We could not find any results for:
Make sure your spelling is correct or try broadening your search.
Register to chat with like-minded investors on our interactive forums.
| Share Name | Share Symbol | Market | Type |
|---|---|---|---|
| Ebix Inc | NASDAQ:EBIX | NASDAQ | Common Stock |
| Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
|---|---|---|---|---|---|---|---|---|---|---|
| 0.00 | 0.00% | 1.16 | 1.18 | 1.20 | 0 | 01:00:00 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code (
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading |
Name of each exchange on which registered | ||
| * |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| * | On December 28, 2023, the Nasdaq Stock Market LLC (“Nasdaq”) suspended trading of Ebix, Inc. common stock, par value $0.10 per share (“Common Stock”). Nasdaq filed a Form 25 with the U.S. Securities and Exchange Commission on February 15, 2024 to delist the Common Stock from the Nasdaq Stock Market, effective at the opening of the trading session on February 26, 2024. The deregistration of the common stock under Section 12(b) of the Securities Exchange Act of 1934 will be effective 90 days, or such shorter period as the U.S. Securities and Exchange Commission may determine, after filing of the Form 25-NSE. Our common stock currently trades on the maintained by the OTC Markets Group, Inc. under the symbol “EBIXQ.” |
| Item 1.01 | Entry into a Material Definitive Agreement |
As previously disclosed, on December 17, 2023, Ebix, Inc. (the “Company”), and certain of its direct and indirect subsidiaries (together with the Company, the “Debtors”) filed voluntary petitions under Chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Northern District of Texas (such court, the “Bankruptcy Court” and such proceedings, the “Chapter 11 Cases”). The Chapter 11 Cases are currently jointly administered under the caption In re Ebix, Inc., et al., Case No. 23-80004 (SWE). The Debtors continue to operate their businesses as “debtors-in-possession” under the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court.
Second Amended Plan Support Agreement
As previously disclosed, on June 12, 2024, the Debtors entered into a binding “stalking horse” Plan Support Agreement, which agreement was amended and restated on June 26, 2024 with the consortium of Eraaya Lifespaces Limited, Vikas Lifecare Limited, and Vitasta Software India Private Limited (collectively, the “Plan Sponsor”), which was further amended on July 22, 2024 (the “Second Amended Plan Support Agreement”). The Second Amended Plan Support Agreement provides for the Plan Sponsor’s support of a chapter 11 plan of reorganization in the Chapter 11 Cases (the “Reorganization Plan”) and the restructuring transaction (the “Restructuring Transaction”), pursuant to which (a) the Plan Sponsor will receive, on the Effective Date, 100% of the equity of the Debtors as reorganized pursuant to the Reorganization Plan (the “Reorganized Debtors”) in the most tax efficient manner agreed to by the Debtors and the Plan Sponsor and (b) the Plan Sponsor’s funding of the Plan with a $145 million new money investment (the “New Money Investment”), any cash on hand, and the Additional Consideration (as defined in the Second Amended Plan Support Agreement). Capitalized terms used but not otherwise defined in this “Second Amended Plan Support Agreement” section of this Current Report on Form 8-K or in another section of this Current Report on Form 8-K shall have the meanings given to them in the Second Amended Plan Support Agreement.
The Second Amended Plan Support Agreement amends certain milestones (each individually, a “Plan Support Milestone” and collectively, the “Plan Support Milestones”) which include the dates by which certain actions must be taken. The Second Amended Plan Support Agreement provides for the following (Plan Support Milestones marked with an asterisk have been satisfied):
| • | $7.25 million shall have been deposited into the Deposit Escrow Account on or before June 14, 2024 (the “Initial Deposit”).* |
| • | An order approving the Disclosure Statement shall have been entered on or before July 30, 2024.* |
| • | Each of the amounts set forth below shall have been deposited into the Deposit Escrow Account on or before the corresponding date set forth below: |
| • | $2,500,000 on or before July 1, 2024;* |
| • | $12,000,000 on or before July 16, 2024;* |
| • | $8,000,000 on or before July 26, 2024;* and |
| • | $20,000,000 on or before July 29, 2024. |
| • | The Additional Consideration of $3.5 million shall have been deposited into the Deposit Escrow Account on or before July 29, 2024. |
| • | The Extended Emergence Funding Amount equal to $3 million plus the DIP Interest Amount shall have been deposited into the Deposit Escrow Account on or before July 29, 2024. |
| • | The Deposit Balance shall have been deposited into the Deposit Escrow Account on or before August 15, 2024; provided that this Milestone may be extended until August 31, 2024 in accordance with the Second Amended Plan Support Agreement. |
| • | An order confirming the Plan shall have been entered on or before August 15, 2024. |
| • | The Plan Effective Date shall occur on or before August 15, 2024; provided that in the event the Plan Effective Date does not occur on or before August 15, 2024, the Extended Emergence Funding Amount may be used by the Debtors in accordance with the Second Amended Plan Support Agreement; provided further that the Plan Effective Date shall occur no later than August 31, 2024. |
The Second Amended Plan Support Agreement also amends the Breakup Fee payable to the Plan Sponsor in certain situations, which is an amount equal to $4,350,000, except in certain situations as set forth in the Second Amended Plan Support Agreement, in which case the fee is in the amount of $2,900,000, less the Plan Sponsor Expense Reimbursement.
Each of the Company Parties and the Plan Sponsor shall use commercially reasonable efforts to implement the Restructuring Transaction in accordance with the Plan Support Milestones, unless such Plan Support Milestones are extended or waived at any time upon mutual consent of the Company Parties and the Plan Sponsor. The Second Amended Plan Support Agreement may be terminated on the occurrence of certain events, including, among other things, the failure to meet Plan Support Milestones. Although the Company intends to pursue the Restructuring Transaction contemplated by the Second Amended Plan Support Agreement, there can be no assurance that the Company Parties will be successful in completing a restructuring or any other similar transaction on the terms set forth in the Second Amended Plan Support Agreement or at all. In addition, the Restructuring Plan contemplated by the Second Amended Plan Support Agreement is subject to approval by the Bankruptcy Court, among other conditions. Accordingly, no assurance can be given that the transactions described therein will be consummated on the expected terms, if at all.
The foregoing description of the Second Amended Plan Support Agreement remains subject to approval by the Bankruptcy Court, is not complete, and is qualified in its entirety by reference to the Second Amended Plan Support Agreement, a copy of which is attached to this Current Report on Form 8-K as Exhibit 10.1, and is hereby incorporated herein by reference.
| Item 7.01. | Regulation FD Disclosure. |
Second Amended Joint Chapter 11 Plan
On June 26, 2024, the Debtors filed the First Amended Joint Chapter 11 Plan of Ebix, Inc. and its Debtor Affiliates amending the Joint Chapter 11 Plan of Ebix, Inc. and its Debtor Affiliates filed on March 22, 2024 and a related proposed amended Disclosure Statement with the Bankruptcy Court. On July 28, 2024, the Debtors filed the Second Amended Joint Chapter 11 Plan of Ebix, Inc. and its Debtor Affiliates (the “Second Amended Plan”). Capitalized terms used but not otherwise defined in this “Second Amended Joint Chapter 11 Plan” section of this Current Report on Form 8-K or in another section of this Current Report on Form 8-K shall have the meanings given to them in the Second Amended Plan.
The Second Amended Plan describes, among other things, the method of implementation of the Restructuring Transactions or, in the event the Restructuring Transactions cannot be consummated, sales of the Debtors assets, and the result if the Second Amended Plan is confirmed by the Bankruptcy Court on holders of Claims and Interests in the Debtors, including certain release and injunction provisions. The Second Amended Plan incorporates the terms of the Global Settlement, pursuant to which:
| • | The Creditors’ Committee supports the Second Amended Plan, including but not limited to the release and exculpation provisions set forth in Article VIII thereof. |
| • | The Plan Sponsor shall fund the New Money Investment (inclusive of the Plan Sponsor Deposit) in the amount of no less than $145 million. Holders of the Prepetition Secured Lender Claims shall receive Pro Rata distribution of the net proceeds from the New Money Investment, and the Holders of Allowed Non Lender GUC Claims shall not participate in any distributions from such proceeds of the Reorganization Transactions. |
| • | Separate from the New Money Investment, the Plan Sponsor shall fund $3.5 million, which shall be contributed to the GUC Recovery Pool and be distributed only to the Holders of Allowed Non Lender GUC Claims. Holders of the Prepetition Secured Lender Claims shall not participate in any distribution from the GUC Recovery Pool. |
| • | The Debtors shall assign to the Prepetition Agent for the benefit of the Prepetition Secured Lenders the Assigned Causes of Action. The Debtors shall execute any documentation reasonably necessary to assign standing to prosecute, together with all rights, title, and interest in/to, the Assigned Causes of Action to the Prepetition Agent on or before the Effective Date or August 31, 2024, whichever is sooner. Any and all proceeds from the Assigned Causes of Action shall be distributed solely to the Prepetition Secured Lender Parties, and the Holders of Allowed Non Lender GUC Claims shall not participate in any distributions from proceeds of the Assigned Causes of Action. The Creditors’ Committee (on behalf of all holders of the Non-Lender GUC Claims) and the Plan Sponsor agree to and support this assignment. |
| • | The Debtors release any Debtor Cause of Action against Holders of Allowed Non-Lender GUC Claims who vote in favor of the Plan and waive any distribution under the Plan; provided, that the foregoing release shall not be available to the Non-Released Parties. |
| • | The Global Settlement is subject to satisfaction of all the conditions above and consummation of the Reorganization Transactions. |
The Second Amended Plan also incorporates the terms of the Second Amended Plan Support Agreement, including with respect to the Debtors’ access to the Extended Emergence Funding Amount. The Second Amended Plan also includes certain other modifications, including: (a) to the definition of Releasing Party; (b) to the Debtors’ ability to close the Chapter 11 Cases other than of the Company for administrative purposes following entry of the Confirmation Order, and (c) to certain terms related to the Litigation Trust which may be created pursuant to the Second Amended Plan.
Although the Debtors intend to pursue the transactions in accordance with the terms set forth in the Second Amended Plan, there can be no assurance that the Second Amended Plan will be approved by the Bankruptcy Court or that the Debtors will be successful in consummating the transactions or any other similar transaction on the terms set forth in the Second Amended Plan, on different terms or at all. In addition, the transactions are subject to approval by the Bankruptcy Court, among other conditions. Accordingly, no assurance can be given that the transactions described in the Second Amended Plan will be consummated on the expected terms, if at all.
On June 27, 2024, the Bankruptcy Court issued an order, Order (I) Approving The Adequacy Of The Disclosure Statement, (II) Approving The Forms Of Ballots And Notices In Connection With Confirmation Of The Plan, (III) Scheduling Certain Dates With Respect Thereto, And (Iv) Granting Related Relief [Docket No. 696] (the “Solicitation Order”), approving the Amended Disclosure Statement as providing adequate information as required by the Bankruptcy Code, and authorizing the solicitation of votes on and issuance of notices to non-voting parties with respect to the Amended Plan. Neither the Debtors’ filing of the Second Amended Plan, nor this Current Report on Form 8-K, is a solicitation of votes to accept or reject the Second Amended Plan. Any such solicitation will be made pursuant to and in accordance with the solicitation and voting procedures approved by the Bankruptcy Court and applicable law, including the Solicitation Order.
Information contained in the Second Amended Plan is subject to change, whether as a result of amendments or supplements to the Second Amended Plan, third-party actions, or otherwise, and should not be relied upon by any party. Such amendments and supplements may be filed with the Bankruptcy Court without the filing of an accompanying Current Report on Form 8-K. The documents and other information available via website or elsewhere are not part of this Current Report on Form 8-K and shall not be deemed incorporated herein. The Second Amended Plan, and any further amendments or supplements, are available for review and free of charge online at https://omniagentsolutions.com/Ebix.
A copy of the Second Amended Plan is attached as Exhibit 99.1 to this Current Report on Form 8-K. The foregoing description of the Second Amended Plan is a summary only and is qualified in its entirety by reference to the full text of the Second Amended Plan.
The information in this Item 7.01, including Exhibit 99.1, shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liabilities of that section, and is not incorporated by reference into any filing under the Securities Act of 1933, as amended (the “Securities Act”) or the Exchange Act.
Cautionary Statements Regarding Trading in the Company’s Securities.
The Company cautions that trading in its securities during the pendency of the Chapter 11 Cases is highly speculative and poses substantial risks. Trading prices for the Company’s securities may bear little or no relationship to the actual recovery, if any, by holders of the Company’s securities in the Chapter 11 Cases. The terms of the Second Amended Plan provide that holders of the Company’s common stock will not receive any recovery on account of those shares upon the consummation of the Transactions contemplated by the Second Amended Plan.
Forward Looking Statements
This Form 8-K may contain forward-looking statements within the meaning of Section 27A of the Private Securities Litigation Reform Act. Statements in this Form 8-K that are not historical, are forward-looking statements made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project,” “should,” and “will” and variations of such words and similar expressions are intended to identify such forward-looking statements. Forward-looking statements are based on management’s current expectations, beliefs, assumptions and estimates and may include, for example, statements regarding Chapter 11 Cases, the Second Amended Plan Support Agreement, the Company’s ability to consummate and complete the Second Amended Plan and continue operating in the ordinary course while the Chapter 11 Cases are pending, the Company’s expected position upon emergence from bankruptcy, the Company’s expected profitability and liquidity and the Company’s preliminary results. These statements are subject to significant risks, uncertainties, and assumptions that are difficult to predict and could cause actual results to differ materially and adversely from those expressed or implied in the forward-looking statements, Such risks and uncertainties include, but are not limited to, risk and uncertainties relating to the Debtors’ continued operation of the business as “debtors-in-possession” the possibility that the Company may not be able to complete a reorganization or sale of all or a portion of the Company’s assets on favorable terms, or at all; the effects of the Chapter 11 Cases, including the increased legal and other professional costs necessary to execute the Chapter 11 Cases, the impact on the Company’s liquidity (including the availability of operating capital during the pendency of the Chapter 11 Cases), results of operations or business prospects; the effects of the
Chapter 11 cases on the interests of various constituents and financial stakeholders; the length of time at the Company will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of the Chapter 11 Cases; objections to the Company’s restructuring process, any senior secured super-priority debtor in possession term loan facilities, or other pleadings filed that could protract the Chapter 11 Cases; risks associated with third-party motions in the Chapter 11 Cases; Bankruptcy Court rulings in the Chapter 11 Cases and the outcome of the Chapter 11 Cases in general; the Company’s ability to comply with the restrictions imposed by the terms and conditions of its financing arrangements; the Company’s ability to satisfy the conditions and Plan Support Milestones set forth in the Second Amended Plan Support Agreement; the trading price and volatility of the Company’s common stock; employee attrition and the Company’s ability to retain senior management and other key personnel due to the distractions and uncertainties; the Company’s ability to maintain relationships with suppliers, customers, employees, and other third parties and regulatory authorities as a result of the Chapter 11 Cases; and the impact and timing of any cost-savings measures and related local law requirements in various jurisdictions. For a further description of the risks and uncertainties that could cause actual results to differ from those expressed in these forward-looking statements, as well as risks relating to the Company’s business in general, see the Company’s current and future reports filed with the Securities and Exchange Commission (the “SEC”). These and other risks, assumptions and uncertainties are more fully described in Item 1A (Risk Factors) of the Company’s most recent Annual Report on Form 10-K and in other documents that the Company files or furnishes with the SEC, which you are encouraged to read. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those indicated or anticipated by such forward-looking statements. Accordingly, you are cautioned not to rely on these forward-looking statements, which speak only as of the date they are made. The Company expressly disclaims any current intention, and assumes no duty, to update publicly any forward-looking statement after the distribution of this report, whether as a result of new information, future events, changes in assumptions or otherwise.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| * | In accordance with Item 601(a)(5) of Regulation S-K, certain schedules or similar attachments to this exhibit have been omitted from this filing. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: July 29, 2024
| EBIX, INC. | ||
| By: | /s/ Amit Kumar Grag | |
| Name: | Amit Kumar Garg | |
| Title: | Chief Financial Officer | |
Exhibit 10.1
EXECUTION VERSION
SECOND AMENDED PLAN SUPPORT AGREEMENT
THIS PLAN SUPPORT AGREEMENT IS NOT A THIRD-PARTY OFFER OR ACCEPTANCE WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN WITHIN THE MEANING OF SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. NOTHING CONTAINED IN THIS PLAN SUPPORT AGREEMENT SHALL BE AN ADMISSION OF FACT OR LIABILITY.
THIS PLAN SUPPORT AGREEMENT DOES NOT PURPORT TO SUMMARIZE ALL OF THE TERMS, CONDITIONS, REPRESENTATIONS, WARRANTIES, AND OTHER PROVISIONS WITH RESPECT TO THE RESTRUCTURING TRANSACTIONS DESCRIBED HEREIN, WHICH TRANSACTIONS WILL BE SUBJECT TO THE COMPLETION OF DEFINITIVE DOCUMENTS INCORPORATING THE TERMS SET FORTH HEREIN, AND THE CLOSING OF ANY TRANSACTION SHALL BE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN SUCH DEFINITIVE DOCUMENTS AND THE APPROVAL RIGHTS OF THE PARTIES SET FORTH HEREIN AND IN SUCH DEFINITIVE DOCUMENTS, IN EACH CASE, SUBJECT TO THE TERMS HEREOF.
PREAMBLE
This SECOND AMENDED PLAN SUPPORT AGREEMENT (including all exhibits, annexes, and schedules hereto in accordance with Section 15.02 hereof, this “Agreement”) is made and entered into as of July 22, 2024 (the “Execution Date”), by and among the following parties (each of the following, collectively, the “Parties”):1
| i. | Ebix, Inc. (“Ebix”), Vertex, Inc., P.B. Systems, Inc., Ebix Consulting, Inc., Ebix US, LLC, Facts Services, Inc., Doctors Exchange, Inc., Ebix International LLC, Agency Solutions.com, LLC d/b/a Health Connect LLC, ConfirmNet Corporation, A.D.A.M., Inc., and Ebix Latin America, LLC (collectively, the “Debtors”); |
| ii. | The consortium of Eraaya Lifespaces Limited, Vikas Lifecare Limited and Vitasta Software India Private Limited and/or one or more of their designees, in their capacity collectively as stalking horse plan sponsor (the “Plan Sponsor”); and |
| iii. | any other person that becomes party to this Agreement from time to time in accordance with the terms hereof. |
RECITALS
WHEREAS, on December 17, 2023 (the “Petition Date”), each of the Debtors commenced a case (collectively, the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Northern District of Texas (the “Bankruptcy Court”);
| 1 | Capitalized terms used but not defined in the preamble and recitals to this Agreement have the meanings ascribed to them in Section 1 hereof. |
1
WHEREAS, on June 12, 2024, the Debtors and the Plan Sponsor entered into a plan support agreement, which was subsequently amended on June 26, 2024 following the Auction (the “First Amended PSA”) to increase the Deposit, all in accordance with the terms set forth therein;
WHEREAS, on June 27, 2024, the Debtors filed the Amended Plan;
WHEREAS, as of the date hereof, the Debtors and the Plan Sponsor agree to amend the First Amended PSA as set forth in this Agreement to modify certain provisions relating to the Deposit and the Milestones, among other changes, all in accordance with the terms set forth herein;
WHEREAS, the Debtors and the Plan Sponsor have in good faith and at arms’ length negotiated or been apprised of certain transactions with respect to the Debtors’ capital structures and assets on the terms set forth in this Agreement, including the exhibits hereto (such transactions, the “Restructuring Transactions”);
WHEREAS, the Restructuring Transactions contemplate, among other things, that (a) the Plan Sponsor will receive, on the Plan Effective Date, one hundred percent (100%) of the equity of the Reorganized Debtors under the Debtors’ jointly administered plan of reorganization (the “Plan”), in the most tax efficient manner agreed to by the Debtors and the Plan Sponsor; and (b) the Plan will be funded with a $145 million new money investment (inclusive of the Deposit), of which $25 million may be through proceeds of the Exit Financing Facility (the “New Money Investment”), any cash on hand, and the Additional Consideration (collectively, the “Net Reorganization Transaction Proceeds”);
WHEREAS, as part of pursuing confirmation and consummation of the Amended Plan in accordance with this Agreement, the Plan Sponsor has agreed to provide the Additional Consideration and the Extended Emergence Funding Amount; and
WHEREAS, the Parties have agreed to take certain actions in support of the Restructuring Transactions on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound hereby, agrees as follows:
AGREEMENT
SECTION 1. Definitions and Interpretation.
1.01 Definitions. The following terms shall have the following definitions:
“Additional Consideration” means $3.5 million to be provided by the Plan Sponsor pursuant to this Agreement and the Amended Plan (including any amendments thereto).
“Administrative Claim” means a Claim for costs and expenses of administration of the Chapter 11 Cases pursuant to sections 503(b) or 507(a)(2) of the Bankruptcy Code, including (a) the actual and necessary costs and expenses of preserving the Estates and operating the Debtors’ businesses; (b) the Professional Claims; and (c) all fees and charges assessed against the Estates pursuant to section 1930 of chapter 123 of title 28 of the United States Code.
“Agreement” has the meaning set forth in the Preamble to this Agreement and, for the avoidance of doubt, includes all the exhibits, annexes, and schedules hereto in accordance with Section 15.02.
2
“Agreement Effective Date” means the date on which the conditions set forth in Section 2 have been satisfied or waived by the appropriate Party or Parties in accordance with this Agreement.
“Agreement Effective Period” means, with respect to each Party, the period from the Agreement Effective Date to the Termination Date applicable to that Party.
“Alternative Proposal” means any written or oral inquiry, proposal, offer, bid, term sheet, discussion, or agreement with respect to a sale, disposition, new-money investment, restructuring, reorganization, merger, amalgamation, acquisition, consolidation, dissolution, debt investment, equity investment, liquidation, tender offer, recapitalization, plan of reorganization, share exchange, business combination, or similar transaction involving any one or more Company Parties or the debt, equity, or other interests in any one or more Company Parties that is an alternative to one or more of the Restructuring Transactions.
“Amended Plan” means the First Amended Joint Chapter 11 Plan of Ebix, Inc. and Its Debtor Affiliates, [Docket No. 693], which was filed on June 27, 2024 (as it may be further amended, modified, and/or supplemented from time to time in accordance with the terms of this Agreement).
“Auction” means an auction for the sale of the Debtors’ assets, which the Debtors may hold on June 20, 2024, if the Debtors receive two or more Qualified Bids by the bid deadline of June 14, 2024, at 4:00 p.m. (prevailing Central Time).
“Back-Up Bidder” means the bidder determined by the Debtors to have submitted the second highest and best bid at the Auction.
“Bankruptcy Code” has the meaning set forth in the Recitals to this Agreement.
“Bankruptcy Court” has the meaning set forth in the Recitals to this Agreement.
“Bid Procedures” means the bid procedures governing the Sale Transaction, as approved by the Bankruptcy Court in the Bid Procedures Order.
“Bid Procedures Order” means the Order (I) Approving Bid Procedures for Non-L&A Assets, Equity, and Plan Sponsorship Rights and Authorizing the Sale Transactions; (II) Approving Notices in Connection with the Transactions; and (III) Granting Related Relief [Docket No. 514], as entered by the Bankruptcy Court on April 16, 2024, and as attached hereto as Exhibit B.
“Bid Protections” means those certain bid protections described herein, including the Breakup Fee and the Plan Sponsor Expense Reimbursement.
“Breakup Fee” means a termination fee payable in accordance with the terms of Section 12.03(c) hereof, in an amount equal to $4,350,000, except as set forth in Section 12.03(c)(y), in which case the fee is in the amount of $2,900,000, less the Plan Sponsor Expense Reimbursement.
“Business Day” means any day other than a Saturday, Sunday, or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of New York.
“Causes of Action” means any claims, interests, damages, remedies, causes of action, demands, rights, actions, controversies, proceedings, agreements, suits, obligations, liabilities, accounts, defenses, offsets, powers, privileges, licenses, liens, indemnities, guaranties, and franchises of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising,
3
contingent or non-contingent, liquidated or unliquidated, secured or unsecured, assertable, directly or derivatively, matured or unmatured, suspected or unsuspected, whether arising before, on, or after the Petition Date, in contract, tort, law, equity, or otherwise. Causes of Action also include: (a) all rights of setoff, counterclaim, or recoupment and claims under contracts or for breaches of duties imposed by law or in equity; (b) the right to object to or otherwise contest Claims or Interests; (c) claims pursuant to section 362 or chapter 5 of the Bankruptcy Code; (d) such claims and defenses as fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of the Bankruptcy Code; and (e) any avoidance actions arising under chapter 5 of the Bankruptcy Code or under similar local, state, federal, or foreign statutes and common law, including fraudulent transfer laws.
“Chapter 11 Cases” has the meaning set forth in the Recitals to this Agreement.
“Claim” has the meaning ascribed to it in section 101(5) of the Bankruptcy Code.
“Company Parties” means collectively, the Non-Debtor Guarantors together with the Debtors.
“Confidentiality Agreement” means an executed confidentiality agreement in connection with any proposed Restructuring Transactions.
“Confirmation Order” means the confirmation order with respect to the Plan.
“Debtors” has the meaning set forth in the Preamble to this Agreement.
“Definitive Documents” means all documents, instruments, deeds, notifications, agreements, and filings related to documentation, implementation, and consummation of the Restructuring Transactions, each of which shall be materially consistent with the terms of this Agreement, including, without limitation: (a) the Plan; (b) the Disclosure Statement; (c) the Disclosure Statement Order; (d) the Plan Supplement; (e) the Confirmation Order; and (f) all other material documents necessary or customarily required to consummate the Restructuring Transactions.
“Deposit” has the meaning set forth in Section 4 of this Agreement, which amount shall be held in the Deposit Escrow Account pending release as provided for under the terms of Section 5.04 of this Agreement.
“Deposit Balance” means the New Money Investment less the Deposit.
“Deposit Escrow Account” means an escrow account into which the Deposit shall be deposited, which account shall be established and maintained by the Escrow Agent pursuant to the Escrow Agreement.
“DIP Agent” means Regions Bank, as administrative agent under the DIP Credit Agreement.
“DIP Credit Agreement” means the credit agreement to be entered into consistent with the DIP Term Sheet.
“DIP Documents” means the DIP Credit Agreement and any other documentation necessary to effectuate the incurrence of the debtor-in-possession financing facility.
“DIP Interest” means interest payable under and in accordance with the DIP Documents.
4
“DIP Interest Amount” means DIP Interest for the period between August 15, 2024 and the Effective Date, which is approximately $77,000 for the period of August 15, 2024 to August 31, 2024.
“DIP Lenders” means the lenders from time to time party to the DIP Credit Agreement.
“Disclosure Statement” means the related disclosure statement with respect to the Plan.
“Disclosure Statement Order” means an order entered by the Bankruptcy Court approving the adequacy of the Disclosure Statement.
“Ebix” has the meaning set forth in the Recitals to this Agreement.
“Escrow Agent” means East West Bank.
“Escrow Agreement” means the escrow agreement, as amended, dated as of March 19, 2024, by and among, Omni Agent Solutions, Inc. as claims, noticing, and solicitation agent for Ebix and the Escrow Agent.
“Execution Date” has the meaning set forth in the Preamble to this Agreement.
“Executory Contract” means a contract to which one or more of the Debtors is a party to that is subject to assumption, assumption and assignment, or rejection under sections 365 or 1123 of the Bankruptcy Code.
“Exit Financing Facility” means the credit facility to be entered into by the Reorganized Debtors at the Plan Sponsor’s discretion that shall provide for proceeds of up to $25 million on the Plan Effective Date.
“Extended Emergence Costs” means, in the event the Effective Date does not occur on or before August 15, 2024, an amount equal to Administrative Claims (up to $3 million) and DIP Interest, in each case, incurred by the Debtors between August 15, 2024 and the Effective Date.
“Extended Emergence Funding Amount” means, together, (a) $3 million plus (b) the DIP Interest Amount.
“First Amended PSA” has the meaning set forth in the Recitals to this Agreement.
“Initial Deposit” has the meaning set forth in Section 4 of this Agreement.
“Initial Plan” means the Joint Chapter 11 Plan of Ebix, Inc. and its Debtor Affiliates [Docket No. 467], which was filed on March 22, 2024.
“Interest” means common stock, preferred stock, limited liability company interests, and any other equity, ownership, or profits interests, and options, warrants, rights, or other securities or agreements to acquire the common stock, preferred stock, limited liability company interests, or other equity, ownership, or profits interests.
“Law” means any federal, state, local, or foreign law (including common law), statute, code, ordinance, rule, regulation, order, ruling, or judgment, in each case, that is validly adopted, promulgated, issued, or entered by a governmental authority of competent jurisdiction (including the Bankruptcy Court).
5
“Milestones” means the milestones set forth in Section 4 herein.
“Net Reorganization Transaction Proceeds” has the meaning set forth in the Recitals to this Agreement.
“New Money Investment” has the meaning set forth in the Recitals to this Agreement.
“Non-Debtor Guarantors” means, together, Ebix International Holdings Limited and Ebix Singapore Pte. Ltd., as guarantors under the Prepetition Credit Agreement.
“Non-Released Parties” means any Entities that are not Released Parties, including those Entities identified in the Plan Supplement.
“Parties” has the meaning set forth in the Preamble to this Agreement.
“Petition Date” means the first date one which any of the Debtors commences a Chapter 11 Case.
“Plan” has the meaning set forth in the Recitals to this Agreement.
“Plan Effective Date” means the date that is the first business day after confirmation of the Plan on which all conditions precedent have been satisfied or waived in accordance with the Plan and the Confirmation Order. Any action to be taken on the Plan Effective Date may be taken on or as soon as reasonably practicable thereafter subject to and in accordance with the terms of the Plan.
“Plan Sponsor” has the meaning set forth in the Preamble to this Agreement.
“Plan Sponsor Expense Reimbursement” means the sum of the aggregate amount of the Plan Sponsor’s actual reasonable documented out-of-pocket costs and expenses (including expenses of outside counsel, accountants and financial advisors, which shall be based on summary invoices, redacted to preserve privileged or confidential information) incurred by the Plan Sponsor prior to termination of this Agreement.
“Plan Supplement” means the compilation of documents and forms of documents, schedules, and exhibits to the Plan that will be filed by the Debtors with the Bankruptcy Court.
“Plan Term Sheet” means the term sheet for a plan of reorganization, attached hereto as Exhibit A.
“Prepetition Agent” means Regions Banks, as administrative and collateral agent under the Prepetition Credit Agreement.
“Prepetition Credit Agreement” means that certain Credit Agreement, dated as of August 5, 2014, as amended, restated, supplemented, or otherwise modified and in effect from time to time, by and among Ebix, as borrower, certain subsidiaries of Ebix, as guarantors, each lender from time to time party thereto, and the Prepetition Agent as the administrative agent and collateral agent.
“Prepetition Documents” means, collectively, the Prepetition Credit Agreement and all related security agreements, collateral agreements, pledge agreements, control agreements, guarantees and other documents (including, without limitation, any notes, guarantees, collateral documents, amendments, and fee letters entered into in connection therewith).
6
“Prepetition Secured Claims” means any Claim arising under the Prepetition Documents.
“Prepetition Secured Lenders” means the holders of the Prepetition Secured Claims.
“Qualified Bid” means an irrevocable offer delivered to the Debtors for the purchase or some or all of the assets of the Debtors, or a reorganization transaction, that meets the criteria set forth in Section IX of the Bid Procedures.
“Related Party” means, with respect to any person or Entity, each of, and in each case in its capacity as such, current and former directors, managers, officers, committee members, members of any governing body, equity holders (regardless of whether such interests are held directly or indirectly), affiliated investment funds or investment vehicles, managed accounts or funds, predecessors, participants, successors, assigns, subsidiaries, affiliates, partners, limited partners, general partners, principals, members, management companies, fund advisors or managers, employees, agents, trustees, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals and advisors of such person or Entity and any such person’s or Entity’s respective heirs, executors, estates, and nominees.
