Exhibit 10.1
Execution Version
THIS RESTRUCTURING
SUPPORT AGREEMENT AND THE DOCUMENTS ATTACHED HERETO COLLECTIVELY DESCRIBE A PROPOSED RESTRUCTURING OF THE COMPANY PARTIES THAT WILL BE
EFFECTUATED THROUGH FILING Prepackaged CHAPTER 11 CASES IN THE BANKRUPTCY COURT (AS DEFINED BELOW).
THIS RESTRUCTURING
SUPPORT AGREEMENT IS NOT AN OFFER, ACCEPTANCE, OR SOLICITATION WITH RESPECT TO ANY SECURITIES, LOANS, OR OTHER INSTRUMENTS OR A SOLICITATION
OF ACCEPTANCES OF A CHAPTER 11 PLAN WITHIN THE MEANING OF SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER, ACCEPTANCE, OR SOLICITATION
WILL COMPLY WITH ALL APPLICABLE LAW, INCLUDING SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. NOTHING CONTAINED IN THIS
RESTRUCTURING SUPPORT AGREEMENT SHALL BE AN ADMISSION OF FACT OR LIABILITY OR, UNTIL THE OCCURRENCE OF THE AGREEMENT EFFECTIVE DATE ON
THE TERMS DESCRIBED HEREIN, DEEMED BINDING ON ANY OF THE PARTIES HERETO.
THIS RESTRUCTURING
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 RESTRUCTURING 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.
RESTRUCTURING SUPPORT AGREEMENT
This RESTRUCTURING SUPPORT
AGREEMENT (including all exhibits, annexes, and schedules hereto in accordance with Section 16.02, this “Agreement”)
is made and entered into as of April 30, 2023 (the “Execution Date”), by and among the following parties
(each of the following described in sub-clauses (i) through (iii) of this preamble, collectively, the “Parties”):1
| i. | Lannett Company, Inc., a company incorporated under the Laws of Delaware (“LCI”),
Kremers Urban Pharmaceuticals, Inc., a company incorporated under the Laws of Indiana, Cody Laboratories, Inc., a company incorporated
under the Laws of Wyoming, and Silarx Pharmaceuticals, Inc., a company incorporated under the Laws of New York (the Entities in this
clause (i), collectively, the “Company Parties”); |
| 1 | Capitalized terms used but not defined in the preamble and recitals
to this Agreement have the meanings ascribed to them in Section 1. |
| ii. | the undersigned holders of, or investment advisors, sub-advisors, or managers of funds or accounts that
hold, First Lien Senior Secured Note Claims, solely in their capacity as such, that have executed and delivered counterpart signature
pages to this Agreement, a Joinder, or a Transfer Agreement to counsel to the Company Parties (the Entities in this clause (ii),
collectively, the “Consenting First Lien Noteholders”), who collectively hold at least 80% of the aggregate
outstanding principal amount of First Lien Senior Secured Notes Claims; and |
| iii. | the undersigned holders of, or investment advisors, sub-advisors, or managers of funds or accounts that
hold, Second Lien Term Loan Claims, solely in their capacity as such, that have executed and delivered counterpart signature pages to
this Agreement, a Joinder, or a Transfer Agreement to counsel to the Company Parties (the Entities in this clause (iii), collectively,
the “Consenting Second Lien Term Lenders” and, together with the Consenting First Lien Noteholders, the “Consenting
Stakeholders”), who collectively hold 100% of the aggregate outstanding principal amount of Second Lien Term Loan Claims. |
RECITALS
WHEREAS, the Company
Parties and the Consenting Stakeholders have in good faith and at arm’s length negotiated or been apprised of certain restructuring
and recapitalization transactions with respect to the Company Parties’ capital structure on the terms set forth in this Agreement
and as specified in the term sheet attached as Exhibit A hereto (together with the exhibits and appendices annexed
to such term sheet, the “Restructuring Term Sheet,” and, such transactions as described in this Agreement,
the Restructuring Term Sheet, and the Plan, to the extent applicable, the “Restructuring Transactions”);
WHEREAS, the Company
Parties shall implement the Restructuring Transactions through pre-packaged chapter 11 cases by commencing voluntary cases under chapter
11 of the Bankruptcy Code in the Bankruptcy Court (the cases commenced, the “Chapter 11 Cases”); 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
and the Restructuring Term Sheet.
NOW, THEREFORE, in
consideration of the representations, warranties, covenants, and agreements contained herein, and for other good and 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.
Capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Restructuring Term Sheet, as applicable.
The following terms shall have the following definitions:
“Affiliate”
has the meaning set forth in section 101(2) of the Bankruptcy Code as if such entity was a debtor in a case under the Bankruptcy
Code.
“Agent”
means any administrative agent, collateral agent, trustee or similar Entity under the First Lien Senior Secured Notes or the Second Lien
Term Loan, including any successors thereto.
“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 16.02 (including the Restructuring Term Sheet).
“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 a Party, the period from the Agreement Effective Date (or, in the case of any Consenting
Stakeholder that becomes a party hereto after the Agreement Effective Date, the date as of which such Consenting Stakeholder becomes a
party hereto) to the Termination Date applicable to that Party.
“Alternative Restructuring
Proposal” means any plan, 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, asset sale, share issuance, consent solicitation, exchange offer, tender offer, recapitalization, plan of reorganization,
share exchange, business combination, joint venture, 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.
“Bankruptcy Code”
means title 11 of the United States Code, 11 U.S.C. §§ 101–1532, as amended.
“Bankruptcy Court”
means the United States Bankruptcy Court in which the Chapter 11 Cases are commenced or another United States Bankruptcy Court with jurisdiction
over the Chapter 11 Cases.
“Beachpoint Stakeholders”
means those Consenting Stakeholders that are Affiliates of Beach Point Capital Management LP.
“Brigade Stakeholders”
means those Consenting Stakeholders that are Affiliates of Brigade Capital Management.
“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.
“Cash Collateral
Order(s)” means the interim and/or final, as applicable, orders of the Bankruptcy Court approving the use of cash collateral,
in each case, which shall be in form and substance acceptable to the Required Consenting First Lien Noteholders and reasonably acceptable
to the Required Consenting Second Lien Term Lenders.
“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, 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 Company Claims/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 Claims/Interests”
means any Claim against, or Equity Interest in, a Company Party, including, but not limited to, the First Lien Senior Secured Notes Claims
and the Second Lien Term Loan Claims.
“Company Parties”
has the meaning set forth in the recitals to this Agreement.
“Confidentiality
Agreement” means an executed confidentiality agreement with a Company Party, including with respect to the issuance of a
“cleansing letter” or other public disclosure of material non-public information agreement, in connection with any proposed
Restructuring Transactions, including those certain Confidentiality Agreements between LCI and certain holders of First Lien Senior Secured
Note Claims and Second Lien Term Loan Claims, as may be amended pursuant to their terms.
“Confirmation
Order” means an order of the Bankruptcy Court confirming the Plan pursuant to Bankruptcy Code section 1129.
“Consenting First
Lien Noteholders” has the meaning set forth in the preamble of this Agreement.
“Consenting Second
Lien Term Lenders” has the meaning set forth in the preamble to this Agreement.
“Consenting Stakeholders”
has the meaning set forth in the preamble to this Agreement.
“Debtors”
means the Company Parties that commence Chapter 11 Cases.
“Debtors’
CEO” means the chief executive officer of LCI as of the day before the Plan Effective Date.
“Deerfield Stakeholders”
means those Consenting Stakeholders that are Affiliates of Deerfield Mgmt III, L.P..
“Definitive Documents”
means the documents listed in Section 4.01.
“Disclosure Statement”
means the related disclosure statement with respect to the Plan.
“Disclosure Statement
Order” means the order of the Bankruptcy Court approving the Disclosure Statement as a disclosure statement meeting the
applicable requirements of the Bankruptcy Code and, to the extent necessary, approving the related Solicitation Materials, which order
may be the Confirmation Order.
“Entity”
shall have the meaning set forth in section 101(15) of the Bankruptcy Code.
“Equity Interests”
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 Company Party, 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) of, common stock, preferred stock, limited liability
company interests, or other equity, ownership, or profits interests of any Company Party (in each case whether or not arising under or
in connection with any employment agreement).
“Exchange Act”
means the Securities Exchange Act of 1934, as amended and including any rule or regulation promulgated thereunder.
“Execution Date”
has the meaning set forth in the preamble to this Agreement.
“Exit Financing”
means, if applicable, the Takeback Exit Facility (as defined in the Restructuring Term Sheet), the New RCF (as defined in the Restructuring
Term Sheet) or such other exit financing consistent with the Restructuring Term Sheet and any additional exit financing that may be obtained
by Reorganized LCI, as determined by, and on terms and conditions acceptable to the Required Consenting First Lien Noteholders and reasonably
acceptable to the Required Consenting Second Lien Term Lenders.
“Exit Financing
Documents” means, collectively, all agreements, documents, and instruments entered into in connection with the Exit Financing,
which shall be in form and substance acceptable to the Required Consenting First Lien Noteholders and reasonably acceptable to the Required
Consenting Second Lien Term Lenders.
“Final Order”
means, as applicable, an order or judgment of the Bankruptcy 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, seek leave to appeal, or seek
certiorari has expired and no appeal or petition for certiorari or motion for leave to appeal has been timely taken, or as to which any
appeal that has been taken or any petition for certiorari or motion for leave to appeal 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 or leave to appeal could be sought or the
new trial, reargument, leave to appeal or rehearing shall have been denied, resulted in no modification of such order, or has otherwise
been dismissed with prejudice.
“First Day Pleadings”
means the first-day pleadings that the Company Parties determine are necessary or desirable to file upon the commencement of the Chapter
11 Cases.
“First Lien Indenture”
means the Indenture, dated April 22, 2021, as amended, restated, or modified from time to time among the Company, as borrower, the
lenders from time to time party thereto, and Wilmington Trust, National Associate, as trustee.
“First Lien Senior
Secured Notes” means notes outstanding under the First Lien Indenture.
“First Lien Senior
Secured Notes Claims” means any Claim on account of the First Lien Indenture.
“Joinder”
means a joinder to this Agreement substantially in the form attached hereto as Exhibit C.
“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).
“LCI”
means Lannett Company, Inc.
“Milestones”
means the applicable milestones referenced in Section 3.01 and set forth in the Restructuring Term Sheet, as such may be extended
in accordance with the terms of this Agreement.
“Named Executive
Officers” means the three named executive officers of LCI as of the day before the Plan Effective Date.
“New Organizational
Documents” means the forms of the organizational documents of Reorganized LCI, including certificates or articles of incorporation,
bylaws, shareholder agreements, or other formation or governance documents, which shall be consistent with the terms set forth in Restructuring
Term Sheet and in form and substance acceptable to the Required Consenting First Lien Noteholders and the Debtors and reasonably acceptable
to the Required Consenting Second Lien Term Lenders.
