Attached files
UNITED
STATES BANKRUPTCY COURT
THE
SOUTHERN DISTRICT OF NEW YORK
______________________________
In
re: | Chapter
11
| Case
No. 09-13022
WOOZYFLY,
INC. |
|
Debtor. |
______________________________|
ORDER
CONFIRMING THE SECOND AMENDED PLAN
OF REORGANIZATION OF
WOOZYFLY, INC.
Woozyfly,
Inc., the debtor and debtor in possession (the “Debtor”) in the
above
captioned
chapter 11 case (the “Chapter 11 Case”) pending under chapter 11 of title 11 of
the
United
States Code (11 U.S.C. §§ 101 et seq., the “Bankruptcy Code”), having proposed
and
filed the
Second Amended Chapter 11 Plan of Reorganization of Woozyfly, Inc.,
dated
November
23, 2009 (the “Plan”);1
and the Court having entered an Order which permitted the
Debtor to
solicit acceptance to the Plan; and the Court having conducted a hearing on
February
4, 2010,
to consider confirmation of the Plan (the “Hearing”); and the Court having
considered
(a) the
Plan and the exhibits thereto, and (b) the proffered testimony admitted into
evidence at
the
Hearing; and no objections having been lodged to the Plan; and the Court being
familiar with
the Plan
and other relevant factors affecting the Chapter 11 Case; and the Court having
taken
judicial
notice of the entire record of the Chapter 11 Case; and the Debtor having
submitted the
Certification
of Andrea Fischer, Esq. affirming that Classes 3 and 4 had accepted the Plan
and
the Court
having found that due and proper notice has been given with respect to the
Hearing and
1 All capitalized terms used but
not defined herein shall have the respective meanings ascribed to such terms in
the
Plan.
the
deadlines and procedures for objections to the Plan; and upon the record of the
Hearing, and
after due
deliberation thereon, and sufficient cause appearing therefor;
IT IS
HEREBY FOUND AND CONCLUDED,2
that
JURISDICTION AND
VENUE
A. The
Court has jurisdiction to conduct the Hearing and to confirm the
Plan
pursuant
to 28 U.S.C. § 1334.
B.
Confirmation of the Plan is a core proceeding pursuant to 28 U.S.C.
§ 157(b),
and this Court has jurisdiction to enter a final order with respect
thereto.
C. The
Debtor is a proper Debtor under section 109 of the Bankruptcy Code
and is a
proper proponent of the Plan under section 1121(a) of the Bankruptcy
Code.
JUDICIAL
NOTICE
D. This
Court takes judicial notice of the docket of the Chapter 11 Case
maintained
by the Clerk of the Court and/or its duly-appointed agent, including,
without
limitation,
all pleadings and other documents filed, all orders entered, and evidence
and
arguments
made, proffered or adduced at the hearings held before the Court during the
pendency
of the
Chapter 11 Case.
STANDARDS
FOR CONFIRMATION UNDER
SECTION 1129 OF THE
BANKRUPTCY CODE
E.
Section 1129(a)(1). The Plan complies with all applicable provisions
of
the
Bankruptcy Code, including, without limitation, the requirements of sections
1122 and 1123
as follows:3
2 The Findings of Fact and
Conclusions of Law contained herein constitute the findings of fact and
conclusions of law
required
to be entered by this Court pursuant to Rule 52 of the Federal Rules of Civil
Procedure, as made applicable
herein by
Rules 7052 and 9014 of the Federal Rules of Bankruptcy Procedure (the
“Bankruptcy Rules”). To the
extent
any finding of fact constitutes a conclusion of law, it is adopted as such. To
the extent any conclusion of law
constitutes
a finding of fact, it is adopted as such.