“Released Parties” means: (a) the Prepetition Secured Lenders; (b) the Prepetition Agent; (c) the DIP Lenders; (d) the DIP Agent; (e) the Debtors; (f) the Plan Sponsor; (g) the current and former directors and officers of the Debtors, including the Special Directors; (h) the Non-Debtor Guarantors; and (i) with respect to each of the foregoing Entities in clauses (a) through (f), such Entities’ Related Parties. Notwithstanding the foregoing, the Released Parties shall not include any Non-Released Party. Released Parties shall include Mr. Robin Raina and any of the Debtors’ officers and management.
“Reorganized Debtors” means each of the Debtors, as reorganized pursuant to the Plan.
“Restructuring Transactions” has the meaning set forth in the Recitals to this Agreement.
“Rules” means Rule 501(a)(1), (2), (3), and (7) of the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended.
“Special Directors” means Elizabeth LaPuma and Jill Krueger, in their capacity as independent directors of the board of Ebix, as members of the Ebix board of director’s finance committee, and as members of the Ebix board of director’s compensation committee.
“Stalking Horse Agreement” means the agreement memorializing the proposed transaction set forth in the Stalking Horse Bid. For the purposes of this Agreement, the Stalking Horse Agreement shall mean this Agreement, along with the Exhibits thereto, including the Plan Term Sheet.
“Stalking Horse Bid” means the bid made by the Stalking Horse Bidder. For the purposes of this Agreement, the Stalking Horse Bid shall mean the Restructuring Transactions.
“Stalking Horse Bidder” means the bidder designated by the Debtors under the terms of the Bid Procedures and the Bid Procedures Order, whose bid shall serve as the stalking horse bid, subject to higher and better bids in accordance with the terms of the Bid Procedures. For the purposes of this Agreement, the Stalking Horse Bidder shall be the Plan Sponsor.
“Successful Bidder” means bidder determined by the Debtors to have submitted the highest and best bid at the Auction.
7
“Termination Date” means the date on which termination of this Agreement as to a Party is effective in accordance with Sections 12.01 and 12.02 hereof.
“Transfer” means to sell, resell, reallocate, use, pledge, assign, transfer, hypothecate, participate, donate or otherwise encumber or dispose of, directly or indirectly (including through derivatives, options, swaps, pledges, forward sales or other transactions).
“Unexpired Lease” means a lease of nonresidential real property to which one or more of the Debtors is a party to that is subject to assumption, assumption and assignment, or rejection under sections 365 or 1123 of the Bankruptcy Code.
1.02 Interpretation. For purposes of this Agreement:
This Agreement is the product of negotiations among the Parties, and the enforcement or interpretation hereof is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement or any portion hereof shall not be effective in regard to the interpretation hereof. Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:
(a) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender;
(b) capitalized terms defined only in the plural or singular form shall nonetheless have their defined meanings when used in the opposite form;
(c) unless otherwise specified, any reference herein to a contract, lease, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions;
(d) unless otherwise specified, any reference herein to an existing document, schedule, or exhibit shall mean such document, schedule, or exhibit, as it may have been or may be amended, restated, supplemented, or otherwise modified from time to time; provided that any capitalized terms herein which are defined with reference to another agreement, are defined with reference to such other agreement as of the date of this Agreement, without giving effect to any termination of such other agreement or amendments to such capitalized terms in any such other agreement following the date hereof;
(e) all references herein to “Sections” are references to the corresponding Section of this Agreement, unless otherwise specified;
(f) the words “herein,” “hereof,” “hereunder,” and “hereto” refer to this Agreement in its entirety rather than to any particular portion of this Agreement;
(g) captions and headings to Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of this Agreement;
(h) references to “shareholders,” “directors,” and/or “officers” shall also include “members” and/or “managers,” as applicable, as such terms are defined under the applicable limited liability company Laws;
8
(i) when calculating the period of time before which, within which, or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and, if the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day;
(j) all exhibits attached hereto or referred to herein are hereby incorporated in and made part of this Agreement as if set forth in full herein;
(k) the use of “include” or “including” is without limitation, whether stated or not, and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; and
(l) unless otherwise specified herein, the rules of construction set forth in section 102 of the Bankruptcy Code shall apply.
SECTION 2. Effectiveness of this Agreement.
2.01 This Agreement shall become effective and binding upon each of the Parties on the Agreement Effective Date, which is the date and time on which all of the following conditions have been satisfied or waived in accordance with this Agreement:
(a) each of the Company Parties and the Plan Sponsor shall have executed and delivered counterpart signature pages of this Agreement to counsel to each of the Parties; and
(b) the Plan Sponsor has delivered the Deposits set forth in Sections 4(a) and 4(c)(i) and (ii) to be held by the Company Parties in the Deposit Escrow Account subject to the terms of this Agreement.
2.02 This Agreement shall be effective from the Agreement Effective Date until validly terminated pursuant to the terms set forth in Section 12.
SECTION 3. Definitive Documents.
The Definitive Documents not executed or in a form attached to this Agreement as of the Execution Date remain subject to negotiation and completion. Upon completion, the Definitive Documents and every other document, deed, agreement, filing, notification, letter or instrument related to the Restructuring Transactions, or any amendments thereto, shall contain terms, conditions, representations, warranties, and covenants consistent with the terms of this Agreement, as they may be modified, amended, or supplemented in accordance with Section 13. The Definitive Documents shall include a release of the Prepetition Secured Claims with respect to the Non-Debtor Guarantors. Each of the Definitive Documents shall be, to the extent permitted by law, consistent with this Agreement in all respects and shall otherwise be reasonably acceptable in form and substance to: (a) the Company Parties; and (b) the Plan Sponsor.
SECTION 4. Milestones.
On and after the Agreement Effective Date, the Company Parties and the Plan Sponsor, as applicable, shall use commercially reasonable efforts to implement the Restructuring Transactions in accordance with each of the Milestones set forth below, unless such Milestones are extended or waived (at any time) in writing (which may be by email between applicable counsel) upon request by the Plan Sponsor or the Companies Parties, as applicable, with the other Party’s consent (not to be unreasonably withheld, conditioned, or delayed). Nothing in the Milestones shall prevent the Company Parties from exercising their respective fiduciary duties under applicable law; provided, that any such exercise may constitute a breach of this Agreement or the Definitive Documents.
9
(a) $7.25 million shall have been deposited into the Deposit Escrow Account on or before June 14, 2024 (the “Initial Deposit”).2
(b) An order approving the Disclosure Statement shall have been entered on or before July 30, 2024.3
(c) Each of the amounts set forth below shall have been deposited into the Deposit Escrow Account on or before the corresponding date set forth below (collectively with the Initial Deposit, the “Deposit”):
(i) $2,500,000 on or before July 1, 2024;4
(ii) $12,000,000 on or before July 16, 2024;5
(iii) $8,000,000 on or before July 26, 2024; and
(iv) $20,000,000 on or before July 29, 2024.
(d) The Additional Consideration shall have been deposited into the Deposit Escrow Account on or before July 29, 2024.
(e) The Extended Emergence Funding Amount shall have been deposited into the Deposit Escrow Account on or before July 29, 2024.
(f) The Deposit Balance shall have been deposited into the Deposit Escrow Account on or before August 15, 2024; provided that this Milestone shall be extended in accordance with Section 4(h) until August 31, 2024.
(g) An order confirming the Plan shall have been entered on or before August 15, 2024.
(h) The Plan Effective Date shall occur on or before August 15, 2024; provided that in the event the Plan Effective Date does not occur on or before August 15, 2024, the Extended Emergence Funding Amount may be used by the Debtors in accordance with Section 6.02; provided further that the Plan Effective Date shall occur no later than August 31, 2024.
SECTION 5. Chapter 11 Cases.
5.01 Designation of Stalking Horse Bidder. Upon the execution of this Agreement, the Debtors shall designate the Plan Sponsor as the Stalking Horse Bidder and the Restructuring Transaction, as set forth in this Agreement and the Plan Term Sheet, as the Stalking Horse Bid, each as contemplated in the Bid Procedures and authorized by the Bid Procedures Order. This Agreement, along with the exhibits thereto shall constitute the Stalking Horse Agreement. As soon as reasonably practicable following the Agreement Effective Date, the Debtors shall file a notice of the designation of Stalking Horse Bidder and serve such notice pursuant to the requirements of the Bid Procedures Order.
| 2 | It is acknowledged and agreed between the Parties that this Milestone has been satisfied. |
| 3 | It is acknowledged and agreed between the Parties that this Milestone is satisfied pursuant to Docket No. 696. |
| 4 | It is acknowledged and agreed between the Parties that this Milestone has been satisfied. |
| 5 | It is acknowledged and agreed between the Parties that this Milestone has been satisfied. |
10
5.02 Bid Protections. As authorized in the Bid Procedures Order, the Plan Sponsor shall be entitled to certain Bid Protections, including the Breakup Fee and the Plan Sponsor Expense Reimbursement, which shall not exceed, in the aggregate, three percent (3%) of the New Money Investment (i.e. $4.35 million). The Bid Protections shall only be available to the Plan Sponsor in accordance with the terms of Section 12.03(c) hereof.
5.03 Restructuring Transactions. The terms for implementation of the Plan, along with the treatment of allowed Claims and Interests of the Debtors, shall be as set forth in the Plan Term Sheet, attached hereto as Exhibit A.
5.04 Deposit.
(a) If the Stalking Horse Bidder is determined to be the Successful Bidder, then (i) upon entry of the Confirmation Order, the Debtors shall cause the Escrow Agent in accordance with the Escrow Agreement to release from the Deposit Escrow Account the entire Deposit (which shall include any investment proceeds that have accrued from the date hereof through the withdrawal of the Deposit) to the Debtors, by irrevocable wire transfer of immediately available funds, to an account designated by the Debtors to the Escrow Agent; and (ii) the Deposit (which shall include any investment proceeds that have accrued from the date hereof through the withdrawal of the Deposit) shall be delivered to the Debtors and credited against the amount required to be paid by the Plan Sponsor to the Debtors.
(b) If this Agreement is terminated by the Debtors pursuant to Sections 12.01(b), 12.01(i), 12.01(j), or 12.01(k) hereof, (i) the Debtors shall cause the Escrow Agent in accordance with the Escrow Agreement to release from the Deposit Escrow Account the entire Deposit (which shall include any investment proceeds that have accrued from the date hereof through the withdrawal of the Deposit) to the Debtors, by irrevocable wire transfer of immediately available funds, to an account designated by the Debtors to the Plan Sponsor; and (ii) the Deposit, which shall constitute liquidated damages (and not a penalty), shall be delivered to the Debtors within two (2) Business Days following delivery of such instruction by the Debtors.
(c) If this Agreement is validly terminated for any reason in accordance with this agreement other than by the Debtors pursuant to Sections 12.01(b), 12.01(i), 12.01(j), or 12.01(k) hereof, (i) the Debtors shall cause the Escrow Agent in accordance with the Escrow Agreement to release from the Deposit Escrow Account the entire Deposit (which shall include any investment proceeds that have accrued from the date hereof through the withdrawal of the Deposit) to the Plan Sponsor, by irrevocable wire transfer of immediately available funds, to an account designated by the Plan Sponsor to the Escrow Agent; and (ii) the Deposit (which shall include any investment proceeds that have accrued from the date hereof through the withdrawal of the Deposit) shall be delivered to the Plan Sponsor within two (2) Business Days following delivery of such instruction by the Debtors.
(d) Any issue regarding the entitlement to the Deposit shall be determined by the Bankruptcy Court, and the Plan Sponsor consents to the jurisdiction of the Bankruptcy Court for any issue related to this Agreement.
11
SECTION 6. Commitments of the Plan Sponsor.
6.01 General Commitments, Forbearances, and Waivers.
(a) During the Agreement Effective Period, the Plan Sponsor agrees to:
(i) support the Restructuring Transactions and to act in good faith and take all reasonable actions necessary to implement and consummate the Restructuring Transactions in accordance with the terms, conditions, and applicable Milestones and other deadlines set forth in this Agreement and the Plan Term Sheet, as applicable;
(ii) negotiate in good faith and use commercially reasonable efforts to execute and implement the applicable Definitive Documents that are consistent with this Agreement to which it is required to be a party;
(iii) use commercially reasonable efforts to cooperate with and assist the Company Parties in obtaining additional support for the Restructuring Transactions from the Company Parties’ other stakeholders; and
(iv) use commercially reasonable efforts to oppose any party or person from taking any actions contemplated in Section 6.01(b).
(b) During the Agreement Effective Period, the Plan Sponsor agrees that it shall not directly or indirectly:
(i) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(ii) object to, delay, impede, or take any other action to terminate, shorten, or interfere with the Debtors’ exclusivity rights under section 1121 of the Bankruptcy Code;
(iii) file any motion, pleading, or other document with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement;
(iv) object to or take any other action to oppose any motion or other pleading or document filed by any Debtor in the Bankruptcy Court that is consistent with this Agreement;
(v) initiate, or have initiated on its behalf, any litigation or proceeding of any kind with respect to the Chapter 11 Cases, this Agreement, or the other Restructuring Transactions contemplated herein against the Debtors or the other Parties other than to enforce this Agreement or any Definitive Document or as otherwise permitted under this Agreement;
(vi) exercise, or direct any other person to exercise, any right or remedy for the enforcement, collection, or recovery of any of Claims against or Interests in the Debtors; or
(vii) object to, delay, impede, or take any other action to interfere with the Debtors’ ownership and possession of their assets, wherever located, or interfere with the automatic stay arising under section 362 of the Bankruptcy Code; provided that nothing in this Agreement shall limit the right to exercise any right or remedy provided under this Agreement or any other Definitive Document.
12
6.02 Additional Provisions Related to Emergence.
(a) In the event the Plan Effective Date does not occur on or before August 15, 2024, the Debtors shall be entitled to use the Extended Emergence Funding Amount to pay the Extended Emergence Costs in the ordinary course of business or in accordance with the Plan; unless the primary cause of the non-occurrence of the Plan Effective Date has been the Debtors’ failure to fulfill any of their obligations under this Agreement. The Debtors shall provide the Plan Sponsor with a summary of Extended Emergence Costs incurred and paid.
(b) To the extent (x) the actual incurred or reasonably estimated to be incurred Extended Emergence Funding Costs are less than the Extended Emergence Funding Amount and/or (y) the Plan provides for distribution of less than the full amount of the Additional Consideration, then the excess of such amounts shall be applied to reduce the Deposit Balance Amount (or, with respect to reasonably estimated Extended Emergence Funding Costs in excess of actually incurred Extended Emergence Funding Costs, shall revert to the Plan Sponsor).
Nothing in this Agreement shall require the Plan Sponsor to consent to, acquiesce in, support, or not object to any Alternative Proposal or any portion thereof, including, without limitation, any alternative to the terms and provisions of the Plan Term Sheet.
SECTION 7. Additional Provisions Regarding the Plan Sponsor’s Commitments.
Notwithstanding anything contained in this Agreement, nothing in this Agreement shall: (a) affect the ability of the Plan Sponsor to consult with the Company Parties or any other party in interest in the Chapter 11 Cases (including the Prepetition Lenders, the official committee of unsecured creditors or the United States Trustee), subject to all applicable Confidentiality Agreements; (b) impair or waive the rights of the Plan Sponsor to assert or raise any objection not prohibited under this Agreement in connection with the Restructuring Transactions; (c) prevent the Plan Sponsor from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement; (d) be construed to prohibit the Plan Sponsor from appearing as party-in-interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with this Agreement and are not for the purpose of delaying, interfering, impeding or taking any other action to delay, interfere, impede, directly or indirectly, the Restructuring Transactions; (e)(i) prevent the Plan Sponsor from taking any action that is required by applicable law, or (ii) require the Plan Sponsor to take any action that is prohibited by applicable law or to waive or forego the benefit of any applicable legal or other professional or business professional privilege; (f) prevent the Plan Sponsor, by reason of this Agreement or the Restructuring Transactions, from making, seeking, or receiving any regulatory filings, notifications, consents, determinations, authorizations, permits, approvals, licenses, or the like that are required by applicable law; or (g) prevent the Plan Sponsor from defending itself to the fullest extent permitted by law and in the event of any litigation with respect to the Chapter 11 Cases, this Agreement, or the other Restructuring Transactions.
SECTION 8. Commitments of the Company Parties.
8.01 Affirmative Commitments. Except as set forth in Section 9, which recognizes the Debtors’ duty to designate the highest and best offer in accordance with the terms of the Bid Procedures, or with the consent of the Plan Sponsor, during the Agreement Effective Period, the Debtors agree to:
(a) support and use commercially reasonable efforts to (i) pursue the Restructuring Transactions on the terms and in accordance with the Milestones set forth in this Agreement, including by negotiating the Definitive Documents in good faith, and (ii) cooperate with the Plan Sponsor to obtain necessary Bankruptcy Court approval of the Definitive Documents to consummate the Restructuring Transactions;
13
(b) support and take all steps reasonably necessary and desirable to consummate the Restructuring Transactions in accordance with this Agreement;
(c) not take any action, and not encourage any other person or entity to, take any action, directly or indirectly, that would reasonably be expected to, breach or be inconsistent with this Agreement, or take any other action, directly or indirectly, that would reasonably be expected to interfere with the acceptance or implementation of the Restructuring Transactions or this Agreement;
(d) until the Plan Effective Date, maintain the appointment and mandate of the Finance Committee and the Special Directors;
(e) negotiate in good faith and use commercially reasonable efforts to execute and deliver any appropriate additional or alternative agreements to address any legal, financial, or structural impediment to the Restructuring Transactions that are necessary to effectuate the Restructuring Transactions in accordance with the terms hereof;
(f) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(g) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;
(h) use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;
(i) provide counsel to the Plan Sponsor with a reasonable opportunity to review any Definitive Document the Debtors intend to file with the Bankruptcy Court;
(j) upon request of the Plan Sponsor, inform counsel to the Plan Sponsor as to: (i) the material business and financial (including liquidity) performance of the Company Parties; (ii) the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and (iii) the status of obtaining any necessary or desirable authorizations (including any consents) from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange;
(k) to the extent applicable, object to any motion filed with the Bankruptcy Court by any person or entity (i) seeking the entry of an order terminating the Debtors’ exclusive right to file and/or solicit acceptances of a chapter 11 plan, or (ii) seeking the entry of an order terminating, annulling, or modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to any material asset that, to the extent such relief was granted, would have a material adverse effect on or delay the consummation of the Restructuring Transactions;
(l) to the extent applicable, not file any pleading seeking entry of an order, and object to any motion filed with the Bankruptcy Court by any person or entity seeking the entry of an order, (i) directing the appointment of an examiner or chapter 11 trustee, (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases, or (iv) for relief that (x) is inconsistent with this Agreement in any material respect or (y) would reasonably be expected to frustrate the purposes of this Agreement, including by preventing or delaying the consummation of the Restructuring Transactions; and
14
(m) inform the Plan Sponsor as soon as reasonably practicable after becoming aware of: (i) any matter or circumstance which they know, or suspect is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions; (ii) a breach or termination event of this Agreement (including a breach by any Company Party); and (iii) any representation or statement made or deemed to be made by them under this Agreement which is or proves to have been materially incorrect or misleading in any respect when made or deemed to be made.
8.02 Negative Commitments. Subject to Sections 9.01 and 9.02 hereof, during the Agreement Effective Period, each of the Debtors shall not directly or indirectly:
(a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;
(b) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation, and consummation of the Restructuring Transactions described in this Agreement;
(c) file any motion, pleading, or Definitive Documents with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement;
(d) incur any material indebtedness or equity financing without prior written consent of the Plan Sponsor other than borrowings under the DIP Credit Agreement;
(e) sell or dispose of any material assets without prior written consent of the Plan Sponsor;
(f) transfer any assets outside of the ordinary course of business to any person or entity, unless consistent with this Agreement;
(g) assume or reject any Executory Contract or Unexpired Lease without the prior written consent of the Plan Sponsor;
(h) modify the Plan or any other Definitive Document, in whole or in part, in a manner that is not consistent with this Agreement in all material respects; or
(i) except as contemplated and permitted by the Definitive Documents, engage in any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness or other similar transaction outside the ordinary course of business, other than the transactions contemplated herein and on the terms contemplated hereby without the consent of the Plan Sponsor.
SECTION 9. Additional Provisions Regarding Company Parties’ Commitments.
9.01 Notwithstanding anything to the contrary herein, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable law, the Bid Procedures Order, or its fiduciary obligations under applicable Law.
15
9.02 Notwithstanding anything to the contrary in this Agreement, each Debtor and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives shall have the rights to: (a) consider and respond to Alternative Proposals; (b) provide access to nonpublic information concerning any Debtor to any Entity or enter into Confidentiality Agreements or nondisclosure agreements with any entity; (c) maintain or continue discussions or negotiations with respect to Alternative Proposals; (d) otherwise cooperate with, assist or participate in any inquiries, proposals, discussions, or negotiation of Alternative Proposals in good faith and consistent with applicable fiduciary obligations; and (e) enter into or continue discussions or negotiations with holders of Claims or Interests or any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other entity regarding the Restructuring Transactions or Alternative Proposals. Notwithstanding anything to the contrary in this Agreement, each Debtor and their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives shall continue to pursue the highest and best Qualified Bid(s) for the Debtors assets as contemplated by the Bid Procedures and authorized by the Bid Procedures Order.
9.03 Nothing in this Agreement shall: (a) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions; or (b) prevent any Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement.
SECTION 10. Cooperation and Support.
Each Party hereby covenants and agrees to cooperate with the other Parties in good faith and shall coordinate their activities (to the extent practicable and subject to the terms hereof) with respect to: (a) all matters relating to their rights hereunder; (b) all matters concerning the implementation of the Restructuring Transactions; and (c) the pursuit, approval and support of the Restructuring Transactions. Furthermore, subject to the terms hereof, each of the Parties shall take such action as may be reasonably necessary or reasonably requested by the other Parties to carry out the purposes and intent of this Agreement, or to effectuate the solicitation of the Restructuring Transactions, including making and filing any required regulatory filings, executing and delivering any other necessary agreements or instruments, and shall refrain from taking any action that would frustrate the purposes and intent of this Agreement.
SECTION 11. Mutual Representations, Warranties, and Covenants.
Each of the Parties represents, warrants, and covenants to each other Party, as of both the date such Party executed and delivers this Agreement and as of the Plan Effective Date:
(a) it is validly existing and in good standing under the Laws of the jurisdiction of its organization, and this Agreement is a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable Laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) subject to the Bankruptcy Court’s confirmation of the Plan, the entry into and performance by it of, and the transactions contemplated by, this Agreement do not, and will not, conflict in any material respect with any Law or regulation applicable to it or with any of its articles of association, memorandum of association, or other constitutional documents;
(c) the entry into and performance by it of, and the transactions contemplated by, this Agreement do not, and will not, conflict in any material respect with any Law or regulation applicable to it or with any of its articles of association, memorandum of association or other constitutional documents;
16
(d) subject to the Debtors’ determination of the highest and best bid at Auction and except as expressly provided in this Agreement, it has (or will have, at the relevant time) all requisite corporate or other power and authority to enter into, execute, and deliver this Agreement and to effectuate the Restructuring Transactions contemplated by, and perform its respective obligations under, this Agreement;
(e) except as expressly provided by this Agreement, it is not party to any restructuring or similar agreements or arrangements with the other Parties to this Agreement that have not been disclosed to all Parties to this Agreement;
(f) it has been represented by legal counsel of its choosing in connection with this Agreement and the transactions contemplated by this Agreement, has had the opportunity to review this Agreement with its legal counsel, and has not relied on any statements made by any other Party or its legal counsel as to the meaning of any term or condition contained herein or in deciding whether to enter into this Agreement or the transactions contemplated hereby.
SECTION 12. Termination Events.
12.01 Events of Termination. Notwithstanding anything to the contrary, this Agreement may be terminated and the Restructuring Transactions may be abandoned at any time prior to the Plan Effective Date:
(a) by mutual written consent of the Debtors and the Plan Sponsor;
(b) by the Debtors or the Plan Sponsor by written notice to the Debtors or the Plan Sponsor from the other, upon the failure to meet a Milestone, which has not been waived or extended in a manner consistent with this Agreement, unless such failure is the result of any act, omission, or delay on the part of the terminating party in violation of its obligations under this Agreement;
(c) by the Plan Sponsor upon entry of an order that grants relief terminating, annulling, or materially modifying the automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard to any material asset that, to the extent such relief were granted, would have a material adverse effect on the consummation of the Restructuring Transactions or materially and adversely affects any Debtors’ ability to operate its business in the ordinary course;
(d) by the Debtors or the Plan Sponsor, by written notice to the Debtors or the Plan Sponsor from the other, if (i) the Bankruptcy Court shall enter an order approving a higher or better bid or any other Alternative Proposal to a person other than the Plan Sponsor, and (ii) either (A) the Plan Sponsor is not serving as the Backup Bidder or (B) such Alternative Proposal is consummated;
(e) by the Plan Sponsor if the Debtors, (i) withdraw the Plan, or (ii) publicly announce their intention not to support the Restructuring Transactions, except as otherwise explicitly permitted hereunder, including in Sections 9.01 and 9.02 hereof;
(f) by the Debtors or the Plan Sponsor, by written notice to the Debtors or the Plan Sponsor from the other, upon the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Debtor or Plan Sponsor seeking an order, (i) converting one or more of the Chapter 11 Cases of a Debtor to a case under chapter 7 of the Bankruptcy Code, (ii) appointing a trustee in one or more of the Chapter 11 Cases of a Debtor, or (iii) rejecting this Agreement; provided that this termination right may not be exercised if the Debtors or the Plan Sponsor, as applicable, sought or requested such order in contravention of any obligation set out in this Agreement;
17
(g) by the Debtors or the Plan Sponsor, by written notice to the Debtors or the Plan Sponsor from the other, upon the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for ten (10) Business Days after the Plan Sponsor transmits a written notice in accordance with Section 15.12 hereof detailing any such issuance; provided, that this termination right may not be exercised if the Debtors or the Plan Sponsor, as applicable, sought or requested such ruling or order in contravention of any obligation set out in this Agreement;
(h) by the Plan Sponsor, by written notice from the Plan Sponsor to the Debtors, if there has been a breach or inaccuracy of a covenant, representation, or warranty made by the Debtors in this Agreement, such that the Restructuring Transactions contemplated herein cannot be consummated and which breach is incapable or being cured or, if capable of being cured, has not been cured by the Debtors prior to twenty (20) Business Days after receipt of written notice from the Plan Sponsor requesting such breach be cured; provided that the right to terminate this Agreement pursuant to this Section 12.01(h) shall not be available to the Plan Sponsor if the failure of the Plan Sponsor to fulfill any of its obligations under this Agreement has been the primary cause of, or resulted in, such breach;
(i) by the Debtors, by written notice from the Debtors to the Plan Sponsor, if there has been a breach or inaccuracy of a covenant, representation, or warranty made by the Plan Sponsor in this Agreement, such that the Restructuring Transactions contemplated herein cannot be consummated and which breach is incapable or being cured or, if capable of being cured, has not been cured by the Plan Sponsor prior to twenty (20) Business Days after receipt of written notice from the Debtors requesting such breach be cured; provided that the right to terminate this Agreement pursuant to this Section 12.01(i) shall not be available to the Debtors if the failure of the Debtors to fulfill any of its obligations under this Agreement has been the primary cause of, or resulted in, such breach;
(j) by the Debtors, by written notice from the Debtors to the Plan Sponsor, if the Plan Sponsor (i) has not deposited the New Money Investment into an escrow account at a bank or other institution acceptable to the Debtors within the timeframe required in Section 4 hereof; or (ii) is unable to make available to the Debtors the entire New Money Investment within the timeframe required in Section 4 hereof;
(k) by the Debtors, by written notice from the Debtors to the Plan Sponsor, if the Plan Sponsor (i) publicly announces its intention not to support the Restructuring Transactions; (ii) takes any action or fails to take any action inconsistent with their obligations under Section 6.01(a) hereof; or (iii) takes any of the actions set forth in Section 6.01(b); or
(l) by the Debtors, by written notice from the Debtors to the Plan Sponsor, if the board of directors, board of managers, or such similar governing body of any of the Debtors determines, after consulting with counsel, that proceeding with any of the Restructuring Transactions would be inconsistent with the exercise of its fiduciary duties under applicable Law or that an Alternative Proposal constitutes a highest and best bid at the Auction.
12.02 Automatic Termination. This Agreement shall terminate automatically without any further required action or notice, immediately after the Plan Effective Date.
12.03 Effect of Termination.
18
(a) Upon the occurrence of a Termination Date as to a Party, this Agreement shall be of no further force and effect as to such Party and each Party subject to such termination shall be released from its commitments, undertakings, and agreements under or related to this Agreement and shall have the rights and remedies that it would have had, had it not entered into this Agreement, and shall be entitled to take all actions, whether with respect to the Restructuring Transactions or otherwise, that it would have been entitled to take had it not entered into this Agreement, including with respect to any and all Claims or Causes of Action. Nothing in this Agreement shall be construed as prohibiting any Company Party or the Plan Sponsor from contesting whether any such termination is in accordance with its terms or to seek enforcement of any rights under this Agreement that arose or existed before a Termination Date. Except as expressly provided in this Agreement, nothing herein is intended to, or does, in any manner waive, limit, impair, or restrict (a) any right of any Company Party or the ability of any Company Party to protect and reserve its rights (including rights under this Agreement), remedies, and interests, including its claims against the Plan Sponsor, and (b) any right of the Plan Sponsor, or the ability of the Plan Sponsor, to protect and preserve its rights (including rights under this Agreement), remedies, and interests, including its claims against any Company Party. No purported termination of this Agreement shall be effective under Section 12.01 or otherwise if the Party seeking to terminate this Agreement is in material breach of this Agreement, except a termination pursuant to Sections 12.01(l). Nothing in this Section 12.03 shall restrict any of the Debtors’ right to terminate this Agreement in accordance with Section 12.01(l).
(b) Notwithstanding anything to the contrary in this Agreement, in the event of a valid termination of this Agreement pursuant to Section 12.01, (i) the Debtors’ liability hereunder for any and all breaches of this Agreement prior to such termination of this Agreement shall be capped at an amount equal to the Bid Protections (to the extent payable in accordance with Section 12.03(c)), and (ii) no such termination shall relieve the Plan Sponsor from any liability hereunder for any and all breaches of this Agreement prior to such termination of this Agreement and the Debtors shall be entitled to all remedies available at law or in equity. Notwithstanding anything to the contrary in this Agreement, in the event of a valid termination of this Agreement by the Debtors pursuant to Sections 12.01(b), 12.01(i), 12.01(j), or 12.01(k), the Debtors shall be entitled to keep the entirety of the Deposit, and the Plan Sponsor shall have no remaining rights with respect to such Deposit amounts.
(c) Breakup Fee; Plan Sponsor Expense Reimbursement. The Debtors shall promptly pay to the Plan Sponsor the Breakup Fee and the Plan Sponsor Expense Reimbursement by wire transfer of immediately available funds, if this Agreement is terminated (x) (i) by the Plan Sponsor pursuant to Sections 12.01(b) through 12.01(f) or 12.01(h), and (ii) the Debtors were not otherwise able to terminate this Agreement at the time of such termination; or (y) by the Debtors pursuant to Section 12.01(l), provided that in the event this Agreement is terminated pursuant to this clause 12.03(c)(y), the Breakup Fee shall be $2,900,000. The parties hereto acknowledge and agree that the Breakup Fee and the Plan Sponsor Expense Reimbursement, on the terms and subject to the conditions to the payment thereof, shall be the Plan Sponsor’s sole recourse in connection with this Agreement in the event this Agreement is terminated prior to the Plan Effective Date under Section 12.01.
12.04 Automatic Stay. The Company Parties acknowledge that the giving of notice of termination by any Party pursuant to this Agreement shall not be considered a violation of the automatic stay of section 362 of the Bankruptcy Code; provided, that nothing herein shall prejudice any Party’s right to argue that the giving of notice of termination was not proper under the terms of this Agreement.
SECTION 13. Amendments and Waivers.
(a) This Agreement may not be modified, amended, or supplemented, and no condition or requirement of this Agreement may be waived, in any manner except in accordance with this Section 13.