“New Warrant Agreement”
has the meaning set forth in the Restructuring Term Sheet, and which shall be in form and substance acceptable to the Debtors, the Required
Consenting First Lien Noteholders and the Required Consenting Second Lien Term Lenders.
“Parties”
has the meaning set forth in the preamble to this Agreement.
“Permitted Transferee”
means each transferee of any Company Claims/Interests who meets the requirements of Section 9.01.
“Person”
means an individual, a partnership, a joint venture, a limited liability company, a corporation, a trust, an unincorporated organization,
a group, a Governmental Body, or any legal entity or association.
“Petition Date”
means the first date any of the Company Parties commences a Chapter 11 Case.
“Plan”
means the joint pre-packaged chapter 11 plan of reorganization for the Debtors, substantially in the form attached hereto as Exhibit B
(which may be amended, modified, and supplemented consistent with this Agreement).
“Plan Effective
Date” means the occurrence of the effective date of the Plan according to its terms.
“Plan Supplement”
means the compilation of documents and forms of documents, schedules, and exhibits to the Plan, subject to the terms and conditions provided
in this Agreement, that will be filed by the Debtors with the Bankruptcy Court.
“Qualified Marketmaker”
means an entity that (a) holds itself out to the public or the applicable private markets as standing ready in the ordinary course
of business to purchase from customers and sell to customers Company Claims/Interests (or enter with customers into long and short positions
in Company Claims/Interests), in its capacity as a dealer or market maker in Company Claims/Interests and (b) is, in fact, regularly
in the business of making a market in claims against issuers or borrowers (including debt securities or other debt).
“Related Party”
has the meaning set forth in the Restructuring Term Sheet.
“Released Parties”
has the meaning set forth in the Restructuring Term Sheet.
“Releases”
means the releases, injunction, and exculpation provisions set forth in Article VIII of the Plan, and substantially on the terms
and conditions set forth in the Plan Releases and Exculpation section set forth in Annex 1 of the Restructuring Term Sheet.
“Releasing Parties”
has the meaning set forth in the Restructuring Term Sheet.
“Reorganized LCI”
means either LCI, as reorganized pursuant to the Plan if applicable, or any successor or assign thereto, by merger, consolidation, or
otherwise on and after the Plan Effective Date, or one or more new entities, as determined by the Company Parties and the Required Consenting
First Lien Noteholders and the Required Consenting Second Lien Term Lenders.
“Required Consenting
First Lien Noteholders” means, as of the relevant date, Consenting First Lien Noteholders holding at least 66.67% of the
aggregate outstanding principal amount of First Lien Senior Secured Notes that are held by Consenting First Lien Noteholders; provided
that Required Consenting First Lien Noteholders must include each of the Beach Point Stakeholders and Brigade Stakeholders.
“Required Consenting
Second Lien Term Lenders” means, as of the relevant date, Consenting Second Lien Term Lenders holding at least 66.67% of
the aggregate outstanding principal amount of Second Lien Term Loan that are held by Consenting Second Lien Term Lenders; provided
that Required Consenting Second Lien Term Lenders must include the Deerfield Stakeholders.
“Required Consenting
Stakeholders” means each of the Required Consenting Second Lien Term Lenders and the Required Consenting First Lien Noteholders.
“Restructuring
Term Sheet” has the meaning set forth in the recitals to this Agreement.
“Restructuring
Transactions” has the meaning set forth in the recitals to this Agreement.
“Restructuring
Transactions Memorandum” means one or more written documents (which may be in the form of a written memorandum or a PowerPoint
or similar presentation format) illustrating the various Restructuring Transactions, which documents may be amended from time to time
prior to the Plan Effective Date in accordance with this Agreement.
“Rules”
means Rule 501(a)(1), (2), (3), and (7) of the Securities Act.
“Second Lien Term
Loan” means loans outstanding under the loan agreement, dated April 22, 2021, as amended, supplemented, amended and
restated, or otherwise modified from time to time, between the Company, as borrower, and Alter Domus (US) LLC, as administrative agent
and collateral agent.
“Second Lien Term
Loan Agreement” means that certain Second Lien Credit and Guaranty
Agreement, by and among LCI, as company, the guarantors thereunder, the lenders from time to time party thereto, and the administrative
agent thereunder, dated as of April 22, 2021, as amended and restated, supplemented, or otherwise modified from time to time prior
to the Petition Date.
“Second Lien Term
Loan Claims” means any Claim on account of the Second Lien Term Loan.
“Securities Act”
means the Securities Act of 1933, as amended.
“Short Term Incentive
Plan” means the FY2023 short-term incentive plan for LCI’s employees in existence as of the Execution Date, as amended
by the CEO STI Side Letter Agreement (as defined in the Restructuring Term Sheet).
“Solicitation
Commencement Date” means the date that the Company Parties commence solicitation of votes to approve or reject the Plan.
“Solicitation
Materials” means, as applicable, any documents, forms, ballots, notices, and other materials provided in connection with
the solicitation of votes on the Plan, as approved by the Bankruptcy Court pursuant to sections 1125 and 1126 of the Bankruptcy Code.
“Termination Date”
means the date on which termination of this Agreement as to a Party is effective in accordance with Sections 13.01, 13.02, 13.03,
or 13.04.
“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).
“Transfer Agreement”
means an executed form of the transfer agreement providing, among other things, that a transferee is bound by the terms of this Agreement
and substantially in the form attached hereto as Exhibit D.
“U.S. Trustee”
means the Office of the United States Trustee.
1.02. Interpretation.
For purposes of this Agreement:
(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 or replaced from time to time in accordance with
this Agreement; 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) unless
otherwise specified, all references herein to “Sections” are references to Sections of this Agreement;
(f) the
words “herein,” “hereof,” 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;
(i) the
use of “include” or “including” is without limitation, whether stated or not; and
(j) the
provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed or allowed herein.
(k) the
phrase “counsel to the Consenting Stakeholders” refers in this Agreement to each counsel specified in Section 16.10 other
than counsel to the Company Parties.
Section 2. Effectiveness
of this Agreement. This Agreement shall become effective and binding upon each of the Parties
at 12:00 a.m., prevailing Eastern Time, on the Agreement Effective Date, which is the date on which all of the following conditions have
been satisfied or waived in accordance with this Agreement:
(a) each
of the Company Parties shall have executed and delivered counterpart signature pages of this Agreement to counsel to each of the
Parties;
(b) holders
of at least 80% of the aggregate outstanding principal amount of First Lien Senior Secured Notes Claims shall have executed and delivered
counterpart signature pages of this Agreement to counsel to the Company Parties;
(c) holders
of 100% of the aggregate outstanding principal amounts of the Second Lien Term Loan Claims shall have executed and delivered counterpart
signature pages of this Agreement to counsel to the Company Parties;
(d) counsel
to the Company Parties shall have given notice to counsel to the Consenting Stakeholders in the manner set forth in Section 16.10
hereof (by email or otherwise) that the other conditions to the Agreement Effective Date set forth in this Section 2(a), (b), (c),
and (d) have occurred; and
(e) The
Company Parties shall have paid all reasonable and documented fees and out of pocket expenses and all agreed and unpaid professional retainer
amounts of counsel to the Consenting Stakeholders and Consenting Stakeholder’s financial advisor in accordance with their respective
fee letters or engagement letters for which an invoice has been received by the Company Parties on or before the date that is two (2) Business
Days prior to the Agreement Effective Date.
Section 3. Milestones
3.01. The
Consenting Stakeholders’ support for the Restructuring Transactions shall be subject to the timely satisfaction of the Milestones
as set forth in the Restructuring Term Sheet, which, except as otherwise provided therein, may be extended with the prior written consent
(email shall suffice, including from respective counsel) of the Company Parties and the Consenting Stakeholders.
Section 4. Definitive
Documents.
4.01. The
Definitive Documents governing the Restructuring Transactions shall include, as applicable, this Agreement and all other agreements, instruments,
pleadings, filings, notices, letters, affidavits, applications, orders (whether proposed or entered), forms, questionnaires and other
documents (including all exhibits, schedules, supplements, appendices, annexes, instructions and attachments thereto) that are utilized
to implement or effectuate, or that otherwise relate to, the Restructuring Transactions (including all amendments, modifications, and
supplements made thereto from time to time), including each of the following:
(a) the
Cash Collateral Orders (and related motion(s));
(b) the
Disclosure Statement;
(c) the
Disclosure Statement Order (and related motion(s));
(d) the
Solicitation Materials;
(e) the
Plan;
(f) the
Plan Supplement;
(g) the
Confirmation Order;
(h) the
Exit Financing Documents, as applicable;
(i) the
New Warrant Agreement;
(j) the
New Organizational Documents;
(k) the
Restructuring Transactions Memorandum;
(l) all
pleadings filed by the Company Parties in connection with the Chapter 11 Cases (and related orders), including the First Day Pleadings
and all orders sought pursuant thereto, but not including ministerial notices
and similar ministerial documents, retention applications, fee applications, fee statements, any similar pleadings or motions relating
to the retention or fees of any professional, or statements of financial affairs and schedules of assets and liabilities;
(m) any
and all filings with or requests for regulatory or other approvals from any Governmental Body; and
(n) such
other agreements, instruments, and documents as may be necessary or reasonably desirable to consummate and document the Restructuring
Transactions.
4.02. 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 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 14. Further, unless otherwise expressly
provided herein, the Definitive Documents not executed or in a form attached to this Agreement as of the Execution Date shall otherwise
be in form and substance reasonably acceptable to the Company Parties and the Required Consenting Stakeholders.
Section 5. Commitments
of the Consenting Stakeholders.
5.01. General
Commitments, Forbearances, and Waivers.
(a) During
the Agreement Effective Period, subject to the terms and conditions hereof, each Consenting Stakeholder agrees, in respect of all of its
Company Claims/Interests, to:
(i) support
the Restructuring Transactions and vote and exercise any powers or rights available to it (including in any board, shareholders’,
or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each
case in favor of any matter requiring approval to the extent necessary to implement the Restructuring Transactions;
(ii) not,
and not direct any other person to, exercise any right or remedy for the enforcement, collection, or recovery of any of the Company
Claims/Interests other than in accordance with this Agreement and the Definitive
Documents;
(iii) use
commercially reasonable efforts to support the Company Parties’ efforts to obtain any and all required regulatory and/or third-party
approvals for the Restructuring Transactions;
(iv) 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;
(v) use
commercially reasonable efforts to oppose any party or person from taking any actions contemplated in Section 5.02(b);
(vi) give
any notice, order, instruction, or direction to the Agent necessary to give effect to the Restructuring Transactions;
(vii) subject
to the consent rights provided hereunder, negotiate in good faith and use commercially reasonable efforts to execute, deliver, and implement
the Definitive Documents and any other necessary agreements that are consistent with this Agreement to which it is required to be a party
in a timely manner to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement; and
(viii) with
respect to the Consenting Second Lien Term Lenders and the interest
payment due on April 24, 2023 pursuant to the Second Lien Term Loan Agreement, extend the five business day grace period provided
in Section 8.1(c) of the Second Lien Term Loan Agreement to 10 business days.
