result of the foregoing limited consolidation of the
Debtors’ estates: (a) all intercompany claims (including such Claims arising
from the rejection of any Executory Contract or Unexpired Lease) will either be
eliminated or shall remain in place but shall not be entitled to any
distributions under this Plan, (b) any obligation of any of the Debtors and all
guarantees thereof executed by any of the Debtors will be deemed to be an
obligation of each of the Debtors, and (c) any Claim filed or asserted against
any of the Debtors will be deemed a Claim against each of the
Debtors. The consolidation of the Debtors’ estates contemplated by
this section shall not, however, cause any Debtor to be liable for any Claim or
Interest for which it would not otherwise be liable absent the substantive
consolidation under this Plan.
PLAN-19
3. Treatment of Guarantees and
Multiple-Debtor Claims: On the Effective Date, except as
otherwise provided for in this Plan, all Claims based on guarantees of
collection, payment, or performance made by any Debtor concerning the
obligations of another Debtor shall be discharged, released, and without further
force or effect. Additionally, holders of Allowed Claims or Allowed
Interests who assert identical Claims against or Interests in multiple Debtors
shall be entitled to a single satisfaction of such Claims or
Interests.
|
|
D.
|
Consummation
of the Transactions Contemplated by the Caerus Plan Sponsorship
Agreement
|
The
Debtors shall consummate this Plan pursuant to the terms of the Caerus Plan
Sponsorship Agreement and this Plan. To the extent that there may be
any inconsistencies between the terms of the Caerus Plan Sponsorship Agreement,
on the one hand, and this Plan and the Confirmation Order, on the other hand,
the terms of this Plan and Confirmation Order shall govern.
|
|
E.
|
Plan
Funding and Distributions
|
Upon the
consummation of this Plan, the proceeds from payment of this Plan Funding
Obligations and the Auction Proceeds, if any, shall be distributed in accordance
with the terms of Article III of this Plan as follows:
|
|
1.
|
Plan Funding
Obligations
|
On the Effective Date (or in the case
of any Post-Closing Reconciliation adjustment, on or before the date that is ten
(10) days following the Post-Closing Reconciliation Date), Caerus will tender
the following consideration to Reorganized Teton:
(a) $20,050,000
in cash (including $750,000 from the application of the Deposit), plus or minus
any Post-Closing Reconciliation adjustment;
(b) the
WashCo Interest; and
(c) the
Big Horn Interest.
|
|
2.
|
Distribution of Auction
Proceeds
|
On or
after the Effective Date, Reorganized Teton shall make or shall cause the
following transfers to be made at the times specified below:
(a) on
the Effective Date (or, in the case of any Post-Closing Reconciliation
adjustment, within ten days after the Post-Closing Reconciliation Date, and in
the case of the Deposit, once the Post Closing Reconciliation adjustment is
complete to the satisfaction of both the Prepetition Agent and Caerus) to the
Prepetition Agent on behalf of the holders of the Prepetition Secured Lender
Claims and DIP Loan Claims:
PLAN-20
|
|
(i)
|
$17,400,000.00,
plus or minus any Post-Closing Reconciliation adjustment, if
any;
|
|
|
(ii)
|
the
Deposit (subject to reduction as necessary as a result of any Post-Closing
Reconciliation adjustment);
|
|
|
(iii)
|
the
amount, if any, necessary to satisfy DIP Loan
Claims;
|
|
|
(iv)
|
cash
payment(s) on account of certain ad valorem taxes payable reductions, if
any, as provided in, and subject to the conditions of, Section 7 of the
Caerus Plan Sponsorship Agreement as soon as reasonably practicable after
final determination thereof;
|
|
|
(v)
|
the
WashCo Interest; and
|
|
|
(vi)
|
the
Big Horn Interest.
|
(b) on
the Effective Date or as soon as reasonably practicable thereafter, $950,000.00
pro rata to the holders of Allowed General Unsecured Claims and Allowed
Convertible Debenture Claims, or, if there are no Allowed General Unsecured
Claims, $900,000.00 to holders of Allowed Convertible Debenture Claims (the
“General Unsecured
Claim and Debenture Claim Consideration”) and an additional $50,000.00 to
the Prepetition Agent on behalf of the holders of Prepetition Secured Lender
Claims;
(c) on
the Effective Date, to Rise:
|
|
(i)
|
$750,000.00
on account of the Breakup Fee; and
|
|
|
(ii)
|
up
to $200,000.00 on account of the Expense Reimbursement (provided that Rise
has timely submitted to TEC reasonable supporting documentation for such
expenses) 2.
|
|
|
3.
|
Use of Auction Proceeds in
Excess of Plan Funding
Obligations
|
The
Auction Proceeds shall, if any remaining after satisfaction of the full amount
of the Prepetition Secured Indebtedness, be distributed to the holders of
Allowed Convertible Debenture Claims on a Pro Rata basis until paid in full and
then to the holders of Allowed General Unsecured Claims on a Pro Rata basis
until paid in full.
|
|
4.
|
Distributions on Account of
Allowed Convertible Debenture
Claims
|
2 In
the event the Expense Reimbursement is less than $200,000.00, the difference
between the Expense Reimbursement and $200,000.00 will be paid to the
Prepetition Agent on behalf of holders of Prepetition Secured Lender
Claims.
PLAN-21
All
distributions on account of Allowed Convertible Debenture Claims shall be made
to the Indenture Trustee on behalf of the holders of the Convertible Debentures
entitled to receive the proceeds of such distributions and shall be held in
trust by the Indenture Trustee for the benefit of such holders of the
Convertible Debentures. For the avoidance of doubt, provided that the
reasonable and documented fees and expenses of the Indenture Trustee and its
advisors up to a maximum of $110,000 are paid to the Indenture Trustee in
accordance with Article XII.E of this Plan, the Indenture Trustee (a) shall not
have a lien against any distributions it receives on account of the Allowed
Convertible Debenture Claims, (b) shall not withhold or deduct from, or offset
against any portion of such distributions and (c) shall promptly turnover the
proceeds of such distributions to the holders of the Convertible Debentures
entitled to receive them.
|
|
F.
|
Execution
of Documents and Limited Liability and Corporate
Action
|
|
|
1.
|
Execution of Documents and
Corporate Action
|
The
Debtors shall deliver all documents and perform all actions reasonably
contemplated with respect to implementation of this Plan. Jonathan
Bloomfield is designated as the authorized representative of each Debtor (i) to
execute on behalf of each Debtor, in a representative capacity and not
individually, any documents or instruments after the Confirmation Date or the
Effective Date that may be necessary to consummate this Plan, and (ii) to
undertake any other action on behalf of each Debtor to consummate this
Plan.
|
|
2.
|
Termination and Resignation of
Board of Directors and Officers of the
Debtors
|
On the
Effective Date, the employment agreements for all employees shall be rejected
and individuals designated as officers or members of the Board of Directors of
the Debtors shall be deemed to have resigned.
|
|
3.
|
Managers of Reorganized
Teton
|
The
initial managers and initial officers of Reorganized Teton shall be disclosed
not later than three (3) days prior to the Confirmation Hearing. Each
of the initial members and the initial officers shall serve in accordance with
applicable nonbankruptcy law and the Reorganized Teton’s Certificate of
Formation and Membership Agreement, as the same may be amended from time to
time.
|
|
4.
|
Conversion of TEC from a Corporation
into a Limited Liability
Company.
|
On the
Effective Date, TEC shall convert its corporate form into Reorganized Teton, a
limited liability company under the Delaware LLC Act.
|
|
5.
|
Cancellation of Interests in
TEC
|
On the
Effective Date, (i) the Interests, including but not limited to, any outstanding
common stock and preferred stock, in TEC shall be cancelled by entry of the
Confirmation Order, and (ii) the obligations of, Claims against, and Interests
in TEC arising under, evidenced by, or relating to any shares of common stock or
preferred stock, agreements, contracts, indentures, certificates of designation,
bylaws, certificates or articles of incorporations, or similar documents
governing the Interests in TEC shall be released and
discharged.
