Attached files
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8-K - FORM 8-K - MiddleBrook Pharmaceuticals, Inc. | c10657e8vk.htm |
Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
DISTRICT OF DELAWARE
In re:
|
) | Chapter 11 | ||||
) | ||||||
MIDDLEBROOK PHARMACEUTICALS, INC.,1
|
) | Case No. 10-11485 (MFW) | ||||
) | ||||||
Debtor.
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) | |||||
) | ||||||
DEBTORS MODIFIED PLAN OF LIQUIDATION
ALSTON & BIRD LLP | ||
Matthew W. Levin | ||
David A. Wender | ||
Sage M. Sigler | ||
1201 West Peachtree Street, N.E. | ||
Atlanta, Georgia 30309-3424 | ||
Telephone: (404) 881-7940 | ||
Facsimile: (404) 881-7777 | ||
- and - | ||
YOUNG CONAWAY STARGATT & TAYLOR, LLP | ||
Joel A. Waite (No. 2925) | ||
Kenneth J. Enos (No. 4544) | ||
The Brandywine Building | ||
1000 West Street, 17th Floor | ||
P.O. Box 391 | ||
Wilmington, Delaware 19801-0391 | ||
Telephone: (302) 571-6600 | ||
Facsimile: (302) 571-1253 | ||
Attorneys for the Debtor |
Dated: December 29, 2010
1 | The last four digits of the Debtors taxpayer
identification number are 8264. The Debtors mailing address is 7 Village
Circle, Suite 100, Westlake, Texas 76262. |
ARTICLE I: DEFINED TERMS AND RULES OF INTERPRETATION |
1 | |||
1.1 Administrative Expense |
1 | |||
1.2 Allowed |
1 | |||
1.3 Applicable Rate of Interest |
2 | |||
1.4 Assets |
2 | |||
1.5 Ballot |
2 | |||
1.6 Bankruptcy Case |
2 | |||
1.7 Bankruptcy Code |
2 | |||
1.8 Bankruptcy Court |
2 | |||
1.9 Bankruptcy Rules |
2 | |||
1.10 Business Day |
2 | |||
1.11 Cash |
2 | |||
1.12 Causes of Action |
2 | |||
1.13 Claim |
2 | |||
1.14 Class |
3 | |||
1.15 Confirmation Date |
3 | |||
1.16 Confirmation Hearing |
3 | |||
1.17 Confirmation Order |
3 | |||
1.18 Creditors Committee |
3 | |||
1.19 Debtor |
3 | |||
1.20 Disallowed |
3 | |||
1.21 Disbursing Agent |
3 | |||
1.22 Disclosure Statement |
3 | |||
1.23 Disputed Claim |
3 | |||
1.24 Distribution |
3 | |||
1.25 Distribution Record Date |
3 | |||
1.26 DTC |
3 | |||
1.27 Effective Date |
3 | |||
1.28 Equity Committee |
4 | |||
1.29 Estate |
4 | |||
1.30 Estate Assets |
4 | |||
1.31 Exhibit |
4 | |||
1.32 Federal Judgment Rate |
4 | |||
1.33 File, Filed or Filing |
4 | |||
1.34 Final Distribution |
4 | |||
1.35 Final Order |
4 | |||
1.36 General Unsecured Claim |
4 | |||
1.37 Governmental Unit |
5 | |||
1.38 Holder |
5 | |||
1.39 Impaired |
5 | |||
1.40 Initial Allowed Class 3 Claim List |
5 | |||
1.41 Initial Distribution Date |
5 | |||
1.42 Interest |
5 | |||
1.43 Interest Rate Reserve |
5 | |||
1.44 Interim Compensation Order |
5 |
- i -
1.45 KCC |
5 | |||
1.46 Lien |
5 | |||
1.47 Local Rules |
5 | |||
1.48 MEIP |
5 | |||
1.49 Noticing Agent Website |
6 | |||
1.50 Pension and Retirement Plans |
6 | |||
1.51 Person |
6 | |||
1.52 Petition Date |
6 | |||
1.53 Plan |
6 | |||
1.54 Plan Administrator |
6 | |||
1.55 Plan Administrator Agreement |
6 | |||
1.56 Plan Committee |
6 | |||
1.57 Plan Committee Agreement |
6 | |||
1.58 Plan Documents |
6 | |||
1.59 Plan Supplement |
6 | |||
1.60 Plan Supplement Filing Deadline |
6 | |||
1.61 Post-Effective Date Debtor |
6 | |||
1.62 Priority Non-Tax Claim |
7 | |||
1.63 Priority Tax Claim |
7 | |||
1.64 Pro Rata |
7 | |||
1.65 Record Date |
7 | |||
1.66 Record Holder |
7 | |||
1.67 Reinstated or Reinstatement |
7 | |||
1.68 Released Parties |
7 | |||
1.69 Reserve Account |
8 | |||
1.70 Schedules |
8 | |||
1.71 Secured Claim |
8 | |||
1.72 Subsequent Distribution Date |
8 | |||
1.73 Unimpaired |
8 | |||
ARTICLE II: CLASSIFICATION OF CLAIMS AND INTERESTS |
9 | |||
2.1 Unclassified Claims |
10 | |||
2.2 Classes of Claims and Interests |
10 | |||
ARTICLE III: TREATMENT OF CLAIMS AND INTERESTS |
10 | |||
3.1 Unclassified Claims |
10 | |||
3.2 Classes of Claims and Interests |
11 | |||
3.3 Special Provision Regarding Unimpaired Claims |
12 | |||
ARTICLE IV: ACCEPTANCE OR REJECTION OF THE PLAN |
12 | |||
4.1 Acceptance by an Impaired Class |
12 | |||
4.2 Presumed Acceptances or Rejections by Various Classes |
13 | |||
4.3 Summary of Classes Voting on this Plan |
13 | |||
4.4 Confirmation Pursuant to Section 1129(a) of the Bankruptcy Code |
13 | |||
4.5 Non-Consensual Confirmation |
13 |
- ii -
ARTICLE V: MEANS FOR IMPLEMENTATION OF THE PLAN |
13 | |||
5.1 Bar Date for Administrative Expenses |
13 | |||
5.2 Cancelation of Claims and Interests |
13 | |||
5.3 Revesting of Estate Assets |
14 | |||
5.4 Preservation and Retention of Causes of Action, Defenses of the Debtor,
and Rights to Object to Claims |
14 | |||
5.5 Effective Date |
14 | |||
5.6 The Plan Administrator |
14 | |||
5.7 Limitations on Liability |
14 | |||
5.8 Rights, Powers, and Duties of the Post-Effective Date Debtor and the Plan
Administrator |
14 | |||
5.9 Compensation of the Plan Administrator |
15 | |||
5.10 Successor Plan Administrator |
15 | |||
5.11 Continued Corporate Existence |
16 | |||
5.12 Directors of the Debtor |
16 | |||
5.13 Intentionally Omitted |
16 | |||
5.14 Plan Committee |
16 | |||
ARTICLE VI: PROVISIONS GOVERNING DISTRIBUTIONS |
17 | |||
6.1 Payment of Administrative Expenses |
17 | |||
6.2 Payment of Allowed Priority Tax Claims |
17 | |||
6.3 Distribution to Holders of Class 1 and 2 Claims |
17 | |||
6.4 Distribution to Holders of Class 3 Claims |
17 | |||
6.5 Distribution to Holders of Class 4 Interests |
18 | |||
6.6 Establishment of Reserve Account |
18 | |||
6.7 Final Distribution |
18 | |||
6.8 Delivery of Distributions |
19 | |||
6.9 Distributions by Disbursing Agent |
19 | |||
6.10 Undeliverable and Unclaimed Distributions |
19 | |||
6.11 Objections to Claims |
19 | |||
6.12 No Distributions Pending Allowance |
20 | |||
6.13 Contingent and Unliquidated Claims |
20 | |||
ARTICLE VII: TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES |
20 | |||
7.1 Rejection of Remaining Executory Contracts |
20 | |||
7.2 Rejection Claims |
20 | |||
ARTICLE VIII: CONFIRMATION AND CONSUMMATION OF THE PLAN |
20 | |||
8.1 Conditions to Confirmation |
20 | |||
8.2 Conditions to the Effective Date |
21 | |||
8.3 Waiver of Conditions to the Effective Date |
21 | |||
8.4 Effect of Nonoccurrence of Conditions to the Effective Date |
21 | |||
ARTICLE IX: EFFECT OF PLAN CONFIRMATION |
21 | |||
9.1 Binding Effect |
21 | |||
9.2 Exculpation |
21 | |||
9.3 Injunction Related to Exculpation |
22 | |||
9.4 Survival of Indemnification Obligations |
22 | |||
9.5 Intentionally Omitted |
22 | |||
9.6 Satisfaction of Claims and Termination of Interests |
22 | |||
9.7 Injunction |
22 | |||
9.8 Term of Bankruptcy Injunction or Stays |
23 |
- iii -
ARTICLE X: MISCELLANEOUS PROVISIONS |
23 | |||
10.1 Retention of Jurisdiction |
23 | |||
10.2 Governing Law |
24 | |||
10.3 Headings |
24 | |||
10.4 Time |
24 | |||
10.5 Severability |
24 | |||
10.6 Modification |
24 | |||
10.7 Revocation |
25 | |||
10.8 Plan Controls |
25 | |||
10.9 Statutory Fees |
25 | |||
10.10 Dissolution of the Creditors Committee and Equity Committee |
25 | |||
10.11 Claims Agent |
25 | |||
10.12 Dissolution of Post-Effective Date Debtor |
25 | |||
10.13 Effectuating Documents |
26 | |||
10.14 Operating Reports and U.S. Trustee Fees |
26 | |||
10.15 No Effect on the MEIP |
26 | |||
10.16 Final Decree |
26 | |||
10.17 Post-Confirmation Notice |
26 | |||
10.18 Section 1146 Exemption |
26 | |||
ARTICLE XI: FINAL FEE HEARING |
26 | |||
11.1 The Professional Fee Claim Bar Date |
26 | |||
11.2 Final Fee Hearing |
27 | |||
ARTICLE XII: REQUEST FOR CONFIRMATION |
27 | |||
12.1 Request for Confirmation |
27 |
- iv -
INTRODUCTION
MiddleBrook Pharmaceuticals, Inc. (the Debtor), proposes the following modified plan
of liquidation for the resolution of the outstanding claims against and interests in the Debtor.