(b) During
the Agreement Effective Period, each Consenting Stakeholder agrees, subject to the terms and conditions hereof, in respect of all of its
Company Claims/Interests, that it shall not directly or indirectly:
(i) object
to, delay, impede, or take any other action, directly or indirectly, that is reasonably likely to interfere with, delay, or impede the
acceptance, implementation, or consummation of the Restructuring Transactions;
(ii) propose,
file, support, or vote for any Alternative Restructuring Proposal;
(iii) execute
or file any motion, pleading, agreement, instrument, order, form, 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 or the Restructuring
Transactions;
(iv) 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 Company Parties or the other Parties other than to enforce this Agreement
or any Definitive Document or as otherwise permitted under this Agreement;
(v) exercise,
or direct any other person to exercise, any right or remedy for the enforcement, collection, or recovery of any Company
Claims/Interests other than in accordance with this Agreement and the Definitive
Documents;
(vi) oppose
or object to the retention of, and compensation with respect to, the Company’s professionals in the Chapter 11 Cases (including
the Debtors’ legal advisors, financial advisor, and investment banker) to the extent the Debtors are in compliance with the budget
requirements set forth in the Cash Collateral Order;
(vii) exercise
any right or remedy, directly or indirectly, for the enforcement, collection, or recovery of any of the First Lien Senior Secured Notes
Claims or Second Lien Term Loan Claims against or Interests in the Company Parties, including in connection with any payment obligations
of the Company Parties under the First Lien Indenture or Second Lien Term Loan that come due, if any, during the Agreement Effective Period;
(viii) object
to, delay, impede, or take any other action to interfere with the Company Parties’ ownership and possession of their assets, wherever
located, or interfere with the automatic stay arising under section 362 of the Bankruptcy Code;
(ix) object
to any First Day Pleadings and “second day” pleadings consistent with this Agreement filed by the Debtors in furtherance of
the Restructuring Transactions, including any motion seeking approval of entry of the Cash Collateral Order(s);
(x) announce
publicly their intention to not support the Restructuring Transactions; or
(xi) take
any action that is inconsistent in any material respect with the Restructuring Transactions.
5.02. Commitments
with Respect to Chapter 11 Cases.
(a) During
the Agreement Effective Period, each Consenting Stakeholder that is entitled to vote to accept or reject the Plan pursuant to its terms
agrees (subject to the terms and conditions hereof) that it shall, subject to receipt by such Consenting Stakeholder, whether before or
after the commencement of the Chapter 11 Cases, of the Solicitation Materials:
(i) vote
each of its Company Claims/Interests to accept the Plan by delivering its duly executed and completed ballot accepting the Plan on a timely
basis following the commencement of the solicitation of the Plan and its actual receipt of the Solicitation Materials and the ballot;
(ii) to
the extent it is permitted to elect whether to opt out of the releases set forth in the Plan, elect not to opt out of the releases set
forth in the Plan by timely delivering its duly executed and completed ballot(s) indicating such election;
(iii) to
the extent it is required to elect to opt in to the Releases, elect to opt in to the Releases by timely delivering its duly executed and
completed ballot(s) indicating such election;
(iv) not
change, withdraw, amend, or revoke (or cause to be changed, withdrawn, amended, or revoked) any vote or election referred to in clauses
(i)–(iii) above; and
(v) support
and take all actions reasonably necessary or reasonably requested by the Company Parties to facilitate the solicitation and approval of
the Disclosure Statement, and acceptance, confirmation, consummation, and implementation of the Plan and the Restructuring Transactions.
(b) During
the Agreement Effective Period, each Consenting Stakeholder, in respect of each of its Company Claims/Interests, subject to the terms
and conditions hereof, will support, and will not directly or indirectly object to, delay, impede, or take any other action to interfere
with any motion or other pleading or document filed by a Company Party in the Bankruptcy Court that is consistent with this Agreement.
Section 6. Additional
Provisions Regarding the Consenting Stakeholders’ Commitments.
6.01. Notwithstanding
anything contained in this Agreement, nothing in this Agreement shall:
(a) affect
the ability of any Consenting Stakeholder to consult with any other Consenting Stakeholder, the Company Parties, or any other party in
interest in the Chapter 11 Cases (including any official committee and the U.S. Trustee);
(b) impair
or waive the rights of any Consenting Stakeholder to assert or raise any objection not inconsistent with this Agreement in connection
with the Restructuring Transactions or the Chapter 11 Cases;
(c) prevent
any Consenting Stakeholder from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent
with, this Agreement;
(d) limit
the ability of a Consenting Stakeholder to purchase, sell, or enter into any transaction regarding the Company Claims/Interests, subject
to the terms hereof;
(e) require
any Consenting Stakeholder to (i) incur any expenses, liabilities, or other obligations, or agree to any commitments, undertakings,
concessions, indemnities, or other arrangements that could result in expenses, liabilities, or other obligations to any Consenting Stakeholder
or its Affiliates; or (ii) provide any information that it reasonably determines to be sensitive or confidential, in each case, other
than as contemplated by the terms of this Agreement;
(f) be
construed to prohibit any Consenting Stakeholder from either itself or through any representatives or agents, soliciting, initiating,
negotiating, facilitating, proposing, continuing, or responding to any proposal to purchase or sell Company Claims/Interests, so long
as such Consenting Stakeholder complies with Section 9 hereof; or
(g) prohibit
any Consenting Stakeholder from taking any other action that is not inconsistent with this Agreement.
Section 7. Commitments
of the Company Parties.
7.01. Affirmative
Commitments. Subject to Section 8, during the Agreement Effective Period, subject to the terms and conditions hereof, the Company
Parties agree to:
(a) support
and take all steps reasonably necessary and desirable to consummate the Restructuring Transactions in accordance with this Agreement;
(b) to
the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions
contemplated herein, take all steps reasonably necessary and desirable to address any such impediment;
(c) use
commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions;
(d) 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;
(e) use
commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to
the extent reasonably prudent;
(f) provide
counsel for the Consenting Stakeholders a reasonable opportunity under applicable circumstances to review draft copies of all substantive
pleadings and proposed orders, including, the First Day Pleadings and all Definitive Documents;
(g) continue
ordinary course practices to maintain good standing under the jurisdiction in which each Company Party and each of its subsidiaries is
incorporated or organized and continue to operate the business in the ordinary course of business customary in the normal course of ordinary
operations consistent with past practice taking into account the Chapter 11 Cases and Restructuring Transactions;
(h) cooperate
in good faith and coordinate with the Consenting Stakeholders to structure and implement the Restructuring Transactions in a tax efficient
manner and take all reasonable actions necessary or reasonably requested by the Consenting Stakeholders to facilitate the consummation
of the Restructuring Transactions;
(i) negotiate
in good faith and use commercially reasonable efforts to execute and deliver any appropriate additional or alternative provisions or agreements
to address any legal, financial, strategic or structural impediment that may arise that would prevent, hinder, impede, delay, or be reasonably
necessary to effectuate the consummation of the Restructuring Transactions;
(j) use
commercially reasonable efforts to oppose any party or person taking or seeking to take any actions contemplated in Section 7.02
of this Agreement;
(k) pay
in full and in cash all fees, costs, and expenses in accordance with Section 16.21 of this Agreement and the Cash Collateral Order(s);
(l) timely
file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order: (i) directing
the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the
Bankruptcy Code); (ii) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code; or (iii) dismissing
any of the Chapter 11 Cases;
(m) timely
file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating
the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable; and
(n) comply
with the terms, conditions, and obligations of the Cash Collateral Order(s) once entered by the Bankruptcy Court.
7.02. Negative
Commitments. Subject to Section 8, during the Agreement Effective Period, subject to the terms and conditions hereof, each of
the Company Parties 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 or the Plan;
(c) modify
the Plan, in whole or in part, in a manner that is not consistent with this Agreement in all material respects;
(d) 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 or the Plan;
(e) amend,
alter, supplement, restate or otherwise modify any Definitive Document in a manner inconsistent with this Agreement;
(f) settle
any material litigation without the consent of the Required Consenting Stakeholders; or
(g) without
the prior written consent (email being sufficient) of the Required Consenting Stakeholders, (i) enter into, terminate, or otherwise
modify any material operational contract, lease, or other arrangement other than in the ordinary course of business or (ii)(a) make
any payment to any officer or employee of any Company Party out of the ordinary course of business, (b) agree to, or incur, any material
increase in the compensation payable or to become payable to any officer or employee of any Company Party, or (c) materially increase
the benefits of any such officer or employee (except for increases in the compensation of non-officer employees in the ordinary course
of business and consistent with past practice). For the avoidance of doubt, any payments to any officer or employee of any Company Party
made in accordance with agreements or arrangements specifically disclosed to the Consenting Stakeholders, in existence as of the Execution
Date, and contemplated to be assumed under the Plan shall constitute payments in the ordinary course of business.
Section 8. Additional
Provisions Regarding Company Parties’ Commitments.
8.01. Notwithstanding
anything to the contrary in this Agreement, 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 or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this Section 8.01 shall not be
deemed to constitute a breach of this Agreement. The Company Parties shall give prompt written notice
to the Consenting Stakeholders of any determination made in accordance with this Section 8.01
8.02. Notwithstanding
anything to the contrary in this Agreement (but subject to Section 8.01), each Company Party and its respective directors, officers,
employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives shall have the rights to: (a) consider,
respond to, and facilitate Alternative Restructuring Proposals; (b) provide access to non-public information concerning any Company
Party 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 Restructuring Proposals; (d) otherwise cooperate with, assist, participate
in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and (e) enter into
or continue discussions or negotiations with holders of Claims against or Equity Interests in a Company Party (including any Consenting
Stakeholder), 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 Restructuring Proposals; provided that if any Company
Party receives an Alternative Restructuring Proposal, then such Company Party shall, on a professional eyes only basis (x) provide
counsel to the Consenting Stakeholders a copy of any written offer or proposal (and notice and a description of any oral offer or proposal)
for any Alternative Restructuring Proposal within two (2) days of the Company Parties’ or their advisors’ receipt of
such offer or proposal, (y) provide such information to the foregoing advisors regarding any discussions relating to an Alternative
Restructuring Proposal (including copies of any materials provided to such parties hereunder) as
necessary to keep counsel to the Consenting Stakeholders reasonably informed as to the status and substance of such discussions, and (z) respond
promptly to reasonable information requests and questions from counsel to the Consenting Stakeholders relating to such Alternative Restructuring
Proposal.
