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In re: § Chapter 11
§
XECHEM, INC., et al., § Case No. 08-30512 (JBS)
§ (Jointly Administered)
Debtors. §
§
§
ARTICLE I
1.1 Scope of Definitions; Rules of Construction. For purposes of this Plan, except
as expressly provided or unless the context otherwise requires, all capitalized terms not otherwise
defined shall have the meanings ascribed to them in Article I of this Plan. Any term used in this
Plan that is not defined herein, but is defined in the Bankruptcy Code or the Bankruptcy Rules,
shall have the meaning ascribed to that term in the Bankruptcy Code or the Bankruptcy Rules.
Whenever the context requires, such terms shall include the plural as well as the singular
number, the masculine gender shall include the feminine, and the feminine gender shall include
the masculine.
1.2 Definitions.
(ii) as to which, (w) no Proof of Claim has been filed with the Bankruptcy Court,
(x) the liquidated and noncontingent amount of which is Scheduled, other than a
Claim that is Scheduled at zero, in an unknown amount, or as disputed, and either
(y) no objection to its allowance or action to equitably subordinate or otherwise
limit recovery with respect thereto, has been timely filed or (z) any objection to
its allowance has been settled or withdrawn, or has been denied by a Final Order,
or
(iii) for which a Proof of Claim in a liquidated amount has been timely filed with
the Bankruptcy Court pursuant to the Bankruptcy Code, any Final Order of the
Bankruptcy Court or other applicable bankruptcy law, and as to which either (y)
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no objection to its allowance has been timely filed or (z) any objection to its
allowance has been settled or withdrawn, or has been denied by a Final Order, or
(h) “Bankruptcy Court” means the Bankruptcy Court of the United States
District Court for the Northern District of Illinois, Eastern Division, or such other court as
may have jurisdiction over the Chapter 11 Cases.
(j) “Bar Date(s)” means applicable date designated by the Bankruptcy Court
as the last dates for filing Proofs of Claim or Interest against the Debtors. For general
pre-petition claims and governmental unit claims, such date is March 2, 2009. For
rejection damage claims, such date is the date set forth in the order approving the
rejection of the applicable contract or lease or as set forth in this Plan.
(k) “Business Day” means any day, excluding Saturdays, Sundays or “legal
holidays” (as defined in Bankruptcy Rule 9006(a)), on which commercial banks are open
for business in Chicago, Illinois.
(l) “Cash” means cash and cash equivalents, including, but not limited to,
bank deposits, wire funds, checks and legal tender of the United States or equivalents
thereof.
(m) “Causes of Action” means any and all actions, causes of action, suits,
accounts, controversies, agreements, promises, rights to legal remedies, rights to
equitable remedies, rights to payment and claims, damages, judgments, claims and
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(o) “Claim” means a claim against the applicable Debtor, whether or not
asserted, as defined in Section 101(5) of the Bankruptcy Code.
(t) “Confirmation Date” means the date of entry by the clerk of the
Bankruptcy Court of the Confirmation Order.
(v) “Confirmation Order” means the order entered by the Bankruptcy Court
confirming the Plan, which shall be in form and substance reasonably acceptable to the
Creditors’ Committee.
(w) “Creditor” means any Entity who holds a Claim against the applicable
Debtor.
(z) “Cure” means the distribution of Cash, or such other property as may be
agreed upon by the parties or ordered by the Bankruptcy Court, with respect to the
assumption of an executory contract or unexpired lease, pursuant to Section 365(b) of the
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(aa) “Debtors” means Xechem International, Inc. and Xechem Inc., including
in their capacity as debtors and debtors-in-possession pursuant to Sections 1107 and 1108
of the Bankruptcy Code.
(bb) “Disallowed Claim” means a Claim, or any portion thereof, that (i) has
been disallowed by a Final Order, (ii) is Scheduled at zero or in an unknown amount or as
contingent, disputed or unliquidated and as to which a Bar Date has been established but
no Proof of Claim has been filed or deemed timely filed with the Bankruptcy Court
pursuant to either the Bankruptcy Code or any Final Order or otherwise deemed timely
filed under applicable law, or (iii) is not Scheduled and as to which a Bar Date has been
established but no Proof of Claim has been filed by the Bar Date or deemed timely filed
with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order.