Reference is made to the Disclosure Statement (as defined herein), distributed contemporaneously
herewith, for a discussion of the Debtors history, business, properties and operations, risk
factors, a summary and analysis of this Plan (as defined herein), and certain related matters.
Subject to certain restrictions and requirements set forth herein and in 11 U.S.C. § 1127 and Fed.
R. Bankr. P. 3019, the Debtor reserves the right to alter, amend, modify, revoke or withdraw this
Plan prior to its substantial consummation in accordance with the terms hereof, the Confirmation
Order (as defined herein), and the Bankruptcy Code (as defined herein).
ARTICLE I
DEFINED TERMS AND RULES OF INTERPRETATION
A. Defined Terms. As used herein, capitalized terms shall have the meanings set forth
below. Any term that is not otherwise defined herein, but that is used in the Bankruptcy Code, the
Bankruptcy Rules or the Local Rules, shall have the meaning given to that term in the Bankruptcy
Code, the Bankruptcy Rules or the Local Rules, as applicable.
1.1 Administrative Expense means an expense of the Debtor for costs and expenses of
administration of the Bankruptcy Case (including, without limitation, expenses arising under
Sections 327, 328, 330, 363, 364(c)(1), 365, 503(b), 507(a)(2) and 1114(e) of the Bankruptcy Code)
including, without limitation, (a) any actual and necessary costs and expenses of preserving the
Debtors Estate and operating the business of the Debtor; (b) all compensation for legal,
financial, advisory, accounting and other services and reimbursement of expenses Allowed by the
Bankruptcy Court under Sections 328, 330 or 503(b) of the Bankruptcy Code; (c) any indebtedness or
obligations incurred or assumed by the Debtor, as debtor in possession, during the Bankruptcy Case;
and (d) out-of-pocket expenses incurred by members of the Creditors Committee or Equity Committee
(excluding any fees or expenses for legal or financial advisors except as otherwise provided
herein). All fees and charges assessed against the Debtors Estate under Section 1930, Chapter
123, of Title 28 of the United States Code are excluded from the definition of Administrative
Expense and shall be paid in accordance with Section 10.8 of the Plan.
1.2 Allowed means, with respect to a Claim, Administrative Expense or Interest against
the Debtor, or any portion thereof, in any Class or category specified, (a) a Claim or Interest
which has been listed by the Debtor in its Schedules, as may be amended by the Debtor from time to
time, in accordance with Bankruptcy Rule 1009, as liquidated in amount and not disputed or
contingent and for which no contrary assertion has been filed, (b) a Claim, Administrative Expense
or Interest as to which no objection or request for estimation has been filed within the later of
(i) sixty (60) days after the Effective Date or (ii) sixty (60) days after the filing of such
Claim, Administrative Expense or Interest, subject to further extension by the Bankruptcy Court for
good cause shown, or as to which any objection
has been determined by a Final Order to the extent such objection is determined in favor of
the respective Holder of such Claim or Interest; or (c) a Claim, Administrative Expense or Interest
that is expressly allowed (i) by a Final Order, or (ii) pursuant to the terms of this Plan;
provided, however, that Claims or Interests allowed solely for the purpose of voting to accept or
reject the Plan pursuant to an order of the Bankruptcy Court shall not be considered Allowed
Claims or Interests hereunder.
- 1 -
1.3 Applicable Rate of Interest shall mean, (i) in the case of any Claim for which
interest has not been asserted, the Federal Judgment Rate; and (ii) for any Claim in which interest
has been asserted, the applicable contract rate of interest as set forth therein, subject to the
right of the Plan Administrator to object to such interest or otherwise enter into an agreement
between the Plan Administrator and the Holder of the Disputed Claim that establishes the applicable
rate of interest.
1.4 Assets means any and all right, title, and interest of any of the Debtor in and to
property of whatever type or nature.
1.5 Ballot means the forms distributed to each Holder of Impaired Claims, if any,
entitled to vote on the Plan for the purposes of accepting or rejecting this Plan, as approved by
the Bankruptcy Court.
1.6 Bankruptcy Case means the voluntary case commenced on April 30, 2010, by the
Debtor in the Bankruptcy Court under Chapter 11 of the Bankruptcy Code.
1.7 Bankruptcy Code means Title 11 of the United States Code, as now in effect or
hereafter amended, as applicable to the Bankruptcy Case.
1.8 Bankruptcy Court means the United States Bankruptcy Court for the District of
Delaware or any other court with jurisdiction over the Bankruptcy Case.
1.9 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as promulgated by
the United States Supreme Court under Section 2075 of Title 28 of the United States Code, as now in
effect or hereafter amended.
1.10 Business Day means any day other than a Saturday, a Sunday or legal holiday (as
defined in Bankruptcy Rule 9006(a)).
1.11 Cash means legal tender of the United States of America.
1.12 Causes of Action means all claims, rights, causes of action, defenses, demands,
damages, suits or proceedings of any kind or nature, whether under contract or tort, in law or in
equity or otherwise, whether known or unknown, contingent or matured, liquidated or unliquidated,
and all rights and remedies with respect thereto, including causes of action arising under Chapter
5 of the Bankruptcy Code or similar state statutes, whether or not litigation has been commenced
with respect to such action as of the
Effective Date, that the Debtor, the Creditors Committee, the Equity Committee or the Estate
may hold against any person or entity as of or following the Effective Date unless otherwise waived
or released pursuant to this Plan.
1.13 Claim means a claim, as defined in Section 101(5) of the Bankruptcy Code.
- 2 -
1.14 Class means each category of Holders of Claims or Interests established under
Article II of this Plan pursuant to Sections 1122 and 1123(a)(1) of the Bankruptcy Code.
1.15 Confirmation Date means the date on which the clerk of the Bankruptcy Court
enters the Confirmation Order.
1.16 Confirmation Hearing means the hearing held by the Bankruptcy Court on
confirmation of the Plan, as such hearing may be adjourned or continued from time to time.
1.17 Confirmation Order means the order of the Bankruptcy Court confirming this Plan
pursuant to Section 1129 of the Bankruptcy Code.
1.18 Creditors Committee means the Official Committee of Unsecured Creditors
appointed and acting in the Bankruptcy Case, including all individual members thereof, and all
professionals retained by the Creditors Committee pursuant to an order of the Bankruptcy Court.
1.19 Debtor shall have the meaning set forth in the introduction to this Plan.
1.20 Disallowed means all or such part of a Claim, Administrative Expense or Interest
that is disallowed by a Final Order of the Bankruptcy Court or other court of competent
jurisdiction.
1.21 Disbursing Agent means any entity designated by the Plan Administrator as such.
1.22 Disclosure Statement means that certain disclosure statement relating to this
Plan, including, without limitation, all exhibits and schedules thereto, as the same may be
amended, supplemented or otherwise modified from time to time, as approved by the Bankruptcy Court
pursuant to Section 1125 of the Bankruptcy Code.
1.23 Disputed Claim means any Claim against the Debtor, including any portion thereof
(a) that is neither an Allowed Claim nor a Disallowed Claim or (b) for which a written request for
payment has been made, to the extent the Debtor, the Plan Administrator or any party in interest
has interposed a timely objection or request for estimation, which objection or request for
estimation has not been withdrawn or
determined by a Final Order. Any Class 3 Claim not listed on the Initial Allowed Class 3
Claim List shall be deemed a Disputed Claim.
1.24 Distribution means a distribution of the Debtors Cash to the Record Holders of
Allowed Claims or Allowed Interests, as set forth in Article VI of the Plan.
1.25 Distribution Record Date means, with respect to all Classes, the Effective Date
or such other date as may be designated in the Confirmation Order.
1.26 DTC means The Depository Trust Company.
1.27 Effective Date means a Business Day on or after the Confirmation Date specified
by the Debtor on which (i) no stay of the Confirmation Order is in effect, and (ii) the conditions
to effectiveness of this Plan specified in Article VIII hereof have been satisfied or waived in
accordance with the terms hereof.
- 3 -
1.28 Equity Committee means the Official Committee of Equity Security Holders
appointed and acting in the Bankruptcy Case, including all individual members thereof, and all
professionals retained by the Equity Committee pursuant to an order of the Bankruptcy Court.
1.29 Estate means the estate created in the Bankruptcy Case for the Debtor pursuant to
Section 541 of the Bankruptcy Code.
1.30 Estate Assets means all Assets of the Estate, and the proceeds thereof,
including, but not limited to, the Causes of Action.
1.31 Exhibit means an exhibit to this Plan or the Disclosure Statement, filed herewith
or with the Disclosure Statement.
1.32 Federal Judgment Rate means the Federal Judgment Rate as of the Petition Date, .43%.
1.33 File, Filed or Filing means file, filed or filing with the Bankruptcy Court or
its authorized designee in the Bankruptcy Case.
1.34 Final Distribution means the Distribution to the Record Holders of Allowed Class
4 Interests of the Debtors remaining Cash, pro rata after having made any interim Distributions,
and upon the completion of the liquidation of the Debtors Assets, including the resolution of any
Causes of Action.
1.35 Final Order means an order or judgment of the Bankruptcy Court (or other court of
competent jurisdiction) entered by the clerk of the Bankruptcy Court on the docket in the
Bankruptcy Case (or on the docket of any other court of competent jurisdiction), which has not been
reversed, vacated or stayed and as to which (a) the time to appeal, petition for certiorari
or move for a new trial, reargument or rehearing has
expired and as to which no appeal, petition for certiorari or other proceedings for a
new trial, reargument or rehearing shall then be pending, or (b) if an appeal, writ of
certiorari, new trial, reargument or rehearing thereof has been sought, such order or
judgment of the Bankruptcy Court shall have been affirmed by the highest court to which such order
was appealed, or certiorari shall have been denied or a new trial, reargument or rehearing
shall have been denied or resulted in no modification of such order, and the time to take any
further appeal, petition for certiorari or move for a new trial, reargument or rehearing
shall have expired; provided, however, that the possibility that a motion under
Rule 59 or Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the
Bankruptcy Rules, may be filed relating to such order shall not cause such order not to be a Final
Order.