PLAN-22
|
|
6.
|
Authorization and Issuance of
Membership Interests
|
On the
Effective Date and in accordance with this Plan and Caerus Plan Sponsorship
Agreement, Reorganized Teton shall, without further act or action under
applicable law, regulation, order, or rule, authorize and issue 100% of the
Membership Interests to Caerus.
|
|
7.
|
Certificate of Formation and Membership
Agreement
|
Reorganized
Teton’s Certificate of Formation and the Membership Agreement shall contain
provisions necessary to provide for such provisions, terms, and conditions
necessary to comply, conform with, and implement the terms, conditions, and
requirements of this Plan.
|
|
8.
|
Cancellation of Convertible
Debentures and Indenture
|
On the
Effective Date, except to the extent otherwise provided in this Section 8, all
notes, stock, instruments, certificates and other documents evidencing the
Convertible Debenture Claims shall be deemed automatically canceled, shall be of
no further force, whether surrendered for cancellation or otherwise, and the
obligations of the Debtors and Reorganized Debtors, if any, thereunder or in any
way related thereto shall be released and discharged.
On the
Effective Date, except to the extent otherwise provided in this Section 8, the
Indenture shall be deemed automatically canceled, as permitted by section
1123(a)(5)(F) of the Bankruptcy Code, and the obligations of the Debtors and
Reorganized Debtors, if any, thereunder shall be released and
discharged.
As of the
Effective Date, the transfer ledger or ledger maintained by the Indenture
Trustee for the Convertible Debentures shall be closed, and there shall be no
further changes in the record holders of any Convertible
Debentures.
Notwithstanding
anything contained in this Section 8, the Convertible Debentures and the
Indenture shall continue in effect solely for purposes of (a) allowing the
Indenture Trustee to receive distributions under this Plan on behalf of the
holders of the Convertible Debentures; and (b) thereafter, allowing the
Indenture Trustee to make distributions to holders of the Convertible
Debentures. The Convertible Debentures and the Indenture shall
terminate completely upon completion of all distributions by the Indenture
Trustee to the holders of the Convertible Debentures and payment of all of the
Indenture Trustee’s fees and expenses (including the fees and expenses of its
counsel).
|
|
9.
|
Surrender of
Instruments
|
Each
Claimholder holding a certificate, instrument, or Convertible Debenture
evidencing a Claim against any of the Debtors or property of the Estates and
whose Claims are treated under this Plan shall surrender such certificate,
instrument, or Convertible Debenture to the Debtors or their designee (as
applicable) on the Effective Date as a prerequisite to receiving any
distribution under this Plan, unless the non-availability of such certificate,
instrument, or Convertible Debenture is established to the satisfaction of the
applicable party. The Indenture Trustee shall be the Debtors’
designee for purposes of surrender of the Convertible Debentures. If
any holder of an Allowed Claim evidenced by a certificate, instrument, or
Convertible Debenture canceled pursuant to this Plan fails to surrender such
certificate, instrument or Convertible Debenture, within one year after the
Effective Date, its Claim for a distribution under this Plan on account of such
certificate, instrument, or Convertible Debenture shall be discharged, and such
holder shall be forever barred from asserting such Claim against the Debtors,
Reorganized Teton or their property. In such case, any property held
on account of such Claim shall be disposed of pursuant to the provisions
relating to unclaimed distributions in Article VI.B. of this
Plan.
PLAN-23
|
|
10.
|
Lost, Stolen, Mutilated or
Destroyed Instruments or
Security
|
Any
holder of Convertible Debenture that has been lost, stolen, mutilated or
destroyed, shall, in lieu of surrendering such Convertible Debenture (a) deliver
to the Indenture Trustee (i) an affidavit of loss reasonably satisfactory to the
Indenture Trustee setting forth the unavailability of such Convertible Debenture
and (ii) such additional security or indemnity as may reasonably be requested by
the Indenture Trustee to hold the Indenture Trustee harmless from any damages,
liabilities, or costs incurred in treating such entity as a holder of an Allowed
Convertible Debenture Claim and (b) satisfy any other requirement under the
Indenture or any other relevant document. Upon compliance with this
Section 10 by a holder of an Allowed Convertible Debenture Claim, such holder
shall, for all purposes under this Plan, be deemed to have surrendered such
instrument, security or other documentation.
|
|
11.
|
Subsidiaries of Reorganized
Teton.
|
On the
Effective Date, Reorganized Teton shall hold 100% of the Interests in the
Subsidiaries, as reorganized, free and clear of all liens, claims, encumbrances
or other interests, and shall own all assets of such Subsidiaries, as
reorganized, free and clear of all liens, claims, encumbrances or other
interests. Reorganized Teton may elect that one or more of the Subsidiaries, as
reorganized, be merged into Reorganized Teton, such that all assets of such
merged Subsidiaries, as reorganized, shall be owned by Reorganized, free and
clear of all liens, claims, encumbrances and other interests. Reorganized Teton
may also elect to create a new subsidiary(ies) of Reorganized Teton, and to
transfer assets from Reorganized Teton to such new subsidiary(ies), free and
clear of all liens, claims, encumbrances and other interests.
|
|
12.
|
Bankruptcy Code Section 1145
Determination
|
Confirmation
of this Plan shall constitute a determination, in accordance with Bankruptcy
Code section 1145, that (except with respect to an entity that is an underwriter
as defined in Bankruptcy Code section 1145(b)) section 5 of the 1933 Act and any
state or local law requiring registration for the offer or sale of a security or
registration or licensing of an issuer of, underwriter of, broker or dealer in,
a security do not apply to the offer, sale, or issuance of any securities under
this Plan (including the Membership Interests).
PLAN-24
|
|
G.
|
Purchase
Price Adjustment
|
Net
Working Capital shall be calculated in accordance with the Caerus Plan
Sponsorship Agreement. In the event Net Working Capital is a positive
amount, such amount shall be added to this Plan Funding Obligation and
promptly paid by Caerus to the Prepetition Agent, and the Deposit shall be
released to the Prepetition Agent. In the event Net Working Capital is
a Negative amount, such amount shall be deducted from this Plan Funding
Obligation and promptly released from the Deposit and paid to
Caerus. In the event the Deposit is not sufficient to pay Caerus in
full for any such negative amount of Net Working Capital, any excess amount owed
after payment of the Deposit to Caerus shall promptly be paid by the Prepetition
Secured Lenders pro rata in accordance with their shares of the Prepetition
Secured Indebtedness, through the Prepetition Agent, to Caerus.
|
|
H.
|
Release
of Liens
|
Except as
otherwise provided in this Plan, the Confirmation Order or in any document,
instrument or other agreement created in connection with this Plan, on the
Effective Date, all mortgages, deeds of trust, liens, encumbrances, security
interests, or other interests against the property of the Estates shall be
released.
|
|
I.
|
Exemption
from Certain Transfer Taxes
|
Pursuant
to Bankruptcy Code section 1146(a), any transfers from the Debtors or the
Reorganized Debtors to Caerus or to any other Person or entity pursuant to this
Plan in the United States shall not be subject to any stamp tax or similar tax,
including without limitation state and county transfer and recordation taxes,
and the Confirmation Order shall direct the appropriate state or local
governmental officials or agents to forgo the collection of any such tax or
governmental assessment and to accept for filing and recordation any of the
foregoing instruments or other documents without the payment of any such tax or
governmental assessment.
|
|
J.
|
Transfer
of Causes of Action; Settlement of Causes of
Action
|
In accordance with Bankruptcy Code
section 1123(b)(3) and pursuant to the terms of the Caerus Plan Sponsorship
Agreement, all Causes of Action and other similar claims arising under
applicable state laws, including, without limitation, fraudulent transfer
claims, if any, and all other causes of action of a trustee and
debtors-in-possession under the Bankruptcy Code, along with all proceeds
thereof, shall be transferred to Caerus upon the consummation of this
Plan.
|
|
K.
|
Effectuating
Documents; Further Transactions
|
The
Debtors and the Reorganized Debtors, subject to the terms and conditions of this
Plan, shall be authorized to execute, deliver, file, or record such contracts,
instruments, releases, indentures, and other agreements or documents, and take
such actions as may be necessary or appropriate to effectuate and further
evidence the terms and conditions of this Plan. The DIP Lenders, the
Prepetition Secured Lenders, the Indenture Trustee, shall execute and deliver
such documents as Reorganized Debtors shall reasonably request to effectuate or
further evidence the terms and conditions of this Plan.