(dd) “Disputed Claim” means any Claim that has not been Allowed pursuant
to the Plan, resolved by written agreement of the relevant parties, or determined by a
Final Order, and
(i) if no Proof of Claim has been filed by the applicable Bar Date, a
Claim which has been listed on the Schedules as liquidated, non-
contingent, and undisputed, as to which a party in interest has
timely filed an objection or request for estimation in accordance
with the Plan, the Bankruptcy Code, the Bankruptcy Rules, and
any Final Order, or which is otherwise disputed by a party in
interest in accordance with applicable law;
(ii) if a Proof of Claim has been filed by the applicable Bar Date, a
Claim designated on such Proof of Claim as contingent,
unliquidated or unknown;
(iii) if a Proof of Claim has been filed by the applicable Bar Date, a
Claim as to which a party in interest has timely filed an objection
or request for estimation in accordance with the Plan, the
Bankruptcy Code, the Bankruptcy Rules, and any Final Order, or
which is otherwise disputed by a party in interest in accordance
with applicable law; or
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(i) the liquidated amount in a Proof of Claim that is a Disputed Claim, unless (x) a
lesser amount is agreed to for reserve purposes only by the Creditors’ Committee,
and the Holder of such Disputed Claim; or (y) if a request for estimation is filed
by a party in interest and the Bankruptcy Court estimated the amount of such
Claim;
(ff) “Disputed Claim Reserve” means the reserve established and maintained
pursuant to the terms of this Plan and Confirmation Order which, on the Effective Date,
shall contain the amount of Creditors’ Equity or where applicable, Cash or other property
estimated for distribution on the Distribution Date to Holders of (a) Disputed Claims,
pending (i) the allowance or disallowance of such Claims or (ii) the estimation of such
claims for purposes of distribution.
(hh) “Distribution Date” means the date on which the Reorganized Debtors
make a Distribution under the terms of the Plan, which date shall be no later than the
earlier of (i) five (5) business days following the Effective Date or (ii) the date a Disputed
Claim becomes an Allowed Claim.
(ii) “Effective Date” means the Business Day on which all conditions set
forth in Article 8.2 of this Plan have been satisfied or waived as provided in Article 8.2 of
this Plan.
(kk) “Estate” means the estate of the applicable Debtor in these Chapter 11
Cases, created pursuant to Section 541 of the Bankruptcy Code.
(ll) “Face Amount” means (i) when used in reference to a Disputed Claim,
the full stated amount claimed by the Holder of such Claim in any Proof of Claim timely
filed with the Bankruptcy Court or otherwise deemed timely filed by any Final Order of
the Bankruptcy Court or other applicable bankruptcy law, (ii) when used in reference to
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an Allowed Claim, the Allowed Amount of such Claim, or (iii) to the extent that a Claim
includes an unliquidated or unquantified portion, the amount that the Bankruptcy Court,
after notice and an opportunity to be heard, fixes as the amount for such Claim pursuant
to any applicable provisions of the Bankruptcy Code and Bankruptcy Rules.
(mm) “Final Distribution” means the last distribution occurring on or after the
Effective Date by the Reorganized Debtors to holders of Allowed Claims entitled to
receive distributions under this Plan.
(pp) “Finders’ Fee” means the finders’ fee payable to Finder pursuant to the
Finders Agreement approved by order of the Bankruptcy Court. (Dkt. No. __).
(qq) “General Unsecured Claim” means a Claim that is not a Secured Claim,
Administrative Claim, Priority Tax Claim, or Other Priority Claim.
(rr) “Governmental” means of, or relating to, the government of any nation,
state or other political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government, and
includes the Bankruptcy Court.
(vv) “Interest” means the rights and interests of the holder of any equity
security, including, without limitation, options or warrants to purchase equity securities,
stock appreciation rights or other rights to purchase or deliver in exchange for equity
securities, including preferred stock, options or warrants to purchase or otherwise acquire
the same and any Claims arising out of the purchase and sales of any such securities.
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(xx) “Local Rules” means the Local Rules of the United States Bankruptcy
Court for the Northern District of Illinois, Eastern Division.
(zz) “NIPRID” means the National Institute for Pharmaceutical Research and
Development of Nigeria.
(aaa) “Old Xechem International Stock” means the shares of common stock
of Xechem International, Inc. and all options, warrants or rights, contractual or otherwise,
if any, to acquire any such stock, issued and outstanding as of the Record Date.
(ccc) “Person” has the meaning ascribed to such terms in Section 101(41) of
the Bankruptcy Code.