1.36 General Unsecured Claim means any Claim against the Debtor that is not an
Administrative Expense, a Priority Tax Claim, a Priority Non-Tax Claim, or a Secured Claim, but
shall not include Claims that are Disallowed, subordinated, recharacterized or released, whether by
operation of law or pursuant to order of the Bankruptcy Court, written release or settlement, the
provisions of this Plan or otherwise.
- 4 -
1.37 Governmental Unit means the United States, any State thereof, including, but not
limited to, the State of Texas, any commonwealth, district, territory, municipality, foreign state,
department, agency or instrumentality of a State, a commonwealth, district or territory or
municipality of a foreign state or other foreign or domestic government.
1.38 Holder means an entity holding a Claim or Interest as of the Distribution Record
Date.
1.39 Impaired means, with respect to any Class of Claims or Interests, impaired
within the meaning of Section 1124 of the Bankruptcy Code.
1.40 Initial Allowed Class 3 Claim List means the list to be filed by the Debtor
pursuant to Section 6.4 of this Plan no later than the Effective Date, which lists all Class 3
Claims to which the Debtor has no objection as of the Effective Date.
1.41 Initial Distribution Date means a date selected by the Plan Administrator that is
not earlier than the Effective Date and not later than thirty (30) days after the Effective Date.
1.42 Interest means, without limitation, any equity security in the Debtor that is of
a kind specified in Section 101(16) of the Bankruptcy Code and any options, warrants, puts, calls,
registration rights, subscriptions or other similar rights or other agreements, commitments, or
outstanding securities obligating the Debtor to issue, transfer, purchase, redeem, register or sell
any shares of capital stock or other securities, any claims arising out of any appraisal or
dissenters rights, any claims arising from rescission of a purchase, sale or other acquisition of
any common stock or other equity security (or any right, claim, or interest in and to any common
stock or equity security) of the Debtor, any claims for damages or any other relief arising from
any such purchase, sale, or other acquisition of such
common stock or other equity security, and any claims or damages or any other relief arising
from the failure to register or maintain the registration of any common stock or other equity
security.
1.43 Interest Rate Reserve means, initially, one million dollars ($1,000,000.00).
1.44 Interim Compensation Order means the Order Establishing Procedures for Interim
Compensation and Reimbursement of Expenses of Professional, entered by the Bankruptcy Court on June
3, 2010.
1.45 KCC means Kurtzman Carson Consultants LLC, in its capacity as the Debtors
claims, noticing and balloting agent.
1.46 Lien means, with respect to any interest in property, any mortgage, lien, pledge,
charge, security interest, easement or encumbrance of any kind whatsoever affecting such interest
in property to secure payment of a debt or performance of an obligation.
1.47 Local Rules means the Local Rules of Bankruptcy Practice and Procedure of the
United States Bankruptcy Court for the District of Delaware, as amended from time to time.
1.48 MEIP means the MiddleBrook Employee Incentive Plan, approved by the Bankruptcy
Court by order entered on July 12, 2010.
- 5 -
1.49 Noticing Agent Website means the website located at
http://www.kccllc.net/MiddleBrook.
1.50 Pension and Retirement Plans means the Debtors defined contribution plan, or any
similar pension or retirement plan related to the employees of the Debtor.
1.51 Person means an individual, corporation, partnership, joint venture, association,
joint stock company, limited liability company, limited liability partnership, trust, estate,
unincorporated organization, governmental unit (as defined in Section 101(27) of the Bankruptcy
Code, or other entity.
1.52 Petition Date means April 30, 2010, the date on which the Debtor commenced the
Bankruptcy Case.
1.53 Plan means this modified Chapter 11 plan of liquidation, including the Plan
Supplement, the Exhibits, and all supplements, appendices and schedules thereto, either in its
present form or as the same may be altered, amended or modified from time to time in accordance
with the provisions of the Bankruptcy Code and the terms hereof.
1.54 Plan Administrator means Ronald L. Glass, or the person to be appointed
subsequently to administer the Plan and the provisions thereof in the manner provided in the Plan.
1.55 Plan Administrator Agreement means the agreement to be executed pursuant to
Section 5.6 of the Plan setting forth the rights, powers and duties of the Plan Administrator to
carry out the terms of the Plan and wind down the Debtors Estate.
1.56 Plan Committee means the committee to be appointed to oversee the Plan
Administrators administration of the Plan, in the manner provided in the Plan and the Plan
Supplement.
1.57 Plan Committee Agreement means that certain agreement by and among the Debtor,
the Plan Administrator, and each member of the Plan Committee that shall set forth the oversight of
the post-confirmation actions of the Plan Administrator and the Plan Committee.
1.58 Plan Documents means the documents to be executed, delivered, assumed, and/or
performed in conjunction with the consummation of the Plan on or about the Effective Date.
1.59 Plan Supplement means the Plan Administrator Agreement, the designation of the
person to serve as the initial Plan Administrator, the Plan Committee Agreement and any other
relevant documents or agreements.
1.60 Plan Supplement Filing Deadline means the date which is five (5) Business Days
prior to the date set for objecting to the Plan.
1.61 Post-Effective Date Debtor means the Debtor, from and after the occurrence of the
Effective Date.
- 6 -
1.62 Priority Non-Tax Claim means any Claim against the Debtor, other than an
Administrative Expense or a Priority Tax Claim, entitled to priority in payment as specified in
Section 507(a) of the Bankruptcy Code.
1.63 Priority Tax Claim means any Claim against the Debtor of a Governmental Unit of
the kind entitled to priority in payment as specified in Sections 502(i) and 507(a)(8) of the
Bankruptcy Code.
1.64 Pro Rata means, with respect to a Claim or Interest, that proportion that a Claim
or Interest in a particular Class bears to the aggregate amount of all Claims or Interests in such
Class, except in cases where Pro Rata is used in reference to multiple Classes in which case, Pro
Rata means the proportion that a Claim or Interest in a particular Class bears to the aggregate
amount of all Claims in such multiple Classes.
1.65 Record Date means such date as the Bankruptcy Court designates in any Order
approving voting procedures and the mailing of the Disclosure Statement and Plan to Holders of
Claims and Interests.
1.66 Record Holder means the Holder of a Claim or Interest as of the Record Date.
1.67 Reinstated or Reinstatement means (a) leaving unaltered the legal, equitable and
contractual rights to which a Claim entitles the Holder of such Claim so as to leave such Claim
Unimpaired, or (b) notwithstanding any contractual provision or applicable law that entitles the
Holder of such Claim to demand or receive accelerated payment of such Claim after the occurrence of
a default, (i) curing any such default that occurred before or after the Petition Date, other than
a default of a kind specified in Section 365(b)(2) of the Bankruptcy Code; (ii) reinstating the
maturity (to the extent such maturity has not otherwise accrued by the passage of time) of such
Claim as such maturity existed before such default; (iii) compensating the Holder of such Claim for
any damages incurred as a result of any reasonable reliance by such Holder on such contractual
provision or such applicable law; (iv) if such Claim arises from any failure to perform a
nonmonetary obligation other than a default arising from failure to operate a nonresidential real
property lease subject to Section 365(b)(1)(A) of the Bankruptcy Code, compensating the Holder of
such Claim (other than the debtor or an insider) for any actual pecuniary loss incurred by such
Holder as a result of such failure; and (v) not otherwise altering the legal, equitable or
contractual rights to which such Claim entitles the Holder of such Claim. The Debtor reserves its
legal, equitable and contractual rights and defenses to dispute the liability and/or the amount of
any Reinstated Claim.
1.68 Released Parties means (i) the Debtor, (ii) the present and former members of the
Debtors Board of Directors who were serving in such capacity on or after the Petition Date, (iii)
the present and former officers and employees of the Debtor who were serving in such capacity on or
after the Petition Date, (iv) the Creditors Committee and the Equity Committee and its past and
present members (but only in their capacity as members of the Creditors Committee or the Equity
Committee), and (v) any attorneys, financial advisors, investment bankers, accountants,
consultants, or other professionals of the parties described in clauses (i) through (iv) hereof;
provided, however, that such Released Parties shall only include those that provided services
related to the Debtor, the Bankruptcy Case, the Plan, or the transactions contemplated by this
Plan.
- 7 -
1.69 Reserve Account means a separate interest-bearing bank account at Capital One
which shall be used to pay all Class 3 Claims which are Disputed Claims on the Effective Date. The
Plan Administrator shall maintain a minimum of sufficient funds in the Reserve to pay the face
amount of all Disputed Claims plus the Interest Rate Reserve until such Claims are either Allowed
and paid in full, or Disallowed in full or in part, either by (i) agreement between counsel to the
Debtor or the Plan Administrator and the Holder of the Disputed Claim or (ii) by Final Order once
such Claims become Allowed Claims. Upon payment of all Claims, including interest at the
Applicable Rate of Interest, all funds remaining in the Reserve Account shall revert to the Estate,
and be made available for distribution in the Final Distribution.
1.70 Schedules means the schedules of assets and liabilities and the statement of
financial affairs filed by the Debtor pursuant to Section 521 of the Bankruptcy Code, Bankruptcy
Rule 1007, and the Official Bankruptcy Forms of the Bankruptcy Rules, as such schedules and
statements have been or may be supplemented or amended through the Confirmation Date.
1.71 Secured Claim means, pursuant to Section 506 of the Bankruptcy Code, that portion
of a Claim against the Debtor that is reflected in the Schedules or a proof of claim as a Secured
Claim which is (a) secured by a valid, perfected and enforceable security interest, lien, mortgage
or other encumbrance, that is not subject to avoidance under applicable bankruptcy or
non-bankruptcy law, in or upon any right, title or interest of the Debtor in and to property of the
Estate, to the extent of the value of the Holders interest in such property as of the relevant
determination date or (b) Allowed as such pursuant to the terms of this Plan (subject to the
occurrence of the Effective Date). The defined term Secured Claim includes any Claim against the
Debtor that is subject to a permissible setoff under Section 553 of the Bankruptcy Code, to the
extent of such permissible setoff.