2
In accordance with
section 1122(a) of the Bankruptcy Code, Article II of the Plan classifies each
Claim against and Interest in the Debtor into a class containing only
substantially similar Claims or Interests;
In accordance with
section 1123(a)(1) of the Bankruptcy Code, Article II of the Plan properly
classifies all Claims and Interests that require classification;
In accordance with
section 1123(a)(2) of the Bankruptcy Code, Article III of the Plan properly
identifies and describes each class of Claims that is unimpaired by the
Plan;
In accordance with
section 1123(a)(3) of the Bankruptcy Code, Article III of the Plan properly
identifies and describes the treatment of each impaired class of Claims or
Interests;
In accordance with
section 1123(a)(4) of the Bankruptcy Code, the Plan provides the same treatment
for each Claim or Interest in a particular class unless the holder of such a
Claim or Interest agrees to less favorable treatment;
In accordance with
section 1123(a)(5) of the Bankruptcy Code, the Plan provides adequate means for
its implementation, including, without limitation, the provisions regarding
post-Effective Date corporate management, governance, and actions in Articles V
and VI;
In accordance with
section 1123(a)(6) of the Bankruptcy Code, the Reorganized Debtor’s operating
agreement shall contain provisions prohibiting the issuance of non-voting equity
securities;
In accordance with
section 1123(a)(7) of the Bankruptcy Code, the provisions of the Plan and the
Reorganized Debtor’s operating agreement regarding the manner of selection of
officers and directors are consistent with the interests of creditors and equity
security holders and with public policy.
F.
Section 1129(a)(2). The Debtor has complied with all applicable
provisions
of the Bankruptcy Code, including, without limitation, the requirements of
sections
1125 and 1126 as
follows:4
3 See S. Rep. No. 989, 95th
Cong., 2d Sess. 126, reprinted
in 1978 U.S.C.C.A.N. 5787, 5912 (1978); H.R. Rep. No.
595, 95th
Cong., 1st Sess. 412, reprinted in 1978
U.S.C.C.A.N. 5962, 6368 (1977); See In re Johns-Manville
Corp.,
68 B.R.
618, 629-30 (Bankr. S.D.N.Y. 1986), as modified, 78 B.R. 407
(S.D.N.Y. 1987), aff’d,
843 F.2d 636 (2d Cir.
1988)
(“Objections to confirmation raised under § 1129(a)(1) generally involve the
failure of a plan to conform to the
requirements
of § 1122(a) or § 1123.”).
4 See In re Johns-Manville
Corp., 68 B.R. 618, 629-30 (Bankr. S.D.N.Y. 1986), as modified, 78 B.R. 407
(S.D.N.Y.
1987),
aff’d 843 F.2d 636 (2d
Cir. 1988) (“Objections to confirmation raised under § 1129(a)(2) generally
involve the
alleged
failure of the plan proponent to comply with § 1125 and § 1126 of the
Code”).
3
All Persons entitled to
receive notice of the Disclosure Statement, the Plan and the Hearing have
received proper, timely, and adequate notice in accordance with the Approval and
Procedures Order and the applicable provisions of the Bankruptcy Code and the
Bankruptcy Rules, and have had an opportunity to appear and be heard with
respect thereto;
The Debtor has solicited
votes with respect to the Plan in good faith and in a manner consistent with the
Bankruptcy Code, the Bankruptcy Rules and any applicable orders of this Court.
Accordingly, the Debtor is entitled to the protections afforded by section
1125(e) of the Bankruptcy Code and the exculpation provisions set forth in
Article IX of the Plan;
The Plan was voted on by
two classes of impaired Claims that were entitled to vote pursuant to the
Bankruptcy Code and the Bankruptcy Rules, and Class 5 did not vote on was deemed
to reject;
Each of Classes 3 and 4
have accepted the Plan by at least two-thirds in amount and a majority in number
of the Claims in such classes actually voting; and
The determination of
Debtor with respect to the voting on the Plan validly and correctly sets forth
the tabulation of votes, as required by the Bankruptcy Code and Bankruptcy
Rules.
G.
Section 1129(a)(3). The Plan has been proposed in good faith and not
by
any means
forbidden by law. In so finding, the Court has considered the totality of
the
circumstances
in this Chapter 11 Case. The Plan is the result of arm’s length negotiations
and
achieves
the goal of consensual reorganization embodied by the Bankruptcy Code. Further,
the
Plan’s
indemnification, exculpation, release, and injunction provisions have been
negotiated in
good
faith, are consistent with sections 105, 524(e), 1123(b)(6), 1129, and 1142 of
the
Bankruptcy
Code, and are each necessary to the Debtor’s successful
reorganization.