19
(b) This Agreement may be modified, amended, or supplemented, or a condition or requirement of this Agreement may be waived, in a writing (provided that email shall be sufficient) signed by (i) each Debtor and (ii) the Plan Sponsor.
(c) Any proposed modification, amendment, waiver or supplement that does not comply with this Section 13 shall be ineffective and void ab initio.
(d) The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy or any provision of this Agreement, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy. All remedies under this Agreement are cumulative and are not exclusive of any other remedies provided by Law.
SECTION 14. Releases and Exculpation
14.01 Releases by the Debtors. The Plan shall provide for the Debtors to waive, release, and discharge each of the Released Parties from any and all claims, charges, claims for relief, demands, suits, actions or Causes of Action, obligations, damages, judgments, losses, remedies, or liabilities, whether known or unknown, which it has had, now has, or, to the extent permissible under applicable law, may hereafter have, on any ground whatsoever, including, without limitation, at common law, in equity, or under any contract, agreement, statute, rule, regulation or order against any Released Party with respect to any event, matter, claim, occurrence, damage, or injury arising out of, related to, or associated with, the Restructuring Transactions, the Chapter 11 Cases, and the Debtors or the business of the Debtors other than: (a) claims arising out of any act or omission of a Released Party that are determined by a final order from a court of competent jurisdiction to constitute a criminal act, gross negligence, willful misconduct, and/or fraud; or (b) claims arising out of the breach of this Agreement, such debtor release to be in form and substance reasonably acceptable to the Plan Sponsor. Each Released Party hereunder who is not otherwise a party to this Agreement is an express third-party beneficiary to this Agreement and is entitled to the rights and benefits hereunder.
14.02 Third-Party Releases. To the maximum extent permitted by law, the Plan shall include a customary third-party release releasing the Released Parties from all third-party claims, charges, claims for relief, demands, suits, actions or Causes of Action, obligations, damages, judgments, losses, remedies, or liabilities, whether known or unknown, which it has had, now has, or, to the extent permissible under applicable law, may hereafter have, on any ground whatsoever, including, without limitation, at common law, in equity, or under any contract, agreement, statute, rule, regulation or order against any Released Party with respect to any event, matter, claim, occurrence, damage, or injury arising out of, related to, or associated with, the Restructuring Transactions, the Chapter 11 Cases, and the Debtors or the business of the Debtors other than claims arising out of any act or omission of a Released Party that are determined by a final order from a court of competent jurisdiction to constitute a criminal act, gross negligence, willful misconduct, and/or fraud, such third-party release to be in form and substance reasonably acceptable to the Plan Sponsor.
14.03 Exculpation. To the maximum extent permitted by law, the Plan shall include an exculpation provision reasonably acceptable to the Debtors and the Plan Sponsor that exculpates the estate fiduciaries with respect to conduct in connection with the Restructuring Transactions and the Chapter 11 Cases.
20
14.04 Certain Limitations on Releases. Nothing in this Section 14 shall or shall be deemed to result in the waiving or limiting by: (a) the Company Parties, or any officer, director, member of any governing body, or employee or other Related Party thereof, of (i) any indemnification against any Company Party, any of their insurance carriers, or any other Entity, (ii) any rights under or as beneficiaries of any insurance policies or any contract or agreement with any Company Party or any of its affiliates, (iii) wages, salaries, compensation, or benefits, (iv) intercompany claims, or (v) any Interest held by a Company Party or other Related Party thereof; and (b) any Party or other entity of any post-Agreement Effective Date obligations under this Agreement or post-Plan Effective Date obligations under the Plan, the Confirmation Order, the Restructuring Transactions, or any other Definitive Document, instrument, or agreement (including those set forth in the Plan Supplement) executed to implement the Restructuring Transactions.
SECTION 15. Miscellaneous.
15.01 Acknowledgement. Notwithstanding any other provision herein, this Agreement is not and shall not be deemed to be an offer with respect to any securities or solicitation of votes for the acceptance of a plan of reorganization for purposes of sections 1125 and 1126 of the Bankruptcy Code or otherwise. Any such offer or solicitation will be made only in compliance with all applicable securities Laws, provisions of the Bankruptcy Code, and/or other applicable Law.
15.02 Exhibits Incorporated by Reference; Conflicts. Each of the exhibits (including the Plan Term Sheet), signatures pages, and schedules attached hereto is expressly incorporated herein and made a part of this Agreement as if fully set forth herein, and all references to this Agreement shall include all such exhibits, annexes, and schedules. In the event of any inconsistency between this Agreement (without reference to the exhibits, annexes, and schedules hereto) and the exhibits, annexes, and schedules hereto, this Agreement (without reference to the exhibits, annexes, and schedules thereto) shall govern.
15.03 Further Assurances. Each Party hereby covenants and agrees to cooperate with each other in good faith with respect to the pursuit, approval, implementation, and consummation of the Restructuring Transactions, as well as the negotiation, drafting, execution, and delivery of documents (including any related orders, agreements, instruments, schedules, or exhibits) described in this Agreement or the Definitive Documents or otherwise necessary or desirable to facilitate the Restructuring Transactions in accordance with this Agreement and the Definitive Documents. Furthermore, subject to the terms hereof, each Party shall take such action as may be reasonably necessary or reasonably requested by another Party to carry out the purpose and intent of this Agreement, including facilitating any necessary regulatory filings, and shall refrain from taking any action that would frustrate the purpose and intent of this Agreement.
15.04 Complete Agreement. Except as otherwise explicitly provided herein, this Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, oral or written, among the Parties with respect thereto, other than any Confidentiality Agreement.
15.05 GOVERNING LAW; SUBMISSION TO JURISDICTION; SELECTION OF FORUM. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each Party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, to the extent possible, in the Bankruptcy Court, and solely in connection with claims arising under this Agreement: (a) irrevocably submits to the exclusive jurisdiction of the Bankruptcy Court; (b) waives any objection to laying venue in any such action or proceeding in the Bankruptcy Court; and (c) waives any objection that the Bankruptcy Court is an inconvenient forum or does not have jurisdiction over any Party hereto.
21
15.06 TRIAL BY JURY WAIVER. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE RESTRUCTURING TRANSACTIONS CONTEMPLATED HEREBY.
15.07 Execution of Agreement. This Agreement may be executed and delivered in any number of counterparts and by way of electronic signature and delivery, each such counterpart, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement. Except as expressly provided in this Agreement, each individual executing this Agreement on behalf of a Party has been duly authorized and empowered to execute and deliver this Agreement on behalf of said Party.
15.08 Rules of Construction. This Agreement is the product of negotiations among the Company Parties and the Plan Sponsor, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement, or any portion hereof, shall not be effective in regard to the interpretation hereof. The Company Parties and the Plan Sponsor were each represented by counsel during the negotiations and drafting of this Agreement and continue to be represented by counsel.
15.09 Successors and Assigns; Third Parties. This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors and permitted assigns, as applicable. Except as expressly stated herein, there are no third party beneficiaries under this Agreement, and the rights or obligations of any Party under this Agreement may not be assigned, delegated, or transferred to any other person or entity.
15.10 Survival. Notwithstanding the termination of this Agreement, the agreements and obligations of the Parties in this Section 15 shall continue in full force and effect for the benefit of the Parties in accordance with the terms hereof.
15.11 Relationship Among the Parties. It is understood and agreed that no Party to this Agreement has any duty of trust or confidence in any form with any other Party, and, except as provided in this Agreement, there are no agreements, commitments, or undertakings between or among them. In this regard, it is understood and agreed that any Party to this Agreement may trade in the debt or equity securities of the Debtors without the consent of the Debtors, as the case may be, or any other Party, subject to applicable securities Laws, the terms of any applicable non-disclosure agreement, and the terms of this Agreement; provided, that neither any Party to this Agreement nor the Company Parties shall have any responsibility for any such trading by any other entity by virtue of this Agreement. No prior history, pattern, or practice of sharing confidences among or between the Parties shall in any way affect or negate this understanding and agreement. The Plan Sponsor shall not be deemed to have any fiduciary duty, any duty of trust or confidence in any form, or other duties or responsibilities any Company Party, or any of the Company Party’s respective creditors or other stakeholders and there are no commitments by the Plan Sponsor except as set forth in this Agreement.
22
15.12 Notices. All notices hereunder shall be deemed given if in writing and delivered, by email, courier, or registered or certified mail (return receipt requested), to the following addresses (or at such other addresses as shall be specified by like notice):
| (a) | if to a Company Party, to: |
Ebix, Inc.
Attn: Peter Fitzsimmons, Chief Restructuring Officer
1 Ebix Way
Johns Creek, Georgia 30097
and
Sidley Austin LLP
Attn: Thomas Califano & Jeri Leigh Miller
787 7th Avenue
New York, New York 10019
tom.califano@sidley.com, jeri.miller@sidley.com
| (b) | if to the Plan Sponsor, to: |
Eraaya Lifespaces Limited,
B-1,34/1, Vikas House,
Vikas Path Marg, East Punjabi Bagh,
New Delhi, India, 110026 ; and
Vikas Lifecare limited,
G-1,34/1, Vikas House,
Vikas Path Marg, East Punjabi Bagh,
New Delhi, India, 110026
and
Vitasta Software India Private Limited,
102, Ganga Chambers, 6A/1,
First floor, WEA,
Karol Bagh, New Delhi, Central Delhi – 110005
With a copy to (which shall not constitute notice):
Togut, Segal & Segal LLP
Attn: Frank A. Oswald & Bryan M. Kotliar
One Penn Plaza, Suite 3335
New York, New York 10119
frankoswald@teamtogut.com, bkotliar@teamtogut.com
Any notice given by delivery, mail, or courier shall be effective when received.
15.13 Independent Due Diligence and Decision Making. The Plan Sponsor hereby confirms that its decision to execute this Agreement has been based upon its independent investigation of the operations, businesses, financial and other conditions, and prospects of the Company Parties.
15.14 Waiver. If the Restructuring Transactions are not consummated, or if this Agreement is terminated for any reason, the Parties fully reserve any and all of their rights. Pursuant to Federal Rule of Evidence 408 and any other applicable rules of evidence, this Agreement and all negotiations relating hereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms or the payment of damages to which a Party may be entitled under this Agreement.
23
15.15 Specific Performance. It is understood and agreed by the Parties that money damages would be an insufficient remedy for any breach of this Agreement by any Party, and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief (without the posting of any bond and without proof of actual damages) as a remedy of any such breach, including an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party or any other Party.
15.16 Several, Not Joint, Claims. Except where otherwise specified, the agreements, representations, warranties, and obligations of the Parties under this Agreement are, in all respects, several and not joint.
15.17 Severability and Construction. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect if essential terms and conditions of this Agreement for each Party remain valid, binding, and enforceable.
15.18 Remedies Cumulative. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at Law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party.
15.19 Email Consents. Where a written consent, acceptance, approval, or waiver is required pursuant to or contemplated by this Agreement, including a written approval by any Party, such written consent, acceptance, approval, or waiver shall be deemed to have occurred if such consent, acceptance, approval, or waiver is conveyed in writing (including email) by such Party’s counsel.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first above written.
[Signature Pages to Follow]
24
| DEBTORS | ||
| EBIX, INC. | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| VERTEX, INC. | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| PB SYSTEMS, INC. | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| EBIX CONSULTING, INC. | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| EBIX US, LLC | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| FACTS SERVICES, INC. | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| DOCTORS EXCHANGE, INC. | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
[Signature Page to Plan Support Agreement]
| EBIX INTERNATIONAL LLC. | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| AGENCY SOLUTIONS.COM, LLC d/b/a HEALTH CONNECT LLC | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| CONFIRMNET CORPORATION | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| A.D.A.M., INC. | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
| EBIX LATIN AMERICA, LLC | ||
| By: | /s/ Peter Fitzsimmons | |
| Name: | Peter Fitzsimmons | |
| Title: | Chief Restructuring Officer | |
[Signature Page to Plan Support Agreement]
| NON-DEBTOR GUARANTORS | ||
| EBIX INTERNATIONAL HOLDINGS LIMITED | ||
| By: | /s/ Robin Raina | |
| Name: | Robin Raina | |
| Title: | President and CEO | |
| EBIX SINGAPORE PTE. LTD. | ||
| By: | /s/ Robin Raina | |
| Name: | Robin Raina | |
| Title: | President and CEO | |
[Signature Page to Plan Support Agreement]
| PLAN SPONSOR | ||
| ERAAYA LIFESPACES LIMITED | ||
| By: | /s/ Meenakshi | |
| Name: | Meenakshi | |
| Title: | Director | |
[Signature Page to Plan Support Agreement]
| VIKAS LIFECARE LIMITED | ||
| By: | /s/ Chandan Kumar | |
| Name: | Chandan Kumar | |
| Title: | CFO | |
[Signature Page to Plan Support Agreement]
| VITASTA SOFTWARE INDIA PRIVATE LIMITED | ||
| By: | /s/ Archana Goenka | |
| Name: | Archana Goenka | |
| Title: | Director | |
[Signature Page to Plan Support Agreement]
Exhibit 99.1
SIDLEY AUSTIN LLP
Thomas R. Califano (24122825)
Rakhee V. Patel (00797213)
Jeri Leigh Miller (24102176)
2021 McKinney Avenue, Suite 2000
Dallas, Texas 75201
| Telephone: | (214) 981-3300 |
| Facsimile: | (214) 981-3400 |
| Email: | tom.califano@sidley.com |
rpatel@sidley.com
jeri.miller@sidley.com
SIDLEY AUSTIN LLP
Ameneh Bordi (admitted pro hac vice)
Weiru Fang (admitted pro hac vice)
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Facsimile: (212) 839-5599
Email: abordi@sidley.com
weiru.fang@sidley.com
Counsel for the Debtors and
Debtors in Possession
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
|
In re:
EBIX, INC., et al.,1
Debtors.
|
Chapter 11
Case No. 23-80004 (SWE)
(Jointly Administered)
|
SECOND AMENDED JOINT CHAPTER 11 PLAN
OF EBIX, INC. AND ITS DEBTOR AFFILIATES
Dated: July 28, 2024
| 1 | The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, as applicable, are: Ebix, Inc. (1975), Vertex, Incorporated. (6295), P.B. Systems, Inc. (9074), Ebix Consulting, Inc. (6666), Ebix US, LLC (N/A), Facts Services, Inc. (1348), Doctors Exchange, Inc. (N/A), Ebix International LLC (N/A), Agency Solutions.com, LLC d/b/a Health Connect LLC (N/A), ConfirmNet Corporation (2737), A.D.A.M., Inc. (8070), and Ebix Latin America, LLC (N/A). The Debtors’ mailing address is 1 Ebix Way, Johns Creek, Georgia 30097. |
TABLE OF CONTENTS
| ARTICLE I. DEFINED TERMS AND RULES OF INTERPRETATION | 1 | |||
| A. Defined Terms |
1 | |||
| B. Rules of Interpretation |
18 | |||
| C. Computation of Time |
19 | |||
| D. Reference to Monetary Figures |
19 | |||
| E. Reference to the Debtors |
19 | |||
| F. Controlling Document |
19 | |||
| G. Consent Rights |
19 | |||
| ARTICLE II. DIP CLAIMS, ADMINISTRATIVE EXPENSE CLAIMS, AND PRIORITY TAX CLAIMS |
19 | |||
| A. DIP Claims |
20 | |||
| B. General Administrative Expense Claims |
20 | |||
| C. Professional Claims |
21 | |||
| 1. Final Fee Applications and Payment of Professional Claims |
21 | |||
| 2. Professional Claim Reserve Account |
21 | |||
| 3. Post-Effective Date Fees and Expenses |
22 | |||
| D. Priority Tax Claim |
22 | |||
| ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS |
22 | |||
| A. Classification of Claims and Interests |
22 | |||
| B. Treatment of Claims and Interests |
23 | |||
| 1. Class 1 – Other Secured Claims |
23 | |||
| 2. Class 2 – Other Priority Claims |
24 | |||
| 3. Class 3 – Prepetition Secured Lender Claims |
24 | |||
| 4. Class 4 – General Unsecured Claims |
24 | |||
| 5. Class 5 – Intercompany Claims |
25 | |||
| 6. Class 6 – Section 510(b) Claims |
25 | |||
| 7. Class 7 – Existing Equity Interests |
26 | |||
| 8. Class 8 – Intercompany Interests |
26 | |||
| C. Special Provision Governing Unimpaired Claims |
26 | |||
| D. Elimination of Vacant Classes |
26 | |||
| E. Acceptance or Rejection of this Plan |
27 | |||
| 1. Acceptance or Rejection of this Plan |
27 | |||
| 2. Voting Classes |
27 | |||
i
| F. Confirmation and Section 1129(b) of the Bankruptcy Code |
27 | |||
| G. Subordination of Claims |
27 | |||
| H. Subordination Agreements |
27 | |||
| ARTICLE IV. MEANS FOR IMPLEMENTATION OF THIS PLAN |
28 | |||
| A. No Substantive Consolidation |
28 | |||
| B. General Settlement of Claims and Interests |
28 | |||
| C. Transactions |
29 | |||
| D. Reorganization Transactions |
29 | |||
| 1. New Money Investment and Issuance of Reorganized Ebix Interests |
29 | |||
| 2. Assumed Liabilities |
30 | |||
| 3. Exit Financing Facility |
30 | |||
| 4. Additional Provisions Related to Emergence |
30 | |||
| E. Non-L&A Sale |
31 | |||
| F. Litigation Trust |
31 | |||
| 1. Interest in the Litigation Trust |
31 | |||
| 2. Creation and Governance of the Litigation Trust |
31 | |||
| 3. Litigation Trustee and Litigation Trust Agreement |
32 | |||
| 4. Cooperation of Post-Effective Date Debtors |
32 | |||
| 5. Litigation Trust Causes of Action |
33 | |||
| 6. Litigation Trust Fees and Expenses |
33 | |||
| 7. Tax Treatment |
33 | |||
| 8. Termination and Dissolution of the Litigation Trust |
34 | |||
| 9. Single Satisfaction of Allowed Claims From Litigation Trust |
34 | |||
| 10. GUC Recovery Pool Distribution |
34 | |||
| G. Sources of Consideration for Plan Distributions |
34 | |||
| H. Cancellation of Existing Securities |
35 | |||
| I. Corporate Action |
36 | |||
| J. Effectuating Documents; Further Transactions |
36 | |||
| K. Corporate Existence |
37 | |||
| L. Vesting of Assets in the Post-Effective Date Debtors |
38 | |||
| M. New Organizational Documents |
38 | |||
| N. Post-Effective Date Ebix Board |
38 | |||
| O. Employee Benefits |
39 | |||
| P. Exemption from Certain Taxes and Fees |
39 | |||
ii
| Q. Preservation of Causes of Action |
39 | |||
| 1. Maintenance of Causes of Action |
39 | |||
| 2. Preservation of All Causes of Action Not Expressly Settled or Released |
40 | |||
| R. Closing the Chapter 11 Cases |
40 | |||
| S. Payment of Certain Fees |
41 | |||
| T. Fiduciary Duties |
41 | |||
| ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES |
41 | |||
| A. Assumption and Rejection of Executory Contracts and/or Unexpired Leases |
41 | |||
| 1. Reorganization Transactions |
41 | |||
| 2. Non-L&A Sales |
42 | |||
| 3. General Provisions |
42 | |||
| B. Claims Based on Rejection of Executory Contracts and/or Unexpired Leases |
43 | |||
| C. Preexisting Obligations to the Debtors Under Executory Contracts and/or Unexpired Leases |
44 | |||
| D. Insurance Policies |
44 | |||
| E. Reservation of Rights |
45 | |||
| F. Contracts and Leases Entered Into After the Petition Date |
45 | |||
| ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS |
45 | |||
| A. Timing and Calculation of Amounts to Be Distributed |
45 | |||
| B. Disbursing Agent |
46 | |||
| C. Rights and Powers of Disbursing Agent |
46 | |||
| 1. Powers of Disbursing Agent |
46 | |||
| 2. Expenses Incurred on or After the Effective Date |
46 | |||
| D. Delivery of Distributions and Undeliverable or Unclaimed Distributions |
46 | |||
| 1. Record Date for Distribution |
46 | |||
| 2. Delivery of Distributions in General |
47 | |||
| 3. Undeliverable Distributions and Unclaimed Property |
47 | |||
| 4. Surrender of Canceled Instruments or Securities |
47 | |||
| E. Manner of Payment |
47 | |||
| F. Compliance with Tax Requirements |
48 | |||
| G. Allocations |
48 | |||
| H. [Intentionally Omitted] |
48 | |||
| I. Foreign Currency Exchange Rates |
48 | |||
| J. Setoffs and Recoupments |
48 | |||
iii
| K. Minimum Cash Distributions |
49 | |||
| L. Claims Paid or Payable by Third Parties |
49 | |||
| 1. Claims Paid by Third Parties |
49 | |||
| 2. Claims Payable by Third Parties |
49 | |||
| 3. Applicability of Insurance Contracts |
49 | |||
| ARTICLE VII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS |
50 | |||
| A. Allowance of Claims |
50 | |||
| B. Claims Administration Responsibilities |
50 | |||
| C. Adjustment to Claims Without Objection |
50 | |||
| D. Time to File Objections to Claims |
50 | |||
| E. Disallowance of Claims or Interests |
50 | |||
| F. Amendments to Proofs of Claim |
51 | |||
| G. No Transfers of Claims After Effective Date |
51 | |||
| H. No Distributions Pending Allowance |
51 | |||
| I. Distributions After Allowance |
51 | |||
| ARTICLE VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS |
52 | |||
| A. Discharge of Claims and Termination of Interests |
52 | |||
| B. Release of Liens |
52 | |||
| C. Release of Claims and Causes of Action |
53 | |||
| 1. Releases by the Debtors and Their Estates |
53 | |||
| 2. Release by Third Parties |
54 | |||
| D. Waiver of Statutory Limitations on Releases |
55 | |||
| E. Exculpation |
56 | |||
| F. Injunction |
57 | |||
| G. Binding Nature of the Plan |
57 | |||
| H. Protections Against Discriminatory Treatment |
58 | |||
| I. Reimbursement or Contribution |
58 | |||
| J. Gatekeeping Provision |
58 | |||
| ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THIS PLAN |
59 | |||
| A. Conditions Precedent to the Effective Date |
59 | |||
| B. Waiver of Conditions |
60 | |||
| C. Effect of Failure of Conditions |
61 | |||
iv
| D. Substantial Consummation |
61 | |||
| ARTICLE X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THIS PLAN |
61 | |||
| A. Modification and Amendments |
61 | |||
| B. Effect of Confirmation on Modifications |
61 | |||
| C. Revocation or Withdrawal of Plan |
61 | |||
| ARTICLE XI. RETENTION OF JURISDICTION |
62 | |||
| ARTICLE XII. MISCELLANEOUS PROVISIONS |
64 | |||
| A. Immediate Binding Effect |
64 | |||
| B. Dissolution of the Creditors’ Committee |
64 | |||
| C. Additional Documents |
64 | |||
| D. Payment of Statutory Fees |
64 | |||
| E. Reservation of Rights |
65 | |||
| F. Successors and Assigns |
65 | |||
| G. Notices |
65 | |||
| H. Term of Injunctions or Stays |
66 | |||
| I. Entire Agreement |
66 | |||
| J. Exhibits and Annexes |
66 | |||
| K. Non-Severability of Plan Provisions |
67 | |||
| L. Governing Law |
67 | |||
| M. Waiver or Estoppel |
67 | |||
v
Ebix, Inc. and the above-captioned debtors and debtors in possession (each a “Debtor”) and collectively, the “Debtors”) propose this second amended joint chapter 11 plan, including the exhibits hereto and the Plan Supplement (as may be amended or modified from time to time, the “Plan”) for the resolution of the outstanding claims against, and equity interests in, the Debtors. Although proposed jointly for administrative purposes, this Plan constitutes a separate Plan for each Debtor. The Plan does not contemplate substantive consolidation of any of the Debtors. Holders of Claims or Interests may refer to the Disclosure Statement for a discussion of the Debtors’ history, business, assets, results of operations, historical financial information, risk factors, marketing process, a summary and analysis of this Plan, and certain related matters.
ALL HOLDERS OF CLAIMS AND INTERESTS ARE ENCOURAGED TO READ THIS PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY.
ARTICLE I.
DEFINED TERMS AND RULES OF INTERPRETATION
A. Defined Terms
As used in this Plan, capitalized terms have the meanings set forth below.
“Administrative Expense Claim(s)” means a Claim for costs and expenses of administration of the Chapter 11 Cases arising on or after the Petition Date and until and including the Effective Date that is allowable under section 503(b) of the Bankruptcy Code and entitled to priority under sections 507(a)(2) or 507(b) of the Bankruptcy Code that has not already been paid, including: (a) the actual and necessary costs and expenses of preserving the Estates and operating the Debtors’ businesses; (b) the Professional Claims; and (c) all fees and charges assessed against the Estates pursuant to section 1930 of chapter 123 of title 28 of the United States Code.
“Administrative Expense Claims Bar Date” means the deadline for Filing requests for payment of Administrative Expense Claims, which: (a) with respect to General Administrative Expense Claims other than those that were accrued in the ordinary course of business, shall be thirty (30) days after the Effective Date; and (b) with respect to Professional Claims, shall be forty-five (45) days after the Effective Date, unless otherwise ordered by the Court.
“Affiliate(s)” has the meaning set forth in section 101(2) of the Bankruptcy Code. With respect to any Person or Entity that is not a Debtor, the term “Affiliate” shall apply to such Person or Entity as if the Person or Entity were a Debtor.
“Allowed” means a Claim or Interest (or portion thereof) that (a) is listed in the Schedules, which may be amended by the Debtors, as neither disputed, contingent, nor unliquidated and with respect to which no claim objection or contrary or superseding Proof of Claim has been Filed, and that has not been paid pursuant to an order of this Court or otherwise satisfied prior to the Effective Date; (b) is evidenced by a Proof of Claim Filed on or before the applicable Bar Date for which no objection has been Filed on or before the Claims Objection Deadline; (c) is not the subject of an objection to allowance that was Filed on or before the Claim Objection Deadline that has not been settled, waived, withdrawn, or denied pursuant to a Final Order; or (d) is expressly allowed (i) pursuant to a Final Order, (ii) pursuant to an agreement between the Holder of such Claim or Interest and the Debtors, or (iii) pursuant to the terms of this Plan; provided, however that proofs of interest need not be Filed with respect to any Interest. A Claim evidenced by a Proof of Claim Filed after the applicable Bar Date shall not be Allowed for any purpose whatsoever absent entry of a Final Order allowing such late-Filed Claim, except as otherwise provided by Bankruptcy Rules 3002(c) and 3003(c).
1
“Amadeus” means Amadeus IT Group, S.A.
“Assigned Causes of Action” means all Causes of Action of the Debtors under chapter 5 of the Bankruptcy Code or under similar or related state or federal statutes and common law, including, without limitation, all preference, fraudulent conveyance, fraudulent transfer, and/or other similar avoidance claims, rights, and causes of action, and commercial tort law against Amadeus.
“Assumed Liabilities” means the liabilities set forth in the “Assumption of Liabilities” section of the Plan Term Sheet attached as Exhibit 1 to the PSA.
“Assumption and Assignment Notice” means the notice to be sent to each non-Debtor counterparty to a relevant Executory Contract or Unexpired Lease regarding the potential assumption and assignment of certain contracts and the Debtors’ calculation of the amount necessary to cure any monetary defaults under such contract, in accordance with the Non-L&A Bid Procedures Order.
“Assumption and Assignment Procedures” means the assumption and assignment procedures set forth in the in the Non-L&A Bid Procedures Order for Executory Contracts and Unexpired Leases.
“Available Cash” means the aggregate sum of, as applicable, (a) all Cash or Cash equivalents of the Debtors, including, without limitation, (i) the Net Sale Proceeds, (ii) the Net Reorganization Transaction Proceeds, including the Plan Sponsor Deposit, (iii) all proceeds from the monetization, liquidation, and/or transaction of any kind on account of, or in connection with, any Prepetition Collateral to the extent such Prepetition Collateral is not monetized or liquidated through the foregoing clauses (i)-(ii), less (b) the amount of cash (i) necessary to pay Allowed Administrative Expense Claims (excluding any Priority Tax Claims that will be paid in the ordinary course of business under this Plan), Allowed DIP Claims, if applicable, and Allowed Professional Fee Claims in accordance with the Plan, (ii) any Litigation Trust Funding, (iii) payment of all statutory fees payable under section 1930 of chapter 123 of title 28 of the United States Code, and (iv) funding and maintenance of any reserves required under the Plan, any agreement, or applicable law; provided that Available Cash shall not include Litigation Trust Proceeds.
“Backup Bidders Causes of Action” means, collectively, those Causes of Action, as specified in the applicable asset purchase agreement, sold pursuant to each Backup Bidder Sale.
“Backup Bidder Sales” means, collectively, (i) the sale of the Debtors’ A.D.A.M. and Oakstone businesses to Everyday Health Media, LLC in accordance with that certain Asset Purchase Agreement dated June 26, 2024 (as such may be amended, modified, or supplemented from time to time hereafter) by and between Ebix, Inc. and Everyday Health Media, LLC; and (ii) the sale of the Debtors’ remaining North American business, exclusive of the A.D.A.M. and Oakstone businesses, to Fortium Investments Inc. in accordance with the that certain Asset Purchase Agreement dated June 13, 2024, as amended (as such may be amended, modified, or supplemented from time to time hereafter), by and between Ebix, Inc. and Fortium Investments Inc.
2
“Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101–1532, as in effect on the Petition Date, together with all amendments, modifications, and replacements of the foregoing that are made retroactive to the Petition Date, as the same may exist on any relevant date to the extent applicable to the Chapter 11 Cases.
“Bankruptcy Rule(s)” means the Federal Rules of Bankruptcy Procedure promulgated under section 2075 of title 28 of the United States Code and the general, local, and chambers rules of the Court, each as amended from time to time.
“Bar Date” means, (a) with respect to any Entity that is not a Governmental Unit, March 18, 2024, and (b) with respect to a Governmental Unit, June 14, 2024, each of which were the dates set by the Order (I) Setting Bar Dates for Filing Proofs of Claim; (II) Approving Form and Manner for Filing Proofs of Claim; (III) Approving Notice of Bar Dates, and (IV) Granting Related Relief [Docket No. 291] as the date by which Proofs of Claim must be Filed with respect to Claims other than Administrative Expense Claims or other Claims for which the Court enters an order excluding the Holders of such Claims from the requirement of Filing Proofs of Claim by such date.
“Business Day” means any day other than a Saturday, Sunday, or other day on which the New York Stock Exchange or NASDAQ is closed for trading.
“Cash” means cash in legal tender of the United States of America and cash equivalents, including bank deposits, checks, and other similar items.
“Causes of Action” means any Claims, interests, damages, remedies, causes of action, demands, rights, actions, suits, obligations, liabilities, accounts, defenses, offsets, powers, privileges, licenses, Liens, indemnities, guaranties, and franchises of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, contingent or non-contingent, liquidated or unliquidated, secured or unsecured, assertable, directly or derivatively, matured or unmatured, suspected or unsuspected, in contract, tort, law, equity, or otherwise. Causes of Action also include: (a) all rights of setoff, counterclaim, or recoupment; (b) claims under contracts or for breaches of duties imposed by law; (c) the right to object to or otherwise contest Claims or Interests; (d) claims pursuant to sections 362, 510, 542, 543, 544 through 550, or 553 of the Bankruptcy Code; (e) such claims and defenses as fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of the Bankruptcy Code; and (f) any claim under any state or foreign law, including, without limitation, any fraudulent transfer or similar claim.
“Chapter 11 Cases” means the cases filed by the Debtors under chapter 11 of the Bankruptcy Code and jointly administered for procedural purposes only as case number 23-80004 pending in the Court.
3
“Claim(s)” means any claim, as defined in section 101(5) of the Bankruptcy Code, against any of the Debtors.