1.72 Subsequent Distribution Date means a date selected by the Plan Administrator, in
his or her discretion and in accordance with the provisions of this Plan, that is, except as set
forth otherwise in Section 6.4 of this Plan, (a) with respect to Distributions to Allowed Claims,
not later than sixty (60) days, and with respect to Distributions to Allowed Interests, not earlier
than ninety (90) days, after the date on which the previous Distribution was made to Holders of
Allowed Claims and/or Interests, and (b) on which date the Plan Administrator determines that there
is at least five hundred thousand dollars ($500,000) available to distribute to Holders of Allowed
Claims or sufficient Cash available to pay all Allowed Claims then extant in full, whichever is
less, or at least three million dollars ($3,000,000) available to distribute to Holders of Allowed
Interests or such other amount constituting a Final Distribution, whichever is less.
1.73 Unimpaired means, with respect to a Claim or Interest, that such Claim or
Interest is not Impaired within the meaning of Section 1124 of the Bankruptcy Code as a result of
being either (a) Reinstated or (b) paid in full and in Cash on or after the Effective Date pursuant
to the terms of this Plan or any order of the Bankruptcy Court.
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B. Rules of Interpretation. For purposes of this Plan, unless otherwise provided herein:
(a) whenever from the context it is appropriate, each term, whether stated in the singular or the
plural, will include both the singular and the plural; (b) unless otherwise provided in this Plan,
any reference in this Plan to a contract, instrument, release, or other agreement or document being
in a particular form or on particular terms and conditions means that such document will be
substantially in such form or substantially on such terms and conditions; (c) any reference in this
Plan to an existing document, schedule or exhibit Filed or to be Filed means such document,
schedule, or exhibit, as it may have been or may be amended, modified, or supplemented pursuant to
this Plan; (d) any reference to an entity as a Holder of a Claim or Interest includes that entitys
successors and assigns; (e) the words herein, hereof, hereto, hereunder and other words of
similar import refer to this Plan as a whole and not to any particular section, subsection or
clause contained in this Plan; (f) 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; (g) subject to the provisions of any contract, certificates or
articles of incorporation, by-laws, instruments, releases, or other agreements or documents entered
into in connection with this Plan, the rights and obligations arising under this Plan shall be
governed by, and construed and enforced in accordance with, federal law, including the Bankruptcy
Code, the Bankruptcy Rules and the Local Rules; (h) the rules of construction set forth in Section
102 of the Bankruptcy Code will apply; and (i) in computing any period of time prescribed or
allowed by this Plan, the provision of Bankruptcy Rule 9006(a), as then in effect, will apply.
C. Exhibits and Plan Supplement. All Exhibits and the Plan Supplement are incorporated
into and are a part of this Plan as if set forth in full herein, and, to the extent not annexed
hereto, such Exhibits or Plan Supplement shall be timely Filed in accordance with this Plan.
Holders of Claims and Interests may obtain a copy of the Filed Exhibits upon written request to the
Debtor. Upon their Filing, the Exhibits may be inspected in the office of the clerk of the
Bankruptcy Court or its designee during normal business hours. The documents contained in the
Exhibits and the Plan Supplement shall be approved by the Bankruptcy Court pursuant to the
Confirmation Order. The Debtor shall file the Plan Supplement by the Plan Supplement Filing
Deadline.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
All Claims and Interests, except Administrative Expenses and Priority Tax Claims, are placed in the
Classes set forth below. In accordance with Section 1123(a)(1) of the Bankruptcy Code,
Administrative Expenses 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
qualifies within the description of such Class and is in a different Class to the extent that it
qualifies within the description of such different Class, but the same portion of a Claim may not
be in more than one Class. A Claim or Interest is also placed in a particular Class for all
purposes, including voting, confirmation and Distribution under this Plan and under Sections 1122
and 1123(a)(1) of the Bankruptcy Code. However, a Claim or Interest is placed in a particular
Class for the purpose of receiving Distributions pursuant to this Plan only to the extent that such
Claim or Interest is an Allowed Claim or Interest in that Class and such Claim or Interest has not
been paid, released or otherwise settled prior to the Effective Date.
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2.1 Unclassified Claims. The following Claims are Unimpaired under this Plan.
(a) | Administrative Expenses. |
||
(b) | Priority Tax Claims. |
2.2 Classes of Claims and Interests.
(a) | Class 1: Priority Non-Tax Claims. Class 1 consists of
all Priority Non-Tax Claims against the Debtor. Claims in Class 1 are
Unimpaired. Holders of Claims in Class 1 will be deemed to accept the Plan and
are not entitled to vote to accept or reject the Plan. |
(b) | Class 2: Secured Claims. Class 2 consists of all
Secured Claims against the Debtor. Claims in Class 2 are Unimpaired. Holders
of Claims in Class 2 will be deemed to accept the Plan and are not entitled to
vote to accept or reject the Plan. |
(c) | Class 3: General Unsecured Claims. Class 3 consists
of all General Unsecured Claims against the Debtor. Claims in Class 3 are
Unimpaired. Holders of Claims in Class 3 will be deemed to accept the Plan and
are not entitled to vote to accept or reject the Plan. |
(d) | Class 4: Interests. Class 4 consists of all Interests
and all Claims arising out of or relating thereto. Interests in Class 4 are
either Unimpaired, and therefore deemed to accept the Plan, or are Impaired and
shall be deemed to reject the Plan. Accordingly, holders of Interests in Class
4 are not entitled to vote to accept or reject the Plan. |
ARTICLE III
TREATMENT OF CLAIMS AND INTERESTS
3.1 Unclassified Claims.
(a) | Administrative Expenses. Unless otherwise agreed by
the Holder of an Administrative Expense, in full satisfaction, settlement, and
release of and in exchange for each Administrative Expense, each Holder of an
Allowed Administrative Expense will receive payment in full and in Cash of any
unpaid portion of such Allowed Administrative Expense as follows: |
(i) | in the case of professional advisors, subject
to the provisions of Sections 328, 330, 331 and 503(b) of the
Bankruptcy Code, the Interim Compensation Order and Article XI of this
Plan, as soon as practicable after final Bankruptcy Court approval
thereof; and |
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(ii) | with respect to each other Allowed
Administrative Expense, on the later of (x) the date on which such
claims become due in the ordinary course of business and in accordance
with the terms and conditions of the particular agreements governing
such obligations, and (y) on or as shortly after the Effective Date as
is practicable; or
(z) such other date as may be agreed upon between the Holder of such
Administrative Expense and the Debtor or the Plan Administrator, or
as provided for in a Final Order. |
(b) | Priority Tax Claims. Unless otherwise agreed by the
Holder of a Priority Tax Claim, in full satisfaction, settlement, and release
of and in exchange for each Priority Tax Claim, each Holder of an Allowed
Priority Tax Claim shall receive in full satisfaction, settlement and release
of and in exchange for such Priority Tax Claim, at the election of the Plan
Administrator: (x) Cash equal to the amount of such Priority Tax Claim on or
as shortly after the Effective Date as is practicable; (y) such other treatment
as to which the Debtor or the Plan Administrator and the Holder of such
Priority Tax Claim shall have agreed upon in writing; or (z) such other
treatment as will cause such Claims not to be Impaired, including, but not
limited to, payment as set forth in Section 1129(a)(9)(C) of the Bankruptcy
Code; provided, however, that any Priority Tax Claim not due and owing on the
Effective Date will be paid when such Claim becomes due and owing. |
3.2 Classes of Claims and Interests. Unless the Holder of a Claim or Interest and the
Debtor or the Plan Administrator agree to a different treatment, each Holder of a Claim or Interest
shall receive as follows:
(a) | Class 1: Priority Non-Tax Claims. In full
satisfaction, settlement and release of and in exchange for each Priority
Non-Tax Claim, in the ordinary course of business as such claims become due,
or, if due now, on or as shortly after the Effective Date as is practicable,
each Holder of an Allowed Priority Non-Tax Claim as of the Distribution Record
Date shall receive in full satisfaction, settlement and release of and in
exchange for such Priority Non-Tax Claim, at the election of the Debtor or the
Plan Administrator: (i) Cash equal to the amount of such Priority Non-Tax
Claim; (ii) such other treatment as to which the Debtor or the Plan
Administrator and the Holder of such Priority Non-Tax Claim shall have agreed
upon in writing; or (iii) such other treatment as will cause such Claims not to
be Impaired; provided, however, that any Priority Non-Tax Claim not due and
owing on the Effective Date will be paid when such Claim becomes due and owing. |
(b) | Class 2: Secured Claims. In full satisfaction,
settlement and release of and in exchange for each Secured Claim, if any, each
Holder of an Allowed Secured Claim as of the Distribution Record Date, if any,
shall, at the election of the Debtor or the Plan Administrator, have its Claim
Reinstated or satisfied in Cash, in full, on the Effective Date. |
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(c) | Class 3: General Unsecured Claims. In full
satisfaction, settlement and release of and in exchange for each General
Unsecured Claim, each Holder of an Allowed General Unsecured Claim, as of the
Distribution
Record Date, shall receive one hundred percent (100%) of such Allowed
General Unsecured Claim, plus such interest as may be legally allowable on
such Claim at the Applicable Rate of Interest. Such interest shall, accrue
from the Petition Date to the applicable Distribution or Subsequent
Distribution Date, and be paid in Cash (to the extent unpaid prior to the
applicable Distribution or Subsequent Distribution Date). Notwithstanding
any provision in the Plan to the contrary, to the extent and only to the
extent a General Unsecured Claim is subordinated under applicable law,
including but not limited to, Sections 510(a), (b) or (c) of the Bankruptcy
Code or recharacterized under applicable law, including but not limited to,
Section 105 of the Bankruptcy Code, any distributions on account of such
General Unsecured Claim shall be made as provided in the Bankruptcy Court
order regarding such Claim. |
(d) | Class 4: Interests. Upon any Distribution or
Subsequent Distribution Date and subject to and upon the payment in full (or
the establishment of appropriate reserves for payment in full) of all Allowed
Claims then existing, plus such interest provided for in this Plan, and after
making appropriate reserves for Disputed Claims as set forth in Article VI of
the Plan, as well as for ongoing expenses of administration of the Estate, in
full satisfaction, settlement and release of and in exchange for each Interest,
each Holder of an Allowed Interest as of the Distribution Record Date shall
receive a Pro Rata share of the remaining Cash in the Estate, if any. |
3.3 Special Provision Regarding Unimpaired Claims. Except as otherwise explicitly
provided in this Plan, nothing shall affect, diminish or impair the Debtors rights and defenses,
both legal and equitable, with respect to any Unimpaired Claims, including, but not limited to,
legal and equitable defenses to setoffs or recoupment against Unimpaired Claims, or
recharacterization of Unimpaired Claims.