H.
Section 1129(a)(4). No payment for services or costs in connection
with
the
Chapter 11 Case or the Plan has been made by the Debtor other than payments that
have been
authorized
by order of the Court. All such payments to be made will be subject to review
and
approval
by this Court.
4
I.
Section 1129(a)(5). The Debtor has disclosed the identity and nature
of
compensation
of all insiders to be employed or retained by the Reorganized Debtor, as well
as
the
identities of each Person that is proposed to serve as an officer or director
thereof. Such
disclosure
by the Debtor is due and proper and the appointment or continuation in office of
the
identified
Persons is consistent with the interests of creditors, equity security holders,
and with
public
policy.
J.
Section 1129(a)(6). The Plan does not provide for any changes in
rates
that
require regulatory approval of any governmental agency.
K.
Section 1129(a)(7). Each holder of an impaired Claim that has not
accepted
the Plan will, on account of such Claim receive or retain property under the
Plan having
a value,
as of the Effective Date, that is not less than the amount that such holder
would receive
or retain
if the Debtor were liquidated under chapter 7 of the Bankruptcy
Code.
L.
Section 1129(a)(8). The Plan has been accepted by all impaired classes
of
Claims
and Interests. Nevertheless, as more fully explained below, the Plan is
confirmable
because
it satisfies 1129(b)(1) of the Bankruptcy Code with respect to such
non-accepting
classes
of Claims and Interests.
M.
Section 1129(a)(9). The Plan provides treatment for Administrative
Claims
and priority Claims that is consistent with the requirements of section
1129(a)(9) of the
Bankruptcy
Code.
N.
Section 1129(a)(10). The Plan has been accepted by at least one class
of
impaired
Claims that was entitled to vote on the Plan without including any acceptance of
the
Plan by
any insider.
5
O.
Section 1129(a)(11). Confirmation of the Plan is not likely to be
followed
by the
liquidation or the need for the further financial reorganization of the
Reorganized Debtor.
P.
Section 1129(a)(12). The Plan provides for the payment of all fees
payable
under section 1930, title 28, United States Code by the Debtor on the Effective
Date (or
as soon
as practicable thereafter). After the Effective Date and until this Chapter 11
Case is
closed,
converted, or dismissed, the Plan provides for the payment by the Reorganized
Debtor of
all such
fees as they become due.
Q.
Section 1129(b)(2). The Plan does not discriminate unfairly and is
fair
and
equitable to each class of Claims or Interests that has not accepted the Plan.
Holders of
Claims in
Class 3 and 4 under the Plan will receive consideration that is significantly
different in
nature
and quality than the cash they are owed and that is unlikely to be worth more
than the full
amount of
their Claims. Holders of Interests will receive no property under the
Plan.
Nevertheless,
the Plan is fair and equitable because it does not provide a recovery to any
holder
of an
Interest that is junior to the Class 4 of unsecured creditors that are not being
paid in full.
Similarly,
the Plan does not “discriminate unfairly” because each dissenting class is
treated
substantially
equally to similarly situated classes and no holder of a Claim or Interest is
likely to
receive
more than it is legally entitled to receive on account of its Claim or
Interest.
R.
Section 1129(c). The Plan is the only plan that has been filed in
the
Chapter
11 Case that has been found to satisfy the requirements of subsections (a) and
(b) of
section
1129 of the Bankruptcy Code. Accordingly, the requirements of section 1129(c) of
the
Bankruptcy
Code have been satisfied.
S.
Section 1129(d). No party in interest, including but not limited to
any
governmental
unit, has requested that the Court deny confirmation of the Plan on grounds
that
6
the
principal purpose of the Plan is the avoidance of taxes or the avoidance of the
application of
section 5
of the Securities Act of 1933, and the principal purpose of the Plan is not
such
avoidance.
Accordingly, the Plan satisfies the requirements of section 1129(d) of
the
Bankruptcy
Code.
T. The
Reorganized Debtor Will Not be Insolvent Nor Left With
Unreasonably
Small Capital. As of the occurrence of the Effective Date and after taking
into
account
the transactions contemplated by the Plan, the Reorganized Debtor’s capital is
not
unreasonably
small to its business or any contemplated or undertaken
transaction.