PLAN-25
ARTICLE
VI
PROVISIONS
GOVERNING DISTRIBUTIONS
|
|
A.
|
Distributions
for Claims Allowed as of the Effective
Date
|
Except as
otherwise provided herein, and only after this Plan Funding Obligations have
been distributed to the holders of Prepetition Secured Lender Claims in
accordance with the terms of this Plan, or as otherwise ordered by the Court,
all distributions to be made on account of Claims that are Allowed Claims as of
the Effective Date shall be made according to the terms of this Plan and the
Final DIP Order.
|
|
B.
|
Delivery
of Undeliverable or Unclaimed
Distributions
|
If the
distribution to any holder of an Allowed Claim is returned to the Reorganized
Debtors as undeliverable or is otherwise unclaimed, no further distributions
shall be made to such holder unless and until the Debtors are notified in
writing of such holder’s then-current address, at which time all missed
distributions shall be made to such holder without interest.
Any
holder of an Allowed Claim that does not assert a claim pursuant to this Plan
for an undeliverable or unclaimed distribution within 90 days after the
Effective Date shall be deemed to have forfeited its Claim for such
undeliverable or unclaimed distribution and shall be forever barred and enjoined
from asserting any such claim for an undeliverable or unclaimed distribution
against the Debtors, the Reorganized Debtors, Caerus and their respective
agents, attorneys, representatives, employees or independent contractors, and/or
any of its and their property. In such case, any Cash otherwise
reserved for undeliverable or unclaimed distributions shall become the property
of the Estates free of any restrictions thereon and notwithstanding any federal
or state escheat laws to the contrary and shall be distributed in accordance
with the terms of this Plan to holders of Prepetition Secured Lender Claims up
to the amount of the Prepetition Secured Indebtedness, to the extent not already
satisfied, and then to holders of Allowed Convertible Debenture Claims on a Pro
Rata basis until paid in full, and then finally to holders of Allowed General
Unsecured Claims on a Pro Rata basis as a final distribution. Nothing
contained in this Plan shall require the Debtors or the Reorganized Debtors to
attempt to locate any holder of an Allowed Claim.
|
|
C.
|
Prepayment
|
Except as
otherwise provided in the Final DIP Order, this Plan or in the Confirmation
Order, the Debtors shall have the right to prepay, without penalty, all or any
portion of an Allowed Administrative Claim, Allowed Priority Tax Claim, Allowed
Other Priority Claim, or Allowed Other Secured Claim at any
time.
PLAN-26
|
|
D.
|
Means
of Cash Payment
|
Cash
payments made pursuant to this Plan shall be in U.S. dollars and shall be made
at the option and in the sole discretion of Reorganized Teton by (i) checks
drawn on, or (ii) wire transfers from a domestic bank.
|
|
E.
|
Interest
on Claims
|
Unless
otherwise specifically provided for in this Plan or the Confirmation Order, or
required by applicable bankruptcy law, postpetition interest shall not accrue or
be paid on any Claims other than the DIP Loan Claim, the Secured Lender Claims
and the Convertible Debenture Claims, and no Claimholder (other than the DIP
Lenders and Prepetition Secured Lenders) shall be entitled to interest from the
Estates accruing on or after the Petition Date on any Claim; provided that,
payments of interest accruing postpetition on account of Prepetition Secured
Lender Claims and Convertible Debenture Claims shall be limited to the
availability of Auction Proceeds in excess of the Prepetition Secured
Indebtedness. Interest shall not accrue or be paid upon any Disputed
Claim in respect of the period from the Petition Date to the date a final
distribution is made thereon if and after such Disputed Claim becomes an Allowed
Claim. For the avoidance of doubt, nothing in this provision is
intended to modify the terms of that certain Amended and Restated Intercreditor
and Subordination Agreement, dated as of September 19, 2008, as amended (the
“Intercreditor
Agreement”), by and among the Indenture Trustee, the Prepetition Agent
and TEC with respect to the payment to the holders of Convertible Debenture
Claims of interest accruing on or after the Petition Date and no postpetition
interest shall be paid to the holders of Convertible Debenture Claims until all
Senior Indebtedness (as defined in the Intercreditor Agreement) has been
indefeasibly paid in full.
|
|
F.
|
Withholding
and Reporting Requirements
|
In
accordance with Bankruptcy Code section 346 and in connection with this Plan and
all distributions hereunder, the Debtors and the Reorganized Debtors shall, to
the extent applicable, comply with all withholding and reporting requirements
imposed by any federal, state, provincial, local, or foreign taxing
authority. The Debtors and the Reorganized Debtors shall be
authorized to take any and all actions necessary and appropriate to comply with
such requirements.
All
distributions hereunder shall be subject to applicable legal withholding and
reporting requirements. As a condition of making any distribution
under this Plan, Reorganized Teton may require the holder of an Allowed Claim to
provide such holder’s taxpayer identification number, and such other
information, certification or forms as necessary to comply with applicable tax
reporting and withholding laws. Notwithstanding any other provision
of this Plan, each entity receiving a distribution pursuant to this Plan shall
have sole and exclusive responsibility for the satisfaction and payment of tax
obligations on account of any such distribution.
PLAN-27
|
|
G.
|
Setoffs
|
Except as
otherwise provided by the terms of this Plan, the Reorganized Debtors (or any of
them) may, but shall not be required to, set off against any Claim and the
payments or other distributions to be made under this Plan on account of the
Claim, claims of any nature whatsoever that the Debtors and the Reorganized
Debtors may have against the holder thereof, provided, that any such right of
setoff that is exercised shall be allocated, first, to the principal amount of
the related Claim, and thereafter to any interest portion thereof, but neither
the failure to do so nor the allowance of any Claim hereunder shall constitute a
waiver or release by the Debtors or the Reorganized Debtors of any such claim
that the Debtors or the Reorganized Debtors may have against such
holder.
|
|
H.
|
Procedure
for Treating and Resolving Disputed, Contingent, and/or Unliquidated
Claims
|
|
|
1.
|
Prosecution of
Objections
|
From the
Confirmation Date through the Effective Date, only the Debtors may file
objections, settle, compromise, withdraw, or litigate to judgment objections to
Claims. From and after the Effective Date, Reorganized Teton may
settle or compromise any Disputed Claim without approval of the
Court. Nothing contained herein, however, shall limit the right of
the Reorganized Teton to object to Claims, if any, filed or amended after the
Effective Date.
|
|
2.
|
No Distributions Pending
Allowance
|
Notwithstanding
any other provision of this Plan, no payments or distributions shall be made
with respect to all or any portion of a Disputed Claim unless and until all
objections to such Disputed Claim have been settled or withdrawn or have been
determined by Final Order, and the Disputed Claim, or some portion thereof, has
become an Allowed Claim.
|
|
3.
|
De Minimis
Distributions
|
Reorganized
Teton shall have no obligation to make any distribution, whether final or not,
unless and until the total amount of such distribution to a specific holder of
an Allowed Claim is equal to or greater than $10.00.
|
|
I.
|
Fractional
Dollars
|
Any other
provision of this Plan notwithstanding, Reorganized Teton shall not be required
to make distributions or payments of fractions of dollars. Whenever
any payment of a fraction of a dollar under this plan would otherwise be called
for, the actual payment shall reflect a rounding of such fraction to the nearest
whole dollar (up or down), with half dollars being rounded down.
|
|
J.
|
Allocation
of Plan Distributions Between Principal and
Interest
|
To the
extent that any Allowed Claim entitled to a distribution under this Plan is
composed of indebtedness and accrued but unpaid interest thereon, such
distribution shall be allocated, for all income tax purposes, to the principal
amount of the Claim first and then, to the extent the consideration exceeds the
principal amount of the claim, to the portion of such Claim representing accrued
but unpaid interest.