ARTICLE IV
ACCEPTANCE OR REJECTION OF THE PLAN
4.1 Acceptance by an Impaired Class. In accordance with Section 1126(c) of the
Bankruptcy Code and except as provided in Section 1126(e) of the Bankruptcy Code, an Impaired Class
of Claims shall have accepted this Plan if this Plan is accepted by the Holders of at least
two-thirds (2/3) in dollar amount and more than one-half (1/2) in number of the Claims of such
Class that have timely and properly voted to accept or reject this Plan. Unless the Bankruptcy
Court determines otherwise, there are no Impaired Classes.
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4.2 Presumed Acceptances or Rejections by Various Classes. Classes 1, 2 and 3 are
Unimpaired by this Plan. Under Section 1126(f) of the Bankruptcy Code, Holders of such Claims are
conclusively presumed to accept this Plan, and thus the votes of the Holders of such Claims will
not be solicited. Class 4 is either Unimpaired by this Plan (in the event that such Class receives
a Distribution of the residual Cash in the Estate), or Class 4 is Impaired by this Plan (in the
event that the Bankruptcy Court so determines). Therefore, either (a) under Section 1126(f) of the
Bankruptcy Code, Holders of such Interests are conclusively presumed to accept this Plan, or (b)
under Section 1126(g) of the Bankruptcy Code, Holders of such Interests are deemed to reject this
Plan. Accordingly, the votes of the Holders of such Interests will not be solicited.
4.3 Summary of Classes Voting on this Plan. As a result of the provisions of Sections
3.1 and 3.2 of this Plan, and unless the Bankruptcy Court determines otherwise, no votes of Holders
of Claims or Interests shall be solicited with respect to this Plan.
4.4 Confirmation Pursuant to Section 1129(a) of the Bankruptcy Code. If all Classes
have either accepted the Plan, been deemed to have accepted the Plan or are not entitled to vote,
the Debtor shall request the Bankruptcy Court to confirm the Plan under Section 1129(a) of the
Bankruptcy Code.
4.5 Non-Consensual Confirmation. In the event that it is determined that one or more
Impaired Classes of Claims or Interests exist, and if any Impaired Class fails to accept this Plan
by the requisite statutory majorities, the Debtor reserves the right (i) to confirm this Plan by a
cram-down of such non-accepting Class pursuant to Section 1129(b) of the Bankruptcy Code and (ii)
to propose any modifications to this Plan and to confirm this Plan as modified, without
re-solicitation, to the extent permitted by the Bankruptcy Code.
ARTICLE V
MEANS FOR IMPLEMENTATION OF THE PLAN
5.1 Bar Date for Administrative Expenses. Except as may otherwise be provided by
separate order of the Bankruptcy Court, and other than professional fee claims, any Holder of an
Administrative Expense that has not been paid, released, or otherwise settled prior to the
Effective Date, must file any request for payment of the Administrative Expense on or before the
date that is thirty (30) days after the Effective Date. Any request for payment of an
Administrative Expense that is not timely filed as set forth herein will be forever barred and
Disallowed by operation of confirmation of this Plan and without the need for any party to file any
objection or other pleading, and Holders of such Administrative Expenses shall be prohibited from
asserting such
Administrative Expenses in any manner against the Debtor, the Post-Effective Date Debtor or
the Plan Administrator.
5.2 Cancelation of Claims and Interests. Except as otherwise set forth in this Plan,
and except for purposes of evidencing a right to a Distribution, on the Effective Date, (a) all
agreements and other documents evidencing the Claims or rights of any Holders of such Claims
against the Debtor, including, but not limited to, all contracts, notes, guarantees, and mortgages,
and (b) all Interests, shall be canceled. Thereafter, one share of stock in the Debtor shall be
issued to the Plan Administrator.
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5.3 Revesting of Estate Assets. Notwithstanding Section 1141(b) of the Bankruptcy
Code, except as otherwise provided for in this Plan, the Estate Assets, including Causes of Action,
shall not revest in the Debtor or the Post-Effective Date Debtor, but shall remain property of the
Estate subject to the jurisdiction of the Bankruptcy Court under the exclusive control of the Plan
Administrator, until liquidated and distributed to Holders of Allowed Claims and Interests in
accordance with the provisions of this Plan and the Confirmation Order.
5.4 Preservation and Retention of Causes of Action, Defenses of the Debtor, and Rights to
Object to Claims. Confirmation of this Plan will have no impact upon, and will not render res
judicata any: (i) Causes of Action other than those Causes of Action released under this Plan or
the Confirmation Order, (ii) any defenses the Debtor may have (including rights of setoff) in any
action brought against it; or (iii) any partys right to object to any Claim against the Debtor,
subject to any limitation expressly set forth in this Plan.
5.5 Effective Date. The Plan shall become effective on the date which is the first
Business Day on which each condition set forth in Article VIII of the Plan has been satisfied or
waived as set forth therein.
5.6 The Plan Administrator. Ron Glass has been designated as the person to serve as
the Plan Administrator. The Plan Administrator will be appointed on the Effective Date pursuant to
the terms of the Plan, and will enter into the Plan Administrator Agreement in a form reasonably
acceptable to the Debtor, after consultation with the Creditors Committee and the Equity
Committee.
5.7. Limitations on Liability. Subject to and as set forth in Section 5.14 of this
Plan, the Plan Administrator and the members of the Plan Committee will not incur liability to any
person by reason of discharge of the Plan Administrators duties and the Plan Committees duties as
set forth in this Plan, in the Plan Administrator Agreement, and in the Plan Committee Agreement,
except in the event of willful misconduct or intentional fraud by the Plan Administrator or such
member of the Plan Committee. For purposes of clarity, the Plan Administrator and each member of
the Plan Committee shall only be liable, if at all, for their own individual acts or omissions and
shall not be liable for the acts or omissions of any other member or Plan Administrator.
5.8 Rights, Powers, and Duties of the Post-Effective Date Debtor and the Plan
Administrator. The Post-Effective Date Debtor will retain and have all of the rights, powers,
and duties necessary to carry out its responsibilities under this Plan, under the exclusive control
and direction of the Plan Administrator. Additionally, the Plan Administrator may bring or
otherwise pursue all claims and Causes of Action on behalf of the Debtor, the Post-Effective Date
Debtor, and the Estate that could otherwise be brought by a trustee or an examiner appointed under
the Bankruptcy Code, that are not otherwise released by this Plan or the Confirmation Order.
Without limiting the generality of the foregoing, and except as otherwise set forth in this Article
V, the Plan Administrators rights, powers, and duties include, but are not limited to:
(a) | liquidation of the Estate Assets, including Causes of Action,
and any assets of the Post-Effective Date Debtor; |
(b) | investment of Cash of the Estate in various reserve accounts
and maintenance of the same; |
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(c) | calculating and paying Distributions in accordance with the
terms of this Plan or as otherwise ordered by the Bankruptcy Court to Holders
of Allowed Claims and Interests; |
(d) | employing, supervising, and compensating professionals retained
to represent the interests of the Post-Effective Date Debtor; |
(e) | making and filing tax returns for the Post-Effective Date
Debtor, as may be required; |
(f) | subject to the terms of this Plan, objecting to or seeking the
subordination or recharacterization of Claims filed against the Debtor or the
Estate or as set forth in the Schedules, except for Claims that have been
previously Allowed by Final Order or pursuant to Section 6.4 of the Plan; |
(g) | seeking the estimation of contingent or unliquidated Claims
filed against the Debtor, the Post-Effective Date Debtor, or the Estate
pursuant to Section 502(c) of the Bankruptcy Code; |
(h) | seeking determination of tax liability for the Debtor or the
Post-Effective Date Debtor under Section 505 of the Bankruptcy Code; |
(i) | filing, prosecuting, settling or otherwise resolving the
remaining Causes of Action on behalf of the Debtor and the Post-Effective Date
Debtor; |
(j) | seeking permission to destroy the Debtors books and records
and/or abandonment of any remaining assets that have de minimis value to the
Estate; |
(k) | closing the Bankruptcy Case; |
||
(l) | dissolving and winding up the Post-Effective Date Debtor; |
(m) | exercising all powers and rights, and taking all actions
contemplated by or provided for in this Plan. |
5.9 Compensation of the Plan Administrator. The Plan Administrator and its
professionals will be compensated from the Estate Assets subject to the terms of the Plan
Administrator Agreement, as approved by the Bankruptcy Court.
5.10 Successor Plan Administrator. Should the Plan Administrator initially appointed
pursuant to the terms of the Plan become unable or unwilling to continue in such role, then the
Plan Committee shall select a successor subject to approval of the Bankruptcy Court.
Alternatively, any party in interest may move the Bankruptcy Court to appoint a successor. Once
approved by the Bankruptcy Court, such successor shall become the Plan Administrator for all
purposes, and shall have all the rights and powers of the Plan Administrator as set forth in this
Plan.
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5.11 Continued Corporate Existence. The Debtor shall continue in existence as the
Post-Effective Date Debtor pursuant to the terms of its certificate of incorporation, by-laws, and
other corporate governance documents, as the same were in effect prior to the Effective Date,
except that on or as soon as practicable after the Effective Date, the certificate of incorporation
of the Post-Effective Date Debtor will be restated to, among other things, (i) authorize the
issuance of one share of new common stock, $0.01 par value per share to be held by the Plan
Administrator in accordance with the terms of this Plan, (ii) prohibit the issuance of non-voting
equity securities, and (iii) limit the activities of the Post-Effective Date Debtor to matters
related to the implementation of this Plan and to matters reasonably incidental thereto.