(ddd) “Petition Date” means November 9, 2008, which is the date on which the
Debtors filed their petition commencing their Chapter 11 Cases.
(eee) “Plan” means this Plan of Reorganization, including any Plan Exhibits,
which is herein proposed by the Creditors’ Committee for the resolution of outstanding
Claims and Interests, and which as such plan may be amended from time to time in
accordance with the Bankruptcy Code and the terms of the Plan.
(ggg) “Priority Tax Claim” means a Claim that is entitled to priority pursuant
to Section 507(a)(8) of the Bankruptcy Code.
(jjj) “Proof of Claim” means the proof of claim filed by a Holder of a Claim.
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(kkk) “Record Date” means the record date for purposes of making
distributions under the Plan on account of Allowed Claims, which date shall be the
Effective Date.
(mmm)“Scheduled” means, with respect to any Claim or Interest, the status and
amount, if any, of such Claim or Interest as set forth in the Schedules.
(nnn) “Schedules” means the schedules of assets and liabilities and the
statements of financial affairs filed in the Bankruptcy Court by the applicable Debtor
pursuant to Bankruptcy Rule 1007, as such schedules or statements have been or may be
amended or supplemented from time to time in accordance with Bankruptcy Rule 1009 or
orders of the Bankruptcy Court.
1.3 Rules of Interpretation. For purposes of the Plan (a) any reference in the Plan to
a contract, instrument, release, indenture, or other agreement or documents being in a particular
form or on particular terms and conditions means that such document shall be substantially in
such form or substantially on such terms and conditions, (b) any reference in the Plan to an
existing document or exhibit filed or to be filed means such document or exhibit as it may have
been or may be amended, modified, or supplemented, (c) unless otherwise specified, all
references in the Plan to sections, articles, schedules, and exhibits are references to sections,
articles, schedules, and exhibits of or to the Plan, (d) the words “herein” and “hereto” refer to the
Plan in its entirety rather than to a particular portion of the Plan, (e) captions and headings to
articles and sections are inserted for convenience of reference only and are not intended to be a
part of or to affect the interpretation of the Plan, and (f) the rules of construction set forth in
Section 102 of the Bankruptcy Code and in the Bankruptcy Rules shall apply.
1.5 Governing Law. Unless a rule of law or procedure is supplied by federal law
(including the Bankruptcy Code and Bankruptcy Rules), the laws of the State of Illinois shall
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govern the construction and implementation of the Plan and any agreements, documents, and
instruments executed in connection with the Plan.
ARTICLE II
(b) Priority Tax Claims. Each holder of an Allowed Priority Tax Claim, at
the option of the Creditors’ Committee, shall be entitled to receive on account of such
Allowed Priority Tax Claim, in full satisfaction, settlement, release and discharge of, and
in exchange for, such Allowed Priority Tax Claim (i) Cash equal to the unpaid portion of
such Allowed Priority Tax Claim or (ii) such other treatment agreed to by the Allowed
Priority Tax Claim holder and the Creditors’ Committee or Reorganized Debtors.
(c) Other Priority Claims. Each Holder of any remaining unpaid Allowed
Other Priority Claim, if any, shall at the option of the Creditors’ Committee, shall be
entitled to receive on account of such Allowed Other Priority Claim, in full satisfaction,
settlement, release and discharge for, such Allowed Other Priority Claim, (i) Cash equal
to the amount of such Allowed Priority Other Claim or (ii) such other treatment agreed to
by the Allowed Other Priority Claim Holder and the Creditors’ Committee or
Reorganized Debtors.
2.2 Classification of Claims and Interests. Claims against and Interests in the
Debtor are classified as set forth below for all purposes, including voting, confirmation and
distribution pursuant to the Plan and pursuant to Sections 1122 and 1123(a)(1) of the Bankruptcy
Code. A Claim or Interest shall be deemed classified in a particular Class only to the extent that
the Claim or Interest qualifies for the description of that Class and shall be deemed classified in a
different Class to the extent that any remainder of such Claim or Interest qualifies for the
description of such different Class. A Claim or Interest is in a particular Class only to the extent
that such Claim or Interest is Allowed in that Class and has not been paid or otherwise settled
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prior to the Effective Date. The classification of Claims against and Interests in the Debtors
pursuant to this Plan is as follows:
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2.4 Previously Paid, Settled, or Otherwise Satisfied Claims. The Claims of any
creditors that have been previously satisfied are deemed to be disallowed and shall not be
entitled to any further distribution under the Plan.