PLAN-28
ARTICLE
VII
TREATMENT
OF EXECUTORY CONTRACTS
AND
UNEXPIRED LEASES
Debtors’
interests in minerals, leases, oil and gas wells, royalty or working interest,
or other similar interests are interests in real property and are not and shall
not be deemed Executory Contracts or Unexpired Leases subject to the procedures
set forth in this Article VII.
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A.
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Assumption
and Rejection of Executory Contracts and Unexpired
Leases
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1.
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Interests in Hydrocarbons are
Not Executory Contracts or Unexpired
Leases
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The interests of the Debtors in
Hydrocarbons constitute interests in property under applicable
law. The interests in Hydrocarbons are neither Executory Contracts or
Unexpired Leases. Nonetheless, and for the avoidance of doubt, except
as may be expressly provided for herein, nothing herein shall be construed or
interpreted a repudiation, abandonment, or rejection of any interest of the
Debtors in any Hydrocarbons or the right to explore thereof or produce
therefrom.
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2.
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Assumption of Executory
Contracts and Unexpired
Leases
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On the Effective Date, the Debtors will
assume all Assumed Executory Contracts as listed on the Assumed Contracts
Schedule.
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3.
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Rejection of Executory
Contracts and Unexpired
Leases
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Each Executory Contract and Unexpired
Lease that is not an Assumed Executory Contract shall be rejected as of the
Confirmation Date (which rejection shall be effective on the Effective Date),
and such rejected Executory Contracts and Unexpired Leases shall no longer
represent the binding obligations of the Reorganized Debtors after the Effective
Date. Entry of the Confirmation Order shall constitute approval of
such rejections under Bankruptcy Code §§ 365 and
1123. Notwithstanding the foregoing, this section shall have no
effect on the Debtors’ or the Reorganized Debtors’ interests in Hydrocarbons and
such interests shall not be rejected pursuant to this Plan.
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4.
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Limited
Assumption of Prepetition Retention
Commitments.
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On the
Effective Date, Reorganized TEC shall assume, subject to the provisions and
limitations of this Article VII.A.4 of the Plan, TEC’s prepetition retention
commitments (the “Retention Commitments”) to certain employees in the manner,
and to the extent described in Section 4(j) and Schedule 4(j) of the Caerus Plan
Sponsorship Agreement. Reorganized TEC’s sole obligation in respect of the
Retention Commitments shall be to pay up to an aggregate of $286,500 from funds
in the JPM Account (as defined in the Caerus Plan Sponsorship Agreement).
Notwithstanding Reorganized TEC’s assumption of the Retention Commitments
subject to the limitations of this Article VII.A.4 of the Plan, under no
circumstances (a) shall the assumption of the Retention Commitments give rise to
a claim having priority against the Debtors’ estates as an administrative
expense under section 503(b) of the Bankruptcy Code or otherwise in the event
the Effective Date does not occur or (b) shall recipients of the Retention
Commitments be entitled to look to any source other than the JPM Account for
payment.
PLAN-29
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B.
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Cure
Procedures
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No later
than the date specified in the Disclosure Statement Approval Order, the Debtors
shall file an Assumed Contracts Schedule containing a list of the Assumed
Executory Contracts and the associated Cure Amounts. The non-Debtor
parties to the Assumed Executory Contracts shall have until the Contract
Objection Deadline to object to (i) the Cure Amounts listed by the Debtors and
propose alternative Cure Amounts, and/or (ii) the proposed assumption of the
Assumed Executory Contracts. Any Contract Objection must be filed
with the Court on or before the Contract Objection Deadline and will be heard
and determined by the Court. Any such Contract Objection not filed by
the Contract Objection Deadline shall be waived and forever barred.
1. Deemed
Assumption Subject to Revocation
To the
extent the Court has not determined by the Effective Date the amount of any Cure
Amount that is subject to a pending objection, the Executory Contract or
Unexpired Lease related to such Cure Amount shall, at the option of the
Reorganized Debtors, be deemed assumed by the Reorganized Debtors effective on
the Effective Date; provided, however, the Reorganized Debtors may revoke an
assumption of any Executory Contract or Unexpired Lease within ten (10) days
after entry of an order by the Court adjudicating the objection to the Cure
Amount related to such Executory Contract and Unexpired Lease by filing a notice
of such revocation with the Court and serving a copy on the party(ies) whose
Executory Contract or Unexpired Lease is rejected. Any Executory
Contract or Unexpired Lease identified in such revocation notice shall be deemed
rejected retroactively on the Effective Date. Any party whose
Executory Contract is rejected pursuant to a revocation notice may file a claim
arising out of such rejection within thirty (30) days after such revocation
notice is filed with the Court, and any such rejection claim not filed by that
deadline shall be discharged and forever barred. The Reorganized
Debtors shall have the right to object to any such rejection claim.
2. Payment of Cure
Amounts
Within
ten (10) Business Days after the Effective Date, Reorganized Teton shall pay all
Cure Amounts that are not disputed by the Debtors or Reorganized
Debtors. Unless otherwise ordered by the Court, the Reorganized Teton
shall pay all Cure Amounts that are disputed by the Debtors or Reorganized
Debtors on the later of the date that is ten (10) Business Days after (i) the
Contract Objection Deadline, or (ii) the date of entry of a Final Order
resolving the dispute or approving an agreement between the parties concerning
the Cure Amount.
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C.
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Reservation
of Rights
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Neither
the exclusion nor inclusion of any contract or lease by the Debtors on any
Exhibit to this Plan or in any Schedule, nor anything contained in this Plan,
will constitute an admission by the Debtors or the Reorganized Debtors that any
such contract or lease is or is not in fact an Executory Contract or Unexpired
Lease or that any Debtor or the Reorganized Debtor has any liability there
under. Nothing in this Plan will waive, excuse, limit, diminish, or
otherwise alter any of the defenses, Claims, rights of action, or other rights
of the Debtors or the Reorganized Debtor under any Executory Contract or
non-Executory Contract or any Unexpired Lease or expired
lease. Nothing in this Plan will increase, augment, or add to any of
the duties, obligations, responsibilities, or liabilities of the Debtors or the
Reorganized Debtor under any Executory Contract or non-Executory Contract or any
Unexpired Lease or expired lease.
PLAN-30
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D.
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Dispute
Regarding Executory Nature of
Contracts
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If there
is a dispute regarding whether a contract or lease is or was an Executory
Contract or Unexpired Lease at the time of assumption or rejection, then the
Reorganized Debtors will have thirty (30) days following entry of a Final Order
resolving such dispute to amend their decision to assume or reject such contract
or lease.
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E.