5.12 Directors of the Debtor. On the Effective Date, the Plan Administrator will
succeed to all of the rights and powers of the directors of the Debtor and such directors will be
deemed to have resigned on the Effective Date.
5.13 Intentionally Omitted.
5.14 Plan Committee.
(a) | The Plan Committee will be appointed on the Effective Date,
shall be deemed to be an extension of the statutory committees, and shall
consist of those parties set forth in the Plan Committee Agreement. The Plan
Committee shall be governed by the Plan Committee Agreement. The Plan
Committees rights, powers and duties are limited to those set forth in the
Plan Committee Agreement. |
(b) | The members of the Plan Committee shall not incur liability to
any person by reason of discharge of the Plan Committees duties as set forth
in this Plan, in the Plan Administrator Agreement, and the Plan Committee
Agreement, except in the event of willful misconduct or intentional fraud by
such member of the Plan Committee. |
(c) | To the maximum extent permitted by law, the Estate shall
indemnify and upon request shall advance expenses to any person who is or was a
party or is threatened to be made a party to any threatened, pending or
completed action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or was
or has agreed to be a member of the Plan Committee, against any and all
expenses (including attorneys fees and expenses), judgments, fines, penalties,
and amounts paid in settlement or incurred in connection with the
investigation, preparation to defend or defense of such action, suit,
proceeding or claim. Such rights arising under this Section or the Plan
Committee Agreement shall inure to the benefit of the heirs and legal
representatives of such person. |
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ARTICLE VI
PROVISIONS GOVERNING DISTRIBUTIONS
6.1 Payment of Administrative Expenses. The Plan Administrator shall pay Allowed
Administrative Expenses in full, without interest, in Cash, on or as soon as practicable after the
later of (a) the date on which such Allowed Administrative Expense becomes due in the ordinary
course of business and in accordance with the terms and conditions of the particular agreement(s)
governing such obligation, (b) the Effective Date, or (c) the date that is ten (10) Business Days
after the Administrative Expense becomes an Allowed Administrative Expense; or (d) at such other
time and in such other manner as may be agreed upon in writing between the Holder of the Allowed
Administrative Expense and the Plan Administrator.
6.2 Payment of Allowed Priority Tax Claims. The Plan Administrator shall pay Allowed
Priority Tax Claims in full, in Cash, on or as soon as practicable after the later of (a) the
Effective Date, (b) the date that is ten (10) Business Days after the Claim becomes an Allowed
Priority Tax Claim, or (c) such other payment schedule as will cause such Claim not to be Impaired,
including, but not limited to, payment as set forth in Section 1129(a)(9)(C) of the Bankruptcy
Code; or (d) at such other time and in such other manner as may be agreed upon in writing between
the Holder of the Allowed Priority Tax Claim and the Plan Administrator; provided, however, that
any Priority Tax Claim not due and owing on the Effective Date will be paid when such Claim becomes
due and owing.
6.3 Distribution to Holders of Class 1 and 2 Claims. The Plan Administrator shall pay
Allowed Class 1 and Allowed Class 2 Claims (unless any such Allowed Class 2 Claim is Reinstated) in
full, without interest, in Cash, on or as soon as practicable after the later of (a) the date on
which such
Allowed Claim becomes due in the ordinary course of business and in accordance with the terms
and conditions of the particular agreement(s) governing such obligation, (b) the Effective Date, or
(c) the date that is ten (10) Business Days after the Claim becomes an Allowed Claim; or (d) at
such other time and in such other manner as may be agreed upon in writing between the Holder of the
Allowed Claim and the Plan Administrator.
6.4 Distribution to Holders of Class 3 Claims. On or by the Effective Date, the
Debtor shall file the Initial Allowed Class 3 Claim List. If no objection is filed by the Plan
Administrator to any Claim listed on the Initial Allowed Class 3 Claim List within twenty (20)
Business Days after the Effective Date, such Claim shall be conclusively deemed Allowed without any
further action of the Debtor, the Plan Administrator, the Bankruptcy Court, or any party. On or by
the Initial Distribution Date, the Plan Administrator shall make a Distribution to each Holder of
an Allowed Class 3 Claim listed on the Initial Allowed Class 3 Claim List to which no objection has
been filed by distributing Cash to each such Holder of such Allowed Class 3 Claim as of the
Distribution Record Date, sufficient to pay such Holders Allowed Class 3 Claim in full pursuant to
and in accordance with the terms of Section 3.2(c) of this Plan. Pursuant to Section 6.6 of the
Plan, on or as shortly after the Effective Date as practicable, which shall not exceed twenty (20)
days after the Effective Date, the Plan Administrator shall deposit sufficient money in the Reserve
Account to ensure payment of all Class 3 Claims which are not Allowed Claims, plus the Interest
Rate Reserve. Thereafter, no later than ten (10) Business Days after the date on which any other
Class 3 Claim becomes an Allowed Class 3 Claim, the Plan Administrator shall make a Distribution to
the Holder of such Allowed Class 3 Claim by distributing Cash to the Holder of such Allowed Class 3
Claim, as of the Distribution Record Date, sufficient to pay such Holders Allowed Class 3 Claim in
full pursuant to and in accordance with the terms of Section 3.2(c) of this Plan.
- 17 -
6.5 Distribution to Holders of Class 4 Interests. The Plan Administrator shall make
one or more Distributions to Holders of Allowed Interests as of the Distribution Record Date,
pursuant to and in accordance with the terms of Section 3.2(d) of this Plan. The Plan
Administrator may make interim Distributions to Holders of Allowed Interests at his or her
discretion, but shall make a Distribution to Holders of Allowed Interests any time the balance of
Cash available for Distribution exceeds three million dollars ($3,000,000) and if the other
provisions of this Plan are satisfied. If a Distribution to a Holder of an Allowed Class 4
Interest would be less than $100, such Distribution shall be held until the Final Distribution.
Notwithstanding anything to the contrary, prior to making any Distributions to Holders of
Interests, the Plan Administrator shall first reserve for amounts due under, or which may be due
under, the MEIP.
6.6 Establishment of Reserve Account. On the Effective Date, or as shortly after the
Effective Date as practicable, which shall not exceed twenty (20) days after the Effective Date,
the Plan Administrator shall deposit into the Reserve Account an amount equal to (i) the face
amount of all Allowed or Disputed Claims that have not been paid pursuant to Section 6.4 of the
Plan, plus (ii) Interest Rate Reserve. Such funds shall remain in the Reserve Account until the
Disputed Claims become Allowed or Disallowed in full or in part, either by (i) agreement between
the Plan Administrator and the Holder of the Disputed Claim or (ii) by Final Order. The Plan
Administrator shall also deposit into the Reserve Account a sufficient amount for contingent
and unliquidated claims as contemplated by Section 6.13 of the Plan. Further, the Plan
Administrator shall deposit into the Reserve Account an amount sufficient to satisfy the Claims for
indemnity by the Debtors current or former directors or officers, as required by Section 6.13 of
the Plan. In the event that the Bankruptcy Court allows any party to file a late filed claim,
subject to the right of the Plan Administrator to object to such Claim, the Plan Administrator will
deposit sufficient funds in the Reserve Account, plus twelve (12) months interest at the Applicable
Interest Rate, on account of such Claim, pending final entry of a Final Order allowing or
disallowing such Claim. If the Plan Administrator determines that the Interest Rate Reserve is
more than the amount necessary to pay all interest claims in full, he may, with appropriate and
reasonable notice as determined by the Bankruptcy Court, seek an order estimating the amount
required to be maintained in the Interest Rate Reserve provided, however, that no less than
$394,000 shall be held in the Interest Rate Reserve exclusively for Claim Nos. 91, 92, 93 and 94 as
long as such Claims have not been allowed or disallowed by final, nonappealable order of the
Bankruptcy Court, or as the Plan Administrator and the Holders of such Claims may otherwise agree
in writing
6.7 Final Distribution. Upon the completion of the liquidation of the Debtors, the
Post-Effective Date Debtors and the Estates assets, including the resolution of any Causes of
Action, and resolution of all objections to Claims, the Plan Administrator shall make the Final
Distribution by distributing the Cash remaining in the Estate, including any funds remaining the
Reserve Account, Pro Rata to the Holders of Allowed Class 4 Interests (but only after all Allowed
Claims have been paid in full pursuant to the terms of this Plan) as of the Distribution Record
Date. If the Final Distribution to a Holder of an Allowed Class 4 Interest would be less than
$10.00, no Distribution to such Holder shall be made. If after making the Final Distribution, and
after payment of all fees and expenses, including all outstanding U.S. Trustee fees, the Estate has
any remaining Cash, and the amount of such Cash is less than $50,000, such Cash shall be donated to
a charity of the Plan Administrators choosing.
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6.8 Delivery of Distributions. The Distributions shall be made to Holders of Allowed
Claims and Allowed Interests as of the Distribution Record Date: (i) at the address set forth on
the proof of claim Filed by a Holder of an Allowed Claim or the address of record for the Holder of
an Allowed Interest, (ii) at the address set forth in any written notices of address change Filed
by such Holder, (iii) at the addresses reflected in the Schedules if neither a proof of claim or
interest nor a written notice of address change has been Filed, or (iv) if the Holders address is
not listed in the Schedules, at the last known address of such Holder according to the Debtors
books and records.
6.9 Distributions by Disbursing Agent. Other than as specifically set forth in this
Plan, the Disbursing Agent, if appointed, shall make all Distributions required to be made under
this Plan.