2.6 Third Party Claims. Except as specifically provided in the Plan, nothing in the
Plan shall be construed to effectuate a release or discharge of any claims owned by a party other
than the Debtors against any party other than the Debtors.
ARTICLE III
3.1 Summary of Classes Voting on the Plan. As a result of the provisions of this
Plan, so long as such Claims are not Disputed Claims on or before 10 days before the voting
deadline or have not been previously Disallowed by a Final Order, the Holders of Claims in
Class-2 will be entitled to vote and the votes of the Holders of such Claims will be solicited with
respect to this Plan; provided, however, that objections may be filed to Claims in accordance
with the Plan for the purpose of voting and/or motions may be filed to estimate Claims for the
purpose of voting. The Holders of Claims in Class-1 and Interests in Class-3 are deemed by
operation of law to have accepted or rejected the Plan, as applicable, and the Holders of such
claims are not entitled to vote to accept or reject the Plan.
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ARTICLE IV
4.1 New Capital. New capital shall be funded into the Reorganized Debtors in an
amount sufficient to pay allowed Cure Costs and allowed administrative and priority claims as
provided in this Plan and to provide working capital for the Reorganized Debtors and their
subsidiaries in such amounts and on such terms and conditions as determined by the Creditors’
Committee in the exercise of its reasonable discretion.
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reinstated or amended and reinstated under this Plan, as the case may be, shall be discharged.
Any intercompany balances with non-debtor subsidiaries as of the Effective Date are hereby
subordinated as of the Effective Date to all distributions and claims under the Plan and may, at
the sole discretion of Reorganized Debtors, be forgiven or contributed to capital in whole or in
part or otherwise treated if the Reorganized Debtors so elect.
4.6 Corporate Action. The articles of incorporation and bylaws of the Reorganized
Debtors shall comply with Section 1123(a)(6) of the Bankruptcy Code and may be amended and
restated in a form to be attached to the Confirmation Order. On the Effective Date, the adoption
of the articles of incorporation and bylaws of the Reorganized Debtors or any other similar
constituent documents, the selection of directors and officers for the Reorganized Debtors, and
all other actions contemplated by this Plan shall be deemed authorized and approved in all
respects and any corporate action required by the Reorganized Debtors in connection with this
Plan, shall be deemed to have occurred and shall be in effect without any requirement of further
action by the Reorganized Debtors or their boards. On the Effective Date, the appropriate
officers of the Reorganized Debtors and members of the boards of directors of the Reorganized
Debtors shall be authorized and directed to issue, execute, deliver, file or record such contracts,
instruments, releases, indentures and other agreements or documents, securities and instruments
contemplated by this Plan in the name of and on behalf of the Reorganized Debtors.
4.8 Section 1146(a) Exemption From Certain Transfer and Mortgage Taxes.
Pursuant to Section 1146(a) of the Bankruptcy Code, any issuance, transfer, or exchange of any
mortgage or security under the Plan (including sales of the remaining real properties and other
assets of the applicable Estate subsequent to the Effective Date) or the making or delivery of an
instrument of transfer under this Plan, shall not be subject to any stamp tax or similar tax, and the
Confirmation Order shall direct the appropriate state or local governmental officials or agents to
forego the collection of any such tax or governmental assessment and to accept for filing and
recordation any of the foregoing instruments or other documents without the payment of any
such tax or governmental assessment.
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ARTICLE V
5.1 Executory Contracts and Leases. As of the Effective Date, each executory
contract and unexpired lease that has not otherwise been assumed or rejected by a Final Order of
the Bankruptcy Court prior to the Confirmation Date or is subject to a pending motion seeking
assumption or assumption and assignment as of the Effective Date, shall be rejected pursuant to
Section 365 of the Bankruptcy Code, and such executory contract or unexpired lease shall be
deemed rejected as of the Effective Date. Each contract or lease that is rejected shall be rejected
only to the extent such contract or lease constitutes an executory contract or unexpired lease.