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Rejection
Damages
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If the
rejection of an Executory Contract or Unexpired Lease pursuant to Article VII.A
above gives rise to a Claim by the other party or parties to such contract or
lease, or if an Executory Contract or Unexpired Lease has already been rejected
by the Debtors and no bar date has been established pursuant to the Bar Date
Order or otherwise with respect to such Claim, such Claim shall be forever
barred and shall not be enforceable against the Debtors or their successors
unless a Proof of Claim is filed with the Court and served on the Debtors on or
before the Rejection Claims Bar Date. Any Claim arising out of the
rejection of an Executory Contract pursuant to the Confirmation Order or prior
order of the Court must be Filed with the Court on or before the Rejection
Claims Bar Date, and shall be served on counsel for Reorganized
Teton. Any such Claims not Filed by the Rejection Claims Bar Date
shall be discharged and forever barred. Each Allowed Claim arising
from the rejection of an Executory Contract shall be treated as an Allowed
General Unsecured Claim. The Court shall determine the amount, if
any, of the Claim of any entity seeking damages by reason of the rejection of
any Executory Contract or Unexpired Lease.
ARTICLE
VIII
CONDITIONS
PRECEDENT TO CONFIRMATION
AND
CONSUMMATION OF THIS PLAN
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A.
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Conditions
to Confirmation
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The
following are conditions precedent to Confirmation of this Plan:
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1.
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The
Court shall have entered an order approving the Disclosure Statement as
containing adequate information within the meaning of Bankruptcy Code
section 1125.
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2.
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This
Plan satisfies each of the requirements of Bankruptcy Code section 1129 as
applicable.
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PLAN-31
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3.
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The
proposed Confirmation Order shall be in all respects acceptable to the
Debtors, Caerus, and the Prepetition Secured
Lenders.
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4.
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The
Confirmation Order shall be entered no later than January 31,
2010.
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5.
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The
Caerus Plan Sponsorship Agreement shall not have been
terminated.
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B.
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Conditions
to Effective Date
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The
following are conditions precedent to the occurrence of the Effective Date, each
of which must be satisfied or waived in accordance with Article VIII
hereof:
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1.
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The
Confirmation Order shall have been entered on the docket in the Bankruptcy
Cases.
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2.
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The
effectiveness of the Confirmation Order shall not have been stayed and any
motion for reconsideration or rehearing shall have been denied or
overruled by a Court of competent
jurisdiction.
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3.
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The
Confirmation Order shall:
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(1)
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provide
that the Auction for the Assets (i) was the result of a bona fide
arm’s-length competitive process, (ii) was not the product of collusion or
fraud, and (iii) was fully in accordance with the terms of the Bid
Procedures Order; and
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(2)
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authorize
the transfer and distribution of the Assets to Caerus pursuant to the
terms and conditions of the Caerus Plan Sponsorship Agreement and this
Plan;
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(3)
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provide
that (i) the Interests in the Subsidiaries shall re-vest in
Reorganized TEC free and clear of all liens, claims, encumbrances and
other interests, (ii) all assets of the Debtors shall re-vest in the
Reorganized Debtors free and clear of all liens, claims, encumbrances and
other interests, and (iii) all such liens, claims, encumbrances and
other interests are discharged except as otherwise provided in
Sections X(B)(2) and X(B)(3) of this
Plan.
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4.
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All
Plan Supplements shall be in form and substance, in all respects,
acceptable to the Debtors and
Caerus.
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5.
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All
actions, documents, and agreements necessary to implement this Plan shall
have been effected or executed.
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6.
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The
Caerus Plan Sponsorship Agreement shall not have been terminated and the
conditions to closing in such agreement shall have been waived by Caerus
or satisfied by the Debtors.
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PLAN-32
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7.
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The
DIP Loan Claims shall have been paid in accordance with the terms of the
Final DIP Order and Article III of this
Plan.
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C.
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Waiver
of Conditions
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Each of
the conditions to the Effective Date, set forth in Article VIII.B above may be
waived in whole or in part by the Debtors without any other notice to
parties-in-interest or the Court, provided, however, that the
Debtors have received the prior written consent of Caerus, which consent may be
withheld by Caerus at its sole discretion. The failure to satisfy or
waive any condition to the Effective Date may be asserted by the Debtors
regardless of the circumstances giving rise to the failure of such condition to
be satisfied. The failure of any party to exercise any of its
foregoing rights shall not be deemed a waiver of any of its other rights, and
each such right shall be deemed an ongoing right that may be asserted at any
time.
ARTICLE
IX
ALLOWANCE
AND PAYMENT OF CERTAIN ADMINISTRATIVE CLAIMS
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A.
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Professional
Fee Claims
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1.
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Final Fee
Applications
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All final
requests for payment of Professional Fee Claims (the “Final Fee
Applications”) must be Filed no later than sixty days after the Effective
Date. Objections, if any, to Final Fee Applications of such
Professionals must be Filed and served on Reorganized Teton, the requesting
Professional and the Office of the United States Trustee no later than thirty
days from the date on which each such Final Fee Application is served and
filed. After notice and a hearing in accordance with the procedures
established by the Bankruptcy Code and prior orders of the Court, the allowed
amounts of such Professional Fee Claims shall be determined by the
Court. Reorganized Debtors shall be responsible for payment of any
Final Fee Applications approved by the Court. The Reorganized Debtors
shall be responsible for payment of any accrued, but unpaid professional fees,
subject to approval of Final Fee Applications, as applicable, reflected in the
budget attached to the Final DIP Order.
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2.
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Employment of Professionals
after the Effective Date
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From and
after the Effective Date, any requirement that professionals comply with
Bankruptcy Code sections 327 through 331 or any order previously entered by the
Court in seeking retention or compensation for services rendered or expenses
incurred after such date will terminate.
PLAN-33
ARTICLE
X
EFFECTS
OF CONFIRMATION
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A.
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Binding
Effect
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This Plan
shall be binding upon and inure to the benefit of the Debtors, the Reorganized
Debtors, Caerus, all present and former holders of Claims and Interests, whether
or not such holders will receive or retain any property or interest in property
under this Plan, and their respective successors and assigns, including, but not
limited to, the Debtors and the Reorganized Debtors, and all other parties in
interest in the Bankruptcy Cases.
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B.
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Discharge
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(1) Except
as otherwise provided in this Plan, the rights granted in this Plan and the
treatment of all Claims and Interests shall be in exchange for, and in complete
satisfaction, discharge, and release of, all Claims and Interests of any nature
whatsoever against the Debtors, the Reorganized Debtors and any of the Estates’
property, whether such Claims or Interests arose before or during the Bankruptcy
Cases or in connection with implementation of this Plan. Except as
otherwise provided in this Plan, on the Effective Date, each of the Debtors
shall be discharged and released from any and all Claims and Interests,
including demands and liabilities that arose before the Effective Date, and all
debts of the kind specified in Bankruptcy Code sections 502(g), 502(h), or
502(i), regardless of whether (i) a proof of claim evidencing such debt was
filed or deemed filed under Bankruptcy Code section 501; (ii) a Claim based
on such debt is allowed under Bankruptcy Code section 502; or (iii) the
holder of a Claim based on such debt has accepted this Plan. Except
as otherwise provided in this Plan, the Confirmation Order shall be a judicial
determination of discharge of all liabilities of the
Debtors. Pursuant to Bankruptcy Code section 524, the discharge
granted under this section shall void any judgment against any of the Debtors at
any time obtained (to the extent it relates to a discharged Claim or Interest),
and operates as an injunction against the prosecution of any action against any
of the Reorganized Debtors or the Estates’ property (to the extent it relates to
a discharged Claim or Interest).