6.10 Undeliverable and Unclaimed Distributions.
(a) | Holding and Investment of Undeliverable and Unclaimed
Distributions. If the Distribution to any Holder of a Claim or Interest is
returned to the Post-Effective Date Debtor, the Plan Administrator or the
Disbursing Agent as undeliverable or is otherwise unclaimed, no further
Distributions shall be made to such Holder unless and until the Plan
Administrator or the Disbursing Agent is notified in writing of such Holders
then current address. |
(b) | Failure to Claim Undeliverable Distributions. Any
Holder of a Claim or Interest that does not assert a claim pursuant to this
Plan for an undeliverable or unclaimed Distribution within one (1) year 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 Debtor, the Post-Effective Date Debtor, or the Estate
or their property. In such cases, any Cash for Distribution on account of such
claims for undeliverable or unclaimed Distributions shall become the property
of the Estate free of any restrictions thereon and notwithstanding any federal
or state escheat laws to the contrary. Nothing contained in this Plan shall
require any Disbursing Agent to attempt to locate any Holder of an Allowed
Claim. |
6.11 Objections to Claims. The Plan Administrator shall have (20) Business Days
after the Effective Date to object to Claims listed on the Initial Allowed Class 3 Claim List.
Except as provided in this Plan, any objection to the allowance of a Claim, other than Claims
listed on the Initial Allowed Class 3 Claim List, must be Filed within sixty (60) days after the
Effective Date (or, within sixty (60) days after the Filing of such Claim, whichever is later).
The Bankruptcy Court may extend such deadline upon motion for good cause shown. Any objection not
filed by such deadline shall be deemed waived, and the Claim shall be an Allowed Claim in the
amount set forth on the proof of claim Filed by the Holder of such Claim.
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6.12 No Distributions Pending Allowance. Notwithstanding any other provision in 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.
6.13 Contingent and Unliquidated Claims. As soon as is practicable, the Plan
Administrator shall take action seeking the estimation for purposes of distribution of contingent
or unliquidated Claims filed against the Debtor, the Post-Effective Date Debtor, or the Estate
pursuant to Section 502(c) of the Bankruptcy Code. Upon determination of the estimated amount of
such contingent or
unliquidated claim, the Plan Administrator shall maintain Cash in an amount equal to the
amount of such estimated claim in the Reserve Account until such claims are resolved in full or in
part, either by (i) agreement between counsel to the Debtor or the Plan Administrator and the
Holder of the Claim or (ii) by Final Order. Notwithstanding the foregoing, with respect to a Claim
for indemnity by the Debtors current or former directors or officers, the Plan Administrator shall
maintain at least $500,000 in the Reserve Account on account of such Claims until such time as the
Plan Administrator makes Final Distribution.
ARTICLE VII
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
7.1 Rejection of Remaining Executory Contracts. All executory contracts and unexpired
leases of the Debtor which are not assumed and assigned, or rejected, prior to the Confirmation
Date shall be deemed rejected, effective as of the Confirmation Date.
7.2 Rejection Claims. Any party asserting a Claim for monetary damages as a result of
the rejection of an executory contract or unexpired lease pursuant to Section 7.1 of this Plan
shall submit a proof of claim substantially in the form of Official Form 10 with KCC, and serve it
upon Debtors counsel and the Plan Administrator within thirty (30) days following the Confirmation
Date. If no rejection claim is filed by a party on account of the rejection of an executory
contract or unexpired Lease pursuant to this Section 7.2 of the Plan, such Claim, if any, shall be
forever disallowed and barred.
ARTICLE VIII
CONFIRMATION AND CONSUMMATION OF THE PLAN
8.1 Conditions to Confirmation. The following shall be the only condition to
confirmation: the Confirmation Order is entered by the Bankruptcy Court and is in form and
substance reasonably satisfactory to the Debtor.
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8.2 Conditions to the Effective Date. The Effective Date shall not occur and the Plan
shall not be consummated unless and until each of the following conditions has been satisfied or
duly waived pursuant to Section 8.3 of the Plan: (i) the Bankruptcy Court shall have entered the
Confirmation Order in form and substance reasonably satisfactory to the Debtor, (ii) the Plan
Administrator shall have been duly appointed and approved by the Bankruptcy Court, and entered into
the Plan Administrator Agreement, and (iii) the Confirmation Order shall have become a Final Order.
8.3 Waiver of Conditions to the Effective Date. The conditions to the Effective Date
set forth in Section 8.2 of the Plan may be waived in whole or part by the Debtor at any time
without further Order.
8.4 Effect of Nonoccurrence of Conditions to the Effective Date. If each of the
conditions to the Effective Date is not satisfied or duly waived in accordance with Sections 8.2
and 8.3 of the Plan, then upon motion by the Debtor made before the time that each of such
conditions has been satisfied or duly waived and upon notice to such parties in interest as the
Bankruptcy Court may direct, the Confirmation Order may be vacated by the Bankruptcy Court;
provided, however, that, notwithstanding the filing of such motion, the
Confirmation Order may not be vacated if each of the conditions to the Effective Date is either
satisfied or duly waived before the Bankruptcy Court enters an order granting such motion. If the
Confirmation Order is vacated pursuant to this Section 8.4 of the Plan, (i) the Plan shall be null
and void in all respects; and (ii) nothing contained in the Plan shall (a) constitute a waiver or
release of any Claims by or against, or any Interest in, the Debtor or (b) prejudice in any manner
the rights of the Debtor or any other party in interest.
ARTICLE IX
EFFECT OF PLAN CONFIRMATION
9.1 Binding Effect. Except as otherwise provided in Section 1141(d)(3) of the
Bankruptcy Code and subject to the occurrence of the Effective Date, on and after the Confirmation
Date, the provisions of this Plan shall bind any Holder of a Claim against, or Interest in, the
Debtor and such Holders respective successors and assigns, whether or not the Claim or Interest of
such Holder is Impaired under this Plan and whether or not such Holder has accepted this Plan.
9.2 Exculpation. From and after the Effective Date, the Released Parties shall
neither have nor incur any liability to, or be subject to any right of action by, any Holder of a
Claim or Interest, or any other party in interest, or any of their respective employees,
representatives, financial advisors, attorneys, or agents acting in such capacity, or affiliates,
or any of their successors or assigns, for any act or omission in connection with, relating to, or
arising out of, the Bankruptcy Case, formulating, negotiating or implementing this Plan, the
solicitation of acceptances of this Plan, the pursuit of approval of the Disclosure Statement and
confirmation of this Plan, the confirmation of this Plan, the Plan Documents, the consummation of
this Plan or the administration of this Plan or the property to be distributed under this Plan;
provided, however, that the foregoing provision shall not apply to an act or omission that is
determined by a Final Order of the Bankruptcy Court to have constituted willful misconduct or gross
negligence. Any of the Released Parties shall be entitled to rely, in all respects, upon the
advice of counsel with respect to their duties and responsibilities under the Plan.
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9.3 Injunction Related to Exculpation. All Persons that have held, hold or may hold
any claims exculpated pursuant to Section 9.2 will be permanently enjoined from taking any of the
following actions against any Released Party or its property on account of such exculpated
liabilities: (i) commencing, conducting or continuing in any manner, directly or indirectly, any
suit, action or other proceeding of any kind; (ii) enforcing, levying, attaching, collecting or
otherwise recovering by any manner or means, directly or indirectly, any judgment, award, decree or
order; (iii) creating, perfecting or otherwise enforcing in any manner, directly or indirectly, any
lien; (iv) except as provided herein, asserting any setoff, right of subrogation or recoupment of
any kind, directly or indirectly, against any obligation due a Released Party; and (v) commencing
or continuing any action, in any manner, in any place that does not comply with or is inconsistent
with the provisions of this Plan.
9.4 Survival of Indemnification Obligations. Except as set forth in this Plan or in
the Confirmation Order, the obligations of the Debtor to indemnify any past and present directors,
officers, agents, employees and representatives, pursuant to certificates or articles of
incorporation, by-laws, contracts and/or applicable statutes, in respect of all actions, suits and
proceedings against any of such officers, directors, agents, employees, and representatives, shall
not be discharged or Impaired by, and shall survive, confirmation or consummation of this Plan. To
the extent not already obtained, the Debtor shall purchase and maintain a tail policy for the
director and officer insurance providing coverage for directors and officers for a period of six
(6) years after the Effective Date insuring such parties in respect of any claims, demands, suits,
causes of action, or proceedings against such directors and officers based upon any act or omission
related to such directors and officers service with, for, or on behalf of the Debtor in at least
the amount and scope as currently maintained by the Debtor.
9.5 Intentionally Omitted.
9.6 Satisfaction of Claims and Termination of Interests. Except as otherwise provided
herein or in the Confirmation Order, all consideration distributed under this Plan shall be in
exchange for, and in complete satisfaction, settlement, and release of, all Claims and Interests of
any nature whatsoever against the Debtor or its Estate, assets, properties or interest in property,
and regardless of whether any property shall have been distributed or retained pursuant to this
Plan on account of such Claims and Interests.
9.7 Injunction. Except as otherwise provided in this Plan or the Confirmation Order,
from and after the Effective Date all Persons who have held, hold or may hold Claims against or
Interests in the Debtor, are (i) permanently enjoined from taking any of the following actions
against the Estate or its property, on account of any such Claims or Interests and (ii) permanently
enjoined from taking any of the following actions against any of the Debtor, the Post-Effective
Date Debtor, the Plan Administrator or their property on account of 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 or encumbrance; (D) asserting any
right of setoff, subrogation or recoupment of any kind 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.