Listing a contract or lease on the prior filed bankruptcy Schedule G or any other schedule to this
Plan or otherwise, shall not constitute an admission by the applicable Debtor that such contract
or lease is in fact an executory contract or unexpired lease or that the applicable Debtor has any
liability thereunder. Many of the contracts listed originally on Schedule G have subsequently
been performed and thus, are no longer executory. The Confirmation Order shall constitute an
order of the Bankruptcy Court approving such rejections, pursuant to Section 365 of the
Bankruptcy Code, as applicable, as of the Effective Date. To the extent that any agreement,
obligation, security interest, transaction or other arrangement is not deemed an executory
contract or unexpired lease by the applicable Debtor and is later determined by the Bankruptcy
Court to be an executory contract or unexpired lease that is subject to assumption or rejection
under Section 365 of the Bankruptcy Code, such agreement shall be subject to assumption or
rejection within thirty (30) days of such determination.
5.2 Rejection Damages Bar Date. If the rejection by the applicable Debtor, pursuant
to the Plan, of an executory contract or unexpired lease results in a Claim, then such Claim shall
be forever barred and shall not be enforceable against the applicable Debtor or the applicable
Reorganized Debtor or the properties of either of them, except that there shall be a Class-2 Claim
under this Plan to the extent that a Proof of Claim is filed and served upon counsel to the
Reorganized Debtors on or before thirty (30) days after the Confirmation Date.
ARTICLE VI
6.1 Distributions. The Reorganized Debtors shall make distributions required under
this Plan on the Distribution Date. As to any Disputed Claim or subsequently allowed
Administrative Expense, the Reorganized Debtors shall pay such claim within five (5) Business
Days of the order Allowing such Claim or such Administrative Expense becomes a Final Order.
6.2 No Interest on Claims. Unless otherwise specifically provided for in this Plan or
the Confirmation Order, or required by applicable bankruptcy law, post-petition interest shall not
accrue or be paid on Claims, and no holder of a Claim shall be entitled to interest accruing on or
after the Petition Date on any Claim. Unless such Claim is a Secured Claim entitled to
postpetition interest pursuant to Section 506 of the Bankruptcy Code, interest shall not accrue or
be paid upon any Disputed Claim with respect to the period from the Petition Date to the date a
Final Distribution is made thereon, if and after such Disputed Claim becomes an Allowed Claim.
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6.3 Means of Cash Payment. Cash payments made pursuant to this Plan shall be in
U.S. funds, by the means agreed to by the payor and the payee, including by check or wire
transfer, or, in the absence of an agreement, such commercially reasonable manner as the payor
shall determine in its sole discretion.
6.5 Withholding and Reporting Requirements. In connection with this Plan and all
distributions hereunder, the Reorganized Debtors shall, to the extent applicable, comply with all
tax withholding and reporting requirements imposed by any federal, state, provincial, local, or
foreign taxing authority and all distributions hereunder shall be subject to any such withholding
and reporting requirements. The Reorganized Debtors shall be authorized to take any and all
actions that may be necessary or appropriate to comply with such withholding and reporting
requirements. Notwithstanding any other provision of the Plan: (a) each Holder of an Allowed
Claim that is to receive a distribution pursuant to the Plan shall have sole and exclusive
responsibility for the satisfaction and payment of any tax obligations imposed by any
governmental unit, including income, withholding and other tax obligations, on account of such
distribution, and (b) no distribution shall be made to or on behalf of such Holder pursuant to the
Plan unless and until such Holder has made arrangements satisfactory to the Reorganized
Debtors for the payment and satisfaction of such tax obligations. The Reorganized Debtors shall
be responsible for forwarding an Internal Revenue Service Form W-9 (or for foreign creditors,
Form W-8BEN) to all Holders of Claims under the Plan to the extent this is not done as part of
the plan solicitation package. The Reorganized Debtors shall only make a distribution to a
Claimant upon receipt of an executed W-9 form (or for foreign creditors, Form W-8BEN), which
specifies Holder’s Federal Tax Identification Number, Social Security Number or other tax
identification information, unless the Reorganized Debtors are already in possession of the
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Holder’s Federal Tax Identification Number, Social Security Number or other tax identification
information.
6.6 Setoffs. The Reorganized Debtors may, but shall not be required to, setoff against
any Claim not deemed an Allowed Claim under the Plan, and the payments or other distributions
to be made pursuant to the Plan in respect of such Claim, including, without limitation,
Administrative Claims, claims of any nature whatsoever that either of the Debtors may have
against the Holder of such Claim; provided, however, if the Holder of such Claim disputes the
asserted setoff, it may, upon notice and motion, request that the Court determine whether or not
such setoff is appropriate, and; further, provided that neither the failure to do so nor the
allowance of any Claim not deemed an Allowed Claim hereunder shall constitute a waiver or
release by the Reorganized Debtors of any such claim that the Debtors may have against such
Holder.