(2) Notwithstanding
any provision in the Plan, nothing in this Plan discharges, releases, precludes,
or enjoins (i) any environmental liability to any governmental unit that is not
a Claim as such term is defined in section 101 of the Bankruptcy Code or (ii)
any environmental Claim of any governmental unit arising on or after the
Effective Date. The Debtors and Reorganized Debtors reserve the right
to assert that any environmental liability is a Claim that arose on or prior to
the Effective Date and that such Claim has been discharged and/or released under
sections 524 and 1141 of the Bankruptcy Code. In addition, nothing in
this Plan discharges, releases, precludes, or enjoins any environmental
liability to any governmental unit that any entity would be subject to as the
owner or operator of property after the Effective Date.
PLAN-34
(3) Notwithstanding
any provision in the Plan, the Confirmation Order and any implementing Plan
documents, including but not limited to notices of assumption and assignment of
executory contracts, any rights of way, pending applications for rights of way,
leases, licenses, authorizations, contracts, agreements or other interests of
the federal government shall be treated, determined and administered in the
ordinary course of business as if the Debtors’ bankruptcy cases were never filed
and the Debtors and the Reorganized Debtor shalls comply with all applicable
non-bankruptcy law, federal regulations and statutes. Moreover, without limiting
the foregoing, nothing in this Plan, Confirmation Order or implementing Plan
documents shall be interpreted to set cure amounts for the cure claim of any
governmental unit of the federal government or to require any such governmental
unit of the federal government to novate or otherwise consent to the transfer of
any federal government contract, agreement or interest. The federal government’s
rights to offset or recoup any amounts due under, or relating to, any contracts,
agreements or other interests are expressly preserved.
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C.
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Injunction
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Except as
otherwise provided in this Plan, the Confirmation Order shall provide, among
other things, that from and after the Effective Date all Persons who have held,
hold or may hold Claims against or Interests in the Debtors are permanently
enjoined from taking any of the following actions against the Estates, the
Debtors, the Reorganized Debtors, Caerus or any of their respective property on
account of any such Claims or Interests: (A) commencing or continuing, in any
manner or in any place any action or other proceeding; (B) enforcing, attaching,
collecting, or recovering in any manner any judgment, award, decree, or order;
(C) creating, perfecting or enforcing any lien, lis pendens, or other
encumbrance against the Assets, any of the assets of the Reorganized Debtors or
this Plan Funding Obligation; (D) asserting a setoff or right of subrogation of
any kind against any debt, liability, or obligation due to the Debtors; and (E)
commencing or continuing, in any manner or in any place, any action that does
not comply with or is inconsistent with the provisions of this Plan provided,
however, that nothing contained herein shall preclude such Persons from
exercising their rights pursuant to and consistent with the terms of this Plan,
the Confirmation Order, or the Caerus Plan Sponsorship Agreement.
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D.
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Term
of Bankruptcy Injunction or Stays
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All
injunctions or stays provided for in the Bankruptcy Cases under Bankruptcy Code
section 105 or 362, or otherwise, and in existence on the Confirmation Date,
shall remain in full force and effect until the Effective Date. Upon
the Effective Date, the injunction provided in Article X.C above shall
apply.
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E.
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Compromises
and Settlements
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Pursuant
to Bankruptcy Rule 9019(a), the Debtors may compromise and settle various Claims
(a) against them and (b) that they have against other Persons. The
Debtors expressly reserve the right (with Court approval, following appropriate
notice and opportunity for a hearing) to compromise and settle Claims against
them and claims that they may have against other Persons up to and including the
Effective Date. After the Effective Date, such right shall pass to
the Reorganized Debtors and shall be governed by the terms of this Plan and the
Caerus Plan Sponsorship Agreement; provided, however, that the
Debtors shall retain the right to compromise and settle any pending
appeal.
PLAN-35
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F.
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Satisfaction
of Subordination Rights
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All
Claims against the Debtors and all rights and claims between or among
Claimholders relating in any manner whatsoever to distributions on account of
Claims against or Interests in the Debtors, based upon any subordination rights,
whether asserted or unasserted, legal or equitable, shall be deemed satisfied by
the distributions under this Plan to Claimholders or Interest Holders having
such subordination rights, and such subordination rights shall be deemed waived,
released, discharged, and terminated as of the Effective
Date. Distributions to the various Classes of Claims hereunder shall
not be subject to levy, garnishment, attachment, or like legal process by any
Claimholder or Interest Holder by reason of any subordination rights or
otherwise, so that each Claimholder shall have and receive the benefit of the
distributions in the manner set forth in this Plan.
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G.
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Release
of Prepetition Secured Lenders, Prepetition Agent, DIP Lenders, DIP Agent,
Holders of Convertible Debentures and Indenture
Trustee
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EFFECTIVE
ON THE EFFECTIVE DATE, THE DEBTORS (IN THEIR OWN RIGHT AND ON BEHALF OF THEIR
RESPECTIVE ESTATES, REPRESENTATIVES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT
CONTRACTORS, ATTORNEYS AND AGENTS, AND THEIR SUCCESSORS AND ASSIGNS)
(COLLECTIVELY, THE “RELEASING
PARTIES”) HEREBY RELEASE, ACQUIT, FOREVER DISCHARGE, AND COVENANT NOT TO
SUE EACH AND EVERY DIP LENDER, PREPETITION SECURED LENDER, THE PREPETITION
AGENT, DIP AGENT, THE INDENTURE TRUSTEE AND EACH AND EVERY HOLDER OF CONVERTIBLE
DEBENTURES, AND EACH AND EVERY DIP LENDER’S, PREPETITION SECURED LENDER’S, THE
PREPETITION AGENT’S, THE DIP AGENT’S, THE INDENTURE TRUSTEE’S OR A HOLDER OF
CONVERTIBLE DEBENTURE’S REPRESENTATIVES, DIRECTORS, OFFICERS, EMPLOYEES,
INDEPENDENT CONTRACTORS, ATTORNEYS AND AGENTS, AND THEIR SUCCESSORS AND ASSIGNS
(THE “RELEASED
PARTIES”) FROM ANY AND ALL ACTS AND OMISSIONS OF THE RELEASED PARTIES,
AND FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, AVOIDANCE ACTIONS, COUNTERCLAIMS,
DEMANDS, CONTROVERSIES, COSTS, DEBTS, SUMS OF MONEY, ACCOUNTS, RECKONINGS,
BONDS, BILLS, DAMAGES, OBLIGATIONS, LIABILITIES, OBJECTIONS, LEGAL PROCEEDINGS,
EQUITABLE PROCEEDINGS, AND EXECUTIONS OF ANY NATURE, TYPE, OR DESCRIPTION WHICH
THE RELEASING PARTIES HAVE OR MAY COME TO HAVE AGAINST THE RELEASED PARTIES
THROUGH THE EFFECTIVE DATE, AT LAW OR IN EQUITY, BY STATUTE OR COMMON LAW, IN
CONTRACT, IN TORT, INCLUDING BANKRUPTCY CODE CHAPTER 5 CAUSES OF ACTION, WHETHER
THE LAW OF THE UNITED STATES OR ANY OTHER COUNTRY, UNION, ORGANIZATION OF
FOREIGN COUNTRIES OR OTHERWISE, KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED.
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H.
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Release
by Holders of the Convertible
Debentures
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As of the
Effective Date, each holder of the Convertible Debentures, to the fullest extent
permissible under applicable law, as such law may be extended or interpreted
subsequent to the Effective Date, shall be deemed to forever release, waive and
discharge all Claims, obligations, suits, judgments, damages, demands, debts,
rights, causes of action and liabilities, whether liquidated or unliquidated,
fixed or contingent, matured or unmatured, known or unknown, foreseen or
unforeseen, or then existing or thereafter arising in law, equity or otherwise,
that are based in whole or in part on any act, omission, transaction or other
occurrence taking place on or prior to the Effective Date in any way relating to
the Indenture Trustee that such person or entity has, had or may have, against
the Indenture Trustee and any of its present or former directors, officers,
employees, agents, representatives, attorneys, accountants, underwriters,
investment bankers or financial advisors and any of their respective successors
or assigns. This release, waiver and discharge shall be in addition
to the release, exculpation and injunctive provisions otherwise provided herein
and under the Confirmation Order and the Bankruptcy Code.