8.03. 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 9. Transfer
of Interests and Securities.
9.01. During
the Agreement Effective Period, no Consenting Stakeholder shall Transfer (a) any ownership (including any beneficial ownership as
defined in the Rule 13d-3 under the Securities Exchange Act of 1934, as amended) in any Company Claims/Interests or (b) other
rights that such Consenting Stakeholder has by virtue of being a holder of a Company Claim/Interest (including any voting or consent
rights), to any affiliated or unaffiliated party, including any party in which it may hold a direct or indirect beneficial interest,
unless:
(a) in
the case of any Company Claims/Interests, the authorized transferee is either (1) a qualified institutional buyer as defined in Rule 144A
of the Securities Act, (2) a non-U.S. person in an offshore transaction as defined under Regulation S under the Securities Act, (3) an
institutional accredited investor (as defined in the Rules), or (4) a Consenting Stakeholder; and
(b) either
(i) the transferee executes and delivers to counsel to the Company Parties and counsel to the Consenting Stakeholders, at or before
the time of the proposed Transfer, a Transfer Agreement or (ii) the transferee is a Consenting Stakeholder and the transferee provides
notice of such Transfer (including the amount and type of Company Claim/Interest Transferred and the identity of the parties to the proposed
Transfer) to counsel to the Company Parties and counsel to the Consenting Stakeholders at or before the time of the proposed Transfer.
9.02. Upon
compliance with the requirements of Section 9.01, the transferee shall be deemed a “Consenting Stakeholder” and a “Party”
under this Agreement, and the transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement
to the extent of the rights and obligations in respect of such transferred Company Claims/Interests. Any Transfer in violation of Section 9.01
shall be void ab initio.
9.03. This
Agreement shall in no way be construed to preclude the Consenting Stakeholders from acquiring additional Company Claims/Interests; provided,
however, that (a) such additional Company Claims/Interests shall automatically and immediately upon acquisition by a Consenting
Stakeholder be deemed subject to the terms of this Agreement (regardless of when or whether notice of such acquisition is given to counsel
to the Company Parties and counsel to the Consenting Stakeholders) and (b) such Consenting Stakeholder must provide notice of such
acquisition (including the amount and type of Company Claim/Interest acquired) to counsel to the Company Parties and counsel to the Consenting
Stakeholders within five (5) Business Days of such acquisition.
9.04. This
Section 9 shall not impose any obligation on any Company Party to issue any “cleansing letter” or otherwise publicly
disclose information for the purpose of enabling a Consenting Stakeholder to Transfer any of its Company Claims/Interests. Notwithstanding
anything to the contrary herein, to the extent a Company Party and another Party have entered into a Confidentiality Agreement, the terms
of such Confidentiality Agreement shall continue to apply and remain in full force and effect according to its terms, and this Agreement
does not supersede any rights or obligations otherwise arising under such Confidentiality Agreements.
9.05. Notwithstanding
Section 9.01, a Qualified Marketmaker that acquires any Company Claims/Interests with the purpose and intent of acting as a Qualified
Marketmaker for such Company Claims/Interests shall not be required to execute and deliver a Transfer Agreement in respect of such Company
Claims/Interests if (i) such Qualified Marketmaker subsequently transfers such Company Claims/Interests (by purchase, sale assignment,
participation, or otherwise) within five (5) Business Days of its acquisition to a transferee that is an entity that is not an affiliate,
affiliated fund, or affiliated entity with a common investment advisor; (ii) the transferee otherwise is a Permitted Transferee under
Section 9.01; and (iii) the Transfer otherwise is a Permitted Transfer under Section 9.01. To the extent that a Consenting
Stakeholder is acting in its capacity as a Qualified Marketmaker, it may Transfer (by purchase, sale, assignment, participation, or otherwise)
any right, title or interests in Company Claims/Interests that the Qualified Marketmaker acquires from a holder of the Company Claims/Interests
who is not a Consenting Stakeholder without the requirement that the transferee be a Permitted Transferee. For the avoidance of doubt,
if a Qualified Marketmaker acquires any Company Claims/Interests from a Consenting Stakeholder and is unable to transfer such Company
Claims/Interests within the five (5) Business Day period referred to above, the Qualified Marketmaker shall execute and deliver a
Transfer Agreement in respect of such Company Claims/Interests.
9.06. Notwithstanding
anything to the contrary in this Section 9, the restrictions on Transfer set forth in this Section 9 shall not apply to the
grant of any liens or encumbrances on any claims and interests in favor of a bank or broker-dealer holding custody of such claims and
interests in the ordinary course of business and which lien or encumbrance is released upon the Transfer of such claims and interests.
Section 10. Representations
and Warranties of Consenting Stakeholders. Each Consenting Stakeholder severally, and not
jointly, represents and warrants that, as of the date such Consenting Stakeholder executes and delivers this Agreement and as of the Plan
Effective Date:
(a) it
is the beneficial or record owner of the face amount of the Company Claims/Interests or is the nominee, investment manager, or advisor
for beneficial holders of the Company Claims/Interests reflected in, and, having made reasonable inquiry, is not the beneficial or record
owner of any Company Claims/Interests other than those reflected in, such Consenting Stakeholder’s signature page to this Agreement,
a Joinder, or a Transfer Agreement, as applicable (as may be updated pursuant to Section 9 hereof);
(b) it
has the full power and authority to act on behalf of, vote and consent to matters concerning, such Company Claims/Interests;
(c) such
Company Claims/Interests are free and clear of any pledge, lien, security interest, charge, claim, equity, option, proxy, voting restriction,
right of first refusal, or other limitation on disposition, transfer, or encumbrances of any kind, that would adversely affect in any
way such Consenting Stakeholder’s ability to perform any of its obligations under this Agreement at the time such obligations are
required to be performed;
(d) it
has the full power to vote, approve changes to, and transfer all of its Company Claims/Interests referable to it as contemplated by this
Agreement subject to applicable Law;
(e) it
has not relied upon any other Party in deciding to enter into this Agreement and has instead made its own independent analysis and decision
to enter into this Agreement; and
(f) solely
with respect to holders of Company Claims/Interests, (i) it is either (A) a qualified institutional buyer (as defined in Rule 144A
of the Securities Act), (B) not a U.S. person (as defined in Regulation S of the Securities Act), or (C) an institutional accredited
investor (as defined in the Rules), (ii) any securities acquired by the Consenting Stakeholder in connection with the Restructuring
Transactions will have been acquired for investment and not with a view to distribution or resale in violation of the Securities Act,
(iii) understands that the securities contemplated by this Agreement have not been registered under the Securities Act as of the
date hereof and may not be resold without registration under the Securities Act except pursuant to a specific exemption from the registration
provisions of the Securities Act; and (iv) will not be acquiring the securities contemplated by this Agreement as a result of any
advertisement, article, notice or other communication regarding such securities published in any newspaper, magazine or similar media
or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
Section 11. Mutual
Representations, Warranties, and Covenants. Each of the Parties represents, warrants, and
covenants to each other Party, as of the date such Party executed and delivers this Agreement, a Joinder, or a Transfer Agreement on the
Plan Effective Date:
(a) it
is validly existing and in good standing under the Laws of the state 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) except
as expressly provided in this Agreement, the Plan, and the Bankruptcy Code, no consent or approval is required by any other person or
entity in order for it to effectuate the Restructuring Transactions contemplated by, and perform its respective obligations under, this
Agreement;
(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;
(d) 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; and
(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.
Section 12. Representation
of Company Parties.
12.01. Company
Parties Representations. The Company Parties jointly represent that, prior to the Execution Date, they provided the Ad Hoc Group with
all governing documentation in respect of the Short Term Incentive Plan, which documentation consists of: (a) the Form 10-K
for Lannett Company, Inc., dated June 30, 2022; (b) the Lannett Proxy Statement 2023, dated November 29, 2022; (c) employee
communications on the FY2023 Short-Term Incentive (STI) Plan Overview; and (d) the WTW August 16 summary of the Short Term Incentive
Program as reviewed and approved by the Compensation Committee of the Company on or around August 16, 2022.
Section 13. Termination
Events.