U. Merger
and Other Documents. The Plan Proponents have made adequate
and
sufficient disclosure of (i) the adoption of new or amended and restated
certificates of
incorporation
and bylaws or similar constituent documents for the Reorganized Debtor, (ii)
the
distributions
to be made pursuant to the Plan, (iii) the issuance for distribution, in
accordance
with the
terms of the Plan, of the Reorganized Debtor Common Stock and (iv) the agreement
and
plan of
merger and the Merger Documents effectuating the Merger.
V.
Merger. The Merger, as memorialized in the Plan and the Plan
Supplement,
is essential to the Plan and provides material and substantial consideration to
the
Post-Confirmation
Assets to provide meaningful distributions to the Creditors that would
be
impossible
to deliver without the Merger. The Merger is fair and reasonable and in the
best
interests
of the Debtor, Creditors and the Estate.
W.
Distributions of Reorganized Debtor Common Stock. The issuance and
distribution
of the Reorganized Debtor Common Stock to holders of the DIP Claim, and
Claims
in Class
3 and Class 4 as contemplated by the Plan, constitutes the offer sale of
security of the
Debtor,
of an affiliate participating in a joint plan with the Debtor, or of a successor
to the Debtor
7
under the
Plan, and are exempt from the requirements of section 5 of the Securities Act of
1933,
as
amended (the “Securities Act” ), and any other federal, state, or local law
securities
registration
requirements by virtue of section 1145 of Bankruptcy Code. Without limiting
the
forgoing,
pursuant to Section 1145(a)(1) of the Bankruptcy Code, the offering, issuance
and
distribution
of the Reorganized Debtor Common Stock on behalf of the DIP Claim, and to
Class
3 and
Class 4 pursuant to the Plan shall be exempt from Section 5 of the Securities
Act and any
state
local law requiring registration prior to the offering, issuance, distribution
or sale of
securities.
All Reorganized Debtor Common Stock to be issued pursuant to the Plan to
the
Holders
of the DIP Claim, and Allowed Claims in Class 3 and Class 4 shall be issued
by
Reorganized
Debtor to the Holder of such Claim for which such securities are to be issued
under
the
Plan.
ACCORDINGLY,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED,
that
A.
General.
1. The
Plan is hereby confirmed and the record of the Hearing is hereby
closed.
2. In
accordance with section 1141(a) of the Bankruptcy Code and upon the
occurrence
of the Effective Date, the Plan shall be binding upon and inure to the benefit
of (i) the
Debtor
and its respective successors and assigns, (ii) the holders of Claims and
Interests and their
respective
successors and assigns (whether or not they voted to accept the Plan, whether or
not
they are
impaired under the Plan, and whether or not any such holder has filed, or is
deemed to
have
filed a proof of Claim or proof of Interest), (iii) any other Person giving,
acquiring, or
receiving
property under the Plan, (iv) any party to an executory contract or unexpired
lease of
the
Debtor and (v) each of the foregoing’s respective heirs, successors, assigns,
trustees,
executors,
administrators, affiliates, officers, directors, agents, representatives,
attorneys,
8
beneficiaries,
or guardians, if any. All settlements, compromises, releases,
discharges,
exculpations
and injunctions set forth in the Plan shall be, and hereby are, effective and
binding
on all
Persons who may have had standing to assert such settled, released,
discharged,
exculpated,
or enjoined Causes of Action and no other Entity shall possess such standing
to
assert
such Causes of Action after the Effective Date.
3. On the
Effective Date, except as otherwise provided in the Plan, title to
all
property
of the Estate shall be vested in the Reorganized Debtor, in accordance with the
terms of
the Plan,
free and clear of all liens, Claims, and encumbrances and, in accordance with
section
1141 of
the Bankruptcy Code, any prohibitions upon such being null and void without
further
action.
B.
Discharge and Releases.