“Claim Objection Deadline” means the deadline for Filing an objection to any Claim, which deadline shall be one-hundred eighty (180) days after the Effective Date, subject to any extensions approved by an order of the Court; provided however, that the Claims Objection Deadline shall not apply to any Claims Filed after the applicable Bar Date.
“Claims and Balloting Agent” means Omni Agent Solutions, Inc., the notice, claims, and solicitation agent retained by the Debtors in these Chapter 11 Cases.
“Claims Register” means the official register of Claims maintained by the Claims and Balloting Agent.
“Class” means a category of Holders of Claims or Interests pursuant to sections 1122(a) and 1123(a) of the Bankruptcy Code.
“CM/ECF” means the Court’s Case Management and Electronic Case Filing system.
“Conditions Precedent” has the meaning set forth in Article IX herein.
“Confirmation” means the entry of the Confirmation Order on the docket of these Chapter 11 Cases.
“Confirmation Hearing” means the hearing(s) before the Court under section 1128 of the Bankruptcy Code at which the Debtors seek entry of the Confirmation Order.
“Confirmation Order” means the order of the Court confirming this Plan under section 1129 of the Bankruptcy Code.
“Consummation” means the occurrence of the Effective Date.
“Court” or “Bankruptcy Court” means the United States Bankruptcy Court for the Northern District of Texas, Dallas Division.
“Creditors’ Committee” means the statutory committee of unsecured creditors appointed by the U.S. Trustee in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code.
“Cure” means payment of all amounts, including an amount of $0.00, required to cure any monetary defaults under any Executory Contracts or Unexpired Leases (or such lesser amount as may be agreed upon by the parties to the Executory Contract or Unexpired Lease) that are to be assumed and assigned by the Debtors pursuant to section 365 or 1123 of the Bankruptcy Code.
“Cure Notice” means one or more notices (and any supplements, modifications, or amendments thereto), including without limitation, the Notice of Cure Amounts and Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection with Sale Transaction [Docket No. 635], filed on June 4, 2024; Supplemental Notice of Cure Amounts and Potential Assumption and Assignment of Executory Contracts and Unexpired Leases in
4
Connection with Sale Transaction [Docket No. 639], filed on June 12, 2024; Second Supplemental Notice to the Initial Potential Assumption and Assignment Notice [Docket No. 678], filed on June 25, 2024; Third Supplemental Notice of Cure Amounts and Potential Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection with Sale Transaction [Docket No. 731], filed on July 9, 2024; and Fourth Supplemental Notice of Cure Amounts and Potential Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection with Sale Transaction [Docket No. 750], filed on July 15, 2024, collectively listing the potential Executory Contracts and Unexpired Leases to be Assumed in connection with the Plan and related Cure amounts.
“D&O Liability Insurance Policies” means all insurance policies that have been issued (or provide coverage) at any time to any of the Debtors (or any of their predecessors) for directors’, managers’, and officers’ liability (including any “tail policy” or run-off coverage) and all agreements, documents, or instruments relating thereto.
“Debtor(s)” has the meaning ascribed to it in the recitals.
“Debtor Release” means the release of the Debtor Released Parties as provided for in Article VIII.C.
“Debtor Releasing Parties” shall have the meaning ascribed to such term in Article VIII.C.1 herein.
“Deposit Balance Amount” means the New Money Investment less the Plan Sponsor Deposit.
“DIP Agent” means the “DIP Agent” as defined in the DIP Order.
“DIP Claims” means all Claims held by the DIP Secured Parties on account of, arising under or relating to the DIP Documents, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising under the DIP Credit Agreement. For the avoidance of doubt, the DIP Claims shall include all “DIP Obligations” as such term is defined in the DIP Order.
“DIP Credit Agreement” means that certain Senior Secured Superiority Debtor-in-Possession Credit Agreement, dated as of December 19, 2023 by and among the Debtors, the DIP Agent, and the lender parties thereto from time to time, as amended, restated, supplemented, or otherwise modified from time to time.
“DIP Documents” means the “DIP Documents” as defined in the DIP Order.
“DIP Interest” means interest payable under and in accordance with the DIP Documents.
“DIP Interest Amount” means DIP Interest for the period between August 15, 2024 and the Effective Date, which is approximately $77,000 for the period of August 15, 2024 to August 31, 2024.
5
“DIP Order” means the Final Order (I) Authorizing (A) Postpetition Financing, and (B) The Use of Cash Collateral; (II) Granting Liens and Providing Superpriority Administrative Expense Claims; (III) Granting Adequate Protection to Prepetition Lenders; (IV) Modifying the Automatic Stay and (V) Granting Related Relief [Docket No. 255].
“DIP Secured Parties” means the “DIP Secured Parties” as defined in the DIP Order.
“Disallowed” means a Claim or an Interest (or portion thereof) that has been disallowed, denied, dismissed, or overruled pursuant to this Plan or a Final Order of the Court or of any other court of competent jurisdiction.
“Disbursing Agent” means, as applicable, the Debtors, the Post-Effective Date Debtors, the Litigation Trustee, or such other Entity designated by the Debtors, the Post-Effective Date Debtors, or Litigation Trustee to hold and disburse the applicable Plan Distributions to Holders of Allowed Claims, Allowed Interests, or other eligible Entities pursuant to the terms of this Plan.
“Disclosure Statement” means the disclosure statement for this Plan, filed contemporaneously herewith and incorporated herein by reference (as such may be amended, modified, or supplemented from time to time hereafter), including all exhibits and schedules thereto.
“Disclosure Statement Order” means one or more orders of the Bankruptcy Court approving the Disclosure Statement as providing “adequate information” within the meaning of section 1125(a) of the Bankruptcy Code and establishing certain dates, deadlines, and procedures related to Confirmation of the Plan.
“Disputed” means a Claim or an Interest (or portion thereof), (a) that is neither an Allowed Claim nor a Disallowed Claim; (b) that is listed on the Schedules as “disputed,” “unliquidated,” or “contingent”; or (c) for which a timely objection to such Claim has been Filed, which objection has not been withdrawn or determined pursuant to a Final Order.
“Distribution Date” means the date or dates determined by the Disbursing Agent, upon which the Disbursing Agent shall make Plan Distributions in accordance with the terms of this Plan.
“Distribution Record Date” means the record date for purposes of making Plan Distributions under this Plan, which date shall be the Effective Date.
“DOF Election” has the meaning set forth in Article IV.F.7 herein.
“Effective Date” means the date that is the first Business Day after Confirmation on which all Conditions Precedent have been satisfied or waived in accordance with this Plan and the Confirmation Order. Any action to be taken on the Effective Date may be taken on or as soon as reasonably practicable thereafter.
“Entity” has the meaning set forth in section 101(15) of the Bankruptcy Code.
6
“Estate(s)” means the estate(s) of any of the Debtors created under sections 301 and 541 of the Bankruptcy Code upon the commencement of each of the Debtors’ Chapter 11 Cases.
“Exculpated Parties” means, collectively, and in each case in their capacity as such: (a) the Debtors; (b) the Debtors’ Board of Directors; (c) the Debtors’ Professionals; (d) the Creditors’ Committee; (e) the members of the Creditors’ Committee in their capacity as such (f) the DIP Secured Parties; (g) the Prepetition Secured Parties; (h) the advisors to the DIP Agent and Prepetition Agent; (i) the Plan Sponsor; and (j) the members of the Plan Sponsor.
“Exculpation” means the exculpation provision set forth in Article VIII.E hereof.
“Executory Contract” means a contract to which one or more of the Debtors is a party that is subject to assumption, assumption and assignment, or rejection under section 365 of the Bankruptcy Code.
“Existing Equity Interest(s)” means, collectively, the shares (or any Class thereof), common stock, preferred stock, limited liability company interests, and any other equity, ownership, or profits interests of any Debtor and options, warrants, rights, or other securities or agreements to acquire or subscribe for, or which are convertible into the shares (or any Class thereof), common stock, preferred stock, limited liability company interests, or other equity, ownership, or profits interests of any Debtors (in each case whether or not arising under or in connection with any employment agreement); provided, that no Intercompany Interest shall be an Existing Equity Interest.
“Exit Financing Credit Agreement” means the credit agreement evidencing the Exit Financing Facility.
“Exit Financing Facility” means the credit facility to be entered into by the Post-Effective Date Debtors at the Plan Sponsor’s discretion that shall provide for proceeds of up to $25 million on the Effective Date.
“Exit Financing Facility Documents” means the Exit Financing Credit Agreement and any guarantee, security agreement, deed of trust, mortgage, and other relevant documentation entered into with respect to the Exit Financing Facility.
“Extended Emergence Costs” means, in the event the Effective Date does not occur on or before August 15, 2024, an amount equal to Administrative Expense Claims (up to $3 million) and DIP Interest, in each case, incurred by the Debtors between August 15, 2024 and the Effective Date.
“Extended Emergence Funding Amount” means, together, (a) $3 million plus (b) the DIP Interest Amount.
“Federal Judgment Rate” means the federal judgment rate in effect as of the Petition Date.
“File,” “Filed,” or “Filing” means file, filed, or filing with the Court or its authorized designee in these Chapter 11 Cases.
7
“Final Order” means an order or judgment, as applicable, of the Court or other court of competent jurisdiction, with respect to the relevant subject matter, that has not been reversed, stayed, modified, or amended, and as to which the time to appeal or seek certiorari has expired and no appeal or petition for certiorari has been timely taken, or as to which any appeal that has been taken or any petition for certiorari that has been or may be filed has been resolved by the highest court to which the order or judgment could be appealed or from which certiorari could be sought or the new trial, reargument, or rehearing shall have been denied, resulting in no modification of such order or judgment, or has been otherwise dismissed with prejudice.
“General Administrative Expense Claim(s)” means an Administrative Expense Claim other than a Professional Claim.
“General Unsecured Claim(s)” means an unsecured claim, including any Lender Deficiency Claim or any deficiency Claim under section 506(a) of the Bankruptcy Code on account of an Other Secured Claim, that is not entitled to priority under the Bankruptcy Code and that is not an Intercompany Claim.
“Global Settlement” means the settlement by and among the Debtors, the DIP Secured Parties, the Prepetition Secured Lender Parties, the Creditors’ Committee, and the Plan Sponsor, which settlement is incorporated into the terms of this Plan.
“Governmental Unit” has the meaning set forth in section 101(27) of the Bankruptcy Code.
“GUC Recovery Pool” means a $3.5 million payment made by the Plan Sponsor solely for the benefit of Holders of Allowed Non-Lender GUC Claims to be held in escrow on or before July 29, 2024 in accordance with the PSA, which is, for the avoidance of doubt, contingent upon the closing of the Reorganization Transaction with the Plan Sponsor with the New Money Investment of no less than $145 million. The GUC Recovery Pool shall be separate, apart from, and in addition to the New Money Investment. For the avoidance of doubt, Holders of Prepetition Secured Lender Claims, Lender Deficiency Claims, DIP Claims, Administrative Expense Claims, Professional Claims, Priority Tax Claims, Other Secured Claims, and Other Priority Claims shall not share in the GUC Recovery Pool.
“Holder(s)” means an Entity holding a Claim or Interest, as applicable.
“Impaired” means a Class of Claims or Interests that is impaired within the meaning of section 1124 of the Bankruptcy Code.
“Insurance Contracts” means all insurance policies, including the D&O Liability Insurance Policies, that have been issued (or provide coverage) at any time to any of the Debtors (or any of their predecessors) and all agreements, documents, or instruments relating thereto.
“Insurer” means any company or other entity that issued an Insurance Contract and includes any third-party administrator of or for any Insurance Contract, along with any predecessors, successors, and/or Affiliates thereof.
“Intercompany Claim(s)” means any and all Claims against any of the Debtors by the Debtors and any direct or indirect subsidiary.
8
“Intercompany Interest(s)” means any and all Interests in a Debtor or a subsidiary of a Debtor that are owned or held by another Debtor.
“Intercompany Subordination Agreement” means that certain Intercompany Subordination Agreement, dated June 5, 2023, whereby the Debtors have agreed that any intercompany payable owed by Debtor Ebix, Inc. or any guarantor party to the Prepetition Credit Agreement is subordinated and junior in right of payment to all obligations of Debtor Ebix, Inc. or such guarantor under the Prepetition Credit Agreement.
“Interest(s)” means (a) any equity security (as defined in section 101(16) of the Bankruptcy Code) in any Debtor that existed immediately prior to the Petition Date, including all units, shares, common stock, preferred stock, membership interests, and other instruments evidencing any fixed or contingent ownership in any Debtor or any rights to purchase or demand the issuance of any of the foregoing (including options, warrants, stock appreciation rights, phantom stock rights, restricted stock units, redemption rights, repurchase rights, or convertible, exercisable, or exchangeable securities); or (b) any other agreement, arrangement, or commitment of any character relating to, or whose value is related to, any of the foregoing.
“IRS” means the United States Internal Revenue Service.
“L&A APA” means that certain asset purchase agreement dated December 18, 2023, entered into by and between Debtor Ebix, Inc. as seller and Zinnia Distributor Solutions LLC, as purchaser.
“L&A Sale” means the sale of the assets specified in the L&A APA and authorized by the L&A Sale Order.
“L&A Sale Account” means the segregated account with, or subject to a control agreement in favor of, the Prepetition Agent or in such other account as the Prepetition Agent may agree, created in accordance with paragraph 10 of the L&A Sale Order.
“L&A Sale Order” means the Order (I) Authorizing the Sale of the Debtors’ Assets; (II) Authorizing Assumption and Assignment of Certain Executory Contracts and Unexpired Leases Related Thereto; and (III) Granting Related Relief [Docket No. 334] entered on February 16, 2024.
“Lender Deficiency Claim(s)” means any deficiency Claim(s) on account of the Prepetition Secured Lender Claims after distribution of the proceeds from the Reorganization Transactions or Non-L&A Sales, as applicable.
“Lien” has the meaning set forth in section 101(37) of the Bankruptcy Code.
“Litigation Trust” means the trust that may be created on the Effective Date pursuant to the Litigation Trust Agreement and in accordance with the terms of this Plan.
“Litigation Trust Agreement” means the trust agreement by and among the Debtors and the Litigation Trustee that, among other things, establishes the Litigation Trust and describes the powers, duties, and responsibilities of the Litigation Trustee, substantially in the form to be included in the Plan Supplement and consistent with Article IV.F of the Plan.
9
“Litigation Trust Assets” means the Litigation Trust Causes of Action and any other assets transferred to the Litigation Trust.
“Litigation Trust Causes of Action” means (i) all Causes of Action of the Debtors under chapter 5 of the Bankruptcy Code or under similar or related state or federal statutes and common law, including, without limitation, all preference, fraudulent conveyance, fraudulent transfer, and/or other similar avoidance claims, rights, and causes of action, and commercial tort law, (ii) all Causes of Action of any Debtor (including for the avoidance of doubt any predecessor of any Debtor) or any Debtor’s Estate against any Non-Released Party, (iii) all Causes of Action of the Debtors arising in connection with the Debtors and relating to any act or omission of any Non-Released Party; and (iv) all Causes of Action of any Debtor (including for the avoidance of doubt any predecessor of any Debtor) and the Debtors’ Estates arising under any D&O Liability Insurance Policy solely to the extent such Causes of Action are based on Causes of Action described in sub-sections (i), (ii), and (iii) of this section and to the extent assignable to the Litigation Trust pursuant to the terms of the applicable D&O Liability Insurance Policy; provided, however, that Litigation Trust Causes of Action shall not include any Causes of Action against any Released Party that is released pursuant to the Plan; provided further, that, the Litigation Trust Causes of Action shall not include any Backup Bidders Causes of Action or Post-Effective Date Debtor Causes of Action, as applicable.
“Litigation Trust Expenses” means all reasonable fees, costs, and expenses of and incurred by the Litigation Trust, including legal and other professional fees, costs, and expenses, administrative fees and expenses, insurance fees, taxes, and escrow expenses, including reasonable fees and expenses of the Litigation Trustee, which shall be paid in accordance with the Litigation Trust Agreement.
“Litigation Trust Funding” means any funding to be used by the Litigation Trust and the Litigation Trustee as specified in the Litigation Trust Agreement.
“Litigation Trust Interest” means a non-certificated beneficial interest in the Litigation Trust granted, as applicable, to each Holder of an Allowed General Unsecured Claim, which shall entitle such holder to a Pro Rata share in the Litigation Trust Causes of Action in accordance with the Litigation Trust Agreement and Articles III.B.4 and IV.F of the Plan.
“Litigation Trust Proceeds” means proceeds of the Litigation Trust Causes of Action.
“Litigation Trustee” means the trustee of the Litigation Trust, as selected in consultation with the Prepetition Agent and the Creditors’ Committee, with the role, responsibilities, and authority relating to the Litigation Trust and the Litigation Trust Causes of Action set forth in the Litigation Trust Agreement and Article IV.F of the Plan.
“Majority Consenting Lenders” has the meaning set forth in the RSA.
10
“Net Reorganization Transaction Proceeds” means the New Money Investment, including the Plan Sponsor Deposit, less actual and customary closing costs and expenses incurred by the Debtors in connection with the Reorganization Transactions.
“Net Sale Proceeds” means, as applicable, (a) any unused cash remaining in the L&A Sale Account, (b) any unused cash released from any escrow accounts created in connection with the L&A Sale, and (c) the Non-L&A Net Sale Proceeds less actual and customary closing costs and expenses incurred by the Debtors in connection with the Non-L&A Sales.
“New Money Investment” means $145 million (inclusive of the Plan Sponsor Deposit), of which $25 million may be through proceeds of the Exit Financing Facility. The Plan Sponsor shall have deposited the entire New Money Investment into escrow on or before August 15, 2024 or August 30, 2024 in accordance with the PSA and this Plan.
“New Organizational Documents” means the form of the certificates or articles of incorporation, bylaws, or such other applicable formation documents of each Post-Effective Date Debtor.
“Non-Debtor Guarantor Release” means one or more releases and/or waivers executed, in the event the Debtors consummate the Reorganization Transactions, by the Prepetition Agent releasing all claims, Causes of Action, and/or liens arising under the Prepetition Credit Documents with respect to the Non-Debtor Guarantors.
“Non-Debtor Guarantors” means, together, Ebix International Holdings Limited and Ebix Singapore Pte. Ltd., as guarantors under the Prepetition Credit Documents.
“Non-L&A Assets” means the assets of the Debtors and non-Debtor affiliates that were not sold pursuant to the L&A Sale.
“Non-L&A Sales” means, collectively, as applicable, the sales of the Debtors’ Non-L&A Assets, including, as applicable: (i) the Backup Bidder Sales; and (ii) the Other Sales.
“Non-L&A Bid Procedures” means those certain bidding procedures set forth as Exhibit 1 to the Non-L&A Bid Procedures Order, as such procedures may be amended from time to time thereafter in accordance with the Non-L&A Bid Procedures Order.
“Non-L&A Bid Procedures Order” means the Order (I) Approving Bid Procedures for Non-L&A Assets, Equity, and Plan Sponsorship Rights and Authorizing the Sale Transactions, (II) Approving Notices in Connection with the Transactions; and (III) Granting Related Relief [Docket No. 514] entered on April 16, 2024.
“Non-L&A Sale Order” means, as applicable, any order entered by the Court approving any of the Non-L&A Sales, which may be the Confirmation Order.
“Non-L&A Net Sale Proceeds” means the net sale proceeds received by the Debtors from any Non-L&A Sale, less actual and customary closing costs and expenses incurred by the Debtors and non-Debtors in connection with such Non-L&A Sale.
11
“Non-Lender GUC Claim(s)” means a General Unsecured Claim that is not a Lender Deficiency Claim. For the avoidance of doubt, DIP Claims, Administrative Expense Claims, Professional Claims, Priority Tax Claims, Other Secured Claims, and Other Priority Claims shall not constitute Non-Lender GUC Claims.
“Non-Released Parties” shall mean any Entities identified in the Plan Supplement as a Non-Released Party. For the avoidance of doubt, Non-Released Parties may nonetheless include Entities that would otherwise be Released Parties but for their identification as a Non-Released Party in the Plan Supplement; provided that, solely in the event that the Reorganization Transactions are consummated, the Non-Released Parties shall not include Mr. Robin Raina and the Debtors’ officers and management.
“Other Priority Claim(s)” means a Claim, other than an Administrative Expense Claim or a Priority Tax Claim, entitled to priority in right of payment under section 507(a) of the Bankruptcy Code.
“Other Sales” means any sales of the Non-L&A Assets, including the sale of the Debtors’ real estate property, other than the assets sold pursuant to the Backup Bidder Sales.
“Other Secured Claim(s)” means any Secured Claim against a Debtor where, pursuant to section 506(a) of the Bankruptcy Code, the Secured Claim is secured by a valid, perfected, and enforceable Lien 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 Debtors’ interest in such property as of the relevant determination date; provided, that, an Other Secured Claim shall not include a (i) Secured Tax Claim or (ii) Prepetition Secured Lender Claim.
“Person(s)” has the meaning set forth in section 101(41) of the Bankruptcy Code.
“Petition Date” means December 17, 2023, which is the date each of the Debtors filed voluntary petitions in the Court for relief under chapter 11 of the Bankruptcy Code.
“Paydown” means that certain partial paydown to the Prepetition Lenders on account of the Prepetition Secured Lender Claims pursuant to the Order (I) Authorizing the Debtors to Use NA L&A Net Sale Proceeds to Pay Prepetition Secured Claims, (II) Modifying the Automatic Stay in Connection Therewith, and (III) Granting Related Relief [Docket No. 537].
“Plan” has the meaning ascribed to it in the recitals.
“Plan Distribution” means payment(s) or distribution(s) to Holders of Allowed Claims, Holders of Allowed Interests, or other eligible Entities under this Plan.
“Plan Objection Deadline” means the date set by the Court as the deadline for any Person(s) to File an objection to Confirmation of this Plan.
“Plan Sponsor” means the consortium of Eraaya Lifespaces Limited, Vikas Lifecare Limited and Vitasta Software India Private Limited and/or one or more of their designees.
12
“Plan Sponsor Deposit” means, collectively, an aggregate total of $49.75 million, comprised of (a) the $7.25 million “Initial Deposit” (as defined in the PSA) together with (b)(i) $2.5 million to be deposited on or before July 1, 2024; (ii) an additional $12 million to be deposited on or before July 16, 2024; (iii) $8 million to be deposited on or before July 26, 2024; and (iv) $20 million to be deposited on or before July 29, 2024.
“Plan Supplement” means those documents and forms of documents, agreements, schedules, and exhibits to this Plan, which shall be Filed by the Debtors no later than seven (7) days prior to the Plan Objection Deadline, or such later date as may be approved by the Court, including, without limitation, (a) the Schedule of Rejected Executory Contracts and Unexpired Leases, if applicable, (b) the Schedule of Retained Causes of Action, (c) schedule of Non-Released Parties, (d) Schedule of Litigation Trust Causes of Action, and (e) the Litigation Trust Agreement. The Debtors shall have the right to amend the documents contained in the Plan Supplement through and including the Effective Date in accordance with the terms of the Plan and the RSA (and subject to the consent, approval and consultation rights set forth therein).
“Post-Effective Date Debtor Causes of Action” means those Causes of Action that directly relate to the assets that are retained by the Post-Effective Date Debtors.
“Post-Effective Date Debtors” means, as applicable, (i) in the event the Debtors consummate the Reorganization Transactions, collectively, the Debtors as reorganized pursuant to the Confirmation Order on or after the Effective Date; or (ii) in the event of the Non-L&A Sales, collectively, the Debtors after the Effective Date.
“Post-Effective Date Ebix Board” means the initial board of directors of the Post-Effective Date Debtors to be appointed on the Effective Date and disclosed in the Plan Supplement.
“Prepetition Agent” means Regions Bank (including any successors thereto) in its capacity as administrative agent and collateral agent of the Prepetition Credit Agreement.
“Prepetition Collateral” means any and all assets of the Debtors subject to a valid, perfected, and enforceable Lien arising under, or relating to the Prepetition Credit Documents, which includes, for the avoidance of doubt, the “Prepetition Collateral” as defined in the DIP Order.
“Prepetition Credit Agreement” means that certain Credit Agreement, dated as of August 5, 2014 (as amended, supplemented, restated or otherwise modified prior to the Petition Date) by and among (a) Ebix, Inc., as borrower, (b) the guarantors party thereto, (c) the Prepetition Agent, and (d) the Prepetition Lenders.
“Prepetition Credit Documents” means the Prepetition Credit Agreement, the Credit Documents (as defined in the Prepetition Credit Agreement), and any other agreements and documents executed or delivered in connection therewith, each as amended, restated, supplemented, or otherwise modified from time to time.
“Prepetition Lenders” means those lenders party from time to time to the Prepetition Credit Agreement.
13
“Prepetition Secured Lender Claims” means all Claims held by any Prepetition Secured Parties on account of, arising under, or relating to the Prepetition Credit Documents that is a Secured Claim. On the Effective Date, the Prepetition Secured Lender Claims shall be Allowed, after accounting for the Paydown, in an aggregate amount equal to: (i) the principal amount outstanding under the Prepetition Credit Agreement on such date, (ii) all interest accrued and unpaid thereon to the date of payment, (iii) all accrued and unpaid fees, expenses, and non-contingent indemnification obligations payable under the Prepetition Credit Documents, and (iv) all other obligations as provided for in the Prepetition Credit Documents, as permitted by the Bankruptcy Code; provided that, notwithstanding anything to the contrary in the Plan, the DIP Orders, or the Prepetition Credit Documents, all adequate protection payments made by the Debtors to Holders of Prepetition Secured Lender Claims and their agents and professionals pursuant to the DIP Orders during the Chapter 11 Cases shall be retained by such Holders and their agents and professionals, as applicable, and not recharacterized as principal payments or otherwise subject to disgorgement, recovery, or avoidance by any party under any legal or equitable theory regardless of whether such payments arguably exceed the Allowed amount of the Prepetition Secured Lender Claims. A Lender Deficiency Claim shall be treated as a General Unsecured Claim for the purposes of this Plan.
“Prepetition Secured Lender Parties” means the Prepetition Agent and the Prepetition Lenders.
“Priority Tax Claim(s)” means any Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the Bankruptcy Code.
“Pro Rata” means the proportion that an Allowed Claim or an Allowed Interest in a particular Class bears to the aggregate amount of Allowed Claims or Allowed Interests in that Class.
“Professional Claim(s)” means a Claim by a Professional seeking an award by the Court of compensation for services rendered or reimbursement of expenses incurred through and including the Effective Date under sections 330, 331, 503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code.
“Professional Claim Reserve Account” means a reserve account in an amount equal to the Professional Claim Reserve Amount funded and maintained by the Debtors on the Effective Date solely for the purpose of paying Allowed but unpaid Professional Claims and other Administrative Expense Claims on account of the Professionals.
“Professional Claim Reserve Amount” means the aggregate amount of unpaid and estimated Professional Claims and other Administrative Expense Claims on account of the Professionals incurred upon, and after giving effect to the occurrence of, the Effective Date to be paid by the Debtors, less the total of any retainers held by the Professionals.
“Professional” means an Entity either (a) employed pursuant to a Court order in accordance with sections 327, 328, 363, or 1103 of the Bankruptcy Code to be compensated for services rendered prior to or on the Effective Date in accordance with sections 327, 328, 329, 330, 331, or 363 of the Bankruptcy Code, as applicable; or (b) awarded compensation and reimbursement by the Court pursuant to section 503(b)(4) of the Bankruptcy Code.
14
“Proof of Claim” means a proof of claim Filed against any of the Debtors in these Chapter 11 Cases on or before the applicable Bar Date.
“PSA” means that certain Plan Support Agreement (including all exhibits, annexes, and schedules thereto) dated as of June 12, 2024 and amended as of June 26, 2024 and further amended as of July 22, 2024, and as may be further amended or supplemented from time to time thereafter, by and among, the Debtors, the Plan Sponsor, and any other Person that becomes party to the PSA in accordance with the terms thereof.
“Reinstated” means, with respect to Claims and Interests, the treatment provided for in section 1124 of the Bankruptcy Code.
“Related Persons” means, with respect to any Person, such Person’s predecessors, successors, assigns, and present and former Affiliates (whether by operation of law or otherwise) and each of their respective subsidiaries, and each of their respective current and former officers, directors, principals, employees, shareholders, members (including ex officio members and managing members), managers, managed accounts or funds, management companies, fund advisors, advisory board members, partners, agents, financial advisors, attorneys, accountants, investment bankers, investment advisors, consultants, representatives, and other professionals, in each case acting in such capacity at any time on or after the Petition Date, and any Person claiming by or through any of them, including such Related Persons’ respective heirs, executors, estates, servants, and nominees.
“Release” means the release given by the Releasing Parties to the Released Parties as set forth in Article VIII.C hereof.
“Released Party” and, collectively, the “Released Parties” means each of the following, in each case in their capacity as such (unless such Entity is a Non-Released Party): (a) the Debtors; (b) the Non-Debtor Guarantors, in the event the Debtors consummate the Reorganization Transactions; (c) the Post-Effective Date Debtors; (d) the DIP Secured Parties; (e) the Prepetition Secured Lender Parties; (f) the Creditors’ Committee and each of its members; (g) in the event the Debtors consummate the Reorganization Transactions, the Plan Sponsor and its members; (h) each Releasing Party; and (i) with respect to each of the foregoing entities in clauses (a) through (h), such Entities’ Related Persons, in each case, solely in their capacity as such; provided that any Holder of a Claim or Interest that affirmatively opts out of the releases provided by the Plan shall not be a “Released Party”; provided, further, that, solely in the event the Debtors consummate the Reorganization Transactions, the Released Parties shall include Mr. Robin Raina and the Debtors’ officers and management, and that in the event of the Non-L&A Sales, such parties shall be Non-Released Parties. The Released Parties shall not include any of the Non-Released Parties.
“Releasing Parties” means, collectively, the following, in each case in their capacity as such unless noted otherwise: (a) each Debtor; (b) the Non-Debtor Guarantors, in the event the Debtors consummate the Reorganization Transactions; (c) each Post-Effective Date Debtor; (d) the DIP Secured Parties; (e) the Prepetition Secured Lender Parties; (f) all Holders of Claims
15
or Interests that vote to accept the Plan; (g) in the event the Debtors consummate the Reorganization Transactions, the Plan Sponsor and its members; (h) all Holders of Claims or Interests that are deemed to accept the Plan and who do not affirmatively opt out of the releases provided in the Plan; (i) all Holders of Claims or Interests that vote to reject the Plan or are deemed to reject the Plan and who do not affirmatively opt out of the releases provided by the Plan; (j) all Holders of Claims or Interests whose vote to accept or reject the Plan is solicited but who do not vote either to accept or to reject the Plan and do not affirmatively opt out of the releases provided in the Plan; (k) the Creditors’ Committee and its members, each in their capacities as such; and (l) each Related Person of each Entity in clause (a) through clause (k) solely to the extent such Related Persons may assert Claims or Causes of Action on behalf of or in a derivative capacity by or through an Entity in clause (a) through clause (k); provided that, in each case, an Entity shall not be a Releasing Party if it (x) elects to opt out of the Third Party Release; or (y) timely objects to the Third Party Release through a formal objection Filed on the docket of the Chapter 11 Cases that is not resolved before Confirmation.
“Reorganization Transactions” has the meaning set forth in Article IV.C hereof.
“Reorganized Ebix” means in the event the Debtors consummate the Reorganization Transactions, Ebix, Inc. as reorganized pursuant to the Confirmation Order on or after the Effective Date, after giving effect to the Reorganization Transactions and the Plan, including, if applicable, the Reorganized Ebix Conversion.
“Reorganized Ebix Conversion” has the meaning set forth in Article IV.K hereof.
“Reorganized Ebix Interests” means, in the event the Debtors consummate the Reorganization Transactions, the Interests of Reorganized Ebix to be issued upon Consummation of the Plan.
“Restructuring Expenses” means the reasonable and documented fees and expenses of the DIP Agent and Prepetition Agent, including the reasonable and documented fees and expenses of Mayer Brown LLP, Kane Russell Coleman Logan PC, and FTI Consulting, Inc.