ARTICLE VII
7.1 Prosecution of Objections to Claims. After the Effective Date, the Reorganized
Debtors will have the sole authority to file or litigate to judgment, objections to Claims and shall
not be required to provide notice on any settlement of Claims nor seek Bankruptcy Court
approval of the same.
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ARTICLE VIII
CONDITIONS PRECEDENT TO
CONFIRMATION AND CONSUMMATION OF THE PLAN
(a) the entry of an Order, which is not subject to a stay pending appeal,
finding that the Disclosure Statement contains adequate information pursuant to
Section 1125 of the Bankruptcy Code;
(c) all provisions, terms and conditions hereof are approved in the
Confirmation Order;
8.2 Conditions to Effective Date. The following are conditions precedent to the
occurrence of the Effective Date, each of which must be satisfied, or waived in writing in
accordance with Section 8.3 of this Plan:
(a) The Confirmation Order shall have been entered and docketed, and shall
provide that the Creditors’ Committee and the Reorganized Debtors are authorized and
directed to take all actions necessary or appropriate to enter into, implement and
consummate the contracts, instruments, releases, leases, indentures and other agreements
or documents created in connection with the Plan;
(b) all Plan Exhibits shall be in form and substance reasonably acceptable to
the Creditors’ Committee and shall have been executed and delivered by all parties
signatory thereto; and
(c) all actions, documents and agreements necessary to implement the Plan
shall have been effected or executed.
8.3 Waiver of Conditions. Each of the conditions set forth in Sections 8.1 and 8.2 of
the Plan may be waived in whole or in part by the Creditors’ Committee. The failure of a party
to exercise any of the foregoing rights shall not be deemed a waiver of any other rights, and each
such right shall be deemed an ongoing right that may be asserted at any time.
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ARTICLE IX
RETENTION OF JURISDICTION
9.1 Jurisdiction. Under Sections 105(a) and 1142 of the Bankruptcy Code, and
notwithstanding entry of the Confirmation Order and occurrence of the Effective Date, the
Bankruptcy Court shall retain jurisdiction over all matters arising out of, and related to, the
Chapter 11 Cases and the Plan to the fullest extent permitted by law, and over which the
Bankruptcy Court would otherwise have been able to exercise original jurisdiction, including,
among other things, jurisdiction to:
(b) hear and determine all applications for compensation and reimbursement
of expenses of Professionals under the Plan or under Sections 330, 331, 503(b), 1103 and
1129(a)(4) of the Bankruptcy Code; provided, however, that from and after the Effective
Date, the payment of the fees and expenses of the retained Professionals of the
Reorganized Debtors shall be made in the ordinary course of business and shall not be
subject to the approval of the Bankruptcy Court, except as expressly provided herein or in
the implementing documents;
(c) hear and determine all matters with respect to the assumption or rejection
of any executory contract or unexpired lease to which the Debtors are a party or with
respect to which the applicable Debtor may be liable, including, if necessary, the nature
or amount of any required cure or the liquidation or allowance of any Claims arising
therefrom;
(d) effectuate performance of, and payments under, the provisions of the Plan;
(e) hear and determine any and all adversary proceedings, motions,
applications, and contested or litigated matters arising out of, under, or related to, the
Chapter 11 Cases;
(g) hear and determine disputes arising in connection with the interpretation,
implementation, consummation, or enforcement of the Plan, including disputes arising
under agreements, documents or instruments executed in connection with the Plan;
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(h) consider any modifications of the Plan, cure any defect or omission, or
reconcile any inconsistency in any order of the Bankruptcy Court, including, without
limitation, the Confirmation Order;
(i) issue injunctions, enter and implement other orders, or take such other
actions as may be necessary or appropriate to restrain interference by any Entity with
implementation, consummation, or enforcement of the Plan or the Confirmation Order;
(j) enter and implement such orders as may be necessary or appropriate if the
Confirmation Order is for any reason reversed, stayed, revoked, modified, or vacated;
(k) hear and determine any matters arising in connection with or relating to
the Plan, the Disclosure Statement, the Confirmation Order, or any contract, instrument,
release, or other agreement or document created in connection with the Plan, the
Disclosure Statement or the Confirmation Order;
(m) except as otherwise limited herein, recover all assets of the applicable
Debtor and property of the applicable Debtor’s Estate, wherever located;
(n) hear and determine matters concerning state, local, and federal taxes in