4. From
and after the Effective Date, neither the Debtor, its Affiliates, any of
their
respective
directors, officers, employees, members, attorneys, consultants, advisors, and
agents
(acting
in such capacity), shall have or incur any liability to any Entity for any act
taken or
omitted
to be taken in connection with the Debtor’s restructuring, including the
formulation,
preparation,
dissemination, implementation, confirmation or approval of the Plan, or
any
contract,
instrument, release or other agreement or document provided for, or contemplated
in
connection
with, the consummation of the transactions set forth in the Plan; provided,
however,
that the
foregoing provisions shall not affect the liability of any Person that otherwise
would
result
from any such act or omission to the extent that act or omission is determined
in a Final
Order to
have constituted gross negligence or willful misconduct. Any of the foregoing
parties
in all
respects shall be entitled to rely upon the advice of counsel with respect to
their duties and
responsibilities
under the Plan.
9
Nothing
in this Order or in section 6.14 of the Plan shall (1) be construed
to
release
or exculpate any entity from fraud, gross negligence, willful misconduct,
malpractice,
criminal
conduct, unauthorized use of confidential information that causes damages, or
ultra
vires
acts, or (ii) limit the liability of the professionals of the debtor or the
reorganized debtor to
their
respective clients pursuant to (x) DR 6-102 of the New York Lawyer’s Code of
Professional
Responsibility
or (y) any similar disciplinary rule imposed upon such professionals by the
code
of
professional responsibility of any other state.
5. On the
Effective Date, and except as otherwise provided in the Plan or in
this
Order,
entry of this Order acts as a discharge of and injunction against all Causes of
Action
against
the Debtor or its Estate that arose before the Effective Date to the extent
permitted by
section
1141 of the Bankruptcy Code.
6. As of
the Effective Date, except as otherwise provided in the Plan or in
this
Order,
all Entities who have been, are, or may be holders of Claims against or
Interests in the
Debtor
shall be enjoined from taking any actions described in section 9.2 of the Plan
against or
affecting
the Debtor or its Estate, Assets, or Indemnities (to the extent such would
result in an
Indemnified
Obligation), other than actions brought to enforce any rights or obligations
under the
Plan and
appeals, if any, from this Order.
7. As of
the Effective Date, the Debtor shall be deemed to have waived and
released
its
present and former directors, officers, employees, members, attorneys,
consultants, advisors,
and
agents (acting in such capacity) who were directors, officers, employees,
members,
attorneys,
consultants, advisors or agents, respectively, at any time during the Chapter 11
Case
from any
and all Claims or Causes of Action of the Debtor, including without limitation,
Causes
of Action
which the Debtor as Debtor in possession otherwise has legal power to
assert,
10
compromise,
or settle in connection with the Chapter 11 Case, arising on or prior to the
Effective
Date;
provided, however, that (i) contractual obligations owed by such Person to the
Debtor and
(ii)
Causes of Action relating to such Person’s actions or omissions determined in a
Final Order
to have
constituted gross negligence or intentional fraud shall not be waived and
released.
8. As of
the Effective Date, all Entities are permanently enjoined from
commencing,
conducting,
or continuing in any manner, directly or indirectly, or otherwise prosecuting,
any
action,
suit, or proceeding of any kind, on account of any Cause of Action which is
exculpated,
discharged,
or released under the Plan or this Order.
C.
Plan Implementation.
9. The
Debtor and Reorganized Debtor, as the case may be, and any
authorized
officer
thereof, are authorized to undertake or cause to be undertaken any and all acts
and actions
contemplated
by the Plan or required to consummate and implement the provisions of the
Plan,
prior to,
on, and after the Effective Date, including without limitation, entering,
executing,
delivering,
filing or recording any agreements, instruments, or documents necessary
to
implement
the Plan (including, without limitation, filing amended or new certificates
of
incorporation,
by-laws or other corporate documents with the appropriate
governmental
authorities)
and all such actions taken or caused to be taken shall be deemed to have
been
authorized
and approved by the Bankruptcy Court.
10. On
the Effective Date, except as otherwise provided in the Plan or this Order,
all
agreements,
instruments, indentures, notes, warrants, options, share certificates, or
other
documents
(other than any insurance policy of the Debtor) evidencing, giving rise to,
or
governing
any Claim or Interest shall be deemed canceled and annulled without further act
or
action
under any applicable agreement, law, regulation, order, or rule, and the
obligations of the
11
Debtor
under such agreements, instruments, indentures, notes, warrants, options,
share
certificates,
or other documents shall be discharged.