“RSA” means that certain Restructuring Support Agreement by and between the Debtors, Ebix International Holdings Limited, Ebix Singapore Pte. Ltd., and the Consenting Secured Parties (as defined in the RSA), dated December 17, 2023, as amended, modified or supplemented from time to time.
“Schedule(s)” means, with respect to each Debtor, the schedule of assets and liabilities and statements of financial affairs, as such may be further amended, modified, or supplemented from time to time by such Debtor at any point prior to the Effective Date and Filed by such Debtor with the Court pursuant to section 521 of the Bankruptcy Code and Bankruptcy Rule 1007.
“Schedule of Rejected Executory Contracts and Unexpired Leases” means a schedule of Executory Contracts and Unexpired Leases to be rejected by the Debtors pursuant to the Plan, which schedule shall be included in the Plan Supplement, as such schedule may be amended, modified, or supplemented from time to time.
16
“Schedule of Litigation Trust Causes of Action” means the schedule of certain Causes of Action of the Debtors that are (a) not released, waived, or otherwise transferred pursuant to the Plan, L&A Sale, or Non-L&A Sales, and (b) transferred to the Litigation Trust, which schedule shall be included in the Plan Supplement, as such schedule may be amended, modified, or supplemented from time to time.
“Schedule of Retained Causes of Action” means the schedule of Post-Effective Date Debtor Causes of Action, as such schedule may be amended, modified, or supplemented from time to time, to be filed with the Plan Supplement.
“Section 510(b) Claim(s)” means any Claim(s) against any Debtor that is subject to subordination pursuant to section 510(b) of the Bankruptcy Code.
“Secured Claim(s)” means a Claim: (a) secured by a valid, perfected, and enforceable Lien on collateral to the extent of the value of such collateral, as determined in accordance with section 506(a) of the Bankruptcy Code; or (b) subject to a valid right of setoff pursuant to section 553 of the Bankruptcy Code.
“Secured Tax Claim(s)” means any Secured Claim that, absent its Secured Claim status, would be entitled to priority in right of payment under section 507(a)(8) of the Bankruptcy Code (determined irrespective of time limitations), including any related Secured Claim for penalties.
“Securities Act” means the Securities Act of 1933, as amended, 15 U.S.C. §§ 77a-77aa, or any similar federal, state, or local law.
“Tax Code” means the United States Internal Revenue Code of 1986, as amended.
“Third Party Release” means the consensual releases of the Released Parties by the Releasing Parties provided for in Article VIII.C.2.
“Transaction Documents” means the definitive documents to effectuate the Transactions, which, as applicable, shall include, without limitation, the Plan, the Disclosure Statement, the Disclosure Statement Order, the Plan Supplement (including the Litigation Trust Agreement), the DIP Documents, the L&A Sale Order and associated sale documents, the Non-L&A Sale Order and associated sale documents for any Non-L&A Sale, the Exit Financing Facility Documents (if applicable), and the Non-Debtor Guarantor Release (if applicable).
“Transactions” means the L&A Sale, the Non-L&A Sales, and the Reorganization Transactions, as applicable.
“Treasury Regulations” means the regulations promulgated under the Internal Revenue Code by the United States Department of the Treasury pursuant to the Tax Code.
“Trust Election Date” means the date set forth as such in the Litigation Trust Agreement.
“U.S. Trustee” means the Office of the United States Trustee for Region 6.
17
“Unexpired Lease” means a lease to which one or more of the Debtors is a party that is subject to assumption, assumption and assignment, or rejection under section 365 of the Bankruptcy Code.
“Unimpaired” means a Class of Claims or Interests that is not Impaired.
“Unencumbered” means, with respect to the Debtors’ assets, not subject to a valid, perfected, and enforceable Lien.
“Voting Classes” means Classes 3 and 4.
B. Rules of Interpretation
For purposes of this Plan and unless otherwise provided herein: (1) each term, whether stated in the singular or the plural, will include both the singular and the plural; (2) any reference 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; (3) any reference herein to an existing document, schedule, exhibit, or annex, shall mean that document, schedule, exhibit, or annex, as it may thereafter be amended, modified, or supplemented; (4) any reference to an Entity as a Holder of a Claim or Interest includes that Entity’s successors and assigns; (5) all references in this Plan to Article(s) are references to Articles of this Plan, as the same may be amended, waived, or modified from time to time in accordance with the terms hereof; (6) the words “herein,” “hereof,” “hereto,” “hereunder,” and other words of similar import refer to this Plan as a whole and not to any particular Article, paragraph, or clause contained in this Plan; (7) the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation and shall be deemed to be followed by the words “without limitation”; (8) subject to the provisions of any contract, certificate of incorporation, by-law, instrument, release, or other agreement or document entered into in connection with this Plan, the rights and obligations arising pursuant to this Plan shall be governed by, and construed and enforced in accordance with the applicable federal law, including the Bankruptcy Code and Bankruptcy Rules; (9) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be; (10) all references to docket numbers of documents Filed in these Chapter 11 Cases are references to the docket numbers under the Court’s CM/ECF system; (11) any immaterial effectuating provisions may be interpreted by the Debtors, the Post-Effective Date Debtors, or Litigation Trustee as applicable, in such a manner that is consistent with the overall purpose and intent of this Plan all without further notice to or action, order, or approval of the Court or any other Entity; (12) captions and headings to Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of this Plan; and (13) any reference to an Entity’s “subsidiaries” means its direct and indirect subsidiaries.
18
C. Computation of Time
In computing any period of time prescribed or allowed by this Plan, unless otherwise expressly provided, the provisions of Bankruptcy Rule 9006(a) shall apply. In the event that any payment, distribution, act, or deadline under this Plan is required to be made or performed or occurs on a day that is not a Business Day, then such payment, distribution, act, or deadline shall be deemed to occur on the next succeeding Business Day, but if so made, performed or completed by such next succeeding Business Day, shall be deemed to have been completed or to have occurred as of the required date. Any action to be taken on the Effective Date may be taken on or as soon as reasonably practicable after the Effective Date.
D. Reference to Monetary Figures
All references in this Plan to monetary figures shall refer to currency of the United States of America, unless otherwise expressly provided herein.
E. Reference to the Debtors
Except as otherwise specifically provided in the Plan to the contrary, references in the Plan to the Debtors shall mean the Debtors, the Post-Effective Date Debtors, and/or Litigation Trust, to the extent the context requires.
F. Controlling Document
Except as set forth in this Plan, to the extent that any provision of the PSA, the Disclosure Statement, the Plan Supplement, or any other order referenced in this Plan (other than the Confirmation Order) conflicts with or is in any way inconsistent with any provision of this Plan, this Plan shall govern and control. In the event of an inconsistency between the Confirmation Order and this Plan, the Confirmation Order shall control.
G. Consent Rights
Notwithstanding anything herein to the contrary, any and all consent or consultation rights of the parties to the PSA and the RSA, as such rights are set forth in the PSA and RSA, as applicable, with respect to the form and substance of this Plan, the Transaction Documents, the Plan Supplement, all exhibits to the Plan and the Plan Supplement, including any amendments, restatements, supplements, or other modifications to such agreements and documents and to the PSA and the RSA, and any consents, waivers, or other deviations under or from any such documents and the PSA and RSA, shall be incorporated herein by this reference (including to the applicable definitions in Article I.A hereof) and be fully enforceable as if stated in full herein; provided, that any consent rights of the Plan Sponsor shall be effective solely in the event of the Reorganization Transaction, in accordance with the PSA.
ARTICLE II.
DIP CLAIMS, ADMINISTRATIVE EXPENSE CLAIMS,
AND PRIORITY TAX CLAIMS
In accordance with section 1123(a)(1) of the Bankruptcy Code, DIP Claims, General Administrative Expense Claims, Professional Claims, and Priority Tax Claims have not been classified and thus are excluded from the Classes of Claims and Interests set forth in Article III hereof.
19
A. DIP Claims
As of the Effective Date, the DIP Claims shall be Allowed in an amount equal to (i) the principal amount outstanding under the DIP Facility on such date, (ii) all interest accrued and unpaid thereon to the date of payment, (iii) all accrued and unpaid fees, expenses, and non-contingent indemnification obligations payable under the DIP Documents and the DIP Order, and (iv) all other DIP Obligations as provided for in the DIP Documents. To the extent each DIP Claim has not previously been satisfied in full, each such Allowed DIP Claim shall receive payment in full in Cash of such Holder’s Allowed DIP Claim, which shall survive the Effective Date and shall be paid in full in Cash when they become due and payable under the DIP Documents. All reasonable and documented unpaid fees and expenses of the DIP Agent and the DIP Lenders, to the extent payable pursuant to the DIP Documents, including reasonable and documented fees, expenses, and costs of the DIP Agent’s advisors, shall be paid in full in Cash on or about (but in no event after) the Effective Date.
B. General Administrative Expense Claims
Unless otherwise agreed to by the Holder of an Allowed General Administrative Expense Claim and the Debtors, each Holder of an Allowed General Administrative Expense Claim (other than DIP Claims) that is unpaid as of the Effective Date shall receive, on account and in full satisfaction of such Allowed General Administrative Expense Claim, Cash in an amount equal to the Allowed amount of such General Administrative Expense Claim, to be paid in accordance with the following: (1) if a General Administrative Expense Claim is Allowed on or prior to the Effective Date, on the Effective Date or as soon as reasonably practicable thereafter (or, if not then due, when such Allowed General Administrative Expense Claim is due or as soon as reasonably practicable thereafter); (2) if such General Administrative Expense Claim is not Allowed as of the Effective Date, no later than thirty (30) days after the date on which an order allowing such General Administrative Expense Claim becomes a Final Order, or as soon as reasonably practicable thereafter; (3) at such time and upon such terms as may be agreed upon by such Holder and the Debtors; or (4) at such time and upon such terms as set forth in any other order of the Court.
Each Holder of a General Administrative Expense Claim that was not accrued in the ordinary course of business must File and serve a request for payment of such General Administrative Expense Claim on the Debtors no later than the Administrative Expense Claims Bar Date pursuant to the procedures specified in the Confirmation Order and the notice of the Effective Date. Holders of General Administrative Expense Claims that are required to File and serve a request for payment of such General Administrative Expense Claims by the Administrative Expense Claims Bar Date that do not File and serve such a request by the Administrative Expense Claims Bar Date shall be forever barred, estopped, and enjoined from asserting such General Administrative Expense Claims against the Debtors or their respective property, and such General Administrative Expense Claims shall be deemed forever discharged and released as of the Effective Date. Any requests for payment of General Administrative Expense Claims that are not properly Filed and served by the Administrative Expense Claims Bar Date shall not appear on the Claims Register and shall be Disallowed automatically without the need for further action by the Debtors, or further order of the Court.
20
The Debtors may settle General Administrative Expense Claims without further Court approval. The Debtors may also choose to object to any General Administrative Expense Claim no later than sixty (60) days from the Administrative Expense Claims Bar Date, subject to extensions by the Court, agreement in writing of the parties, or on motion of a party in interest approved by the Court. Unless the Debtors or other party with standing, as applicable, object to a timely Filed and properly served General Administrative Expense Claim, such General Administrative Expense Claim will be deemed Allowed in the amount requested. In the event that the Debtors object to a General Administrative Expense Claim, the parties may confer to try to reach a settlement and, failing that, the Court will determine whether such General Administrative Expense Claim should be Allowed and, if so, in what amount.
C. Professional Claims
1. Final Fee Applications and Payment of Professional Claims
All requests for payment of Professional Claims for services rendered and reimbursement of expenses incurred prior to the Effective Date must be Filed no later than the Administrative Expense Claims Bar Date. The Debtors shall pay Allowed Professional Claims in Cash in the amount the Court allows, including from the Professional Claim Reserve Account.
2. Professional Claim Reserve Account
No later than the Effective Date, the Debtors shall fund the Professional Claim Reserve Account with Cash equal to the aggregate Professional Claim Reserve Amount for all Professionals. The Professional Claim Reserve Account shall be maintained in trust for the Professionals. Such funds in the Professional Claim Reserve Account shall not constitute property of the Debtors, the Debtors’ Estates, the Post-Effective Date Debtors, the Litigation Trustee, or the Litigation Trust, except as otherwise expressly set forth in the last sentence of this paragraph. The amount of Professional Claims owing to the Professionals on and after the Effective Date shall be paid in Cash to such Professionals from funds held in the Professional Claim Reserve Account, as soon as reasonably practicable after such Claims are Allowed by a Court order. When all Allowed Professional Claims have been paid in full, amounts remaining in the Professional Claim Reserve Account, if any, shall revert to the Litigation Trust to be used for Litigation Trust Expenses pursuant to the terms of this Plan without any further action or order of the Court.
Professionals shall reasonably estimate their unpaid Professional Claims Reserve Amount and shall deliver such estimate to the Debtors no later than five (5) days before the Effective Date; provided, however, that such estimate shall not be deemed to limit the amount of the fees and expenses that are the subject of each Professional’s final request for payment in these Chapter 11 Cases. If a Professional does not provide an estimate, the Debtors may estimate the unpaid and unbilled fees and expenses of such Professional for purposes of determining the Professional Claims Reserve Amount.
21
3. Post-Effective Date Fees and Expenses
Except as otherwise specifically provided in this Plan, from and after the Effective Date, the Disbursing Agent shall, in the ordinary course of business and without any further notice to or action, order, or approval of the Court, pay in Cash the reasonable and documented legal, professional, or other fees and expenses related to implementation and Consummation of this Plan. Upon the Effective Date, any requirement that Professionals comply with sections 327 through 331, 363, and 1103 of the Bankruptcy Code in seeking retention or compensation for services rendered after such date shall terminate, and the Litigation Trustee and Post-Effective Date Debtors, as applicable, may employ and pay any Professional in the ordinary course of business without any further notice to or action, order, or approval of the Court.
D. Priority Tax Claim
Except to the extent that a Priority Tax Claim has already been paid during the Chapter 11 Cases or a Holder of an Allowed Priority Tax Claim and the Debtors or Post-Effective Date Debtors, as applicable, agree to less favorable treatment, each Holder of an Allowed Priority Tax Claim shall receive, in full and final satisfaction of such Allowed Priority Tax Claim, (a) to the extent such Priority Tax Claim is or becomes an Allowed Priority Tax Claim within five (5) years from the Petition Date, equal annual Cash payments in an aggregate amount equal to the amount of such Allowed Priority Tax Claim, together with interest at the applicable rate under section 511 of the Bankruptcy Code, over a period not exceeding five (5) years from and after the Petition Date, or (b) to the extent such Priority Tax Claim becomes an Allowed Priority Tax Claim after such period, Cash in an amount equal to such Allowed Priority Tax Claim on, or as soon thereafter as is reasonably practicable, the date such Allowed Priority Tax Claim is due and payable in the ordinary course as such obligation becomes due; provided, that the Debtors or Post-Effective Date Debtors reserve the right to prepay all or a portion of any such amounts at any time under this option without penalty or premium. To the extent the Debtors consummate the Reorganization Transactions, the Post-Effective Date Debtors shall pay any Allowed Priority Tax Claim in accordance with this Article II.D to the extent that such claims constitute Assumed Liabilities.
ARTICLE III.
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
A. Classification of Claims and Interests
The categories of Claims and Interests listed below classify Claims and Interests for all purposes, including voting, Confirmation, and Plan Distribution pursuant to sections 1122 and 1123(a) of the Bankruptcy Code. This Plan deems a Claim or Interest to be classified in a particular Class only to the extent that the Claim or Interest qualifies within 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 within the description of such different Class. A Claim or Interest is in a particular Class for purposes of distribution only to the extent that any such Claim or Interest is Allowed in that Class and has not been paid or otherwise settled prior to the Effective Date. In accordance with section 1123(a)(1) of the Bankruptcy Code and as described in Article II hereof, the Debtors have not classified DIP Claims, General Administrative Expense Claims, Professional Claims, and Priority Tax Claims.
22
The classification of Claims and Interests against the Debtors pursuant to this Plan is as follows:
| Class |
Claims and Interests |
Status |
Voting Rights | |||
| Class 1 | Other Secured Claims | Unimpaired | Not Entitled to Vote (Deemed to Accept) | |||
| Class 2 | Other Priority Claims | Unimpaired | Not Entitled to Vote (Deemed to Accept) | |||
| Class 3 | Prepetition Secured Lender Claims | Impaired | Entitled to Vote | |||
| Class 4 | General Unsecured Claims | Impaired | Entitled to Vote | |||
| Class 5 | Intercompany Claims | Unimpaired / Impaired | Not Entitled to Vote (Deemed to Accept or Reject) | |||
| Class 6 | Section 510(b) Claims | Impaired | Not Entitled to Vote (Deemed to Reject) | |||
| Class 7 | Existing Equity Interests | Impaired | Not Entitled to Vote (Deemed to Reject) | |||
| Class 8 | Intercompany Interests | Unimpaired | Not Entitled to Vote (Deemed to Accept) | |||
B. Treatment of Claims and Interests
Each Holder of an Allowed Claim or Allowed Interest, as applicable, shall receive under this Plan the treatment described below in full and final satisfaction, settlement, release, and discharge of and in exchange for such Holder’s Allowed Claim or Allowed Interest, except to the extent different treatment is agreed to by the Debtors and the Holder of such Allowed Claim or Allowed Interest, as applicable. Unless otherwise indicated, the Holder of an Allowed Claim or Allowed Interest, as applicable, shall receive such treatment on the Effective Date or as soon as reasonably practicable thereafter.
1. Class 1 – Other Secured Claims
| a. | Classification. Class 1 consists of Other Secured Claims. |
| b. | Treatment. On the Effective Date, except to the extent that a Holder of an Allowed Other Secured Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of, and in exchange for such Other Secured Claim, each Holder thereof shall receive, at the option of the Debtors or the Post-Effective Date Debtors, as applicable: |
| (i) | payment in full from Available Cash attributable to the Holder of such Allowed Other Secured Claim’s collateral; |
| (ii) | the return of the applicable collateral in satisfaction of the Allowed amount of such Other Secured Claim; or |
23
| (iii) | such other treatment sufficient to render such Allowed Other Secured Claim as Unimpaired. |
| c. | Voting. Class 1 is Unimpaired under the Plan. Holders of Claims in Class 1 are conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not entitled to vote to accept or reject this Plan. |
| 2. | Class 2 – Other Priority Claims |
| a. | Classification. Class 2 consists of Other Priority Claims. |
| b. | Treatment. On the Effective Date, except to the extent that a Holder of an Allowed Other Priority Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of, and in exchange for such Other Priority Claim, each Holder thereof shall receive payment or other treatment in accordance with the Bankruptcy Code in full satisfaction of such Claim. |
| c. | Voting. Class 2 is Unimpaired under the Plan. Holders of Claims in Class 2 are conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not entitled to vote to accept or reject this Plan. |
| 3. | Class 3 – Prepetition Secured Lender Claims |
| a. | Classification. Class 3 consists of Prepetition Secured Lender Claims. |
| b. | Treatment. On the Effective Date, except to the extent that a Holder of an Allowed Prepetition Secured Lender Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of, and in exchange for such Prepetition Secured Lender Claim, each such Holder thereof shall receive such Holder’s Pro Rata share of Available Cash. |
| c. | Voting. Class 3 is Impaired under the Plan. Holders of Claims in Class 3 are entitled to vote to accept or reject this Plan. |
| 4. | Class 4 – General Unsecured Claims |
| a. | Classification. Class 4 consists of General Unsecured Claims, including Lender Deficiency Claims. |
24
| b. | Treatment. On the Effective Date, except to the extent that a Holder of an Allowed General Unsecured Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of, and in exchange for such General Unsecured Claim, each such Holder shall receive such Holder’s Pro Rata share of: |
| (i) | In the event the Debtors consummate the Reorganization Transactions: |
| A. | the GUC Recovery Pool, solely on account of the Global Settlement; provided, that no Holder of a Lender Deficiency Claim shall receive any of the GUC Recovery Pool, and Lender Deficiency Claims shall not participate in any Distributions from the GUC Recovery Pool; and |
| B. | Litigation Trust Interests, if any. |
| (ii) | In the event the Debtors consummate the Non-L&A Sales: |
| A. | Available Cash attributable to Unencumbered assets, if any; and |
| B. | Litigation Trust Interests. |
| c. | Voting. Class 4 is Impaired under the Plan. Holders of Claims in Class 4 are entitled to vote to accept or reject this Plan. |
| 5. | Class 5 – Intercompany Claims |
| a. | Classification. Class 5 consists of Intercompany Claims. |
| b. | Treatment. On the Effective Date, or as soon as reasonably practicable thereafter, the Allowed amount of the Intercompany Claims will be paid, adjusted, reinstated or discharged as determined by the Debtors or the Post-Effective Date Debtors, as applicable. |
| c. | Voting. Class 5 is either Unimpaired or Impaired under the Plan. Holders of Claims in Class 5 that are Unimpaired are conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code. Holders of Claims in Class 5 that are Impaired are conclusively presumed to have rejected this Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, all Holders in Class 5 are not entitled to vote to accept or reject this Plan. |
| 6. | Class 6 – Section 510(b) Claims |
| a | Classification. Class 6 consists of Section 510(b) Claims. |
25
| b | Treatment. On the Effective Date, each Holder of each Section 510(b) Claim in any of the Debtors shall have such Claim cancelled, released, and extinguished and without any distribution or compensation. |
| c | Voting. Class 6 is Impaired under the Plan. Holders of Claims in Class 6 are conclusively presumed to have rejected this Plan pursuant to section 1126(g) of the Bankruptcy Code. |
| 7. | Class 7 – Existing Equity Interests |
| a. | Classification. Class 7 consists of Existing Equity Interests. |
| b. | Treatment. On the Effective Date, each Holder of each Existing Equity Interest in Debtor Ebix, Inc. shall have such Interest cancelled, released, and extinguished and without any distribution or compensation. |
| c. | Voting. Class 7 is Impaired under the Plan. Holders of Interests in Class 7 are conclusively presumed to have rejected this Plan pursuant to section 1126(g) of the Bankruptcy Code. |
| 8. | Class 8 – Intercompany Interests |
| a. | Classification. Class 8 consists of Intercompany Interests. |
| b. | Treatment. Intercompany Interests shall be Reinstated so as to maintain the organization structure of the Debtors as such structure exists on the Effective Date unless implementation of the Transactions require otherwise. |
| c. | Voting. Class 8 is Unimpaired under the Plan. Holders of Interests are conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not entitled to vote to accept or reject this Plan. |
C. Special Provision Governing Unimpaired Claims
Except as otherwise provided in this Plan, nothing under this Plan shall affect the Debtors’ or the Post-Effective Date Debtors’ rights regarding any Unimpaired or Reinstated Claim, including, all rights regarding legal and equitable defenses to, or setoffs or recoupments against, any such Unimpaired or Reinstated Claim; and, except as otherwise specifically provided in the Plan, nothing herein shall be deemed to be a waiver or relinquishment of any Claim, Cause of Action, right of setoff, or other legal or equitable defense that the Debtors had immediately prior to the Petition Date, against or with respect to any Claim that is Unimpaired by the Plan.
D. Elimination of Vacant Classes
Any Class of Claims or Interests that does not have a Holder of an Allowed Claim or Allowed Interest or a Claim or Interest temporarily Allowed by the Court as of the date of the Confirmation Hearing shall be deemed eliminated from this Plan for purposes of voting to accept or reject this Plan and for purposes of determining acceptance or rejection of this Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code.
26
E. Acceptance or Rejection of this Plan
| 1. | Acceptance or Rejection of this Plan |
With respect to each Debtor, if a Class contained Claims eligible to vote and no holder of Claims eligible to vote in such Class votes to accept or reject this Plan, this Plan shall be presumed accepted by the holders of such Claims in such Class.
| 2. | Voting Classes |
Classes 3 and 4 are Impaired and entitled to vote to accept or reject this Plan.
F. Confirmation and Section 1129(b) of the Bankruptcy Code
Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of Confirmation by acceptance of the Plan by one or more of the Classes entitled to vote pursuant to this Article III of the Plan. The Debtors hereby request Confirmation of the Plan under section 1129(b) of the Bankruptcy Code with respect to any Class that is deemed to reject the Plan pursuant to section 1126(g) of the Bankruptcy Code. The Debtors reserve the right to request Confirmation of the Plan under section 1129(b) of the Bankruptcy Code with respect to any Voting Class that votes to reject the Plan.
G. Subordination of Claims
The allowance, classification, and treatment of all Allowed Claims and Interests and the respective distributions and treatments under the Plan shall take into account and conform to the relative priority and rights of the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, contract, section 510(b) of the Bankruptcy Code, or otherwise. Pursuant to section 510 of the Bankruptcy Code, the Debtors or Post-Effective Date Debtors (as applicable) reserve the right to re-classify any Allowed Claim or Allowed Interest in accordance with any contractual, legal, or equitable subordination relating thereto.
H. Subordination Agreements
Pursuant to section 510(a) of the Bankruptcy Code, all subordination agreements, including but not limited to, the Intercompany Subordination Agreement, governing Claims or Interests shall be enforced in accordance with such agreement’s terms.
27
ARTICLE IV.
MEANS FOR IMPLEMENTATION OF THIS PLAN
A. No Substantive Consolidation
The Plan is being proposed as a joint plan of reorganization of the Debtors for administrative purposes only and constitutes a separate chapter 11 plan of reorganization for each Debtor. The Plan is not premised upon the substantive consolidation of the Debtors with respect to the Classes of Claims or Interests set forth in the Plan.
B. General Settlement of Claims and Interests
As discussed in the Disclosure Statement and as otherwise provided herein, pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the classification, distributions, releases, and other benefits provided under this Plan, upon the Effective Date, the provisions of this Plan, including the Global Settlement, shall constitute a good faith compromise and settlement of all Claims and Interests and controversies resolved pursuant to this Plan. This Plan, including the Global Settlement, shall be deemed a motion to approve the good faith compromise and settlement of all such Claims, Interests, and controversies pursuant to Bankruptcy Rule 9019, and the entry of the Confirmation Order shall constitute the Court’s approval of such compromise and settlement under section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, as well as a finding by the Court that such settlement and compromise is fair, equitable, reasonable and in the best interests of the Debtors and their Estates. Subject to Article VI.L hereof, all Plan Distributions made to Holders of Allowed Claims in any Class are intended to be and shall be final.
The Debtors, the Prepetition Secured Lender Parties, the DIP Secured Parties, the Creditors’ Committee, and the Plan Sponsor engaged in extensive, detailed good faith and arm’s-length negotiations to resolve any outstanding issues and to formulate a chapter 11 plan supported by the Prepetition Secured Lender Parties, the DIP Secured Parties, the Creditors’ Committee, and the Plan Sponsor. The Debtors, the Prepetition Secured Lender Parties, the DIP Secured Parties, the Creditors’ Committee, and the Plan Sponsor ultimately agreed to the Global Settlement, the terms of which are:
| a. | The Creditors’ Committee supports this Plan, including but not limited to the release and exculpation provisions set forth in Article VIII hereof. |
| b. | The Plan Sponsor shall fund the New Money Investment (inclusive of the Plan Sponsor Deposit) in the amount of no less than $145 million. Holders of the Prepetition Secured Lender Claims shall receive Pro Rata distribution of the net proceeds from the New Money Investment, and the Holders of Allowed Non-Lender GUC Claims shall not participate in any distributions from such proceeds of the Reorganization Transactions. |
| c. | Separate from the New Money Investment, the Plan Sponsor shall fund $3.5 million, which shall be contributed to the GUC Recovery Pool and be distributed only to the Holders of Allowed Non-Lender GUC Claims. Holders of the Prepetition Secured Lender Claims shall not participate in any distribution from the GUC Recovery Pool. |
28
| d. | The Debtors shall assign to the Prepetition Agent for the benefit of the Prepetition Secured Lenders the Assigned Causes of Action. The Debtors shall execute any documentation reasonably necessary to assign standing to prosecute, together with all rights, title, and interest in/to, the Assigned Causes of Action to the Prepetition Agent on or before the Effective Date or August 31, 2024, whichever is sooner. Any and all proceeds from the Assigned Causes of Action shall be distributed solely to the Prepetition Secured Lender Parties, and the Holders of Allowed Non-Lender GUC Claims shall not participate in any distributions from proceeds of the Assigned Causes of Action. The Creditors’ Committee (on behalf of all holders of the Non-Lender GUC Claims) and the Plan Sponsor agree to and support this assignment. |
| e. | The Debtors release any Debtor Cause of Action against Holders of Allowed Non-Lender GUC Claims who vote in favor of the Plan and waive any distribution under the Plan; provided, that the foregoing release shall not be available to the Non-Released Parties. |
| f. | The Global Settlement is subject to satisfaction of all the conditions above and consummation of the Reorganization Transactions. |
C. Transactions
The Plan provides for a restructuring of the Debtors pursuant to the transactions set forth in Article IV.D with the proceeds thereof distributed in accordance with the terms of this Plan (the “Reorganization Transactions”). In the event the Debtors are unable to consummate the Reorganization Transactions, the Debtors will elect to pursue and consummate the Non-L&A Sales, as described herein. Additionally, either prior to or after confirmation the Debtors shall pursue transactions for the balance of their businesses or assets, either as contingencies in the event the Plan Sponsor transaction terminates or in replacement thereof. Each Transaction shall also include the creation of a Litigation Trust as described below.
D. Reorganization Transactions
| 1. | New Money Investment and Issuance of Reorganized Ebix Interests |
On the Effective Date, Reorganized Ebix shall issue the Reorganized Ebix Interests to one or more members of the Plan Sponsor as directed in the Plan Sponsor’s discretion. One-hundred percent of the Reorganized Ebix Interests shall be distributed to the Plan Sponsor on account of the New Money Investment. All of the Reorganized Ebix Interests issued pursuant to the Plan shall be duly authorized, validly issued, fully paid, and nonassessable.
Except as otherwise set forth in this Plan, the issuance and distribution of any securities pursuant to this Plan, including the Reorganized Ebix Interests, will be exempt from the registration requirements of section 5 of the Securities Act pursuant to section 4(a)(2) of the Securities Act or other available exemption from registration under the Securities Act, as applicable.
29
| 2. | Assumed Liabilities |
In the event the Debtors consummate the Reorganization Transactions, the Post-Effective Date Debtors shall assume the Assumed Liabilities. Any Assumed Liability that is a Priority Tax Claim shall be paid in accordance with Article II.D.
| 3. | Exit Financing Facility |
On the Effective Date, at the discretion of the Plan Sponsor, the Post-Effective Date Debtors shall enter into the Exit Financing Facility, the terms of which will be set forth in the Exit Financing Facility Documents. Confirmation of the Plan shall be deemed approval of the Exit Financing Facility (if obtained) and the Exit Financing Facility Documents, as applicable, and all transactions contemplated thereby, and all actions to be taken, undertakings to be made, and obligations to be incurred by the Post-Effective Date Debtors in connection therewith, including the payment of all fees, indemnities, and expenses provided for therein, and authorization for the Post-Effective Date Debtors to enter into and execute the Exit Financing Facility Documents and such other documents as may be required to effectuate the treatment afforded by the Exit Financing Facility. On the Effective Date, all of the Liens and security interests to be granted in accordance with the Exit Financing Facility Documents (a) shall be deemed to be granted, (b) shall be legal, binding, and enforceable Liens on, and security interests in, the collateral granted thereunder in accordance with the terms of the Exit Financing Facility Documents, (c) shall be deemed perfected on the Effective Date, subject only to such Liens and security interests as may be permitted under the Exit Financing Facility Documents, and (d) shall not be subject to recharacterization or equitable subordination for any purposes whatsoever and shall not constitute preferential transfers or fraudulent conveyances under the Bankruptcy Code or any applicable non-bankruptcy law. The Post-Effective Date Debtors and the Persons or Entities granted such Liens and security interests shall be authorized to make all filings and recordings, and to obtain all governmental approvals and consents necessary to establish and perfect such Liens and security interests under the provisions of the applicable state, federal, or other law that would be applicable in the absence of the Plan and the Confirmation Order (it being understood that perfection shall occur automatically by virtue of the entry of the Confirmation Order and any such filings, recordings, approvals, and consents shall not be required), and will thereafter cooperate to make all other filings and recordings that otherwise would be necessary under applicable law to give notice of such Liens and security interests to third parties.
| 4. | Additional Provisions Related to Emergence |
The Plan Sponsor shall deposit the Extended Emergence Funding Amount into escrow on or before July 29, 2024. In the event the Effective Date does not occur on or before August 15, 2024, the Debtors shall be entitled to use the Extended Emergence Funding Amount to pay the Extended Emergence Costs in the ordinary course of business or in accordance with this Plan unless the primary cause of the non-occurrence of the Effective Date has been the Debtors’ failure to fulfill any of their obligations under the PSA. The Debtors shall provide the Plan Sponsor with a summary of Extended Emergence Costs incurred and paid.