PLAN-36
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I.
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Exculpation
and Limitation of Liability
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Except as
otherwise specifically provided in this Plan, the Debtors, Reorganized Debtors,
Caerus, the Indenture Trustee, the holders of the Convertible Debentures, the
Prepetition Agent, the Prepetition Secured Lenders, the DIP Agent, the DIP
Lenders and any of such entities’ respective present or former members,
officers, directors, employees, representatives, attorneys, financial or other
professional advisors, or other agents and any of such parties’ successors and
assigns, shall not have or incur any claim, obligation, cause of action or
liability to one another or to or from any Claimholder or Interest Holder, or
any other party in interest, or any of their respective agents, employees,
representatives, financial advisors, attorneys or Affiliates, or any of their
successors or assigns, for any act or omission originating or occurring on or
after the Petition Date in connection with, relating to, or arising out of the
Debtors, the Bankruptcy Cases, negotiation and filing of this Plan, filing the
Bankruptcy Cases, the pursuit of Confirmation of this Plan, the Bidding
Procedures Order, the Caerus Plan Sponsorship Agreement, the consummation of
this Plan, the administration of this Plan or the property to be liquidated
and/or distributed under this Plan, except for their willful misconduct, gross
negligence, or fraud as determined by a Final Order of a court of competent
jurisdiction, and in all respects shall be entitled to reasonably rely upon the
advice of counsel with respect to their duties and responsibilities under this
Plan.
ARTICLE
XI
RETENTION
OF JURISDICTION
Under
Bankruptcy Code sections 105(a) and 1142, and notwithstanding entry of the
Confirmation Order, substantial consummation of this Plan and occurrence of the
Effective Date, the Court shall retain exclusive jurisdiction over all matters
arising out of, and related to, the Bankruptcy Cases and this Plan to the
fullest extent permitted by law, including, among other things, jurisdiction
to:
(a) Allow,
disallow, determine, liquidate, classify, estimate, or establish the priority or
secured or unsecured status of any Claim or Interest, including the resolution
of any request for payment of any Administrative Claim, the resolution of any
objections to the allowance or priority of Claims or Interests and the
determination of requests for the payment of claims entitled to priority under
Bankruptcy Code section 507(a)(1), including compensation of any reimbursement
of expenses of parties entitled thereto;
PLAN-37
(b) Hear
and determine all applications for compensation and reimbursement of expenses of
Professionals under this Plan or under Bankruptcy Code sections 330, 331,
503(b), 1103, and 1129(a)(4); provided, however, that from and after the
Effective Date, the payment of the fees and expenses of the retained
Professionals of the Debtors shall be made in the ordinary course of business
and shall not be subject to the approval of the Court;
(c) Hear
and determine all matters with respect to the assumption or rejection of any
executory contract or unexpired lease to which the Debtors are a party or with
respect to which the Debtors may be liable, and to hear, determine and, if
necessary, liquidate any Claims arising therefrom;
(d) Effectuate
performance of and payments under the provisions of this Plan;
(e) Hear
and determine any and all adversary proceedings, motions, applications and
contested or litigated matters arising out of, under or related to the
Bankruptcy Cases, or this Plan;
(f) Enter
such orders as may be necessary or appropriate to execute, implement or
consummate the provisions of this Plan and all contracts, instruments, releases
and other agreements or documents created in connection with this Plan, the
Disclosure Statement, or the Confirmation Order;
(g) Hear
and determine disputes arising in connection with the interpretation,
implementation, consummation, or enforcement of this Plan, including disputes
arising under agreements, documents, or instruments executed in connection with
this Plan;
(h) Consider
any modifications of this Plan, cure any defect or omission or reconcile any
inconsistency in any order of the Court, including, without limitation, the
Confirmation Order;
(i)
Issue injunctions, enter and implement other orders or take such other actions
as may be necessary or appropriate to restrain interference by any entity with
implementation, consummation, or enforcement of this Plan or the Confirmation
Order;
(j)
Enter and implement such orders as may be necessary or appropriate if the
Confirmation Order is for any reason reversed, stayed, revoked, modified, or
vacated;
(k) Hear
and determine any matters arising in connection with or relating to this Plan,
the Disclosure Statement, the Confirmation Order or any contract, instrument,
release, or other agreement or document created in connection with this Plan,
the Disclosure Statement, or the Confirmation Order;
(l)
Enforce all orders, judgments, injunctions, releases, exculpations,
indemnifications, and rulings entered in connection with the Bankruptcy
Cases;
PLAN-38
(m) Except
as otherwise limited herein, recover all assets of the Debtors and property of
the Estates, wherever located;
(n) Hear
and determine matters concerning state, local, and federal taxes in accordance
with Bankruptcy Code sections 346, 505, and 1146;
(o) Hear
and determine all disputes involving the existence, nature or scope of the
injunctions, indemnification, exculpation, and releases granted pursuant to this
Plan and/or the Caerus Plan Sponsorship Agreement;
(p) Hear
and determine all disputes or other matters arising in connection with the
interpretation, implementation or enforcement of the Caerus Plan Sponsorship
Agreement;
(q) Hear
and determine all matters related to (i) the property of the Estates from and
after the Confirmation Date, and (ii) the activities of the Debtors, including
(A) challenges to or approvals of the Debtors’ activities, and (B) reporting by
and accounting by the Debtors;
(r)
Hear and determine such other matters as may be provided in the Confirmation
Order or as may be authorized under, or not inconsistent with, provisions of the
Bankruptcy Code; and
(s) Enter
a final decree closing the Bankruptcy Cases.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
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A.
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Modifications
and Amendments
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The
Debtors may alter, amend, or modify this Plan or any Exhibits thereto under
Bankruptcy Code section 1127(a) at any time prior to the Confirmation Date
provided that the Debtors have received the prior written consent of the DIP
Lenders, the Prepetition Agent, and Caerus, which consent may be withheld at
their sole discretion. After the Confirmation Date and prior to
substantial consummation of this Plan as defined in Bankruptcy Code section
1101(2), the Debtors or Reorganized Debtors, as applicable, may, under
Bankruptcy Code section 1127(b), institute proceedings in the Court to remedy
any defect or omission or reconcile any inconsistencies in this Plan, the
Disclosure Statement, or the Confirmation Order, and such matters as may be
necessary to carry out the purpose and effect of this Plan so long as such
proceedings do not adversely affect the treatment of holders of Claims under
this Plan; provided, however, that prior notice of such proceedings shall be
served in accordance with the Bankruptcy Rules or order of the
Court.
PLAN-39
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B.
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Severability
of Plan Provisions
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If, prior
to Confirmation, any term or provision of this Plan is held by the Court to be
invalid, void, or unenforceable, then the Court, at the request of the Debtors,
subject to the requirements of sections 1127 and 1125 of the Bankruptcy Code,
shall have the power to alter and interpret such term or provision to make it
valid or enforceable to the maximum extent practicable, consistent with the
original purpose of the term or provision held to be invalid, void, or
unenforceable, and such term or provision shall then be applicable as altered or
interpreted. Notwithstanding any such holding, alteration or
interpretation, the remainder of the terms and provisions of this Plan shall
remain in full force and effect and shall in no way be affected, impaired, or
invalidated by such holding, alteration, or interpretation. The
Confirmation Order shall constitute a judicial determination and shall provide
that each term and provision of this Plan, as it may have been altered or
interpreted in accordance with the foregoing, is valid and enforceable pursuant
to its terms.