11. Each
federal, state, commonwealth, local, foreign or other governmental agency
is
hereby
directed and authorized to accept any and all documents, and instruments
necessary or
appropriate
to effectuate, implement, or consummate the transactions contemplated by the
Plan
and this
Order.
12. All
transactions effected by the Debtor during the pendency of the Chapter
11
Case from
the Petition Date through the Confirmation Date are approved and
ratified.
D.
Merger
13. The
Merger contemplated in the Plan is hereby approved. The Debtor or
any
officer
thereof, are hereby authorized to take any and all actions necessary or
appropriate to
implement,
effectuate, and consummate any and all documents or transactions in furtherance
of
the
Merger pursuant to the Plan. Except for any restraints set forth in the Plan,
the approvals and
authorizations
specifically set forth in this Confirmation Order are nonexclusive and are
not
intended
to limit the authority of the Debtor or the Reorganized Debtor or any officer
thereof,
from
taking any action necessary to effectuate the Merger Transaction. The
effectiveness of the
Merger is
subject to additional conditions set forth in the Merger Documents.
E.
Plan Distributions.
14. On
and after the Effective Date, distributions on account of Allowed Claims
shall
be
effectuated pursuant to the Plan.
15. All
applications for payment of fees and reimbursement of expenses by
professionals
retained in this Chapter 11 Case as well as parties seeking compensation
pursuant
to
section 503 of the Bankruptcy Code must be filed with the Court by the date that
is no later
than
forty-five (45) days after the Effective Date (or, if such date is not a
Business Day, by the
12
next
Business Day thereafter). Any Entity that fails to file such an application or
request on or
before
such date shall be forever barred from asserting such Administrative Claim
against the
Debtor or
the Reorganized Debtor, or their property, and the holder thereof shall be
enjoined
from
commencing or continuing any action, employment of process or act to collect,
offset or
recover
such Administrative Claim. Applications for approval of professionals’ fees
not
previously
awarded during the pendency of the Chapter 11 Case may be included in
such
professionals’
final applications as set forth herein and in the Plan. Objections, if any, to
Fee
Claims
shall be filed and served not later than five (5) business days prior to the
date set by the
Court for
the hearing to consider such requests.
F.
Reorganized Debtor Common Stock
16.
Issuance of Reorganized Debtor Common Stock: On the Effective Date,
the
Reorganized
Debtor shall issue shares as follows (a) 1,760,000 shares of Reorganized
Debtor
Common
Stock, which shall be distributed to the Noteholders; (b) 500,000 shares
of
Reorganized
Debtor Common Stock and 2,140,00 shares of Reorganized Debtor
Convertible
Preferred
Stock, which shall be distributed to the DIP Lender and (c) 26,443,075 shares
of
Reorganized
Debtor Common Stock, which shall be distributed to the Old STW
Shareholders.
The
Reorganized Debtor shall be responsible for distribution of such shares as
provide in the
Plan.
Pursuant to Section 1145(a)(1) of the Bankruptcy Code, the offering, issuance
and
distribution
of the Reorganized Debtor Common Stock on behalf of the DIP Claim, and to
Class
3 and
Class 4 pursuant to the Plan shall be exempt from Section 5 of the Securities
Act and any
state or
local law requiring registration prior to the offering, issuance, distribution
or sale of
securities.
17.
Cancellation of Instrument and Stock. On the Effective Date, other than
the
Reorganized
Debtor Common Stock and the common stock, options and warrants or
other
13
securities
issued or to be issued to the holders (or other persons or entities entitled to
be issued
such
interests) of any such interests as of the Effective Date, (i) all Interests in
the Debtor; (ii)
and all
stock options (including, but not limited to, all stock options granted to the
Debtor’s
employees)
in the Debtor; (iii) any and all warrants in the Debtor; and (iv) any
instrument
evidencing
or creating any indebtedness or obligation of the Debtor, except such
instruments that
are
issued under the Plan or the Merger Documents, shall be cancelled and
extinguished.