accordance with Sections 346, 505, and 1146 of the Bankruptcy Code;
(o) hear and determine all disputes involving the existence, nature, or scope of
any injunction imposed by the Plan, the Confirmation Order, or the Bankruptcy Code;
(p) hear and determine such other matters as may be provided for in the
Confirmation Order or as may be authorized under, or not inconsistent with, provisions of
the Bankruptcy Code; and
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Professional Fee Claims. All final requests for compensation or reimbursement
of Professional fees pursuant to Sections 327, 328, 330, 331, 503(b) or 1103 of the Bankruptcy
Code for services rendered prior to the Effective Date and substantial contribution claims under
Section 503(b)(4) of the Bankruptcy Code must be filed and served on the Reorganized Debtors
and their counsel no later than sixty (60) days after the Effective Date, unless otherwise ordered
by the Bankruptcy Court. Objections to applications of such Professionals or other entities for
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10.2 Administrative Claims Bar Date. The Confirmation Order will establish a bar
date for filing applications for the allowance of Administrative Claims (except for Professional
Fee Claims or Administrative Claims that have already been Allowed by Final Order), which
date (the “Administrative Claims Bar Date”) will be the first Business Day that is thirty
(30) days after the Effective Date. Holders of Administrative Claims (except for Professional
Fee Claims or Administrative Claims that have already been Allowed by Final Order) not paid
prior to the Confirmation Date shall submit requests for payment on or before the Administrative
Claims Bar Date or forever be barred from doing so and from receiving payment thereof. The
notice of Confirmation to be delivered pursuant to Bankruptcy Rules 3020(c) and 2002(f) will set
forth the Administrative Claims Bar Date and constitute notice of the Administrative Claims Bar
Date. The Reorganized Debtors shall have one hundred-twenty (120) days (or such longer
period as may be allowed by order of the Court) following the Administrative Claims Bar Date
(the “Administrative Claims Objection Deadline”) to review and object to all Administrative
Claims.
10.3 Payment of Statutory Fees. All fees payable pursuant to Section 1930 of Title
28 of the United States Code, as determined by the Bankruptcy Court at the Confirmation
Hearing shall be paid on or before the Effective Date and shall thereafter be paid by the
Reorganized Debtor until the applicable Chapter 11 Case is closed.
10.5 Severability of Plan Provisions. If, prior to Confirmation, any term or provision
of the Plan is held by the Bankruptcy Court to be invalid, void or unenforceable, the Bankruptcy
Court, at the request of the Creditors’ Committee, shall have the power to alter and interpret such
term or provision to make it valid or enforceable to the maximum extent practicable, consistent
with the original purpose of the term or provision held to be invalid, void or unenforceable, and
such term or provision shall then be applicable as altered or interpreted. Notwithstanding any
such holding, alteration or interpretation, the remainder of the terms and provisions of the Plan
shall remain in full force and effect and shall in no way be affected, impaired or invalidated by
such holding, alteration or interpretation. The Confirmation Order shall constitute a judicial
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determination and shall provide that each term and provision of the Plan, as it may have been
altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its
terms.
10.6 Conflicts. To the extent that any provision of the Disclosure Statement or the
Confirmation Order (or any exhibits, schedules, appendices, supplements or amendments to the
foregoing) conflict with or are in any way inconsistent with the terms of the Plan, the Plan shall
govern and control.
10.7 Successors and Assigns. The rights, benefits and obligations of any entity named
or referred to in the Plan shall be binding on, and shall inure to the benefit of, any heir, executor,
administrator, successor or assign of such entity.
10.9 Satisfaction of Subordination and Other Rights. All Claims, including the
Claims of the Holders of all notes issued by the Debtors, and all rights and Claims between or
among such Holders relating in any manner whatsoever to any claimed lien rights or
subordination rights, shall be deemed satisfied by the distributions made during the Chapter 11
Cases and distributions under, described in, contemplated by, and/or implemented in this Plan.
Distributions under, described in, contemplated by, and/or implemented by this Plan to the
various Classes of Claims hereunder shall not be subject to levy, garnishment, attachment, or like
legal process by any holder of a Claim, by reason of any claimed lien or subordination rights or
otherwise, so that each Holder of a Claim shall have and receive the benefit of the distributions
in the manner set forth in the Plan.