30
To the extent (x) the actual incurred or reasonably estimated to be incurred Extended Emergence Costs are less than the Extended Emergence Funding Amount and/or (y) the Plan provides for distribution of less than the full amount of the GUC Recovery Pool, then the excess of such amounts shall be applied to reduce the Deposit Balance Amount (or, with respect to reasonably estimated Extended Emergence Costs in excess of actually incurred Extended Emergence Costs, shall revert to the Plan Sponsor).
E. Non-L&A Sale
In the event the Debtors are unable to consummate the Reorganization Transactions with the Plan Sponsor, the Debtors will elect to pursue and consummate the Non-L&A Sales, which, collectively, are comprised of (i) the Backup Bidder Sales, which are expected to be consummated prior to the Effective Date; and (ii) the Other Sales, which are expected to be consummated after the Effective Date. In the event the Debtors pursue the Non-L&A Sales, the Debtors shall file a notice with the Court. The Non-L&A Net Sale Proceeds shall be distributed in accordance with this Plan. In the event the Debtors are unable to consummate the Reorganization Transactions with the Plan Sponsor, they will pursue additional transactions for the Debtors’ remaining businesses and assets.
F. Litigation Trust
| 1. | Interest in the Litigation Trust |
Any and all interests in the Litigation Trust will not, and are not intended to, constitute “securities” and will not be registered pursuant to the Securities Act, as amended, or any state securities law. However, if it should be determined that interests in the Litigation Trust constitute “securities,” the exemption provisions of section 1145 of the Bankruptcy Code will apply to the interests in the Litigation Trust. Any and all interests in the Litigation Trust shall not be certificated, shall be subject to certain restrictions, and all interests shall be non-transferable other than if transferred by will, intestate succession, or otherwise by operation of law. However, if it should be determined that interests in the Litigation Trust constitute “securities,” the exemption provisions of section 1145 of the Bankruptcy Code will apply to the interests in the Litigation Trust.
| 2. | Creation and Governance of the Litigation Trust |
On the Effective Date, the Debtors shall be deemed to transfer to the Litigation Trust all of their rights, title and interest in and to all of the Litigation Trust Causes of Action free and clear of all Liens, charges, Claims, encumbrances, and interests, in accordance with section 1141 of the Bankruptcy Code. The Litigation Trust Agreement shall be executed, and the Debtors shall take all steps necessary to establish the Litigation Trust in accordance with the Plan and the RSA and the beneficial interests therein, to the extent applicable. In the event of any conflict between the terms of the Plan and the terms of the Litigation Trust Agreement, the terms of the Plan shall govern.
Any transfer to the Litigation Trust shall be exempt from any stamp, real estate transfer, mortgage reporting, sales, use or other similar tax. The Litigation Trustee shall be the exclusive administrator of the assets of the Litigation Trust for purposes of 31 U.S.C. § 3713(b) and section 6012(b)(3) of the Tax Code, as well as the representatives of the Estate of each of the Debtors appointed pursuant to section 1123(b)(3)(B) of the Bankruptcy Code, solely for purposes
31
of carrying out the Litigation Trustee’s duties under the Litigation Trust Agreement. The Litigation Trust shall be governed by the Litigation Trust Agreement and administered by the Litigation Trustee. The powers, rights, and responsibilities of the Litigation Trustee shall be specified in the Litigation Trust Agreement and shall include the authority and responsibility to, among other things, take the actions set forth in this Article IV.F. The Litigation Trustee shall hold and distribute Plan Distributions in accordance with the provisions of this Plan and the Litigation Trust Agreement. After the Effective Date, the Debtors and the Post-Effective Date Debtors shall have no interest in the Litigation Trust Causes of Action except as set forth in the Litigation Trust Agreement.
| 3. | Litigation Trustee and Litigation Trust Agreement |
The Litigation Trust Agreement generally will provide for, among other things: (a) the transfer of the Litigation Trust Causes of Action to the Litigation Trust; (b) the mechanics of the Litigation Trust Funding and payment of Litigation Trust Expenses; (c) the retention of counsel, accountants, financial advisors, or other professionals; (d) litigation of any Litigation Trust Causes of Action, which may include the prosecution, settlement, abandonment or dismissal of any such Causes of Action; and (e) making distributions to holders of Litigation Trust Interests, as provided in this Plan and in the Litigation Trust Agreement. The Litigation Trustee, on behalf of the Litigation Trust, may employ, without further order of the Bankruptcy Court, professionals to assist in carrying out its duties hereunder and may compensate and reimburse the reasonable expenses of those professionals without further order of the Bankruptcy Court from the Litigation Trust Causes of Action in accordance with this Plan and the Litigation Trust Agreement. The Litigation Trust Agreement shall include reasonable and customary provisions that allow for indemnification of the Litigation Trustee by the Litigation Trust. Any such indemnification shall be the sole responsibility of the Litigation Trust and payable solely from the proceeds of the Litigation Trust Causes of Action.
| 4. | Cooperation of Post-Effective Date Debtors |
The Post-Effective Date Debtors shall reasonably cooperate with the Litigation Trust and its agents and representatives in the administration of the Litigation Trust, including, providing reasonable access to books and records and current employees and officers, including for interviews, deposition, or testimony, with respect to (a) the investigation, prosecution, compromise, and/or settlement of the Litigation Trust Causes of Action, (b) contesting, settling, compromising, reconciling, and objecting to Claims, and (c) administering the Litigation Trust, and in each case, the Litigation Trust agrees to reimburse reasonable out-of-pocket expenses incurred in connection with such cooperation. The Post-Effective Date Debtors shall take all reasonable efforts to assist the Litigation Trust in connection with the foregoing, and the Litigation Trust may enter into agreements with the Post-Effective Date Debtors in order to obtain information from the Post-Effective Date Debtors on a confidential basis, without being restricted by or waiving any applicable work product, attorney-client, or other privilege. The Litigation Trust’s receipt of documents, information or communications from the Post-Effective Date Debtors shall not constitute a waiver of any privilege. For the avoidance of doubt, the Litigation Trust shall not be responsible for legal fees, if any, incurred by the Post-Effective Date Debtors in fulfilling its obligations under this Article IV.F.4.
32
| 5. | Litigation Trust Causes of Action |
The Litigation Trustee shall have the exclusive right in respect of all Litigation Trust Causes of Action to institute, file, prosecute, enforce, settle, compromise, release, abandon, or withdraw any and all Litigation Trust Causes of Action without any further order of the Bankruptcy Court or consent of any other party, except as otherwise provided herein or in the Litigation Trust Agreement. From and after the Effective Date, the Litigation Trustee, in accordance with section 1123(b)(3) of the Bankruptcy Code, and on behalf of the Litigation Trust, shall serve as a representative of the Estates, solely for purposes of carrying out the Litigation Trustee’s duties under the Litigation Trust Agreement. In connection with the investigation, prosecution and/or compromise of the Litigation Trust Causes of Action, the Litigation Trustee may expend such portion of the Plan Distributions as he or she deems necessary, as provided in the Litigation Trust Agreement.
| 6. | Litigation Trust Fees and Expenses |
From and after the Effective Date, the Litigation Trust, shall, in the ordinary course of business and without the necessity of any approval by the Bankruptcy Court, pay the Litigation Trust Expenses, including but not limited to reasonable fees and expenses of the Litigation Trustee and the fees and expenses of any professionals retained by the Litigation Trust from the proceeds of the Litigation Trust Causes of Action, except as otherwise provided in the Litigation Trust Agreement. The Post-Effective Date Debtors shall not be responsible for any costs, fees, or expenses of the Litigation Trust.
| 7. | Tax Treatment. |
In furtherance of this Article IV.F, (a) the Litigation Trust shall be structured to qualify as a “liquidating trust” within the meaning of Treasury Regulation section 301.7701-4(d) and in compliance with Revenue Procedure 94-45, 1994-2 C.B. 684, and, thus, subject to the DOF Election, as a “grantor trust” within the meaning of sections 671 through 679 of the Tax Code owned by the holders of Litigation Trust Interests, which shall be treated as the grantors of such trust, consistent with the terms of the Plan; (b) the sole purpose of the Litigation Trust shall be the liquidation and distribution of the Litigation Trust Assets in accordance with Treasury Regulation section 301.7701-4(d), with no objective to continue or engage in the conduct of a trade or business; (c) all parties (including the Debtors and the Estates, holders of Litigation Trust Interests and the Litigation Trustee) shall report consistently with such treatment (including the deemed receipt of the underlying assets, subject to applicable liabilities and obligations, by the holders of Litigation Trust Interests in satisfaction of their Claims, followed by the deemed transfer of such assets by such holders to the Litigation Trust); (d) all parties shall report consistently with the valuation of the Litigation Trust Assets transferred to the Litigation Trust as determined by the Litigation Trustee (or its designee); (e) the Litigation Trustee shall be responsible for filing returns for the Litigation Trust as a grantor trust pursuant to Treasury Regulation section 1.671-4(a); and (f) the Litigation Trustee shall annually send to each holder of Litigation Trust Interests a separate statement regarding the receipts and expenditures of the trust as relevant for U.S. federal income tax purposes.
33
Subject to definitive guidance from the IRS or a court of competent jurisdiction to the contrary (including the receipt by the Litigation Trustee of a private letter ruling if the Litigation Trustee so requests one, or adverse determination by the IRS upon audit), the Litigation Trustee, with the consent of the Prepetition Lenders (which consent shall not be unreasonably withheld or delayed), may timely elect to (x) treat any portion of the Litigation Trust allocable to Disputed General Unsecured Claims as a “disputed ownership fund” governed by Treasury Regulation section 1.468B-9 (and make any appropriate elections (a “DOF Election”)) unless, as of the Trust Election Date, either all of the Litigation Trust Assets have been distributed to the holders of the Litigation Trust Interests or the percentage of the Litigation Trust Assets distributable to each holder of the Litigation Trust Interests has become fixed and determinable, and (y) to the extent permitted by applicable law, report consistently with the foregoing for state and local income tax purposes. If a “disputed ownership fund” election is made, all parties (including the Debtors and the Estates, holders of Litigation Trust Interests and the Litigation Trustee) shall report for United States federal, state, and local income tax purposes consistently with the foregoing. As to any assets allocable to, or retained on account of, Disputed General Unsecured Claims, all distributions shall be net of any expenses, including taxes, relating to the retention or disposition of such assets, and the Litigation Trustee shall be responsible for payment, solely out of the assets of such retained assets, of any taxes imposed on or in respect of such assets. All parties (including, without limitation, the Debtors, the Post-Effective Date Debtors, the Litigation Trustee and the holders of Litigation Trust Interests) will be required to report for tax purposes consistently with the foregoing.
| 8. | Termination and Dissolution of the Litigation Trust |
The Litigation Trustee and the Litigation Trust shall be discharged or dissolved, as the case may be, at such time as all distributions required to be made by the Litigation Trustee under the Plan and the Litigation Trust Agreement have been made. Upon termination and dissolution of the Litigation Trust, any remaining Plan Distributions shall be distributed to holders of Litigation Trust Interests in accordance with the Litigation Trust Agreement.
| 9. | Single Satisfaction of Allowed Claims From Litigation Trust |
Notwithstanding anything to the contrary herein, in no event shall holders of Litigation Trust Interests recover more than the full amount of their Allowed Claims from the Litigation Trust.
| 10. | GUC Recovery Pool Distribution |
The Plan Sponsor shall deposit the GUC Recovery Pool into escrow on or before July 29, 2024 in accordance with the PSA. On the Effective Date, the GUC Recovery Pool shall be released from escrow to the Litigation Trust, and the Litigation Trust shall distribute the GUC Recovery Pool to the Holders of Allowed Non-Lender GUC Claims in accordance with this Plan.
G. Sources of Consideration for Plan Distributions
Except as otherwise provided in the Plan or the Confirmation Order, the Debtors or Litigation Trustee, as applicable, shall fund Plan Distributions with (i) Available Cash; and (ii) the Litigation Trust Proceeds.
34
H. Cancellation of Existing Securities
Except as otherwise provided in the Plan, or any agreement, instrument, or other document incorporated in the Plan, on the Effective Date, the Prepetition Credit Documents and any other certificate, share, note, bond, indenture, purchase right, option, warrant, or other instrument or document, directly or indirectly, evidencing or creating any indebtedness or obligation of or ownership interest in the Debtors giving rise to any Claim or Interest (except such certificates, notes, or other instruments or documents evidencing or creating indebtedness or obligations of (or ownership interest in) the Debtors that are Reinstated pursuant to the Plan) shall be deemed canceled, discharged and of no force or effect, without further action or approval of the Court. The Debtors, the Post-Effective Date Debtors, or any Holder, and the Prepetition Agent and its agents, successors and assigns shall be automatically and fully released and discharged of and from all duties as applicable under the Prepetition Credit Documents, except, as applicable, as necessary to (a) enforce the rights and Claims of the Prepetition Agent, and any predecessor thereof, vis-à-vis parties other than the Released Parties, (b) allow the receipt of and distributions under the Plan, (c) preserve any rights of the Prepetition Agent to payment of fees, expenses, and indemnification obligations as against any distributions, (d) allow the Prepetition Agent to exercise rights and enforce obligations relating to the Plan; and (e) allow the Prepetition Agent to appear in the Chapter 11 Cases or in any proceeding in the Bankruptcy Court or any other court.
Subsequent to the performance by the Prepetition Agent of its obligations under the Plan, the Prepetition Agent and its respective agents shall be relieved of all further duties and responsibilities related to the Prepetition Credit Documents upon the occurrence of the Effective Date, except with respect to such other rights of the Prepetition Agent that, pursuant to the Prepetition Credit Documents, survive the termination of the Prepetition Credit Documents.
The obligations of the Debtors pursuant, relating, or pertaining to any other agreements, indentures, certificates of designation, bylaws, or certificate or articles of incorporation or similar documents governing the shares, certificates, notes, bonds, purchase rights, options, warrants, or other instruments or documents evidencing or creating any indebtedness or obligation of the Debtors (except such agreements, indentures, certificates, notes, or other instruments or documents evidencing or creating indebtedness or obligations of the Debtors that are Reinstated pursuant to the Plan) shall be released and discharged; provided that notwithstanding Confirmation or the occurrence of the Effective Date, any such indenture or agreement that governs the rights of the Holder of a Claim or Interest shall also continue in effect to allow such Holder to appear and be heard in the Chapter 11 Cases or in any proceeding in the Court or any other court, including, without limitation, to enforce the respective obligations owed to such parties under the Plan.
Notwithstanding the foregoing, any provision in any document, instrument, lease, or other agreement that causes or effectuates, or purports to cause or effectuate, a default, termination, waiver, or other forfeiture of, or by, the Debtors as a result of the cancellations, terminations, satisfaction, releases, or discharges provided for in the Plan shall be deemed null and void and shall be of no force and effect solely in connection with such cancellations, terminations, satisfactions, releases or discharges. Nothing contained in the Plan shall be deemed to cancel, terminate, release, or discharge the obligation of the Debtors or any of their counterparties under (i) any Executory Contract or Unexpired Lease to the extent such Executory Contract or Unexpired Lease has been assumed by the Debtors pursuant to a Final Order of the Court or hereunder or (ii) any Claims or Interests that are Reinstated pursuant to the terms of the Plan.
35
I. Corporate Action
Upon the Effective Date, or as soon thereafter as is reasonably practicable, all actions contemplated by the Plan shall be deemed authorized and approved by the Court in all respects, including, as applicable, (i) the issuance of the Reorganized Ebix Interests; (ii) the selection and appointment of the directors, officers, and members for the Post-Effective Date Debtors; (iii) implementation of the Reorganization Transactions and the Non-L&A Sales; (iv) the Reorganized Ebix Conversion; and (v) all other actions contemplated by the Plan (whether to occur before, on, or after the Effective Date). Upon the Effective Date, all matters provided for in the Plan involving the corporate structure of Post-Effective Date Debtors, and any corporate action required by the Debtors, the Post-Effective Date Debtors, or the Litigation Trust in connection with the Plan shall be deemed to have occurred and shall be in effect, without any requirement of further action by any stockholders, directors, members, managers, or officers of the Debtors, the Post-Effective Date Debtors, and the Litigation Trust. On or before the Effective Date, as applicable, the appropriate officers, managers, and members, and directors of the Debtors, the Post-Effective Date Debtors, and the Litigation Trust, as applicable, shall be authorized to issue, execute, and deliver the agreements, documents, securities, and instruments contemplated by the Plan (or necessary or desirable to effect the transactions contemplated by the Plan), in the name of and on behalf of the Debtors, the Post-Effective Date Debtors, or the Litigation Trust, to the extent not previously authorized by the Court. The authorizations and approvals contemplated by this Article IV.I shall be effective notwithstanding any requirements under non-bankruptcy law.
J. Effectuating Documents; Further Transactions.
Prior to, on, or after the Effective Date, the Debtors or the Post-Effective Date Debtors, as applicable, may take any and all actions as may be necessary or appropriate in the Debtors’ reasonable discretion to effectuate the Reorganization Transactions or the Non-L&A Sales, as applicable, and any other transaction described in, approved by, contemplated by, or necessary to effectuate the Plan, including: (i) the execution and delivery of any New Organizational Documents, including any appropriate agreements or other documents of merger, amalgamation, consolidation, restructuring, conversion, disposition, transfer, formation, organization, arrangement, continuance, dissolution, sale, purchase, or liquidation, in each case, containing terms that are consistent with the terms of the Plan, including the Reorganized Ebix Conversion; (ii) the execution and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any asset, property, right, liability, debt, or obligation on terms consistent with the terms of the Plan; (iii) the filing of the New Organizational Documents, including any appropriate certificates or articles of incorporation, reincorporation, merger, consolidation, conversion, amalgamation, arrangement, continuance, or dissolution pursuant to applicable state or law; (iv) such other transactions that are required to effectuate the Reorganization Transactions and the Non-L&A Sales, as applicable, including any sales, mergers, consolidations, restructurings, financing, conversions, dispositions, transfers, formations, organizations, dissolutions, or liquidations; (v) the issuance of securities, including the Reorganized Ebix Interests; (vi) the execution, delivery, or filing of contracts, instruments, releases, and other agreements to effectuate and implement the distribution of the Litigation Trust Interests to be issued pursuant hereto; and (vii) all other actions that the Debtors determine to be necessary or appropriate, including in connection with making filings or recordings that may be required by applicable law in connection with the Plan, with each of the foregoing authorized and approved in all respects, in each case, without further action being required under applicable law, regulation, order, or rule.
36
The Confirmation Order shall and shall be deemed to, pursuant to sections 363 and 1123 of the Bankruptcy Code, authorize, among other things, all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Plan.
K. Corporate Existence
On or after the Effective Date, Debtor Ebix, Inc. may convert from a Delaware Corporation to a Delaware limited liability company (the “Reorganized Ebix Conversion”), which shall be deemed effective for all purposes without the necessity for any other or further actions to be taken by or on behalf of the Debtors or the Post-Effective Date Debtors; provided, however, that the Debtors or the Post-Effective Date Debtors may, but will not be required to, or the Post-Effective Date Debtors may, but will not be required to, take appropriate action to document such conversion under applicable law. The Post-Effective Date Debtors shall be authorized to adopt any agreements, documents, and instruments and to take any other actions contemplated under the Plan as necessary to consummate the Plan without the need for any approvals, authorizations or consents, except those expressly required under the Plan.
Except as otherwise provided in the Plan, the New Organizational Documents, or any agreement, instrument, or other document incorporated in the Plan, on and after the Effective Date, each Debtor shall continue to exist as a Post-Effective Date Debtor, with all the powers of a corporation, limited liability company, partnership, or other form of entity, as the case may be, pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and bylaws (or other analogous formation documents) in effect before the Effective Date, except to the extent such certificate of incorporation and bylaws (or other analogous formation documents) are amended by the Plan or otherwise, and to the extent such documents are amended, such documents are deemed to be amended pursuant to the Plan and require no further action or approval (other than any requisite filings required under applicable state, provincial, federal law, or other non-bankruptcy law).
After the Effective Date, the respective certificate of incorporation and bylaws (or other formation documents) of the Post-Effective Date Debtors may be amended or modified on the terms therein without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules. After the Effective Date, the Post-Effective Date Debtors may be disposed of, dissolved, wound down, or liquidated without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules but, for the avoidance of doubt, subject to, if applicable, any restrictions on the operations of a reorganized debtor under section 524(g) of the Bankruptcy Code.
37
L. Vesting of Assets in the Post-Effective Date Debtors
Except as otherwise provided in the Plan, or any agreement, instrument, or other document incorporated in the Plan, on the Effective Date, all property in each Estate, all Executory Contracts and Unexpired Leases assumed, but not assigned, by any of the Debtors, and any property acquired by any of the Debtors, including Interests held by the Debtors in non-Debtor subsidiaries or Post-Effective Date Debtor Causes of Action, shall vest in each respective Post-Effective Date Debtor, free and clear of all Liens, Claims, charges, or other encumbrances unless expressly provided otherwise by the Plan or Confirmation Order. On and after the Effective Date, each Post-Effective Date Debtor may operate its business and may use, acquire, or dispose of property, and compromise or settle any Claims, Interests, or Post-Effective Date Debtor Causes of Action without supervision or approval by the Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.
M. New Organizational Documents
To the extent required under the Plan, or applicable non-bankruptcy law, on the Effective Date, or as soon as reasonably practicable thereafter, the Post-Effective Date Debtors will File such New Organizational Documents as are required to be Filed with the applicable Secretary of State and/or other applicable authorities in the state, province, or country of incorporation in accordance with the corporate laws of the respective state, province, or country of incorporation. Pursuant to section 1123(a)(6) of the Bankruptcy Code, the New Organizational Documents will prohibit the issuance of non-voting equity securities. After the Effective Date, the Post-Effective Date Debtors may amend and restate their respective New Organizational Documents, and the Post-Effective Date Debtors may File their respective certificates or articles of incorporation, bylaws, or such other applicable formation documents, and other constituent documents as permitted by the laws of the respective states, provinces, or countries of incorporation and the New Organizational Documents. Additionally, on the Effective Date, each recipient of Reorganized Ebix Interests will be subject to the New Organizational Documents.
N. Post-Effective Date Ebix Board
As of the Effective Date, except as set forth in this Article IV.N, all directors, managers, and other members of existing boards or governance bodies of the Debtors shall cease to hold office or have any authority from and after such time unless such individuals are selected to hold positions pursuant to the applicable governing body or documents with respect to the Post-Effective Date Debtors.
In the event the Debtors consummate the Reorganization Transactions, the identity of the members of the board of directors of the Post-Effective Date Debtors shall be determined by the Plan Sponsor in its sole discretion. Pursuant to section 1129(a)(5) of the Bankruptcy Code, the Debtors will disclose in the Plan Supplement the identity and affiliations of any person proposed to serve on the initial board of directors of the Post-Effective Date Debtors. To the extent any such director or officer of the Post-Effective Date Debtors is an “insider” under the Bankruptcy Code, the Debtors also will disclose the nature of any compensation to be paid to such direct or officer. Each such director and officer shall serve from and after the Effective Date pursuant to the terms of the New Organizational Documents, the Employment Agreements (if assumed by the Post-Effective Date Debtors, as applicable), and other constituent documents of the Post-Effective Date Debtors.
38
O. Employee Benefits
Except as otherwise provided herein, on and after the Effective Date, the Post-Effective Date Debtors shall honor, in the ordinary course of business, any contracts, agreements, policies, programs and plans for, among other things, compensation (other than equity-based compensation related to Existing Equity Interests), health care benefits, disability benefits, deferred compensation benefits, travel benefits, savings, retention benefits, severance benefits, retirement benefits, welfare benefits, workers’ compensation insurance, and accidental death and dismemberment insurance for the directors, officers, and employees of any of the Debtors who severed in such capacity at any time; provided, that the Debtors’ or Post-Effective Date Debtors’ performance under any employment agreement will not entitle any person to any benefit or alleged entitlement under any policy, program, or plan that has expired or been terminated before the Effective Date, or restore, reinstate, or revive any such benefit or alleged entitlement under any such policy, program or plan. Nothing herein shall limit, diminish, or otherwise alter the Post-Effective Date Debtors’ defenses, Claims, and Causes of Action, or other rights with respect to any such contracts, agreements, policies, programs, and plans.
P. Exemption from Certain Taxes and Fees
To the maximum extent permitted pursuant to section 1146(a) of the Bankruptcy Code, (i) the issuance, transfer or exchange of any securities, instruments, or documents, (ii) the creation of any Lien, mortgage, deed of trust or other security interest, (iii) any transfers (directly or indirectly) of property pursuant to the Plan, (iv) any assumption, assignment, or sale by the Debtors of their interests in Unexpired Leases of nonresidential real property or Executory Contracts pursuant to section 365(a) of the Bankruptcy Code, and (v) the issuance, renewal, modification or securing of indebtedness by such means, and the making, delivery or recording of any deed or other instrument of transfer under in furtherance of, or in connection with, the Plan, including the Confirmation Order, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax, sale or use tax, mortgage recording tax, deed stamps, or other similar tax or governmental assessment, and upon entry of the Confirmation Order, the appropriate state or local governmental officials or agents shall forgo the collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents pursuant to such transfers of property without the payment of any such tax, recordation fee, or governmental assessment.
Q. Preservation of Causes of Action
| 1. | Maintenance of Causes of Action |
Except as otherwise provided in this Article IV or elsewhere in this Plan or the Confirmation Order, after the Effective Date, the Post-Effective Date Debtors retain all rights to commence, pursue, litigate, or settle, as appropriate, any and all Post-Effective Date Debtor Causes of Action and the Litigation Trustee retains all rights to commence, pursue, litigate, or settle, as appropriate, any and all Litigation Trust Causes of Action, whether existing as of the Petition Date
39
or thereafter arising, in any court or other tribunal including, without limitation, in an adversary proceeding Filed in these Chapter 11 Cases; provided, however, that the foregoing shall not be deemed to include any claims or Causes of Action (i) released under Article VIII.C.1 hereof or (ii) exculpated under Article VIII.E hereof to the extent of any such exculpation. The Debtors, the Post-Effective Date Debtors, the Litigation Trust, and the Estates, may, and shall have the exclusive right to, enforce, sue on, settle, compromise, transfer or assign (or decline to do any of the foregoing) any or all of such Causes of Action, in each case solely to the extent of the Debtors’, Post-Effective Date Debtors’, Litigation Trust’s, or their Estates’ interest therein, without notice to or approval from the Court. Notwithstanding the foregoing, the Debtors, Post-Effective Date Debtors, or Litigation Trust, as applicable, shall retain all claims and defenses to any Allowed Claims that are Unimpaired pursuant to the Plan. A further description of the Litigation Trust Causes of Action shall be filed with the Plan Supplement through the Schedule of Litigation Trust Causes of Action.
2. Preservation of All Causes of Action Not Expressly Settled or Released
All Causes of Action listed on the Schedule of Litigation Trust Causes of Action or that constitute Post-Effective Date Debtor Causes of Action are reserved for later adjudication by the Litigation Trustee or Post-Effective Date Debtors, as applicable, (including, without limitation, Causes of Action not specifically identified or of which the Debtors may presently be unaware or which may arise or exist by reason of additional facts or circumstances unknown to the Debtors at this time or facts or circumstances that may change or be different from those the Debtors now believe to exist) and, therefore, no preclusion doctrine, including, without limitation, the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, waiver, estoppel (judicial, equitable or otherwise) or laches shall apply to such Causes of Action upon or after the Confirmation or Consummation of this Plan based on the Disclosure Statement, this Plan or the Confirmation Order, except in each case where such Causes of Action have been expressly waived, relinquished, released, compromised or settled in this Plan, the Confirmation Order or any other Final Order, including, without limitation or any other claims or Causes of Action (i) released under Article VIII.C.1 hereof or (ii) exculpated under Article VIII.E hereof to the extent of any such exculpation. In addition, the Debtors, Post-Effective Date Debtors, and Litigation Trustee, as applicable, expressly reserve the right to pursue or adopt any claims alleged in any lawsuit in which any of the Debtors are a plaintiff, defendant or an interested party, against any Entity, including, without limitation, the plaintiffs or co-defendants in such lawsuits.
R. Closing the Chapter 11 Cases
The Post-Effective Date Debtors or Litigation Trustee, as applicable, shall, promptly after the full administration of the Chapter 11 Cases, file with the Court all documents required by Bankruptcy Rule 3022 and any applicable order of the Court to close the Chapter 11 Cases; provided that, as of the Effective Date, the Post-Effective Date Debtors or Litigation Trustee may submit separate orders to the Court under certification of counsel previously provided to the U.S. Trustee closing certain individual Chapter 11 Cases and changing the caption of the Chapter 11 Cases accordingly; provided further, that the Debtors may submit in the Confirmation Order a provision closing certain individual Chapter 11 Cases and consolidating the Chapter 11 Cases under lead case number 23-80004 (SWE). Nothing in this Plan shall authorize the closing of any case effective as of a date that precedes the date any such order is entered. Any request for such
40
relief shall be made on motion served on the U.S. Trustee, and the Court shall rule on such request after notice and a hearing other than with respect to any case closings authorized by the Confirmation Order. Upon the filing of a motion to close the last Chapter 11 Case remaining open, the Litigation Trustee shall file a final report with respect to all of the Chapter 11 Cases pursuant to Local Rule 3022-1.
S. Payment of Certain Fees
Without any further notice to or action, order, or approval of the Bankruptcy Court, the Debtors or the Post-Effective Date Debtors, as applicable, shall pay the Restructuring Expenses on or about the Effective Date, as provided in the Plan or the RSA, as applicable, subject to the conditions set forth in this Article IV.S and the RSA. The Restructuring Expenses incurred, or estimated to be incurred, up to and including the Effective Date, shall be paid in full in Cash on the Effective Date or as soon as reasonably practicable thereafter (to the extent not previously paid during the course of the Chapter 11 Cases) without any requirement to file a fee application with the Bankruptcy Court, without the need for itemized time detail, or without any requirement for Bankruptcy Court review or approval. All Restructuring Expenses to be paid on the Effective Date shall be estimated prior to and as of the Effective Date and such estimates shall be delivered to the Debtors at least two (2) Business Days before the anticipated Effective Date or such later date as permitted by the Debtors; provided that such estimates shall not be considered an admission or limitation with respect to such Restructuring Expenses. On or as soon as practicable after the Effective Date, final invoices for all Restructuring Expenses incurred prior to and as of the Effective Date shall be submitted to the Debtors. In addition, the Debtors and the Post-Effective Date Debtors (as applicable) shall continue to pay pre- and post-Effective Date Restructuring Expenses related to implementation, consummation, and defense of the Plan, whether incurred before, on, or after the Effective Date.
T. Fiduciary Duties
Nothing in this Plan shall require the Debtors or their board of directors, after consulting with counsel, to take any action or to refrain from taking any action to the extent taking or failing to take such action would be inconsistent with applicable law or their respective fiduciary obligations under applicable Law.
ARTICLE V.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. Assumption and Rejection of Executory Contracts and/or Unexpired Leases
| 1. | Reorganization Transactions |
In the event the Debtors consummate the Reorganization Transactions, on the Effective Date, except as otherwise provided in Article V.F and elsewhere herein, all Executory Contracts and/or Unexpired Leases not otherwise assumed and assigned or rejected will be deemed assumed by the applicable Debtor in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those that: (1) are identified in the Schedule of Rejected Executory Contracts and Unexpired Leases; (2) previously expired or terminated pursuant to their own terms; (3) have been previously assumed or rejected by the Debtors pursuant to a Final Order (including, without limitation, the L&A Sale Order, the Non-L&A Sale Order, and the Confirmation Order); (4) are the subject of a motion to reject that is pending on the Effective Date; or (5) have an ordered or requested effective date of rejection that is after the Effective Date.