Additionally,
as of the Effective Date, all Interests in the Debtor, and any and all
warrants,
options,
rights, or interests with respect to equity interests in the Debtor that have
been
authorized
to be issued but that have not been issued shall be deemed cancelled and
extinguished
without
any further action of any party.
G.
Miscellaneous.
18. The
business and assets of the Debtor shall remain subject to the jurisdiction
of
this
Court until the Effective Date. From and after the Effective Date, this Court
shall retain and
have
exclusive jurisdiction of all matters arising out of this Chapter 11 Case
pursuant to, and for
purposes
of, subsection 105(a) and section 1142 of the Bankruptcy Code.
19. The
Debtor or its authorized agent(s) shall serve a notice of entry of this Order
by
regular
mail, as provided in Bankruptcy Rule 2002(f)(7), to all parties previously
served with the
Confirmation
Hearing Notice, within ten (10) Business Days from the date of entry of this
Order.
20.
Except as otherwise provided in the Plan and this Order, notice of all
subsequent
pleadings
in the Chapter 11 Case shall be limited to counsel for the Debtor, the U.S.
Trustee and
any party
known to be directly affected by the relief sought.
21. The
provisions of Bankruptcy Rule 3020(e) shall not apply to this
Confirmation
Order,
and the Debtor is authorized to consummate the Plan immediately upon entry of
this
Order.
14
22.
Failure specifically to include or reference particular sections or provisions
of the
Plan or
any related agreement or document in this Order shall not diminish or impair
the
effectiveness
of such sections or provisions, it being the intent of the Court that the Plan
be
confirmed,
and such related agreements or documents be approved, in their
entirety.
23. All
Entities holding Claims against the Debtor that are treated under the Plan
are
hereby
directed to execute, deliver, file, or record any document, and to take any
action
necessary
to implement, consummate, and otherwise effect the Plan in accordance with its
terms,
and all
such entities shall be bound by the terms and provisions of all documents
executed and
delivered
by them in connection with the Plan.
24. In
accordance with section 1142 of the Bankruptcy Code, the Debtor and
the
Reorganized
Debtor, and any other Entity designated pursuant to the Plan are hereby
authorized,
empowered
and directed to issue, execute, deliver, file and record any document, and to
take any
action
necessary or appropriate to implement, consummate and otherwise effectuate the
Plan in
accordance
with its terms, and all such Entities shall be bound by the terms and provisions
of all
documents
issued, executed and delivered by them as necessary or appropriate to implement
or
effectuate
the transactions contemplated by the Plan.
25.
Pursuant to Section 3.5 of the Plan, all unpaid U.S. Trustee Fees incurred
before
the
Effective Date shall be timely paid by the Debtor in the ordinary course as such
U.S. Trustee
Fees
become due and payable. All unpaid U.S. Trustee Fees incurred after the
Effective Date
shall be
timely paid by the Reorganized Debtor in the ordinary course as such U.S.
Trustee Fees
become
due and payable. Until the case is closed, the Reorganized Debtor will comply
with
section
1106(a)(7) of the Bankruptcy Code and Rule 2015(a)(5) regarding
post-confirmation
reporting.
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26. In
the event of an inconsistency between the Plan, on the one hand, and any
other
agreement,
instrument, or document intended to implement the provisions of the Plan, on
the
other,
the provisions of the Plan shall govern (unless otherwise expressly provided for
in such
agreement,
instrument, or document). In the event of any inconsistency between the Plan,
Plan
Document
or any agreement, instrument, or document intended to implement the Plan, on
the
one hand,
and this Order, on the other, the provisions of this Order shall
govern.
27. The
provisions of this Order are integrated with each other and are
non-severable
and
mutually dependent.
28. This
Confirmation Order is a final order and the period in which an appeal
must
be filed
shall commence immediately upon the entry hereof.
29. The
Plan shall be substantially consummated when the transactions described
in
section
5.1 of the Plan shall have occurred or shall have been waived or otherwise
provided for.
Dated: New
York, New York
February
9, 2010
_______s/ James M.
Peck_______________
HONORABLE
JAMES M. PECK
UNITED
STATES BANKRUPTCY JUDGE
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