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9.8 Term of Bankruptcy Injunction or Stays. All injunctions or stays provided for in
the Bankruptcy Case under Section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence
on the Confirmation Date, shall remain in full force and effect until the Effective Date.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Retention of Jurisdiction. Following the Confirmation Date and the Effective
Date, the Bankruptcy Court shall retain exclusive jurisdiction over the Bankruptcy Case and the
provisions of this Plan and the Confirmation Order, to the fullest extent permitted by law,
including, among other things, jurisdiction to:
(a) | hear and determine motions, applications, adversary
proceedings, and contested matters pending before or commenced after the
Effective Date; |
(b) | hear and determine objections (whether filed before or after
the Effective Date) to, or requests for estimation of any Claim, and to enter
any order requiring the filing of Proof of any Claim before a particular date; |
(c) | estimate any Claim at any time, including, without limitation,
during litigation concerning any objection to such Claim, including any pending
appeal; |
(d) | ensure that Distributions to holders of Allowed Claims and
Interests are accomplished as provided in this Plan; |
(e) | enter and implement such orders as may be appropriate in the
event the Confirmation Order is for any reason stayed, revoked, modified, or
vacated; |
(f) | issue or construe such orders or take any action as may be
necessary for the implementation, execution, enforcement and consummation of
this Plan and the Confirmation Order, and hear and determine disputes arising
in connection with the foregoing; |
(g) | hear and determine any applications to modify this Plan, to
cure any defect or omission or to reconcile any inconsistency in this Plan, the
Disclosure Statement or in any order of the Bankruptcy Court including, without
limitation, the Confirmation Order; |
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(h) | hear and determine all applications for Professional Fees; |
(i) | hear and determine other issues presented or arising under this
Plan, including disputes among holders of Claims and arising under agreements,
and the documents or instruments executed in connection with this Plan; |
(j) | hear and determine any action concerning the recovery and
liquidation of Estate Assets, wherever located, including without limitation,
litigation to liquidate and recover Estate Assets that consist of, among other
things, the Causes of Action, or other actions seeking relief of any sort with
respect to issues relating to or affecting Estate Assets; |
(k) | hear and determine any action concerning the determination of
taxes, tax refunds, tax attributes, and tax benefits and similar or related
matters with respect to the Debtor or the Estate including, without limitation,
matters concerning federal, state and local taxes in accordance with sections
346, 505 and 1146 of the Bankruptcy Code; |
(l) | hear and determine any other matters related hereto and not
inconsistent with the Bankruptcy Code; and |
||
(m) | enter the Final Decree. |
10.2 Governing Law. Except as mandated by the Bankruptcy Code, the Bankruptcy Rules
or the Local Rules, as applicable, the rights and obligations arising under the Plan shall be
governed by, and construed and enforced in accordance with the laws of the State of Delaware.
10.3 Headings. The headings of articles, paragraphs, and subparagraphs of the Plan
are inserted for convenience only and shall not affect the interpretation of any provision of the
Plan.
10.4 Time. Whenever the time for the occurrence or happening of an event as set forth
in this Plan falls on a day that is not a Business Day, then the time for the next occurrence or
happening of said event shall be extended to the next day which is a Business Day.
10.5 Severability. Should any provision of the Plan be determined to be unenforceable
after the Effective Date such determination shall in no way limit or affect the enforceability and
operative effect of any and all of the other provisions of the Plan.
10.6 Modification. The Debtor may alter, amend or modify this Plan under Section 1127
of the Bankruptcy Code or as otherwise permitted by applicable law at any time prior to the
Confirmation Date. After the Confirmation Date and prior to the substantial consummation of this
Plan, any party in interest in the Bankruptcy Case may, so long as the treatment of holders of
Claims or Interests under this Plan are not materially adversely affected, institute proceedings in
the Bankruptcy Court to remedy any defect or omission or to reconcile any inconsistencies in this
Plan, the Disclosure Statement or the Confirmation Order, and any other matters as may be necessary
to carry out the purposes and intents of this Plan; provided, however, prior notice
of such proceedings shall be served in accordance with the Bankruptcy Rules or order of the
Bankruptcy Court.
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10.7 Revocation. The Debtor reserves the right to revoke and withdraw this Plan prior
to the entry of the Confirmation Order. If the Debtor revokes or withdraws the Plan, the Plan
shall be deemed null and void and nothing contained herein shall be deemed to constitute a waiver
or release of any claims by or against the Debtor, any other Person, or to prejudice in any manner
the rights of such parties in any further proceedings involving the Debtor.
10.8 Plan Controls. In the event and to the extent that any provision of the Plan is
inconsistent with the provisions of the Disclosure Statement, or any other agreement to be executed
by any Person pursuant to the Plan, the provisions of the Plan shall control and take precedence.
In the event of any inconsistency between any provision of any of the foregoing documents, and any
provision of the Confirmation Order, the Confirmation Order shall control and take precedence.
10.9 Statutory Fees. The Debtor, or the Plan Administrator on behalf of the Debtor,
shall pay all fees payable pursuant to 28 U.S.C. § 1930.
10.10 Dissolution of the Creditors Committee and Equity Committee. On the Effective
Date, the Creditors Committee and the Equity Committee shall be dissolved and their members shall
be deemed released of any continuing duties, responsibilities and obligations in connection with
this Bankruptcy Case or the Plan and its implementation, and the retention and employment of the
Creditors Committees and Equity Committees attorneys, accountants and other agents shall
terminate, except with respect to: (i) the Final Fee Hearing; or (ii) any appeals of the
Confirmation Order through the date such appeals are finally decided, settled, withdrawn or
otherwise resolved.
10.11 Claims Agent. Unless relieved prior, the request for Final Decree shall provide
that KCC, in its capacity as claims, noticing and balloting agent shall be relieved of such duties
on the date of the entry of the Final Decree or upon written notice by the Debtor.
10.12 Dissolution of Post-Effective Date Debtor. As soon as practicable after the
Plan Administrator liquidates or otherwise disposes of the Estate Assets and makes the Final
Distribution, the Plan Administrator shall, at the expense of the Estate: (i) provide for the
retention of books and
records delivered to or created by the Plan Administrator until the time that such books and
records are no longer required to be retained under applicable law, and file a certificate with the
Bankruptcy Court stating the location at which such books and records are being stored; (ii) file a
certificate with the Bankruptcy Court stating that the Plan Administrator has liquidated or
otherwise disposed of the Estate Assets and made a Final Distribution under this Plan; (iii) file
any necessary paperwork with the Office of the Secretary of State for the State of Delaware to
effectuate the dissolution of the Post-Effective Date Debtor in accordance with applicable law; and
(iv) resign as the sole officer and director of the Post-Effective Date Debtor.
- 25 -
10.13 Effectuating Documents. The officer(s) and director(s) of the Debtor shall be
authorized to execute, deliver, file or record such contracts, instruments, releases and other
agreements or documents and take such other actions as may be necessary or appropriate to
effectuate and implement the provisions of the Plan.
10.14 Operating Reports and U.S. Trustee Fees. Post-confirmation, the Plan
Administrator shall continue to file such operating reports as are required by the Bankruptcy Code,
the Bankruptcy Rules and the Local Rules, and shall continue paying such U.S. Trustee fees as are
owed, until such time as the Bankruptcy Case is closed.
10.15 No Effect on the MEIP. Nothing in this Plan or the Confirmation Order shall
affect, or be deemed to affect, the terms of the MEIP, and the Post-Effective Date Debtor shall be
deemed to have explicitly assumed the Debtors obligations under the MEIP.
10.16 Final Decree. Subsequent to the Final Distribution, the Plan Administrator
shall cause to be Filed a certification of counsel requesting the entry of the Final Decree.
10.17 Post-Confirmation Notice. Pursuant to Bankruptcy Rule 2002 and any applicable
Local Rule, notice of all post-Confirmation matters for which notice is required to be given shall
be deemed sufficient if served upon counsel for the U.S. Trustees office, counsel to the Debtor,
counsel for the Plan Administrator, and all persons on the Bankruptcy Rule 2002 service list. With
the exception of the Debtor and the U.S. Trustee, any Person desiring to remain on the Debtors
Bankruptcy Rule 2002 service list shall be required to file a request for continued service and to
serve such request upon counsel to the Plan Administrator within thirty (30) days subsequent to the
Effective Date. Persons shall be notified of such continued notice requirements in the notice of
entry of the Confirmation Order. Persons who do not file a request for continued service shall be
removed from the Debtors Bankruptcy Rule 2002 service list.
10.18 Section 1146 Exemption. Pursuant to Section 1146 of the Bankruptcy Code, the
issuance, transfer or exchange of any security, or the execution, delivery or recording of an
instrument of transfer on or after the Confirmation Date shall be deemed to be made pursuant to and
under this Plan, including, without limitation, any such acts by the Debtor, if on the Effective
Date, and the Plan
Administrator, if after the Effective Date, and shall not be taxed under any law imposing a
stamp tax, transfer tax or similar tax or fee. Consistent with the foregoing, each recorder of
deeds or similar official for any county, city or governmental unit in which any instrument
hereunder is to be recorded shall, pursuant to the Confirmation Order and the Plan, be ordered and
directed to accept such instrument, without requiring the payment of any documentary stamp tax,
deed stamps, stamp tax, transfer tax, intangible tax or similar tax.
ARTICLE XI
FINAL FEE HEARING
11.1 The Professional Fee Claim Bar Date. Any and all applications for the final
allowance of Professional Fee Claims shall be Filed and served upon counsel to the Debtor, counsel
to the Creditors Committee, counsel to the Equity Committee, the United States Trustee, and all
parties entitled to notice pursuant to Bankruptcy Rule 2002 within forty-five (45) days of the
Effective Date.
- 26 -
11.2 Final Fee Hearing. A hearing on final allowance of Professional Fee Claims shall
be held as soon as practicable after the Professional Fee Claim Bar Date. The Debtors counsel
shall File a notice of the Final Fee Hearing. Such notice shall be served upon counsel for the
Creditors Committee, counsel to the Equity Committee, all Professionals, the United States Trustee
and all parties entitled to notice pursuant to Bankruptcy Rule 2002.
ARTICLE XII
REQUEST FOR CONFIRMATION
12.1 Request for Confirmation. The Debtor requests confirmation of this Plan in
accordance with Section 1129(a) and/or Section 1129(b) of the Bankruptcy Code.
MIDDLEBROOK PHARMACEUTICALS, INC. |
||||
By: | /s/ Brad Cole | |||
Brad Cole | ||||
Senior Vice President, General Counsel and Secretary |
YOUNG CONAWAY STARGATT & TAYLOR, LLP |
||
/s/ Joel A. Waite
|
||
Kenneth J. Enos (No. 4544) |
||
The Brandywine Building |
||
1000 West Street, 17th Floor |
||
P.O. Box 391 |
||
Wilmington, Delaware 19801-0391 |
||
Telephone: (302) 571-6600 |
||
Facsimile: (302) 571-1253 |
||
-and- |
||
Matthew W. Levin |
||
David A. Wender |
||
Sage M. Sigler |
||
ALSTON & BIRD LLP |
||
1201 West Peachtree Street |
||
Atlanta, Georgia 30309-3424 |
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Telephone: (404) 881-7000 |
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Facsimile: (404) 881-7777 |
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Attorneys for the Debtor |
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