41
| 2. | Non-L&A Sales |
In the event that the Debtors do not consummate the Reorganization Transactions, pursuant to the Non-L&A Sales, on the Effective Date, except as otherwise provided in Article V.F and elsewhere herein and the Non-L&A Sale Order, all Executory Contracts and/or Unexpired Leases not otherwise assumed and assigned or rejected will be deemed rejected by the applicable Debtor in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those that: (1) previously expired or terminated pursuant to their own terms; (2) have been previously assumed or rejected by the Debtors pursuant to a Final Order (including, without limitation, the L&A Sale Order, the Non-L&A Sale Order, and the Confirmation Order); (3) are the subject of a motion to assume that is pending on the Effective Date; or (4) have an ordered or requested effective date of rejection that is after the Effective Date. Nothing contained in the Plan or the Confirmation Order constitutes or shall be construed as any modification or amendment of the L&A Sale Order or the Non-L&A Sale Order.
| 3. | General Provisions |
Counterparties to any Executory Contracts and/or Unexpired Leases shall be bound by the Cure amounts set forth in any Assumption and Assignment Notice and the Assumption and Assignment Procedures set forth in the Non-L&A Bid Procedures Order. No further notice to any counterparties shall be necessary to effectuate the assumption or assumption and assignment of such Executory Contracts and/or Unexpired Leases. Any counterparty that does not timely object in accordance with the Assumption and Assignment Procedures shall be deemed to have assented to the assumption or assumption and assignment of the applicable Executory Contract or Unexpired Lease.
Such automatic assumption, assumption and assignment, or rejection, as applicable, shall be effective without the need for any further notice to or action, order, or approval of the Court, in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than any Executory Contracts and/or Unexpired Leases that: (1) have been previously assumed, assumed and assigned, or rejected pursuant to a Court order (including the L&A Sale Order, the Non-L&A Sale Order, and the Confirmation Order); (2) are the subject of a motion to assume, assume and assign, or reject such Executory Contract or Unexpired Leases (or of a Filed objection with respect to the proposed assumption, assumption and assignment, or rejection of such Executory Contract or Unexpired Leases) that is pending on the Effective Date; or (3) are a contract, release, or other agreement or document entered into in connection with the Plan or Non-L&A Sale. The assumption and assignment or rejection of Executory Contracts and/or Unexpired Leases hereunder may include the assignment of certain of such contracts to Affiliates. Entry of the Confirmation Order shall constitute an order of the Court approving the assumptions, assumptions and assignments, or rejections of the Executory Contracts and/or Unexpired Leases as set forth in this Plan or the Plan Supplement, pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Except as otherwise specifically set forth herein, assumptions
42
and assignments or rejections of Executory Contracts and/or Unexpired Leases pursuant to this Plan are effective as of the Effective Date. Any motions to assume Executory Contracts and/or Unexpired Leases pending on the Effective Date shall be subject to approval by a Final Order on or after the Effective Date but may be withdrawn, settled, or otherwise prosecuted by the Debtors.
For any Executory Contracts or Unexpired Leases assumed in furtherance of the Reorganization Transactions, the Debtors shall serve a Cure Notice and resolve any assumption disputes related thereto in accordance with the Assumption and Assignment Procedures.
Any Cure amounts due under an Executory Contract and Unexpired Lease to be assumed pursuant to the Plan shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment in cash on the Effective Date, by the applicable Post-Effective Date Debtor, or on such other terms as the parties to such Executory Contract or Unexpired Lease may otherwise agree. To the extent an Executory Contract or Unexpired Lease proposed to be assumed is not listed as having a related Cure amount, any counterparty to such Executory Contract or Unexpired Lease that fails to object timely to the proposed assumption will be deemed to have consented to such assumption and deemed to release any Claim or Cause of Action for any monetary defaults under such Executory Contract or Unexpired Lease.
Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise, subject to satisfaction of the applicable Cure amount, shall result in the full release and satisfaction of any defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under such assumed Executory Contract or Unexpired Lease at any time before the effective date of its assumption. Any Claim set forth in the Schedules or any proofs of claim with respect to an Executory Contract or Unexpired Lease that has been assumed shall be deemed Disallowed and expunged, without further notice to or action, order, or approval of the Bankruptcy Court.
To the maximum extent permitted by law, to the extent any provision in any Executory Contract and/or Unexpired Leases assumed and assigned pursuant to this Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption and assignment of such Executory Contract and/or Unexpired Leases (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by this Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract and/or Unexpired Leases or to exercise any other default-related rights with respect thereto.
B. Claims Based on Rejection of Executory Contracts and/or Unexpired Leases
Unless otherwise provided by a Final Order of the Court, all Proofs of Claim with respect to Claims arising from the rejection of Executory Contracts and/or Unexpired Leases, pursuant to this Plan or the Confirmation Order, if any, must be Filed with the Court by the applicable counterparty within thirty (30) days after the later of (1) the date of entry of an order of the Court (including the Confirmation Order) approving such rejection; (2) the effective date of such rejection; or (3) the Effective Date. In the event the Debtors or Post-Effective Date Debtors object to such Claim, the Proof of Claim shall be adjudicated in accordance with the procedures set forth in Article VII hereof.
43
Any Claims arising from the rejection of an Executory Contract and/or Unexpired Lease not Filed with the Court within such time will be automatically disallowed, forever barred from assertion, and shall not be enforceable against the Debtors, the Estates, or their property without the need for any objection by the Debtors or further notice to, or action, order, or approval of the Court or any other Entity, and any Claim arising out of the rejection of the Executory Contract and/or Unexpired Lease shall be deemed fully satisfied, released, and discharged, notwithstanding anything in the Proof of Claim to the contrary. All Allowed Claims arising from the rejection of the Debtors’ Executory Contracts and/or Unexpired Leases shall be classified as General Unsecured Claims and shall be treated in accordance with the appropriate Class herein.
C. Preexisting Obligations to the Debtors Under Executory Contracts and/or Unexpired Leases
Rejection of any Executory Contract and/or Unexpired Lease pursuant to this Plan or otherwise shall not constitute a termination of preexisting obligations owed to the Debtors or Post-Effective Date Debtors under such Executory Contracts and/or Unexpired Leases. In particular, notwithstanding any non-bankruptcy law to the contrary, the Debtors and Post-Effective Date Debtors expressly reserve and do not waive any right to receive, or any continuing obligation of a counterparty to provide, warranties or continued maintenance obligations with respect to goods previously purchased by the Debtors pursuant to rejected Executory Contracts and/or Unexpired Leases.
D. Insurance Policies
Notwithstanding anything to the contrary in the Plan, the Plan Supplement, the Confirmation Order, any Assumption and Assignment Notice, any other document related to any of the foregoing, or any other order of the Court (including, without limitation, any other provision that purports to be preemptory or supervening, grants an injunction, discharge or release, confers Court jurisdiction, or requires a party to opt out of any releases):
(a) each of the Debtors’ Insurance Contracts shall be treated as Executory Contracts under this Plan such that on the Effective Date the Debtors shall be deemed to have assumed and assigned the Insurance Contracts in their entirety to the Post-Effective Date Debtors pursuant to sections 105 and 365 of the Bankruptcy Code;
(b) nothing shall alter, amend or otherwise modify the terms and conditions of the Insurance Contracts except that, on and after the Effective Date, the Post-Effective Date Debtors shall become and remain jointly and severally liable in full for all of their and the Debtors’ obligations under the Insurance Contracts, regardless of whether such obligations arise before or after the Effective Date, without the requirement or need for any Insurer to file a Proof of Claim or an Administrative Expense Claim, object to any Cure or Cure Notice, or provide any notice of recoupment;
44
(c) except as set forth in subpart (a) above, nothing shall permit or otherwise effectuate a sale, assignment or other transfer of any Insurance Contract and/or any rights, benefits, interests, claims, proceeds, rights to payment, or recoveries under and/or relating to any Insurance Contract without the prior express written consent of the applicable Insurer; and
(d) the automatic stay of Bankruptcy Code section 362(a) and the injunctions set forth in Article VIII.F hereof, if and to the extent applicable, shall be deemed lifted without further order of the Court, solely to permit: (a) claimants with valid direct action claims against an Insurer under applicable non-bankruptcy law to proceed with their claims; (b) Insurers to administer, handle, defend, settle, and/or pay, in the ordinary course of business and without further order of this Court: (i) claims where a claimant asserts a direct claim against any Insurer under applicable non-bankruptcy law, (ii) claims where an order has been entered by this Court granting a claimant relief from the automatic stay or the injunction set forth in Article VIII.F hereof to proceed with its claim; and (iii) all costs in relation to each of the foregoing; and (c) the Insurers to cancel any Insurance Contracts, and take other actions relating thereto (including effectuating a setoff), to the extent permissible under applicable non-bankruptcy law, and in accordance with the terms of the Insurance Contracts.
E. Reservation of Rights
Nothing contained in this Plan or the Plan Supplement shall constitute an admission by the Debtors or any other party that any contract is in fact an Executory Contract or Unexpired Lease or that any Debtors have any liability thereunder. If there is a dispute regarding whether a contract or lease is or was executory at the time of assumption and assignment or rejection, the Debtors shall have forty-five (45) days following entry of a Final Order resolving such dispute to alter their treatment of such contract.
F. Contracts and Leases Entered Into After the Petition Date
Contracts and leases entered into after the Petition Date by any Debtor, including any Executory Contracts and Unexpired Leases assumed by such Debtor, will be performed by the applicable Debtor or Post-Effective Date Debtor in the ordinary course of its business. Accordingly, such contracts and leases (including any assumed Executory Contracts and Unexpired Leases) will survive and remain unaffected by entry of the Confirmation Order.
ARTICLE VI.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Timing and Calculation of Amounts to Be Distributed
Unless otherwise provided in the Plan, on the initial Distribution Date (or if a Claim is not an Allowed Claim on the initial Distribution Date, on the next Distribution Date after such Claim or Interest becomes an Allowed Claim), or as soon as is reasonably practicable thereafter, each Holder of an Allowed Claim shall receive the full amount of the distributions that this Plan provides for Allowed Claims in the applicable Class. If and to the extent that there are Disputed Claims, distributions on account of any such Disputed Claims shall be made pursuant to the provisions set forth in Article VII. Except as otherwise provided in this Plan, Holders of Claims shall not be entitled to interest, dividends, or accruals on the distributions provided for in this Plan, regardless of whether such distributions are delivered on or at any time after the Effective Date.
45
Notwithstanding the foregoing, the timing of distribution(s) to Holders of Allowed General Unsecured Claims shall be determined by the Litigation Trustee in its sole discretion.
B. Disbursing Agent
All Plan Distributions shall be made by the applicable Disbursing Agent. The Disbursing Agent shall not be required to give any bond or surety or other security for the performance of its duties unless otherwise ordered by the Court. Additionally, in the event that the Disbursing Agent is so otherwise ordered, all costs and expenses of procuring any such bond or surety shall be borne by the Debtors.
C. Rights and Powers of Disbursing Agent
1. Powers of Disbursing Agent
The Disbursing Agent shall be empowered to: (a) effect all actions and execute all agreements, instruments, and other documents necessary to perform its duties under this Plan; (b) make all Plan Distributions contemplated hereby; (c) employ professionals to represent it with respect to its responsibilities; and (d) exercise such other powers as may be vested in the Disbursing Agent by order of the Court, pursuant to this Plan, or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions hereof.
2. Expenses Incurred on or After the Effective Date
Except as otherwise ordered by the Court, to the extent the Disbursing Agent is an Entity other than the Post-Effective Date Debtors, the amount of any reasonable fees and expenses incurred by such Disbursing Agent on or after the Effective Date (including taxes), and any reasonable compensation and expense reimbursement claims (including reasonable attorneys’ fees and expenses), made by such Disbursing Agent shall be paid in Cash by the Post-Effective Date Debtors or the Litigation Trustee, as applicable.
D. Delivery of Distributions and Undeliverable or Unclaimed Distributions
1. Record Date for Distribution
On the Distribution Record Date, the Claims Register shall be closed and any party responsible for making Plan Distributions shall instead be authorized and entitled to recognize only those record Holders listed on the Claims Register as of the close of business on the Distribution Record Date. If a Claim, other than one based on a publicly traded security, is transferred twenty (20) or fewer days before the Distribution Record Date, the Disbursing Agent shall make distributions to the transferee only to the extent practical and, in any event, only if the relevant transfer form contains an unconditional and explicit certification and waiver of any objection to the transfer by the transferor.
46
| 2. | Delivery of Distributions in General |
Except as otherwise provided herein, the Disbursing Agent shall make distributions to Holders of Allowed Claims as of the Distribution Record Date at the address for each such Holder as indicated on the Debtors’ records as of the date of any such Plan Distribution; provided, however, that the manner of such Plan Distribution shall be determined at the discretion of the Post-Effective Date Debtors or Litigation Trustee, as applicable.
3. Undeliverable Distributions and Unclaimed Property
In the event that any Plan Distribution to any Holder of Allowed Claims is returned as undeliverable, no Plan Distribution to such Holder shall be made unless and until the Disbursing Agent has determined the then-current address of such Holder, at which time such Plan Distribution shall be made to such Holder without interest; provided, however, that such Plan Distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of one year from the Effective Date. After such date, all unclaimed property or interests in property shall revert to the Post-Effective Date Debtors or the Litigation Trust, as applicable, automatically and without need for a further order by the Court (notwithstanding any applicable federal, provincial or state escheat, abandoned, or unclaimed property laws to the contrary), and the Claim of any Holder of Claims to such property or Interest in property shall be discharged and forever barred.
4. Surrender of Canceled Instruments or Securities
On the Effective Date, or as soon as reasonably practicable thereafter, each Holder of a certificate or instrument evidencing a Claim or an Interest shall be deemed to have surrendered such certificate or instrument to the Disbursing Agent. Such surrendered certificate or instrument shall be cancelled solely with respect to the Debtors, and such cancellation shall not alter the obligations or rights of any non-Debtor third parties vis-à-vis one another with respect to such certificate or instrument, including with respect to any agreement that governs the rights of the Holder of a Claim or Interest or a trustee or agent under such documents, which shall continue in effect for purposes of allowing Holders to receive Plan Distribution under this Plan and maintaining priority of payment, and to preserve any applicable charging Liens and reimbursement and/or indemnification rights, in each case as set forth in the applicable certificates or instruments. Notwithstanding anything to the contrary herein, this paragraph shall not apply to certificates or instruments evidencing Claims or Interests that are Unimpaired under this Plan.
E. Manner of Payment
All distributions of Cash to the Holders of the applicable Allowed Claims or Interests under this Plan shall be made by the Disbursing Agent on behalf of the Debtors. At the option of the Disbursing Agent, any Cash payment to be made hereunder may be made by check or wire transfer or as otherwise required or provided in applicable agreements.
47
F. Compliance with Tax Requirements
In connection with this Plan, to the extent applicable, the applicable Disbursing Agent and any applicable withholding agent shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all Plan Distributions made pursuant to this Plan shall be subject to such withholding and reporting requirements. Notwithstanding any provision in this Plan to the contrary, such parties shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including liquidating a portion of the distribution to be made under this Plan to generate sufficient funds to pay applicable withholding taxes, withholding distributions pending receipt of information necessary to facilitate such distributions, or establishing any other mechanisms they believe are reasonable and appropriate. The applicable Disbursing Agent reserves the right to allocate all distributions made under this Plan in compliance with all applicable wage garnishments, alimony, child support, and other spousal awards, Liens, and encumbrances.
G. Allocations
Plan Distributions with respect to Allowed Claims shall be allocated first to the principal amount of such Claims (as determined for federal income tax purposes) and then, to the extent the consideration exceeds the principal amount of the Claims, to any portion of such Claims for accrued but unpaid interest.
H. [Intentionally Omitted]
[Intentionally omitted]
I. Foreign Currency Exchange Rates
Except as otherwise provided in a Court order, as of the Effective Date, any Claim asserted in currency other than U.S. dollars shall be automatically deemed converted to the equivalent U.S. dollar value using the exchange rate for the applicable currency as published in The Wall Street Journal, National Edition, on the Effective Date.
J. Setoffs and Recoupments
Except as expressly provided in this Plan, each Post-Effective Date Debtor and the Litigation Trust, as applicable, may, pursuant to section 553 of the Bankruptcy Code, set off and/or recoup against any Plan Distributions to be made on account of any Allowed Claim, any and all claims, rights, and Causes of Action that such Post-Effective Date Debtor or the Litigation Trust may hold against the Holder of such Allowed Claim to the extent such setoff or recoupment is either (1) agreed in amount among the relevant Post-Effective Date Debtor(s) or the Litigation Trust and the Holder of the Allowed Claim; or (2) otherwise adjudicated by the Court or another court of competent jurisdiction; provided, however, that neither the failure to effectuate a setoff or recoupment nor the allowance of any Claim hereunder shall constitute a waiver or release by a Post-Effective Date Debtor or the Litigation Trust or their applicable successor of any and all claims, rights, and Causes of Action that such Post-Effective Date Debtor or Litigation Trust or their applicable successor may possess against the applicable Holder. In no event shall any Holder of a Claim be entitled to recoup such Claim against any claim, right, or Cause of Action of the Post-Effective Date Debtors or Litigation Trustee, as applicable, unless such Holder actually has performed such recoupment and provided notice thereof in writing in accordance with Article XII.G on or before the Effective Date, notwithstanding any indication in any Proof of Claim or otherwise that such Holder asserts, has, or intends to preserve any right of recoupment.
48
K. Minimum Cash Distributions
The Distribution Agent shall not be required to make any distribution on account of an Allowed Claim that is less than $50; provided that if no distribution is made to a Holder of an Allowed Claim pursuant to this section, the amount of such distribution shall be added to any subsequent distribution(s) to such Holder on account of such Allowed Claim until the distribution such Holder is entitled to is $50 or higher.
L. Claims Paid or Payable by Third Parties
1. Claims Paid by Third Parties
The Debtors, the Post-Effective Date Debtors, or the Litigation Trustee, as applicable, shall reduce in full a Claim, and such Claim shall be disallowed without a Claims objection having to be Filed and without any further notice to or action, order, or approval of the Court, to the extent that the Holder of such Claim receives payment in full on account of such Claim from a party that is not a Debtor, Post-Effective Date Debtor, or the Litigation Trustee. Subject to the last sentence of this paragraph, to the extent a Holder of a Claim receives a Plan Distribution on account of such Claim and receives payment from a party that is not a Debtor, Post-Effective Date Debtor, or the Litigation Trustee on account of such Claim, such Holder shall, within fourteen (14) days of receipt thereof, repay or return the Plan Distribution to the applicable Post-Effective Date Debtor or Litigation Trustee, to the extent the Holder’s total recovery on account of such Claim from the third party and under this Plan exceeds the amount of such Claim as of the date of any such distribution under this Plan. The failure of such Holder to timely repay or return such Plan Distribution shall result in the Holder owing the applicable Post-Effective Date Debtor or Litigation Trustee annualized interest at the Federal Judgment Rate on such amount owed for each Business Day after the fourteen (14) day grace period specified above until the amount is repaid.
2. Claims Payable by Third Parties
No Plan Distributions shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors’ Insurance Contracts until the Holder of such Allowed Claim has exhausted all remedies with respect to such Insurance Contract. To the extent that one or more of the Debtors’ Insurers agrees to pay in full or in part a Claim (if and to the extent adjudicated by a court of competent jurisdiction or otherwise settled), then immediately upon such Insurers’ agreement, the applicable portion of such Claim may be expunged without a Claims objection having to be Filed and without any further notice to or action, order, or approval of the Court.
3. Applicability of Insurance Contracts
Except as otherwise provided in this Plan, payments to Holders of Claims covered by Insurance Contracts shall be in accordance with the provisions of the applicable Insurance Contract and this Plan. Nothing contained in this Plan shall constitute or be deemed a waiver of any Cause of Action that the Debtors or any Entity may hold against any other Entity, including Insurers under any Insurance Contract, nor shall anything contained herein constitute or be deemed a waiver by such Insurers of any defenses, including coverage defenses, held by such Insurers.
49
ARTICLE VII.
PROCEDURES FOR RESOLVING CONTINGENT,
UNLIQUIDATED, AND DISPUTED CLAIMS
A. Allowance of Claims
Except as otherwise set forth in this Plan, after the Effective Date, the Debtors or Litigation Trustee, as applicable, shall have and retain any and all rights and defenses the Debtors had with respect to any Claim immediately before the Effective Date, including the Causes of Action retained pursuant to Article IV.Q. Except as specifically provided in this Plan or an order entered by the Court in the Chapter 11 Cases, no Claim shall become an Allowed Claim unless and until such Claim is deemed Allowed in accordance with this Plan.
B. Claims Administration Responsibilities
Except as otherwise specifically provided in this Plan, after the Effective Date, the Post-Effective Date Debtors may: (1) File, withdraw, or litigate to judgment, objections to Claims; (2) settle or compromise any Disputed Claim without any further notice to or action, order, or approval by the Court; and (3) administer and adjust the Claims Register to reflect any such settlements or compromises or other payments without any further notice to or action, order, or approval by the Court, in each case, other than with respect to Disputed Claims of Non-Released Parties which shall be handled by the Litigation Trust (at the Litigation Trust’s expense). The Post-Effective Date Debtors, in their discretion, shall only File or litigate to judgment objections to Claims of parties other than the Non-Released Parties that they choose to prosecute and shall otherwise, in accordance with this Article VII.B, have the power and authority to Allow Claims or otherwise settle or compromise any Disputed Claim in their discretion.
C. Adjustment to Claims Without Objection
Any duplicate Claim or any Claim that has been paid, satisfied, amended, or superseded may be adjusted or expunged on the Claims Register by the Post-Effective Date Debtors without such Post-Effective Date Debtor having to File an application, motion, complaint, objection, or any other legal proceeding seeking to object to such Claim or Interest and without any further notice to or action, order, or approval of the Court.
D. Time to File Objections to Claims
Except as otherwise set forth herein, any objections to Claims shall be served and Filed by the Claims Objection Deadline. All Claims not objected to by the Claims Objection Deadline shall be deemed Allowed unless such deadline is extended upon approval of the Court.
E. Disallowance of Claims or Interests
All Claims of any Entity from which property is sought by the Litigation Trustee or Post-Effective Date Debtors, as applicable, under sections 542, 543, 550, or 553 of the Bankruptcy Code or that the Litigation Trustee or Post-Effective Date Debtors, as applicable, allege is a transferee of a transfer that is avoidable under sections 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code shall be Disallowed pursuant to section 502(d) of the Bankruptcy
50
Code if: (1) the Entity, on the one hand, and the Post-Effective Date Debtors or Litigation Trustee, as applicable, on the other hand, agree or the Court has determined by Final Order that such Entity or transferee is liable to turn over any property or monies under any of the aforementioned sections of the Bankruptcy Code; and (2) such Entity or transferee has failed to turn over such property by the date set forth in such agreement or Final Order.
Except as provided herein or otherwise agreed to by the Post-Effective Date Debtors in their sole discretion, any and all Claims evidenced by Proofs of Claims Filed after the applicable Bar Date shall be deemed Disallowed as of the Effective Date without any further notice to or action, order, or approval of the Court, and Holders of such Claims may not receive any distributions on account of such Claims, unless such late Proof of Claim has been deemed timely-Filed by a Final Order.
F. Amendments to Proofs of Claim
On or after the earlier of (1) the Effective Date and (2) the Bar Date, any Proof of Claim on account of: (i) a Non-Lender GUC Claim or (ii) an Interest, may not be Filed or amended without prior authorization of the Court, and any such new or amended Proof of Claim Filed that is not so authorized before it is Filed shall be deemed Disallowed in full without any further action.
G. No Transfers of Claims After Effective Date
After the Effective Date, no Holder of a Claim may sell, transfer, encumber, pledge or assign all or any part of its Claim unless such Holder and the applicable counterparty acknowledge in writing that any Plan Distribution on account of such Claim shall be paid or distributed by the Disbursing Agent to the Holder of such Claim on the Distribution Date. Any purported sale, transfer, encumbrance, pledge or assignment by a Holder of a Claim in violation of this Article VII.G shall be null and void.
H. No Distributions Pending Allowance
Notwithstanding any other provision of this Plan, if any portion of a Claim is a Disputed Claim, as applicable, no payment or distribution provided hereunder shall be made on account of such Claim unless and until such Disputed Claim becomes an Allowed Claim; provided that if only the Allowed amount of an otherwise valid Claim is Disputed, such Claim shall be deemed Allowed in the amount not Disputed and payment or distribution shall be made on account of such undisputed amount.
I. Distributions After Allowance
To the extent that a Disputed Claim ultimately becomes an Allowed Claim, distributions shall be made to the Holder of such Allowed Claim, satisfying the Allowed amount in full, in accordance with the provisions of this Plan. As soon as reasonably practicable after the date that the order or judgment of the Court allowing any Disputed Claim becomes a Final Order, the Disbursing Agent shall provide to the Holder of such Claim the Plan Distribution to which such Holder is entitled under this Plan as of the Effective Date.
51
ARTICLE VIII.
SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS
A. Discharge of Claims and Termination of Interests
Except as otherwise specifically provided in this Plan, the Confirmation Order, or in any contract, instrument, or other agreement or document created pursuant to this Plan, and pursuant to section 1141(d) of the Bankruptcy Code, the distributions, rights, and treatment that are provided in this Plan shall be in complete satisfaction, discharge, and release, effective as of the Effective Date, of Claims (including any Intercompany Claims resolved or compromised after the Effective Date by the Debtors), Interests, and Causes of Action of any nature whatsoever, including any interest accrued on Claims or Interests from and after the Petition Date, whether known or unknown, against, liabilities of, Liens on, obligations of, rights against, and Interests in, the Debtors or any of their assets or properties, regardless of whether any property shall have been distributed or retained pursuant to this Plan on account of such Claims and Interests, including demands, liabilities, and Causes of Action that arose before the Effective Date, any contingent or non-contingent liability on account of representations or warranties issued on or before the Effective Date and all debts of the kind specified in sections 502(g), 502(h), or 502(i) of the Bankruptcy Code, in each case whether or not: (1) a Proof of Claim based upon such debt or right is Filed or deemed Filed pursuant to section 501 of the Bankruptcy Code; (2) a Claim or Interest based upon such debt, right, or Interest is Allowed pursuant to section 502 of the Bankruptcy Code; or (3) the Holder of such a Claim or Interest has accepted this Plan. The Confirmation Order shall be a judicial determination of the discharge of all Claims and Interests subject to the occurrence of the Effective Date.
B. Release of Liens
Except as otherwise provided in this Plan, the Confirmation Order, or in any contract, instrument, or other agreement or document created pursuant to this Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to this Plan and, in the case of a Secured Claim, satisfaction in full of the portion of the Secured Claim that is Allowed as of the Effective Date, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released and discharged, and all of the right, title, and interest of any Holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Debtors or Post-Effective Date Debtors, as applicable, and their successors and assigns. Any Holder of such Secured Claim (and the applicable agents for such Holder) shall be authorized and directed, at the sole cost and expense of the Debtors, to release any collateral or other property of any Debtor (including any cash collateral and possessory collateral) held by such Holder (and the applicable agents for such Holder), and to take such actions as may be reasonably requested by the Debtors or Post-Effective Date Debtors, as applicable, to evidence the release of such Lien, including the execution, delivery, and Filing or recording of such releases. The presentation or Filing of the Confirmation Order to or with any federal, state, provincial, or local agency or department shall constitute good and sufficient evidence of, but shall not be required to effect, the termination of such Liens.
52
To the extent that any Holder of a Secured Claim that has been satisfied or discharged in full pursuant to this Plan, or any agent for such Holder, has filed or recorded publicly any Liens and/or security interests to secure such Holder’s Secured Claim, then as soon as practicable on or after the Effective Date, such Holder (or the agent for such Holder) shall take any and all steps reasonably requested by the Debtors or the Post-Effective Date Debtors, as applicable, that are necessary or desirable to record or effectuate the cancellation and/or extinguishment of such Liens and/or security interests, including the making of any applicable filings or recordings, and the Debtors or Post-Effective Date Debtors, as applicable, shall be entitled to make any such filings or recordings on such Holder’s behalf.
C. Release of Claims and Causes of Action
| 1. | Releases by the Debtors and Their Estates |
Under section 1123(b) and any other applicable provisions of the Bankruptcy Code, and except as otherwise expressly provided in this Plan, effective as of the Effective Date, for good and valuable consideration provided by each of the Released Parties, the adequacy and sufficiency of which is hereby confirmed, the Debtors and the Post-Effective Date Debtors, in their respective individual capacities and as debtors in possession, and on behalf of themselves and their respective Estates, including, without limitation, any successor to the Debtors or any Estate representative appointed or selected under section 1123(b)(3) of the Bankruptcy Code (collectively, the “Debtor Releasing Parties”) and their respective assets and properties will be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever provided a full discharge, waiver and release to each of the Released Parties (and each such Released Party so released shall be deemed forever released, waived and discharged by the Debtor Releasing Parties) (the “Debtor Release”) from any and all Claims, Causes of Action and any other debts, obligations, rights, suits, damages, actions, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, whether directly or derivatively held, existing as of the Effective Date or thereafter arising, in law, at equity or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstances existing or taking place prior to or on the Effective Date arising from or related in any way in whole or in part to any of (i) the Debtors, the Chapter 11 Cases, the Reorganization Transactions, the Non-L&A Bid Procedures, the L&A Bid Procedures, the L&A Sale, the Non-L&A Sales, the Litigation Trust, the L&A Sale Order, the Non-L&A Sale Order, the DIP Documents, the Disclosure Statement, the Plan (including the Plan Supplement), the PSA, and the RSA, (ii) the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in this Plan, (iii) the business or contractual arrangements between any Debtor and any Released Parties, (iv) the negotiation, formulation or preparation of this Plan, the Disclosure Statement, the Transaction Documents, or related agreements, instruments or other documents, (v) the restructuring of Claims or Interests prior to or during the Chapter 11 Cases, (vi) the purchase, sale, or rescission of the purchase or sale of any Claim or Interest of the Debtors or the Post-Effective Date Debtors, and/or (vii) the Confirmation or Consummation of this Plan or the solicitation of votes on this Plan that such Debtor Releasing Party would have been legally entitled to assert (whether individually or collectively) or that any Holder of a Claim or Interest or other Entity would have been legally entitled to assert for, or on behalf
53
or in the name of, any Debtor, its respective Estate or any Post-Effective Date Debtor (whether directly or derivatively) against any of the Released Parties; provided, however, that the foregoing provisions of this Debtor Release shall not operate to waive, release or otherwise impair: (i) any Causes of Action arising from willful misconduct, actual fraud, or gross negligence of such applicable Released Party as determined by Final Order of the Court or any other court of competent jurisdiction; (ii) the rights of such Debtor Releasing Party to enforce this Plan and the contracts, instruments, releases, indentures, and other agreements or documents delivered under or in connection with this Plan or assumed under this Plan or assumed under Final Order of the Court; and/or (iii) any retained Causes of Action listed on the Schedule of Retained Causes of Action or Schedule of Litigation Trust Causes of Action, respectively.
The foregoing release shall be effective as of the Effective Date without further notice to or order of the Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person and the Confirmation Order will permanently enjoin the commencement or prosecution by any Person or Entity, whether directly, derivatively or otherwise, of any claims, obligations, suits, judgments, damages, demands, debts, rights, Causes of Action or liabilities released under this Debtor Release.
Entry of the Confirmation Order shall constitute the Court’s approval, pursuant to Bankruptcy Rule 9019, of the Debtor Release set forth in this Article VIII.C, which includes by reference each of the related provisions and definitions contained in this Plan, and further, shall constitute the Court’s finding that the Debtor Release is: (1) in exchange for the good and valuable consideration provided by the Released Parties; (2) a good faith settlement and compromise of the Claims released by the Debtor Release; (3) in the best interests of the Debtors and their Estates; (4) fair, equitable, and reasonable; and (5) given and made after due notice and opportunity for hearing.