13.01. Consenting
Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting First Lien Noteholders, by
the Required First Lien Noteholders, (b) with respect to the Consenting Second Lien Term Lenders, by the Required Consenting Second
Lien Term Lenders, and (c) with respect to any Consenting Stakeholder, by such Consenting Stakeholder, in each case, by the delivery
to the Company Parties of a written notice in accordance with Section 16.10 hereof upon the occurrence of the following events:
(a) the
occurrence of a breach in any material respect by a Company Party of any of the representations, warranties, or covenants of the Company
Parties set forth in this Agreement that remains uncured for fifteen (15) Business Days after such terminating Consenting Stakeholders
transmit a written notice in accordance with Section 16.10 hereof detailing any such breach;
(b) the
occurrence of an Event of Default under and as defined in the Cash Collateral Order(s) for which the Consenting Stakeholders have
not provided a forbearance or that has not been cured (if susceptible to cure) or waived in accordance with the terms thereof; provided,
that the right to terminate this Agreement under this Section 13.01(b) shall not be available to any Consenting Stakeholder
if the occurrence of such Event of Default is caused by, or results from, the material breach by such Consenting Stakeholder of its covenants,
agreements, or other obligations under the Cash Collateral Order(s);
(c) any
of the Milestones (as may have been extended in accordance with the terms hereof) is not achieved, except where such Milestone has been
waived or extended in accordance with the terms hereof; provided, that the right to terminate this Agreement under this Section 13.01(c) shall
not be available to any Consenting Stakeholder if the failure of such Milestone to be achieved is caused by, or results from, the material
breach by such Consenting Stakeholder of its covenants, agreements, or other obligations under this Agreement;
(d) 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 thirty (30) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section 16.10
hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested
such ruling or order in contravention of any obligation set out in this Agreement;
(e) the
commencement of an involuntary bankruptcy case against any Company Party under the Bankruptcy Code, if such involuntary case is not dismissed
within forty-five (45) calendar days after the filing thereof, or if a court order grants the relief sought in such involuntary case;
(f) the
Company Parties’ exclusive right to file a plan or plans of reorganization or to solicit acceptances thereof pursuant to section
1121 of the Bankruptcy Code, including all extensions thereof, expires or is terminated by order of the Bankruptcy Court or otherwise;
(g) this
Agreement or any Definitive Document is amended, waived, or modified in any manner not consistent in any material respect with the terms
of this Agreement;
(h) any
court of competent jurisdiction has entered a final, non-appealable judgment or order declaring this Agreement to be unenforceable;
(i) the
rejection of this Agreement, or the filing of a motion by a Company Party seeking such relief;
(j) any
Definitive Document or any document or agreement necessary to consummate the Restructuring Transactions is not satisfactory to the Required
Consenting Stakeholders (and the Company Parties do not revise such Definitive Document, document or agreement as reasonably requested
by the Required Consenting Stakeholders) or the Company withdraws the Plan without the consent of the Required Consenting Stakeholders;
(k) any
Company Party files, amends, or modifies a pleading seeking approval of, any Definitive Document or authority to amend or modify any Definitive
Document, in a manner that is materially inconsistent with, or constitutes a material breach of, this Agreement without the prior written
consent of the Required Consenting Stakeholders and such motion or pleading has not been withdrawn within five (5) Business Days
of such filing;
(l) any
Company Party (i) makes a public announcement that it is proceeding with an Alternative Restructuring Proposal, (ii) files a
motion with the Bankruptcy Court seeking the approval of an Alternative Restructuring Proposal or supports (or fails to timely object
to) another party in filing or seeking approval of an Alternative Restructuring Proposal, (iii) agrees to pursue (including, for
the avoidance of doubt, as may be evidenced by an executed term sheet, an executed letter of intent or similar binding documentation)
an Alternative Restructuring Proposal without the consent of the Required Consenting Stakeholders, or (iv) notifies the Consenting
Stakeholders pursuant to Section 8 hereof of its determination 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 this Agreement;
(m) any
Company Party files a motion, application, or adversary proceeding (or a Company Party supports any such motion, application, or adversary
proceeding filed or commenced by any third party other than the Consenting Stakeholders) challenging the validity, enforceability, perfection,
or priority of, or seeking avoidance or subordination of, any portion of the First Lien Senior Secured Notes or Second Lien Term Loan
or asserting any other cause of action against the Consenting Stakeholders, as applicable, or with respect to or relating to such First
Lien Senior Secured Notes or Second Lien Term Loan, or the prepetition liens securing any of the First Lien Senior Secured Notes or the
Second Lien Term Loan, other than an order approving the transactions as contemplated by this Agreement or the Plan, as applicable;
(n) the
Bankruptcy Court enters any order authorizing the use of cash collateral or postpetition
financing that is not in a form and substance acceptable to the Required Consenting Stakeholders;
(o) (A) any
of the Confirmation Order, order(s) approving the Disclosure Statement or Solicitation Materials, or any other material order entered
by the Bankruptcy Court is reversed, stayed, dismissed, vacated, reconsidered, modified or amended without the consent of the Required
Consenting Stakeholders, or (B) a motion for reconsideration, reargument, or rehearing with respect to any such order has been filed
and the Company Parties have failed to timely object to such motion;
(p) the
Bankruptcy Court enters an order denying confirmation of the Plan and such order remains in effect for fourteen (14) days after entry
of such order;
(q) the
entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the
prior written consent of the Required Consenting Stakeholders, not to be unreasonably withheld), (i) converting one or more of the
Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers
beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter
11 Cases of a Company Party, or (iii) rejecting this Agreement; or
(r) the
Bankruptcy Court enters an order granting relief from the automatic stay imposed by section 362 of the Bankruptcy Code authorizing any
party to proceed against any material asset of any Company Party or that would materially and adversely affect any Company Party’s
ability to operate their businesses in the ordinary course.
13.02. Company
Party Termination Events. Any Company Party may terminate this Agreement as to all Parties or, as applicable, in accordance
with this Section 13.02, any Consenting Stakeholder, upon prior written notice to all Parties or any Consenting Stakeholder in accordance
with Section 16.10 hereof upon the occurrence of any of the following events:
(a) the
breach in any material respect by one or more of the Consenting Stakeholders of any provision set forth in this Agreement that remains
uncured for a period of fifteen (15) Business Days after the receipt by the Consenting Stakeholders of notice of such breach; provided,
however, that the Company Parties may elect to terminate this Agreement solely with respect to the breaching Consenting Stakeholders
so long as the non-breaching Consenting Stakeholders continue to hold or control at least 66 2/3% of the aggregate outstanding principal
amount of the First Lien Senior Secured Notes Claims and at least 66 2/3% of the aggregate outstanding principal amount of the Second
Lien Term Loan Claims;
(b) a
Company Party or the board of directors, board of managers, or such similar governing body of any Company Party determines, after consulting
with counsel, (i) that to take any action or to refrain from taking any action with respect to the Restructuring Transactions would
be inconsistent with the exercise of its fiduciary duties or applicable Law or (ii) in the exercise of its fiduciary duties, to pursue
an Alternative Restructuring Proposal;
(c) the
filing of any motion, application, pleading, or adversary proceeding by any Consenting Stakeholder with the Bankruptcy Court (or any Consenting
Stakeholder supports any such motion, application, pleading, or adversary proceeding filed or commenced by any third party) that (i) is
inconsistent in any material respect with this Agreement or the Restructuring Term Sheet or (ii) seeks approval of any Definitive
Document or authority to amend or modify any Definitive Document in a manner that is materially inconsistent with or not permitted by
this Agreement (including with respect to the consent rights afforded the Company Parties under this Agreement) without the consent of
the Company Parties, and such motion or pleading has not been withdrawn within five (5) Business Days of such filing; provided,
however, that so long as the non-breaching Consenting Stakeholders continue to hold or control at least 66 2/3% of the aggregate
outstanding principal amount of the First Lien Senior Secured Notes Claims and the Second Lien Term Loan Claims, such termination shall
be effective only with respect to such breaching Consenting Stakeholder;
(d) the
entry of an order by the Bankruptcy Court (i) dismissing any of the Chapter 11 Cases, (ii) converting one or more of the Chapter
11 Cases to a case under chapter 7 of the Bankruptcy Code, (iii) appointing an examiner with expanded powers beyond those set forth
in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in one or more of the Chapter 11 Cases of a Company Party,
or (iv) rejecting this Agreement.
(e) 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 thirty (30) Business Days after such terminating Company Party transmits a written notice in accordance with Section 16.10
hereof detailing any such issuance; provided, that this termination right shall not apply to or be exercised by any Company Party
that sought or requested such ruling or order in contravention of any obligation or restriction set out in this Agreement; or
(f) the
Bankruptcy Court enters an order denying confirmation of the Plan and such order remains in effect for fourteen (14) days after entry
of such order.
13.03. Mutual
Termination. This Agreement, and the obligations of all Parties hereunder, may be terminated by mutual written agreement among
all of the following: (a) the Required Consenting Stakeholders; and (b) each Company Party.
13.04. Automatic
Termination. This Agreement shall terminate automatically without any further required action or notice immediately after the
Plan Effective Date.
13.05. Effect
of Termination. 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. Upon the occurrence
of a Termination Date prior to the Confirmation Order being entered by a Bankruptcy Court, any and all consents or ballots tendered by
the Parties subject to such termination before a Termination Date shall be deemed, for all purposes, to be null and void from the first
instance and shall not be considered or otherwise used in any manner by the Parties in connection with the Restructuring Transactions
and this Agreement or otherwise; provided, however, any Consenting Stakeholder withdrawing or changing its vote pursuant to this
Section 13.05 shall promptly provide written notice of such withdrawal or change to each other Party to this Agreement and, if such
withdrawal or change occurs on or after the Petition Date, file notice of such withdrawal or change with the Bankruptcy Court. Nothing
in this Agreement shall be construed as prohibiting a Company Party or any of the Consenting Stakeholders 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 any Consenting Stakeholder, and (b) any right
of any Consenting Stakeholder, or the ability of any Consenting Stakeholder, to protect and preserve its rights (including rights under
this Agreement), remedies, and interests, including its claims against any Company Party or Consenting Stakeholder. No purported termination
of this Agreement shall be effective under this Section 13.05 or otherwise if the Party seeking to terminate this Agreement is in
material breach of this Agreement, except a termination pursuant to Section 13.02(c) or Section 13.02(e). Nothing in this
Section 13.05 shall restrict any Company Party’s right to terminate this Agreement in accordance with Section 13.02(e).
Section 14. 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 14.
(b) This
Agreement may be modified, amended, or supplemented, or a condition or requirement of this Agreement may be waived, in a writing signed
(which may be provided via email) by: (a) each Company Party, (b) the Required Consenting First Lien Noteholders and (c) solely
to the extent the proposed modification, amendment, waiver, or supplement has a material, disproportionate, and adverse effect on any
of the Company Claims/Interests held by a Consenting Stakeholder, including any Consenting Second Lien Term Lender, then the consent of
each such affected Consenting Stakeholder shall also be required to effectuate such modification, amendment, waiver or supplement.
(c) Any
proposed modification, amendment, waiver or supplement that does not comply with this Section 14 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 15. Mutual
Releases. The Parties agree to support the Releases, which shall not be binding or effective
in any respect until the occurrence of the Plan Effective Date.
Section 16. Miscellaneous
16.01. 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.
16.02. Exhibits
Incorporated by Reference; Conflicts. Each of the exhibits, annexes, signatures pages, and schedules attached hereto is expressly
incorporated herein and made a part of this Agreement, and all references to this Agreement shall include 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.
16.03. Further
Assurances. Subject to the other terms of this Agreement, the Parties agree to execute and deliver such other instruments and
perform such acts, in addition to the matters herein specified, as may be reasonably appropriate or necessary, or as may be required by
order of the Bankruptcy Court, from time to time, to effectuate the Restructuring Transactions, as applicable.
16.04. 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.
16.05. 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.
16.06. 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 TRANSACTIONS CONTEMPLATED HEREBY.
16.07. 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.
16.08. Rules of
Construction. This Agreement is the product of negotiations among the Company Parties and the Consenting Stakeholders, 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 Consenting Stakeholders were each represented by counsel
during the negotiations and drafting of this Agreement and continue to be represented by counsel.
16.09. 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. Other than with respect to the
Persons referenced in Section 16.11, 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.
16.10. Notices.
All notices hereunder shall be deemed given if in writing and delivered, by electronic mail, 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:
Lannett Company, Inc.
1150 Northbrook Drive, Suite 155
Trevose, Pennsylvania 19053
Attention: Samuel Israel
E-mail address: Samuel.Israel@lannett.com
with copies to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attention: Nicole Greenblatt
E-mail address: ngreenblatt@kirkland.com
and
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, IL 60654
Attention: Joshua Altman
E-mail address: josh.altman@kirkland.com
(b) if
to a Consenting First Lien Noteholders, to:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004-2498
Attention: Ari Blaut; Benjamin S. Beller
E-mail address: blauta@sullcrom.com; bellerb@sullcrom.com
(c) if
to the Second Lien Term Lenders, to:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004-2498
Attention: Ari Blaut; Benjamin S. Beller
E-mail address: blauta@sullcrom.com; bellerb@sullcrom.com
Any notice given by delivery, mail, or courier
shall be effective when received.