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C.
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Successors
and Assigns
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The
rights, benefits and obligations of any Person named or referred to in this Plan
shall be binding on, and shall inure to the benefit of, any heir, executor,
administrator, successor, or assign of that Person.
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D.
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Payment
of Statutory Fees
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All fees
payable through the Effective Date pursuant to 28 U.S.C. § 1930 shall be paid on
the Effective Date. The Debtors and Reorganized Debtors, as
applicable, shall pay quarterly fees to the U.S. Trustee until the Bankruptcy
Cases is closed or converted and/or the entry of a final decree. In
addition, the Debtors and Reorganized Debtors, as applicable,
shall file any pre-confirmation monthly operating reports not filed as of the
Confirmation hearing in conformance with the U.S. Trustee
guidelines. The U.S. Trustee shall not be required to file a request
for payment of its quarterly fees, which shall be deemed an Allowed
Administrative Claim against the Debtors and their Estates.
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E.
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Payment
of Fees and Expenses of Indenture
Trustee
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On the
Effective Date or as soon as reasonably practicable thereafter, the Debtors or
Reorganized Debtors, as the case may be, shall pay in full in Cash all fees
incurred by the Indenture Trustee and all reasonable expenses, disbursements and
advances incurred or made by the Indenture Trustee, including the reasonable
fees and expenses of the Trustee's agents and counsel (including all fees and
expenses incurred in connection with making distributions to the holders of the
Convertible Debentures under this Plan), whether incurred prior to or after the
Petition Date or prior to or after the Effective Date, up to a maximum of
$110,000. The Indenture Trustee shall submit its invoices and the
invoices of its agents and counsel to counsel for the Debtors, the Reorganized
Debtors, Caerus and the Prepetition Agent so as to be received by
the foregoing parties no later than ten (10) days after entry of the
Confirmation Order, and such parties shall have five (5) Business Days from the
date of delivery of any invoice to object to such invoice. If no
objection is raised within the foregoing timeframe, the Debtors or Reorganized
Debtors shall pay the invoice in full as soon as reasonably practicable after
the later of (x) the Effective Date and (y) the date that the period for
interposing objections has passed. To the extent an objection is raised, the
Debtors or Reorganized Debtors shall pay the undisputed portion of the invoice
(provided the Effective Date has occurred) and the parties shall seek to
consensually resolve the objection. If a consensual resolution is not
achieved within five (5) Business Days of the objection being raised, the
parties may seek to have the objection heard by the Court. Such
payment, together with the distributions to be made under this Plan to the
holders of Convertible Debenture Claims, shall be in full and final satisfaction
of any and all obligations of the Debtors and the holders of the Convertible
Debentures to the Indenture Trustee under or arising out of the
Indenture.
PLAN-40
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F.
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Revocation,
Withdrawal, or Non-Consummation
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The
Debtors reserve the right to revoke or withdraw this Plan prior to the
Confirmation Date and to move the Court for the dismissal of the Bankruptcy
Cases. If the Debtors revoke or withdraw this Plan, or if
Confirmation or consummation of this Plan does not occur then: (a) this Plan
shall be null and void in all respects; (b) any settlement or compromise
embodied in this Plan (including the fixing or limiting to an amount certain any
Claim or Class of Claims), assumption or rejection of executory contracts or
leases effected by this Plan, and any document or agreement executed pursuant to
this Plan, shall be deemed null and void; (c) nothing contained in this Plan,
and no acts taken in preparation for consummation of this Plan, shall (i)
constitute or be deemed to constitute a waiver or release of any Claims by or
against, or any interests in, the Debtors or any other Person, (ii) prejudice in
any manner the rights of the Debtors or any other Person, or (iii) constitute an
admission of any sort by the Debtors or any other Person; (d) the Court shall
give effect to any agreed order or stipulation providing for the lifting of the
automatic stay in favor of the Prepetition Agent; provided, however, that nothing
in this Article XII. E shall alter or limit the effectiveness of any adversary
judgment and (e) either Caerus shall be refunded its Deposit or the Debtors
shall retain the Deposit pursuant to and in accordance with the terms of the
Caerus Plan Sponsorship Agreement and the Bid Procedures Order.
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G.
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Service
of Documents
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Any
notice, request, or demand required or permitted to be made or provided to or
upon the Debtors under this Plan shall be (a) in writing, (b) served on both the
Debtors and the Prepetition Secured Lenders by (i) certified mail, (ii) hand
delivery, (iii) overnight delivery service, (iv) first class mail or (v)
electronic mail, (c) deemed to have been duly given or made when actually
delivered or, in the case of notice by electronic mail, when received and
confirmed by corresponding electronic mail, and (d) addressed as
follows:
If
to the Debtors:
Jonathan
Bloomfield
Chief
Financial Officer
Teton
Energy Corporation
600 17th
Street, Suite 1600 North
Denver,
CO 80202
Facsimile:
303.565.4606
PLAN-41
With
copies to:
Paul A.
Rachmuth
Gersten Savage LLP
600
Lexington Avenue, 9th
Floor
New York, New York 10022
Facsimile: 212.980.5192
Gregory
W. Werkheiser
Morris,
Nichols, Arsht & Tunnell LLP
1201
North Market Street, 18th Floor
P.O. Box
1347
Wilmington,
DE 19899-1347
Facsimile:
302.658.3989
If
to Caerus:
David
Keyte
c/o Davis
Graham & Stubbs LLP
1550
Seventeenth Street, Suite 500
Denver,
Colorado 80202
Facsimile:
303.893.1379
With
copies to:
Laura B.
Gill
Davis
Graham & Stubbs LLP
1550
Seventeenth Street, Suite 500
Denver,
Colorado 80202
Facsimile:
303.893.1379
William
D. Sullivan
Sullivan
Hazeltine Allinson, LLC
4 East
8th
Street, Suite 400
Wilmington,
DE 19801
Facsimile:
(302) 229-0111
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H.
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Plan
Supplement(s)
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Except as
otherwise provided herein, exhibits to this Plan not attached hereto shall be
filed in one or more Plan Supplements by the Exhibit Filing Date. Any
Plan Supplement (and amendments thereto) filed by the Debtors shall be deemed an
integral part of this Plan and shall be incorporated by reference as if fully
set forth herein. Substantially contemporaneously with their filing,
this Plan Supplements may be viewed at the office of the clerk of the Court or
its designee during normal business hours, by visiting the Court’s website at
www.deb.uscourts.gov. Holders
of Claims and/or Interests may obtain a copy of any Plan Supplements upon
written request to the Debtors. The documents contained in any Plan
Supplements shall be approved by the Court pursuant to the Confirmation
Order.
PLAN-42
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I.
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Waiver
of Stay
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Notwithstanding
Bankruptcy Rules 3002(e), 6004(h), and 6006(d), the Debtors shall be authorized
to consummate this Plan and the transactions and transfers contemplated thereby
immediately after entry of the Confirmation Order.
[Remainder
of page intentionally left blank. Signature page
follows.]
PLAN-43
Dated: Wilmington,
Delaware
January 14, 2010
TETON
ENERGY CORPORATION, a Delaware Corporation
TETON
NORTH AMERICA LLC, a Colorado limited liability company
TETON
PICEANCE LLC, a Colorado limited liability company
TETON
DJ LLC, a Colorado limited liability company
TETON
WILLISTON LLC, a Colorado limited liability company
TETON
BIG HORN LLC, a Colorado limited liability company
TETON
DJCO LLC, a Colorado limited liability company
TETON
ORRI LLC, a Colorado limited liability company
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By:
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/s/ Jonathan Bloomfield
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Name:
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Jonathan Bloomfield
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Title:
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Chief Financial
Officer
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PLAN-44