2. Release by Third Parties
Except as otherwise expressly provided in this Plan, effective as of the Effective Date, to the fullest extent permitted by applicable law, for good and valuable consideration provided by each of the Released Parties, the adequacy and sufficiency of which is hereby confirmed, and without limiting or otherwise modifying the scope of the Debtor Release provided by the Debtor Releasing Parties above, all other Releasing Parties will be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever provided a full discharge, waiver and release to each of the Released Parties (and each such Released Party so released shall be deemed forever released, waived and discharged by the Releasing Parties) (the “Third Party Release”) from any and all Claims, Causes of Action and any other debts, obligations, rights, suits, damages, actions, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, whether directly or derivatively held, existing as of the Effective Date or thereafter arising, in law, at equity or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstances existing or taking place prior to or on the Effective Date arising from or related in any way in whole or in part to any of (i) the Debtors, the Chapter 11 Cases, the Reorganization Transactions, the Non-L&A Bid Procedures, the L&A Bid Procedures, the L&A Sale, the
54
Non-L&A Sales, the Litigation Trust, the L&A Sale Order, the Non-L&A Sale Order, the DIP Documents, the Disclosure Statement, the Plan (including the Plan Supplement), the PSA, and the RSA, (ii) the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in this Plan, (iii) the business or contractual arrangements between any Debtor and any Released Parties, (iv) the negotiation, formulation or preparation of this Plan, the Disclosure Statement, the Transaction Documents, or related agreements, instruments or other documents, (v) the restructuring of Claims or Interests prior to or during the Chapter 11 Cases, (vi) the purchase, sale, or rescission of the purchase or sale of any Claim or Interest of the Debtors or the Post-Effective Date Debtors, and/or (vii) the Confirmation or Consummation of this Plan or the solicitation of votes on this Plan that such Releasing Party would have been legally entitled to assert (whether individually or collectively); provided, however, that the foregoing provisions of this Third Party Release shall not operate to waive, release or otherwise impair: (i) any Causes of Action arising from willful misconduct, actual fraud, or gross negligence of such applicable Released Party as determined by Final Order of the Court or any other court of competent jurisdiction; (ii) any of the indebtedness and obligations of the Debtors and/or the Post-Effective Date Debtors incurred under the Plan and the contracts, instruments, releases, indentures, and other agreements and documents delivered under or in connection with the Plan or assumed under the Plan or assumed under Final Order of the Court; (iii) the rights of such Releasing Party to enforce the Plan and the contracts, instruments, releases, indentures, and other agreements and documents delivered under or in connection with the Plan or assumed under the Plan or assumed under Final Order of the Court; and/or (iv) any objections with respect to any Professional’s final fee application or Professional Claims in these Chapter 11 Cases.
The foregoing release shall be effective as of the Effective Date without further notice to or order of the Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person and the Confirmation Order will permanently enjoin the commencement or prosecution by any Person or Entity, whether directly, derivatively or otherwise, of any claims, obligations, suits, judgments, damages, demands, debts, rights, Causes of Action or liabilities released under this Third Party Release.
Entry of the Confirmation Order shall constitute the Court’s approval of the Third Party Release, which includes by reference each of the related provisions and definitions contained herein, and further, shall constitute the Court’s finding that the Third Party Release is: (i) in exchange for the good and valuable consideration provided by the Released Parties; (ii) a good faith settlement and compromise of the Claims released by the Third Party Release; (iii) in the best interest of the Debtors and all Holders of Claims and Interests; (iv) fair, equitable and reasonable; and (v) given and made after due notice and opportunity for hearing.
D. Waiver of Statutory Limitations on Releases
Each of the Releasing Parties in each of the releases contained above expressly acknowledges that although ordinarily a general release may not extend to Claims which the Releasing Party does not know or suspect to exist in its favor, which if known by it may have materially affected its settlement with the party released, they have carefully considered and taken
55
into account in determining to enter into the above releases the possible existence of such unknown losses or claims. Without limiting the generality of the foregoing, each Releasing Party expressly waives any and all rights conferred upon it by any statute or rule of law which provides that a release does not extend to claims which the claimant does not know or suspect to exist in its favor at the time of providing the release, which if known by it may have materially affected its settlement with the Released Party. The releases contained in this Plan are effective regardless of whether those released matters are presently known, unknown, suspected or unsuspected, foreseen or unforeseen.
E. Exculpation
To the fullest extent permitted by applicable law, no Exculpated Party will either have or incur any liability to any Person or Entity for, and each Exculpated Party is hereby released and exculpated from, any Cause of Action related to any act or omission in connection with, (i) the Debtors, the Chapter 11 Cases, the Reorganization Transactions, the Non-L&A Bid Procedures, the L&A Bid Procedures, the L&A Sale, the Non-L&A Sales, the Litigation Trust, the L&A Sale Order, the Non-L&A Sale Order, the DIP Documents, the Disclosure Statement, the Plan (including the Plan Supplement), the PSA, the RSA, and any other transaction approved by the Bankruptcy Court in the Chapter 11 Cases, (ii) the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in this Plan, (iii) the business or contractual arrangements between any Debtor and any Exculpated Parties, (iv) the negotiation, formulation or preparation of this Plan, the Disclosure Statement, the Transaction Documents, or related agreements, instruments or other documents, (v) the restructuring of Claims or Interests prior to or during the Chapter 11 Cases, (vi) the purchase, sale, or rescission of the purchase or sale of any Claim or Interest of the Debtors or the Post-Effective Date Debtors, and/or (vii) the Confirmation or Consummation of this Plan or the solicitation of votes on this Plan that such Person or Entity would have been legally entitled to assert (whether individually or collectively) or that any Holder of a Claim or Interest or other Entity would have been legally entitled to assert for, or on behalf or in the name of, any Debtor, its respective Estate or any Post-Effective Date Debtor (whether directly or derivatively) against any of the Exculpated Parties, except for claims related to any act or omission that is determined in a Final Order to have constituted actual fraud, gross negligence, or willful misconduct, but in all respects such Persons will be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the Plan. The foregoing shall not be deemed to release, affect, or limit any post-Effective Date rights or obligations of the Exculpated Parties under the Plan, or any other document, instrument, or agreement executed to implement the Plan (including those set forth in the Plan Supplement).
The Exculpated Parties have, and upon consummation of the Plan shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the solicitation of, and distribution of consideration pursuant to, the Plan and, therefore, are not, and on account of such distributions shall not be, liable at any time for the violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan.
56
The exculpation will be in addition to, and not in limitation of, all other releases, indemnities, exculpations, and any other applicable law or rules protecting such Exculpated Parties from liability.
F. Injunction
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS PLAN OR THE CONFIRMATION ORDER, FROM AND AFTER THE EFFECTIVE DATE, ALL PERSONS AND ENTITIES ARE, TO THE FULLEST EXTENT PROVIDED UNDER SECTION 524 AND OTHER APPLICABLE PROVISIONS OF THE BANKRUPTCY CODE, PERMANENTLY ENJOINED FROM (I) COMMENCING OR CONTINUING, IN ANY MANNER OR IN ANY PLACE, ANY SUIT, ACTION OR OTHER PROCEEDING; (II) ENFORCING, ATTACHING, COLLECTING, OR RECOVERING IN ANY MANNER ANY JUDGMENT, AWARD, DECREE, OR ORDER; (III) CREATING, PERFECTING, OR ENFORCING ANY LIEN OR ENCUMBRANCE; (IV) ASSERTING A SETOFF OR RIGHT OF SUBROGATION OF ANY KIND; OR (V) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR OTHER PROCEEDING OF ANY KIND, IN EACH CASE ON ACCOUNT OF OR WITH RESPECT TO ANY CLAIM, DEMAND, LIABILITY, OBLIGATION, DEBT, RIGHT, CAUSE OF ACTION, INTEREST, OR REMEDY RELEASED OR TO BE RELEASED, SETTLED OR TO BE SETTLED OR DISCHARGED OR TO BE DISCHARGED UNDER THIS PLAN OR THE CONFIRMATION ORDER AGAINST ANY PERSON OR ENTITY SO RELEASED OR DISCHARGED (OR THE PROPERTY OR ESTATE OF ANY PERSON OR ENTITY SO RELEASED, DISCHARGED). ALL INJUNCTIONS OR STAYS PROVIDED FOR IN THE CHAPTER 11 CASES UNDER SECTION 105 OR SECTION 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.
G. Binding Nature of the Plan
ON THE EFFECTIVE DATE, AND EFFECTIVE AS OF THE EFFECTIVE DATE, THIS PLAN SHALL BIND, AND SHALL BE DEEMED BINDING UPON, THE DEBTORS, THE POST-EFFECTIVE DATE DEBTORS, ANY AND ALL HOLDERS OF CLAIMS AGAINST AND INTERESTS IN THE DEBTORS, ALL PERSONS AND ENTITIES THAT ARE PARTIES TO OR ARE SUBJECT TO THE SETTLEMENTS, COMPROMISES, RELEASES, DISCHARGES, AND INJUNCTIONS DESCRIBED IN THIS PLAN, EACH PERSON ACQUIRING PROPERTY UNDER THIS PLAN, ANY AND ALL NON-DEBTOR PARTIES TO EXECUTORY CONTRACTS AND UNEXPIRED LEASES WITH THE DEBTORS AND THE RESPECTIVE SUCCESSORS AND ASSIGNS OF EACH OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING WHETHER OR NOT SUCH PERSON OR ENTITY (I) WILL RECEIVE OR RETAIN ANY PROPERTY, OR INTEREST IN PROPERTY, UNDER THIS PLAN, OR (II) HAS FILED A PROOF OF CLAIM OR INTEREST IN THE CHAPTER 11 CASES.
57
H. Protections Against Discriminatory Treatment
Consistent with section 525 of the Bankruptcy Code and the Supremacy Clause of the U.S. Constitution, all Entities, including Governmental Units, shall not discriminate against the Debtors or Post-Effective Date Debtors, as applicable, or deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, the Debtors, the Post-Effective Date Debtors, or another Entity with whom the Debtors have been associated, solely because each Debtor has been a debtor under chapter 11 of the Bankruptcy Code, has been insolvent before the commencement of the Chapter 11 Cases (or during the Chapter 11 Cases but before the Debtors are granted or denied a discharge), or has not paid a debt that is dischargeable in the Chapter 11 Cases.
I. Reimbursement or Contribution
If the Court disallows a Claim for reimbursement or contribution of an Entity pursuant to section 502(e)(1)(B) of the Bankruptcy Code, then to the extent that such Claim is contingent as of the time of allowance or disallowance, such Claim shall be forever disallowed and expunged notwithstanding section 502(j) of the Bankruptcy Code, unless prior to the Confirmation Date: (1) such Claim has been adjudicated as non-contingent; or (2) the relevant Holder of a Claim has Filed a non-contingent Proof of Claim on account of such Claim and a Final Order has been entered prior to the Confirmation Date determining such Claim as no longer contingent.
J. Gatekeeping Provision
No party may commence, continue, amend, or otherwise pursue, join in, or otherwise support any other party commencing, continuing, amending, or pursuing, a Cause of Action of any kind against the Debtors, the Post-Effective Date Debtors, the Litigation Trustee, the Exculpated Parties, or the Released Parties that relates to, or is reasonably likely to relate to any act or omission in connection with, relating to, or arising out of, a Cause of Action subject to Article VIII.C or Article VIII.E of the Plan without first (a) requesting a determination from the Court, after notice and a hearing, that such Cause of Action represents a colorable claim against a Debtor, Post-Effective Date Debtor, Litigation Trustee, Exculpated Party, or Released Party and is not a Claim that the Debtors released under the Plan, which request must attach the complaint or petition proposed to be filed by the requesting party, and (b) obtaining from the Court specific authorization for such party to bring such Cause of Action against any such Debtor, Post-Effective Date Debtor, Litigation Trustee, Exculpated Party, or Released Party; provided, however, that this Article VIII.J shall not apply to claims covered by an Insurance Contract solely to the extent to allow Insurers to administer, handle, defend and/or pay claims covered by Insurance Contracts in accordance with and subject to the terms and conditions of such Insurance Contracts and/or applicable non-bankruptcy law, provided that the automatic stay of section 362(a) of the Bankruptcy Code and/or the injunctions set forth in Article VIII.F of the Plan, each if and to the extent applicable, have been lifted with respect to such claims. For the avoidance of doubt, any party that obtains such determination and authorization and subsequently wishes to amend the authorized complaint or petition to add any Causes of Action not explicitly included in the authorized complaint or petition must obtain authorization from the Court before filing any such amendment in the court where such complaint or petition is pending. The Court will have sole and exclusive jurisdiction to determine whether a Cause of Action is colorable and, only to the extent legally permissible, will have jurisdiction to adjudicate the underlying colorable Cause of Action.
58
ARTICLE IX.
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THIS PLAN
A. Conditions Precedent to the Effective Date
The following shall be conditions precedent to the Effective Date (collectively, the “Conditions Precedent”):
| 1. | The Court shall have entered the Confirmation Order, which shall be a Final Order or not subject to a stay pending appeal, and shall contain the following provisions (among others): |
| (a) | authorize the Debtors, Post-Effective Date Debtors, or Litigation Trustee, as applicable, to take all actions necessary to enter into, implement, and consummate the contracts, instruments, releases, leases, indentures, and other agreements or documents created in connection with this Plan; |
| (b) | decree that the provisions of the Confirmation Order and this Plan are non-severable and mutually dependent; |
| (c) | authorize the Debtors, Post-Effective Date Debtors, or Litigation Trustee, as applicable/necessary, to: (i) implement the Reorganization Transactions or the Non-L&A Sales, as applicable; (ii) make all distributions and issuances as required under this Plan; and (iii) enter into any agreements, transactions, and sales of property as set forth in this Plan; |
| (d) | authorize the implementation of this Plan in accordance with its terms; |
| (e) | provide that, pursuant to section 1146 of the Bankruptcy Code, the assignment or surrender of any lease or sublease, and the delivery of any deed or other instrument or transfer order, in furtherance of, or in connection with this Plan, including any deeds, bills of sale, or assignments executed in connection with any disposition or transfer of assets contemplated under this Plan, shall not be subject to any stamp, real estate transfer, mortgage recording, or other similar tax; |
| (f) | approve the Releases and injunctions set forth in this Plan; and |
| (g) | authorize the payment into the Professional Claim Reserve Account, on or prior to the Effective Date, of the Professional Claim Reserve Amount, all in accordance with the terms of each Professional’s engagement letter and subject to a hearing on final fee applications, as necessary. |
59
| 2. | The Debtors shall have obtained all authorizations, consents, regulatory approvals, rulings, or documents that are necessary to implement and effectuate this Plan; provided that such authorizations are required to be obtained by the Debtors. |
| 3. | The final versions of the Plan Supplement and all of the schedules, documents, annexes, and exhibits contained therein shall have been Filed in a manner consistent in all material respects with this Plan and the RSA. |
| 4. | The Transaction Documents, including the Litigation Trust Agreement, if applicable, shall have been executed by the applicable parties thereto and all conditions precedent to the effectiveness of the applicable Plan Supplement documents shall have been satisfied or waived in accordance with the terms of such Plan Supplement documents. |
| 5. | In the event the Debtors consummate the Reorganization Transactions, the Prepetition Agent shall have executed the Non-Debtor Guarantor Release, which, for the avoidance of doubt, shall only become effective after the receipt by the Prepetition Agent of all net proceeds from the Reorganization Transactions payable under and in accordance with the Plan. |
| 6. | If applicable, the Reorganization Transactions shall have been executed and remain in full force and effect, and the Debtors shall have received the Net Reorganization Transaction Proceeds. |
| 7. | If applicable, the Debtors shall have consummated each of the Backup Bidder Sales, and the Debtors shall have received the proceeds from such sales. |
| 8. | If applicable, the Debtors shall have consummated each of the Backup Bidder Sales and the Debtors shall have obtained the Prepetition Agent’s consent to effectiveness (which may be in form of an e-mail from counsel). |
| 9. | If applicable, the Debtors and Post-Effective Date Debtors, as applicable, shall have implemented the Reorganization Transactions or the Non-L&A Sales, in a manner consistent with the PSA and the RSA and the Plan. |
| 10. | All Restructuring Expenses invoiced or estimated in accordance with Article IV.S and more than two (2) Business Days before expected Emergence shall have been paid in full. |
B. Waiver of Conditions
The Debtors may waive any one or more of the Conditions Precedent to the Effective Date without notice, leave, or order of the Court or any formal action other than proceeding to confirm or consummate the Plan.
60
C. Effect of Failure of Conditions
If Consummation does not occur, this Plan shall be null and void in all respects and nothing contained in this Plan or the Disclosure Statement shall: (1) constitute a waiver or release of any Claims by the Debtors, or Claims against, or Interests in, the Debtors; (2) prejudice in any manner the rights of the Debtors, any Holders of Claims or Interests, or any other Entity; or (3) constitute an admission, acknowledgment, offer, or undertaking by the Debtors, any Holders of Claims or Interests, or any other Entity.
D. Substantial Consummation
“Substantial Consummation” of this Plan, as defined in section 1101(2) of the Bankruptcy Code, shall be deemed to occur on the Effective Date.
ARTICLE X.
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THIS PLAN
A. Modification and Amendments
Except as otherwise specifically provided in this Plan, the Debtors reserve the right to modify this Plan whether such modification is material or immaterial, and seek Confirmation consistent with the Bankruptcy Code and, as appropriate, not resolicit votes on such modified Plan. Subject to those restrictions on modifications set forth in this Plan and the requirements of section 1127 of the Bankruptcy Code, Bankruptcy Rule 3019, and, to the extent applicable, sections 1122, 1123, and 1125 of the Bankruptcy Code, each of the Debtors expressly reserves its respective rights to revoke or withdraw, or to alter, amend, or modify this Plan with respect to such Debtor, one or more times, after Confirmation, and, to the extent necessary may initiate proceedings in the Court to so alter, amend, or modify this Plan, or remedy any defect or omission, or reconcile any inconsistencies in this Plan, the Disclosure Statement, or the Confirmation Order, in such matters as may be necessary to carry out the purposes and intent of this Plan.
B. Effect of Confirmation on Modifications
Entry of the Confirmation Order shall mean that all modifications or amendments to this Plan since the solicitation thereof are approved pursuant to section 1127(a) of the Bankruptcy Code and do not require additional disclosure or resolicitation under Bankruptcy Rule 3019.
C. Revocation or Withdrawal of Plan
The Debtors reserve the right to revoke or withdraw this Plan prior to the Confirmation Date and to File subsequent plans of reorganization. If the Debtors revoke or withdraw this Plan, or if Confirmation or Consummation does not occur, then: (1) this Plan shall be null and void in all respects; (2) any settlement or compromise embodied in this Plan (including the fixing or limiting to an amount certain of any Claim or Interest or Class of Claims or Interests), assumption or rejection of Executory Contracts and/or Unexpired Leases effected under this Plan, and any document or agreement executed pursuant to this Plan, shall be deemed null and void; and (3) nothing contained in this Plan shall: (a) constitute a waiver or release of any Claims or Interests; (b) prejudice in any manner the rights of such Debtor or any other Entity; or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by such Debtor or any other Entity.
61
ARTICLE XI.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, on and after the Effective Date, the Court shall retain jurisdiction over all matters arising out of, or relating to, the Chapter 11 Cases and this Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:
A. allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim or Interest, including the resolution of any request for payment of any Administrative Expense Claim and the resolution of any and all objections to the secured or unsecured status, priority, amount, or allowance of Claims or Interests;
B. decide and resolve all matters related to the granting and denying, in whole or in part, any applications for allowance of compensation or reimbursement of expenses to Professionals authorized pursuant to the Bankruptcy Code or this Plan;
C. resolve any matters related to: (1) the assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to which a Debtor is party or with respect to which a Debtor may be liable and to hear, determine, and, if necessary, liquidate, any Claims arising therefrom, including Cures pursuant to section 365 of the Bankruptcy Code; (2) any potential contractual obligation under any Executory Contract or Unexpired Lease that is assumed and assigned; and (3) any dispute regarding whether a contract is or was executory or expired;
D. ensure that distributions to Holders of Allowed Claims are accomplished pursuant to the provisions of this Plan;
E. adjudicate, decide, or resolve any motions, adversary proceedings, contested or litigated matters, and any other matters, and grant or deny any applications involving a Debtor that may be pending on the Effective Date;
F. adjudicate, decide, or resolve any and all matters related to section 1141 of the Bankruptcy Code;
G. enter and implement such orders as may be necessary to execute, implement, or consummate the provisions of this Plan and all contracts, instruments, releases, indentures, and other agreements or documents created in connection with this Plan or the Disclosure Statement, except to the extent that a Plan Supplement document provides for exclusive jurisdiction and venue in another forum;
H. enter and enforce any order for the sale of property pursuant to sections 1123, or 1146(a) of the Bankruptcy Code;
62
I. resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the Consummation, interpretation, or enforcement of this Plan or any Entity’s obligations incurred in connection with this Plan;
J. issue injunctions, enter and implement other orders, or take such other actions as may be necessary to restrain interference by any Entity with Consummation or enforcement of this Plan;
K. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, injunctions, exculpations, and other provisions contained in Article VIII hereof and enter such orders as may be necessary or appropriate to implement such releases, injunctions, and other provisions;
L. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the repayment or return of distributions and the recovery of additional amounts owed by the Holder of a Claim or Interest for amounts not timely repaid pursuant to Article VI.L hereof;
M. enter and implement such orders as are necessary if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;
N. determine any other matters that may arise in connection with or relate to this Plan, the Plan Supplement, the Disclosure Statement, the N&A Sale Order, the Confirmation Order, or any contract, instrument, release, indenture, or other agreement or document created in connection with this Plan or the Disclosure Statement, including the PSA, if applicable, except to the extent that any Plan Supplement document provides for exclusive jurisdiction and venue in another forum;
O. enter an order concluding or closing any Chapter 11 Case;
P. adjudicate any and all disputes arising from or relating to distributions under this Plan;
Q. consider any modifications of this Plan, to cure any defect or omission, or to reconcile any inconsistency in any Court order, including the Confirmation Order;
R. determine requests for the payment of Claims and Interests entitled to priority pursuant to section 507 of the Bankruptcy Code;
S. hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of this Plan or the Confirmation Order, including disputes arising under agreements, documents, or instruments executed in connection with this Plan, including the PSA, if applicable, and the Transaction Documents, except to the extent that any document provides for exclusive jurisdiction and venue in another forum;
T. hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;
63
U. hear and determine all disputes involving the existence, nature, scope, or enforcement of any exculpations, discharges, injunctions, and releases granted in this Plan, including under Article VIII hereof;
V. enforce all orders previously entered by the Court; and
W. hear any other matter not inconsistent with the Bankruptcy Code.
ARTICLE XII.
MISCELLANEOUS PROVISIONS
A. Immediate Binding Effect
Subject to Article IX.A hereof and notwithstanding Bankruptcy Rules 3020(e), 6004(h), or 7062 or otherwise, upon the occurrence of the Effective Date, the terms of this Plan (including the documents and instruments contained in the Plan Supplement) shall be immediately effective and enforceable and deemed binding upon the Debtors, any and all Holders of Claims or Interests (irrespective of whether such Claims or Interests are deemed to have accepted this Plan), all Entities that are parties to or are subject to the settlements, compromises, releases, discharges, and injunctions described in this Plan, each Entity acquiring property under this Plan, and any and all non-Debtor parties to Executory Contracts or Unexpired Leases with the Debtors.
B. Dissolution of the Creditors’ Committee
On the Effective Date, the Creditors’ Committee will dissolve and the members thereof will be released and discharged from all duties and obligations arising from or related to these Chapter 11 Cases.
C. Additional Documents
On or before the Effective Date, the Debtors may File with the Court such agreements and other documents as may be necessary to effectuate and further evidence the terms and conditions of this Plan. The Debtors, all Holders of Claims or Interests receiving Plan Distributions pursuant to this Plan, and all other parties in interest shall, from time to time, prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of this Plan.
D. Payment of Statutory Fees
All fees payable to the U.S. Trustee under 28 U.S.C. § 1930(a)(6) (including interest under 31 U.S.C. § 3717) as of the Confirmation Date will be paid on the Effective Date or as soon as reasonably practicable thereafter. Notwithstanding anything to the contrary in the Plan, such fees are not subject to an allowance procedure under 11 U.S.C. § 503(b), nor is the U.S. Trustee required to file a request for payment of such fees.
Following confirmation, the Debtors or Post-Effective Date Debtors, as applicable shall pay quarterly fees to the U.S. Trustee to the extent, and in the amounts, required by 28 U.S.C. § 1930(a)(6) (including interest under 31 U.S.C. § 3717); provided that if a final decree
64
has not been entered and the Chapter 11 Cases closed solely as a result of the Litigation Trust’s ongoing activities, then such quarterly fees shall be paid by the Litigation Trust. Quarterly fees shall be payable for any case that is reopened. So long as the Debtors, Post-Effective Date Debtors, or the Litigation Trust, as applicable, are required to make these payments, the Debtors, Post-Effective Date Debtors, or the Litigation Trust, as applicable, shall file with the Court quarterly reports in the form specified by the U.S. Trustee for that purpose.
E. Reservation of Rights
Except as expressly set forth in this Plan, this Plan shall have no force or effect unless the Court shall enter the Confirmation Order, and the Confirmation Order shall have no force or effect if the Effective Date does not occur. None of the Filing of this Plan, any statement or provision contained in this Plan, or the taking of any action by any Debtor with respect to this Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be deemed to be an admission or waiver of any rights of any Debtor with respect to the Holders of Claims or Interests prior to the Effective Date.
F. Successors and Assigns
The rights, benefits, and obligations of any Entity named or referred to in this Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, Affiliate, officer, manager, director, agent, representative, attorney, beneficiaries, or guardian, if any, of each Entity.
G. Notices
All notices, requests, and demands to or upon the Debtors to be effective shall be in writing (including by electronic email) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by electronic email, when received and telephonically confirmed, addressed as follows:
| Debtors |
Counsel to the Debtors | |
| Ebix, Inc. 1 Ebix Way Johns Creek, GA 30097 Attention: Amit Garg |
Sidley Austin LLP 2021 McKinney Avenue, Ste. 2000 Dallas, TX 75201 Attention: Thomas Califano, Rakhee Patel, and Jeri Leigh Miller | |
| U.S. Trustee |
Counsel to the DIP Agent | |
| Office of the United States Trustee Earle Cabell Federal Building 1100 Commerce Street, Rm. 976 Dallas, TX 75242 Attention: Meredyth Kippes and Asher Bublick |
Mayer Brown LLP 1221 Avenue of the Americas New York, NY 10020 Attention: Brian Trust and Sean T. Scott | |
65
| Counsel to the Plan Sponsor |
Counsel to Creditors’ Committee | |
| Togut, Segal & Segal LLP
and
Munsch Hardt Kopf & Harr, P.C. |
McDermott Will & Emery LLP 2501 North Harwood Street, Suite 1900 Dallas, TX, 75201 Attention: Charles Gibbs and Marcus Helt |
After the Effective Date, the Debtors have the authority to send a notice to Entities that to continue to receive documents pursuant to Bankruptcy Rule 2002, such Entity must File a renewed request to receive documents pursuant to Bankruptcy Rule 2002. After the Effective Date, the Debtors are authorized to limit the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to those Entities who have Filed such renewed requests.
H. Term of Injunctions or Stays
Unless otherwise provided in this Plan or in the Confirmation Order, all injunctions or stays in effect in these Chapter 11 Cases pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Court shall remain in full force and effect until the Effective Date. All injunctions or stays contained in this Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.
I. Entire Agreement
Except as otherwise indicated, this Plan (including, the documents and instruments in the Plan Supplement) supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which have become merged and integrated into this Plan.
J. Exhibits and Annexes
All exhibits, annexes, and documents attached hereto or included in the Plan Supplement are incorporated into and are a part of this Plan as if set forth in full in this Plan. After the exhibits, annexes, and documents are Filed, copies of such exhibits, annexes, and documents shall be available upon written request to the Debtors’ counsel at the address above or by downloading such exhibits, annexes, and documents from the Debtors’ restructuring website at https://cases.omniagentsolutions.com/ebix or the Court’s website at www.txnb.uscourts.gov. To the extent any exhibit, annex, or document is inconsistent with the terms of this Plan, unless otherwise ordered by the Court or otherwise specifically provided for in such exhibit, annex, or document, the non-exhibit, non-annex, or non-document portion of this Plan shall control.
66
K. Non-Severability of Plan Provisions
If prior to Confirmation, any term or provision of this Plan is held by the Court to be invalid, void, or unenforceable, the Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of this Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of this Plan, as it may have been altered or interpreted in accordance with the foregoing, is: (1) valid and enforceable pursuant to its terms; (2) integral to this Plan and may not be deleted or modified without the Debtors’ consent; and (3) non-severable and mutually dependent.
L. Governing Law
Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules) or unless otherwise specifically stated, the laws of the State of Texas, without giving effect to the principles of conflict of laws, shall govern the rights, obligations, construction, and implementation of this Plan, any agreements, documents, instruments, or contracts executed or entered into in connection with this Plan (except as otherwise set forth in those agreements, in which case the governing law of such agreement shall control), and corporate governance matters; provided, however, that corporate governance matters relating to the Debtors not incorporated in Texas shall be governed by the laws of the state of incorporation or formation of the relevant Debtor.
M. Waiver or Estoppel
Each Holder of a Claim or an Interest shall be deemed to have waived any right to assert any argument, including the right to argue that its Claim or Interest should be Allowed in a certain amount, in a certain priority, secured or not subordinated by virtue of an agreement made with the Debtors or their counsel, or any other Entity, if such agreement was not disclosed in this Plan, the Disclosure Statement, or papers Filed with the Court prior to the Confirmation Date.
[Remainder of Page Intentionally Left Blank]
67
| Dated: July 28, 2024 | EBIX, INC. | |||||
| VERTEX, INCORPORATED | ||||||
| P.B. SYSTEMS, INC. | ||||||
| EBIX CONSULTING, INC. | ||||||
| EBIX US, LLC | ||||||
| FACTS SERVICES, INC. | ||||||
| DOCTORS EXCHANGE, INC. | ||||||
| EBIX INTERNATIONAL LLC | ||||||
| AGENCY SOLUTIONS.COM, LLC D/B/A HEALTH CONNECT LLC | ||||||
| CONFIRMNET CORPORATION | ||||||
| A.D.A.M., INC. | ||||||
| EBIX LATIN AMERICA, LLC | ||||||
| /s/ Peter Fitzsimmons | ||||||
| Name: Peter Fitzsimmons | ||||||
| Title: Chief Restructuring Officer | ||||||
68
Document and Entity Information |
Jul. 22, 2024 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Document Period End Date | Jul. 22, 2024 |
| Entity Registrant Name | EBIX INC |
| Entity Incorporation State Country Code | DE |
| Entity File Number | 0-15946 |
| Entity Tax Identification Number | 77-0021975 |
| Entity Address Address Line 1 | 1 Ebix Way |
| Entity Address City Or Town | Johns Creek |
| Entity Address State Or Province | GA |
| Entity Address Postal Zip Code | 30097 |
| City Area Code | 678 |
| Local Phone Number | 281-2020 |
| Written Communications | false |
| Soliciting Material | false |
| Pre Commencement Tender Offer | false |
| Pre Commencement Issuer Tender Offer | false |
| Security 12b Title | Common Stock, $0.10 par value per share |
| Trading Symbol | EBIXQ |
| Entity Emerging Growth Company | false |
| Security Exchange Name | NONE |
| Amendment Flag | false |
| Entity Central Index Key | 0000814549 |
1 Year Ebix Chart |
1 Month Ebix Chart |
It looks like you are not logged in. Click the button below to log in and keep track of your recent history.
Support: +44 (0) 203 8794 460 | support@advfn.com
By accessing the services available at ADVFN you are agreeing to be bound by ADVFN's Terms & Conditions
Hot Features
Premium