16.11. Independent
Due Diligence and Decision Making. Each Consenting Stakeholder hereby confirms
for the benefit of the Company Parties (including for the benefit of any Person acting on behalf of any of the Company Parties, including
any financial or other professional advisor of any of the foregoing) that (i) it has the requisite knowledge and experience in financial
and business matters so that it is capable of evaluating the merits and risks of the securities that may be acquired by it pursuant to
the Restructuring Transactions contemplated hereby and has had such opportunity as it has deemed adequate to obtain such information as
is necessary to permit such Party to evaluate the merits and risks of the securities that may be acquired by it pursuant to the Restructuring
Transactions contemplated hereby, and (ii) its decision to execute this Agreement and participate in any of the Restructuring Transactions
contemplated hereby has been based upon its independent investigation of the operations, businesses, financial and other conditions and
prospects of the Company Parties and/or the Restructuring Transactions, and such decision is not in reliance upon any representations
or warranties of any other Person (or such other Person’s financial or other professional advisors) other than those contained in
the Definitive Documents.
16.12. Enforceability
of Agreement. Each of the Parties to the extent enforceable waives any right to assert that the exercise of termination rights under
this Agreement is subject to the automatic stay provisions of the Bankruptcy Code, and expressly stipulates and consents hereunder to
the prospective modification of the automatic stay provisions of the Bankruptcy Code for purposes of exercising termination rights under
this Agreement, to the extent the Bankruptcy Court determines that such relief is required.
16.13. 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.
16.14. 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.
16.15. 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.
16.16. 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.
16.17. 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.
16.18. Capacities
of Consenting Stakeholders. Each Consenting Stakeholder has entered into this agreement on account of all Company Claims/Interests
that it holds (directly or through discretionary accounts that it manages or advises) and, except where otherwise specified in this Agreement,
shall take or refrain from taking all actions that it is obligated to take or refrain from taking under this Agreement with respect to
all such Company Claims/Interests.
16.19. Survival.
Notwithstanding (i) any Transfer of any Company Claims/Interests in accordance with this Agreement or (ii) the termination of
this Agreement in accordance with its terms, the agreements and obligations of the Parties in Section 16 and the Confidentiality
Agreements shall survive such Transfer and/or termination and shall continue in full force and effect for the benefit of the Parties in
accordance with the terms hereof and thereof.
16.20. Email
Consents. Where a written consent, acceptance, approval, or waiver is required pursuant to or contemplated by this Agreement, pursuant
to Section 4.02, Section 14, or otherwise, including a written approval by the Company Parties or any of the Consenting Stakeholders,
as applicable, such written consent, acceptance, approval, or waiver shall be deemed to have occurred if, by agreement between counsel
to the Parties submitting and receiving such consent, acceptance, approval, or waiver, it is conveyed in writing (including electronic
mail) between each such counsel without representations or warranties of any kind on behalf of such counsel.
16.21. Fees
and Expenses. The Debtors shall pay in full in cash all reasonable and documented fees and expenses when due of the Consenting
Stakeholders (regardless of whether such fees and expenses are incurred before or after the Petition Date), including the reasonable and
documented fees and expenses of (a) Sullivan & Cromwell LLP, as legal counsel, (b) Houlihan Lokey Inc., as investment
banker and (c) one local counsel (in the case of the foregoing (a)-(c) solely as and to the extent provided for in such advisors’
engagement letters (which agreements shall not be terminated by the Debtors before the termination of this Agreement)), and any such other
advisors or consultants as may be reasonably retained on behalf of the Consenting Stakeholders with the consent of the Debtors (not to
be unreasonably withheld, delayed or conditioned) and, in each case, seek to pay such fees and expenses in connection with the Cash Collateral
Order(s) and the Confirmation Order.
IN WITNESS WHEREOF, the Parties
hereto have executed this Agreement on the day and year first above written.
Company Parties’ Signature Page to
the Restructuring Support Agreement
Lannett
Company, inc.
Kremers
urban Pharmaceuticals, inc.
Cody
laboratories, inc.
Silarx
Pharmaceuticals, Inc.
Authorized Signatory
[Consenting Stakeholder Signature Pages]
Exhibit A
Restructuring Term Sheet
Execution Version
LANNETT COMPANY, INC.
RESTRUCTURING TERM SHEET
This term sheet (this “Restructuring
Term Sheet”) contains certain material terms and conditions of the proposed restructuring (the “Restructuring Transactions”)
of Lannett Company, Inc. (“LCI”) and certain of its direct and indirect subsidiaries (together with LCI, the “Company”
or the “Debtors”). This Restructuring Term Sheet does not address all terms, conditions or other provisions that
would be required in connection with the Restructuring Transactions or that will be set forth in the Definitive Documents, which are subject
to agreement in accordance with the restructuring support agreement to which this Restructuring Term Sheet is attached (the “Restructuring
Support Agreement”).1
THIS RESTRUCTURING TERM SHEET IS NOT AN OFFER,
ACCEPTANCE OR SOLICITATION WITH RESPECT TO ANY SECURITIES, LOANS OR OTHER INSTRUMENTS OR A SOLICITATION OF ACCEPTANCES OF A CHAPTER 11
PLAN WITHIN THE MEANING OF SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER, ACCEPTANCE OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE
LAW, INCLUDING SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. NOTHING CONTAINED
IN THIS RESTRUCTURING TERM SHEET SHALL BE AN ADMISSION OF FACT OR LIABILITY OR, UNTIL THE OCCURRENCE OF THE AGREEMENT EFFECTIVE DATE ON
THE TERMS DESCRIBED IN THE Restructuring SUPPORT AGREEMENT, DEEMED BINDING ON ANY OF THE PARTIES TO THE Restructuring SUPPORT AGREEMENT.
| Restructuring Transactions Overview |
| Restructuring Transactions Overview |
The Restructuring Transactions will be consummated
pursuant to the Definitive Documents through confirmation of a pre-packaged chapter 11 plan (the “Plan”) in voluntary
cases to be commenced by the Debtors under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532
(as amended, the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy
Court” and such cases, the “Chapter 11 Cases”).
The Plan will provide for an equitization of the
Debtors’ funded secured debt, such that the pro forma capital structure will be as follows:
(a) The
Debtors will enter into the New RCF (as defined below) with capacity and terms substantially consistent with the Revolving Credit Facility2
to ensure access to liquidity;
(b) A
Takeback Exit Facility in a principal amount of $60 million will be allocated among the First Lien Senior Secured Noteholders and Second
Lien Term Loan Lenders; and |
| 1 | Terms used but not defined herein shall have the definitions
ascribed to them in the Restructuring Support Agreement or the exhibits, annexes and schedules thereto. |
| 2 | The “Revolving Credit Facility” means that
certain Credit and Guaranty Agreement among the Company, the lenders from time to time party thereto, and Wells Fargo Bank, National
Association, as administrative agent and collateral agent (the “RCF Agent”), dated as of December 7, 2020, amended
April 22, 2021 (as further amended, supplemented, amended and restated, or otherwise modified from time to time), to be terminated effective
as of May 1, 2023. |
| |
(c) New
Common Stock and New Warrants will be allocated to First Lien Senior Secured Noteholders and Second Lien Term Loan Lenders, as well as
to certain members of management pursuant to the Management Incentive Plan (as defined below).
The Plan will also provide that all General Unsecured
Claims, including trade claims of all of the Debtors’ business partners, will be paid in full in the ordinary course of business
and otherwise left unimpaired by the process.
All Convertible Notes Claims, Existing Equity,
and Section 510(b) Claims will be cancelled, released, and extinguished without any distribution.
The Restructuring Transactions, which are supported
by at least 80% of the aggregate amount of First Lien Senior Secured Notes Claims and 100% of the aggregate amount of the Second Lien
Term Loan Claims, are subject to the Definitive Documents, the terms of the Restructuring Support Agreement (including the exhibits thereto)
and the Plan, and the consent rights set forth therein.
The effective date of the Restructuring Transactions
(the “Plan Effective Date”) will be the date on which all conditions to the effectiveness of the Plan have been satisfied
or waived in accordance with its terms and the Plan has been substantially consummated.
From and after the Plan Effective Date, the Debtors
shall be referred to herein as the “Reorganized Debtors.” From and after the Plan Effective Date, LCI, or a new entity
formed to directly or indirectly acquire substantially all of the assets or stock of the Debtors, shall be referred to herein as “Reorganized
LCI.” |
|
Claims and Interests to be Addressed
|
Outstanding indebtedness of and Interests in the
Debtors that will be restructured or otherwise addressed pursuant to the Restructuring Transactions include:
· First
Lien Senior Secured Notes Claims ($350 million): comprising indebtedness under that certain Indenture, among the Company, the noteholders
from time to time party thereto (the “First Lien Senior Secured Noteholders”), and Wilmington Trust, National Association,
as trustee (the “First Lien Trustee”), dated as of April 22, 2021 (as further amended, supplemented, amended
and restated, or otherwise modified from time to time, the “First Lien Senior Secured Notes”), consisting
of senior secured notes in an estimated aggregate principal amount outstanding of approximately $350 million (“First Lien Senior
Secured Notes Claims”); |
| |
· Second
Lien Term Loan Claims ($220.92 million): comprising indebtedness under that certain Second Lien Credit and Guaranty Agreement, among
the Company, the lenders from time to time party thereto (the “Second Lien Term Loan Lenders”), and Alter Domus (US)
LLC, as administrative agent and collateral agent (the “Second Lien Agent”), dated as of April 22, 2021 (as further
amended, supplemented, amended and restated, or otherwise modified from time to time, the “Second Lien Term Loan”),
consisting of term loans in an estimated aggregate principal amount outstanding of approximately $220.92 million, plus applicable interest,
fees, costs, expenses and premiums (the “Second Lien Term Loan Claims”);
· all
General Unsecured Claims;
· Convertible
Notes Claims ($86.25 million): comprising indebtedness under that certain Indenture, by and among the Company, the lenders from time
to time party thereto, and Wilmington Trust, National Association, as trustee (the “Convertible Notes Trustee”),
dated as of September 27, 2019 (as further amended, supplemented, amended and restated, or otherwise modified from time to time,
the “Convertible Notes”), consisting of convertible notes in an estimated aggregate amount of approximately $86.25
million (the “Convertible Notes Claims”);
· Existing
Equity: comprising the outstanding Interests3 in LCI (the “Existing Equity”). |
| Cash Collateral |
The First Lien Senior Secured Notes Claims and Second Lien Term Loan Claims will consent to the Company’s use of cash collateral of the First Lien Senior Secured Noteholders and Second Lien Term Lenders to fund the Chapter 11 Cases on the terms set forth in the Cash Collateral Orders, which shall be in form and substance acceptable to the Company and the Required Consenting First Lien Noteholders and reasonably acceptable to the Required Consenting Second Lien Term Lenders. |
| New RCF |
On the Plan Effective Date, the Company will put in place a new revolving credit facility (the “New RCF”) with capacity and terms substantially consistent with the Revolving Credit Facility and terms acceptable to the Required Consenting First Lien Noteholders and reasonably acceptable to the Required Consenting Second Lien Term Lenders. |
| 3 | “Interest” 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) of, common stock, preferred stock, limited liability company interests, or other equity, ownership,
or profits interests of any Debtor (in each case whether or not arising under or in connection with any employment agreement), including,
for the avoidance of doubt, the warrants issued pursuant to that certain issuance agreement, dated as of April 22, 2021, by and among
LCI and the other parties thereto, and any warrants issued in exchange for or replacement of such warrants pursuant to the terms thereof. |
| Takeback Exit Facility |
On the Plan Effective Date, the Reorganized Debtors shall enter into a “takeback” exit financing facility in the principal amount of $60 million, which shall (i) accrue interest, payable in-kind, at a rate of 2.00%, (ii) be secured by all assets of the Reorganized Debtors, (iii) mature on the date that is seven (7) years from the Plan Effective Date, and (iv) include an event of default in the event (x) a judgment or judgments are rendered against any one or more of the Reorganized Debtors in an amount in excess of $7,500,000 in the aggregate or (y) a Reorganized Debtor or Reorganized Debtors fail to pay and discharge any obligation or liability timely when due in excess of $5,000,000 in the aggregate and such obligation remains unpaid and past due for more than 90 days, and shall otherwise include customary terms and conditions for a facility of this kind and be acceptable to the Company and the Required Consenting First Lien Noteholders and reasonably acceptable to the Required Consenting Second Lien Term Lenders (the “Takeback Exit Facility”). |
| New Common Stock and New Warrants |
On the Plan Effective Date, Reorganized LCI shall
issue a single class of common equity interests (the “New Common Stock”). The New Common Stock shall be distributed
in accordance with this Restructuring Term Sheet, the Restructuring Transactions Memorandum, and the Plan.