10.10 Discharge. Except as specifically provided in the Plan to the contrary, the
treatment of Allowed Claims and Interests, distributions and rights that are provided in the Plan
shall be in complete, full and final settlement, satisfaction, and discharge of, and shall void and
extinguish all Claims against, liens on and Interests in the Debtors or the Reorganized Debtors,
or the assets and properties of the Debtors or the Reorganized Debtors. This Plan constitutes a
discharge under Section 1141 of the Bankruptcy Code.
10.11 Injunction. Except as specifically provided in the Plan to the contrary, the
satisfaction and discharge set forth in Sections 10.9 and 10.10 hereof shall also operate as an
injunction prohibiting and enjoining the commencement or continuation of any action, the
employment of process or any act in furtherance of (a) any attempt to collect, recover from,
offset or recoup any Claim against or Interest in the applicable Debtor or the applicable
Reorganized Debtor by any entity, and (b) any claim or cause of action, whether known or
unknown, against a Released Party released hereunder based upon or related to the same subject
matter as any Claim or Interest or other released matter.
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10.12 Exculpation and Limitation of Liability. The Plan provides that the members
of the Creditors’ Committee and the Finder and their respective representatives, employees,
management, agents, Professionals and affiliates (a) shall have no liability whatsoever to any
Holder or purported Holder of an Administrative Claim, Claim, or Equity Interest for any act or
omission in connection with, or arising out of, the Plan, the Disclosure Statement, the negotiation
of the Plan, the pursuit of approval of the Disclosure Statement or the solicitation of votes for
confirmation of the Plan, the Chapter 11 Cases, the consummation of the Plan, the administration
of the Plan or the property to be distributed under the Plan, or any transaction contemplated by
the Plan or Disclosure Statement or in furtherance thereof except for any act or omission that
constitutes willful misconduct or gross negligence as determined by a Final Order, and (b) in all
respects, shall be entitled to rely upon the advice of counsel with respect to their duties and
responsibilities under the Plan. Notwithstanding the foregoing, the Plan shall not release,
discharge, or exculpate any non-Debtor party from any debt owed to the United States
Government and/or its agencies (the “Government”), or from any liability arising under the
Internal Revenue Code, the Employee Retirement Income Security Act of 1974, as amended, or
the environmental laws, securities laws or criminal laws of the United States. In addition,
notwithstanding Section 10.11 of the Plan, the Plan shall not enjoin or prevent the Government
from collecting any such liability from any such non-Debtor party.
10.13 Term of Injunctions or Stays Under Sections 105 and 362 of the Bankruptcy
Code. Unless otherwise provided in this Plan or in the Confirmation Order, all injunctions or
stays provided for in the Chapter 11 Cases under Sections 105 or 362 of the Bankruptcy Code or
otherwise, and extant on the Confirmation Date (excluding any injunctions or stays contained in
this Plan or the Confirmation Order), shall remain in full force and effect until the Effective
Date.
10.14 Binding Effect. The Plan shall be binding upon and inure to the benefit of the
Debtors, all present and former Holders of Claims against and Interests in the Debtors, their
respective successors and assigns, including, but not limited to, the Reorganized Debtors and all
other parties-in-interest in this Chapter 11 Cases.
10.16 Plan Exhibits. Any and all Plan Exhibits, or other lists or schedules not filed
with the Plan shall be filed with the Clerk of the Bankruptcy Court at least five (5) Business
Days prior to the date of the commencement of the Confirmation Hearing. Upon such filing,
such documents may be inspected in the office of the Clerk of the Bankruptcy Court during
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normal court hours. Holders of Claims or Interests may obtain a copy of any such document
upon written request to the Creditors’ Committee in accordance with Section 10.17 of the Plan.
10.17 Notices. Any notice, request, demand, waiver or consent required or permitted to
be made or provided to or upon the Reorganized Debtors or the Creditors’ Committee under the
Plan shall be (a) in writing, (b) served by (i) certified mail, return receipt requested, (ii) hand
delivery, (iii) overnight delivery service or (iv) first class mail, postage prepaid, and (c) deemed
to have been duly given or made when actually delivered, addressed as follows:
Sam John
Persistency Capital
1270 Avenue of the Americas
Suite 2100
New York, New York 10020
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