The Plan will provide for a distribution of new
warrants (“New Warrants”) issued pursuant to a new warrant agreement (the “New Warrant Agreement”)
to holders of Second Lien Term Loan Claims. The New Warrants will be exercisable into 12.5% of the New Common Stock, calculated as of
the Plan Effective Date (subject to dilution on account of the Management Incentive Plan), at a price implied by a post-Restructuring
Transactions equity value of $315 million.
Any New Common Stock and any New Warrants (including
any shares of New Common Stock issuable upon the exercise thereof) issued under the Plan shall be exempt from the registration requirements
of the Securities Act of 1933, as amended (the “Securities Act”), pursuant to section 4(a)(2) thereunder,
and will be considered “restricted securities” as defined by Rule 144 of the Securities Act and may not be resold under
the Securities Act or applicable state securities laws absent an effective registration statement, or pursuant to an applicable exemption
from registration, under the Securities Act and applicable state securities laws and subject to any restrictions in the New Organizational
Documents. |
| Private Company |
On the Plan Effective Date, Reorganized LCI shall be a private, non-SEC-reporting corporation. |
| Treatment of Claims4 and Equity Interests |
| Each holder of an allowed Claim or Interest, as applicable, shall receive the treatment described below in full and final satisfaction, settlement, release, and discharge of and in exchange for such holder’s allowed Claim or Interest. |
| Administrative, Priority and Priority Tax Claims |
On or as soon as practicable after the later to occur of (i) the Plan Effective Date and (ii) the date such claim becomes allowed (or as otherwise set forth in the Plan), each holder of an administrative, priority or priority tax claim will either be satisfied in full, in cash, or otherwise receive treatment consistent with the provisions of section 1129(a)(9) of the Bankruptcy Code. |
| Other Secured Claims5 |
Allowed Other Secured Claims shall receive either (i) payment in cash in full of the unpaid portion of their allowed Other Secured Claims, (or if payment is not then due, in accordance with the terms of such allowed Other Secured Claims), (ii) reinstatement pursuant to section 1124 of the Bankruptcy Code, (iii) the collateral securing such allowed Other Secured Claim, plus any interest thereon required to be paid under section 506(b) of the Bankruptcy Code, or (iv) such other recovery necessary to satisfy section 1129 of the Bankruptcy Code. |
|
First Lien Senior Secured Notes Claims
$350 million |
On the Plan Effective Date, each holder of an allowed First Lien Senior Secured Notes Claim shall receive on account of such allowed First Lien Senior Secured Notes Claim its pro rata share of (x) 97% of the Takeback Exit Facility and (y) 97% of the New Common Stock, subject to dilution on account of the Management Incentive Plan and the New Warrants. |
|
Second Lien Term Loan Claims
$220.92 million |
On the Plan Effective Date, each holder of an allowed Second Lien Term Loan Claim shall receive on account of such Second Lien Term Loan Claim its pro rata share of (x) 3% of the Takeback Exit Facility, (y) 3% of the New Common Stock, subject to dilution on account of the Management Incentive Plan and the New Warrants, and (z) the New Warrants. |
| General Unsecured Claims |
The Debtors, with the support of the Consenting Stakeholders, will seek authority to pay all trade claims in the ordinary course of business and, on the Plan Effective Date, each holder of an allowed General Unsecured Claim will have such allowed General Unsecured Claim reinstated or paid in full in cash and, thereby, shall be rendered unimpaired as set forth in section 1124 of the Bankruptcy Code. |
|
Convertible Notes Claims
$86.25 million |
On the Plan Effective Date, each allowed Convertible Notes Claim shall be cancelled, released, and extinguished without any distribution and will be of no further force or effect. |
| 4 | “Claim” means any claim, as defined in section
101(5) of the Bankruptcy Code, against any Debtors. |
| 5 | “Other Secured Claim” means any secured Claim
against the Debtors, other than the RCF Claims, First Lien Senior Secured Notes Claims, or Second Lien Term Loan Claims. |
| Equity Interests, and Section 510(b) Claims6 |
On the Plan Effective Date, all Existing Equity, and Section 510(b) Claims shall be cancelled, released, and extinguished without any distribution and will be of no further force or effect. |
| Intercompany Claims/Interests |
Intercompany Claims and Intercompany Interests shall be reinstated unless otherwise agreed by the Debtors and the Required Consenting Stakeholders.7 |
| Other Terms |
| Executory Contracts and Unexpired Leases |
The Plan will provide that the executory contracts
and unexpired leases that are not assumed or rejected as of the Plan Effective Date (either pursuant to the Plan or a separate motion)
will be deemed assumed pursuant to section 365 of the Bankruptcy Code.
The Crossover Group8 and the Debtors
will cooperate with respect to the contract assumption process and the provision of adequate assurance of future performance to all trade
partners. |
| Employment Agreements, Retention Agreements, and Short-Term Incentive Plan |
The Plan will provide that the Reorganized Debtors
will assume all existing employment agreements (including with respect to all severance arrangements set forth therein), all retention
agreements, and the Short Term Incentive Plan (as defined in the Restructuring Support Agreement) on the terms and conditions in effect
as of the Execution Date (as defined in the Restructuring Support Agreement); provided that the Debtors’ CEO has agreed to modify
his individual payment terms under the Short Term Incentive Plan pursuant to that certain side letter agreement, dated as of April 30,
2023 (the “CEO STI Side Letter Agreement”), attached hereto as Annex 2.
Any and all payments to be made under the Short
Term Incentive Plan shall be made pursuant to the terms and conditions thereof, including continued service requirements and the satisfaction
of any and all performance metrics contemplated thereby, as approved by the Board or Compensation Committee, as applicable. |
| 6 | “Section 510(b) Claims” means any Claim against
any Debtor: (a) arising from the rescission of a purchase or sale of a security of any Debtor or an affiliate of any Debtor; (b) for
damages arising from the purchase or sale of such a security; or (c) for reimbursement or contribution allowed under section 502 of the
Bankruptcy Code on account of such a Claim; provided that a Section 510(b) Claim shall not include any Claims subject to subordination
under section 510(b) of the Bankruptcy Code arising from or related to an Equity Interest. |
| 7 | “Intercompany Claim” means any Claim against
any Debtor held by a Debtor or an affiliate of a Debtor. “Intercompany Interest” means an Equity Interest in a Debtor
held by another Debtor. |
| 8 | The “Crossover Group” means that certain
ad hoc group of holders of First Lien Senior Secured Notes Claims and Second Lien Term Loan Claims (each as defined below), represented
by Sullivan & Cromwell LLC, as counsel, and Houlihan Lokey, Inc., as financial advisor. |
| Management Incentive Plan |
The Plan will provide for the establishment of
a customary management equity incentive plan (the “Management Incentive Plan”), designed, implemented, and determined
by New Board, under which no less than 10% of the New Common Stock outstanding on the Effective Date (on a fully diluted and fully distributed
basis, treating the Management Incentive Plan as fully allocated) will be reserved for grants made from time to time to the management
or officers of Reorganized LCI. The Plan will provide that grants of at least 30% of the New Common Stock reserved under the Management
Incentive Plan will be allocated within 60 days of the Plan Effective Date.
The Consenting Stakeholders further agree that
the employment agreement for the Debtors’ CEO shall be amended on the Plan Effective Date to provide the Debtors’ CEO with
the right to leave for “good reason” pursuant to the terms of such agreement in the event the terms and conditions (including
allocation) of the award to the Debtors’ CEO under the MIP are not reasonably acceptable to the Debtors’ CEO.
The Consenting Stakeholders further agree that
the employment agreements for the Named Executive Officers shall be amended on the Plan Effective Date to provide the Named Executive
Officers with the right to leave for “good reason” pursuant to the terms of such agreements, in which case they will be entitled
to 75% of their applicable severance, in the event the award to such Named Executive Officer under the Management Incentive Plan (i) is
not on substantially similar terms and conditions (but not allocation) as the award reasonably acceptable to the Debtors’ CEO or
(ii) provides for an allocation to such Named Executive Officer that is materially less than the award that the Debtors’
CEO reasonably recommended to the New Board in writing. |
| Indemnification Obligations |
The Plan will provide for the assumption of all indemnification provisions currently in place (whether in the by-laws, certificates of incorporation, board resolutions, indemnification agreements, or employment contracts) for the current and former directors, managers, and officers of the Company and any affiliates, which assumption shall be irrevocable and shall survive the Plan Effective Date. |
| Avoidance Actions |
The Plan will provide for the vesting in Reorganized Debtors of all of the Debtors’ rights to commence and pursue any and all claims and causes of action (except for any claims and causes of action released or exculpated pursuant to the Plan), including without limitation, any claims and causes of action arising under sections 544, 545, 547, 548, and 550 of the Bankruptcy code, and other litigation. |
| Plan Releases and Exculpation |
The Plan shall include release and exculpation provisions (and related definitions) substantially in the form set forth in Annex 1 to this Restructuring Term Sheet. |
| New Organizational Documents and Governance |
Reorganized LCI will be managed by a board of
directors (the “New Board” and each director on such New Board, a “Director”) comprised of three
(3) Directors, one of whom will be the Debtors’ CEO and two (2) of whom will be determined by the Consenting First Lien
Noteholders in consultation with the Debtors’ CEO.
The New Organizational Documents and any other
documentation evidencing the corporate governance for Reorganized LCI and any direct or indirect subsidiary thereof, including charters,
bylaws, limited liability company agreements, shareholder agreements, and/or other organization documents of such entities will be satisfactory
to the Consenting Stakeholders and consistent with the Restructuring Support Agreement (including the consent rights set forth therein)
and will provide for customary minority investor protections, including customary tag along rights and anti-dilution protections. |
| Restructuring Transactions Implementation Provisions |
| Tax Structure |
The terms of the Restructuring Transactions will be structured to maximize tax efficiencies for each of the Debtors and the Consenting Stakeholders, as agreed to by the Debtors and the Required Consenting Stakeholders and in accordance with the Plan and the Plan Supplement. |
| Definitive Documents |
This Restructuring Term Sheet does not include a description of all of the terms, conditions, and other provisions that will be contained in the Definitive Documents (as defined in the Restructuring Support Agreement), which shall be in form and substance subject to the consent rights set forth herein and in the Restructuring Support Agreement. |
| Milestones |
The Restructuring Transactions through the Plan
shall be effectuated in accordance with the following deadlines (each a “Milestone,” and collectively, the “Milestones”):
(a) The
Solicitation Commencement Date shall occur no later than May 2, 2023.
(b) The
Petition Date shall occur no later than May 4, 2023.
(c) The
Debtors shall complete solicitation of the Plan no later than May 16, 2023.
(d) The
Plan and related disclosure statement (the “Disclosure Statement”) shall have been filed no later than two (2) days
after the Petition Date.
(e) The
interim Cash Collateral Order shall have been entered by no later than five (5) days after the Petition Date.
(f) The
final Cash Collateral Order and order approving the adequacy of the Disclosure Statement on a final basis and confirming the Plan, each
in form and substance acceptable to the Company Parties and the Required Consenting Stakeholders, shall have been entered no later than
forty (40) days after the Petition Date.
The substantial consummation of the Plan shall
have occurred no later than forty-five (45) days after the Petition Date, subject to any regulatory and/or third-party approvals that
are necessary to consummate the Restructuring. |
| Fees and Expenses |
The Debtors shall pay all reasonable and documented fees and expenses of Sullivan & Cromwell LLP, Houlihan Lokey, Inc. one local counsel and any other professionals necessary to represent the Crossover Group in connection with the Chapter 11 Cases (the “Crossover Group Advisors”), in each case, in accordance with the terms of their applicable engagement letters. The Debtors shall also pay all reasonable and documented fees and expenses of the Agents, in each case, in accordance with the terms of the applicable debt documents. |
Annex 1
Plan Release and Exculpation Provisions
Releases by the Debtors
Notwithstanding anything contained
in the Plan to the contrary, pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration, on and after
the Effective Date, each Released Party is deemed, hereby conclusively, absolutely, unconditionally, irrevocably and forever released
and discharged by the Debtors, the Reorganized Debtors, and their Estates, in each case on behalf of themselves and their respective successors,
assigns, and representatives, from any and all Claims and Causes of Action, whether known or unknown, including any derivative claims,
asserted or assertable on behalf of the Debtors, that the Debtors, the Reorganized Debtors, or their Estates, including any successors
to the Debtors or any Estate’s representative appointed or selected pursuant to section 1123(b) of the Bankruptcy Code, would
have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of any Claim
against or Interest in a Debtor or other Entity, or that any holder of any Claim against or Interest in a Debtor or other Entity could
have asserted on behalf of the Debtors, based on or relating to or in any manner arising from in whole or in part, the Debtors (including
the management, ownership, or operation thereof or otherwise), the Debtors’ in- or out-of-court restructuring efforts, any Avoidance
Actions, intercompany transactions, the Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation, entry
into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan Supplement, the Takeback Exit Facility,
the New RCF, the New Common Stock, the New Warrants, the New Warrant Agreement, or any Restructuring Transaction, contract, instrument,
release, or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the Disclosure
Statement, the Plan, the Plan Supplement, the Takeback Exit Facility, the New RCF, the New Common Stock, the New Warrants, the New Warrant
Agreement, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration
and implementation of the Plan, including the issuance or distribution of securities pursuant to the Plan, or the distribution of property
under the Plan or any other related agreement, or upon any other act or omission, transaction, agreement, event, or other occurrence taking
place on or before the Effective Date.
Notwithstanding anything to
the contrary in the foregoing, the releases set forth above do not release: (a) any post-Effective Date obligations of any party
or Entity under the Plan, the Confirmation Order, any Restructuring Document, or any post-Effective Date transaction contemplated by the
Restructuring Transactions (including under the New RCF, as applicable), or any document, instrument, or agreement (including those set
forth in the Plan Supplement and the New RCF, as applicable) executed to implement the Plan or the Restructuring Transactions; (b) the
rights of any Holder of Allowed Claims to receive distributions under the Plan; or (c) any matters retained by the Debtors and the
Reorganized Debtors pursuant to the Schedule of Retained Causes of Action.
Entry of the Confirmation
Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes
by reference each of the related provisions and definitions contained in the Plan, and further, shall constitute the Bankruptcy Court’s
finding that the Debtor Release is: (a) in exchange for the good and valuable consideration provided by the Released Parties, including,
the Released Parties’ contribution to facilitating the Restructuring Transactions and implementing the Plan; (b) a good faith
settlement and compromise of the Claims released by the Debtor Release; (c) in the best interests of the Debtors and all Holders
of Claims and Interests; (d) fair, equitable, and reasonable; (e) given and made after due notice and opportunity for a hearing;
and (f) a bar to any of the Debtors, the Reorganized Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action
released pursuant to the Debtor Release.
Releases by the Releasing Parties
As of the Effective Date,
each Releasing Party is deemed to have, hereby conclusively, absolutely, unconditionally, irrevocably and forever, released and discharged
each Debtor, Reorganized Debtor, and Released Party from any and all claims and Causes of Action, in each case on behalf of themselves
and their respective successors, assigns, and representatives, whether known or unknown, including any derivative claims, asserted on
behalf of the Debtors, the Reorganized Debtors, or the Estates, that such Entity would have been legally entitled to assert (whether individually
or collectively), based on or relating to or in any manner arising from, in whole or in part, the Debtors (including the management, ownership,
or operation thereof or otherwise), the Debtors’ in- or out-of-court restructuring efforts, any Avoidance Actions, intercompany
transactions, the Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan Supplement, the Takeback Exit Facility, the New RCF, the
New Common Stock, the New Warrants, the New Warrant Agreement, or any Restructuring Transaction, contract, instrument, release, or other
agreement or document created or entered into in connection with the Restructuring Support Agreement, the Disclosure Statement, the Plan,
the Plan Supplement, the Takeback Exit Facility, the New RCF, the New Common Stock, the New Warrants, the New Warrant Agreement, the Chapter
11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation
of the Plan, including the issuance or distribution of securities pursuant to the Plan, or the distribution of property under the Plan
or any other related agreement, or upon any other related act or omission, transaction, agreement, event, or other occurrence taking place
on or before the Effective Date.
Notwithstanding anything to
the contrary in the foregoing, the Third-Party Release does not release: (a) any post-Effective Date obligations of any party or
Entity under the Plan, the Confirmation Order, any Restructuring Document, or any post-Effective Date transaction contemplated by the
Restructuring Transactions (including under the New RCF, as applicable), or any document, instrument, or agreement (including those set
forth in the Plan Supplement and the New RCF, as applicable) executed to implement the Plan or the Restructuring Transactions; or (b) the
rights of any Holder of Allowed Claims to receive distributions under the Plan.
Entry of the Confirmation
Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the Third-Party Release, which
includes by reference each of the related provisions and definitions contained in the Plan, and further, shall constitute the Bankruptcy
Court’s finding that the Third-Party Release is: (a) consensual; (b) essential to the Confirmation of the Plan; (c) given
in exchange for the good and valuable consideration provided by the Released Parties; (d) a good faith settlement and compromise
of the Claims released by the Third-Party Release; (e) in the best interests of the Debtors their Estates; (f) fair, equitable,
and reasonable; (g) given and made after due notice and opportunity for a hearing; and (h) a bar to any of the Releasing Parties
asserting any Claim or Cause of Action released pursuant to the Third-Party Release.
Exculpation
Notwithstanding anything contained
in the Plan to the contrary, to the fullest extent permitted by applicable law, no Exculpated Party shall have or incur any liability
for, and each Exculpated Party shall be released and exculpated from any Cause of Action for any claim related to any act or omission
in connection with, relating to or arising out of the Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation,
entry into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan Supplement, the Takeback Exit
Facility, the New RCF, the New Common Stock, the New Warrants, the New Warrant Agreement, or any Restructuring Transaction, contract,
instrument, release or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the
Disclosure Statement, the Plan, the Plan Supplement, the Takeback Exit Facility, the New RCF, the New Common Stock, the New Warrants,
the New Warrant Agreement, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation,
the administration and implementation of the Plan, including the issuance of securities pursuant to the Plan, or the distribution of property
under the Plan or any other related agreement, except for claims related to any act or omission that is determined in a Final Order to
have constituted gross negligence, willful misconduct, or actual fraud. The Exculpated Parties have, and upon completion 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 votes 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.
* * * * * *
Certain Definitions Related to Release and Exculpation Provisions
“Affiliate”
has the meaning set forth in section 101(2) of the Bankruptcy Code. With respect to each Entity that is not a Debtor, the term “Affiliate”
shall apply to such Entity as if the Entity were a Debtor.
“Avoidance Actions”
means any and all actual or potential avoidance, recovery, subordination, or other Claims, Causes of Action, or remedies that may be brought
by or on behalf of the Debtors or their Estates or other authorized parties in interest under the Bankruptcy Code or applicable non-bankruptcy
law, including Claims, Causes of Action, or remedies arising under chapter 5 of the Bankruptcy Code or under similar or related local,
state, federal, or foreign statutes or common law, including fraudulent transfer laws.
“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, 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.
“Entity”
has the meaning set forth in section 101(15) of the Bankruptcy Code.
“Estate”
means as to each Debtor, the estate created for such Debtor in its Chapter 11 Case pursuant to sections 301 and 541 of the Bankruptcy
Code upon the commencement of such Debtor’s Chapter 11 Case.
“Exculpated Parties”
means collectively, and in each case in its capacity as such, the Debtors and each Related Party of the Debtors; provided that Exculpated
Parties shall not include non-Debtor Affiliates and such non-Debtor Affiliates’ Related Parties.
“Related Parties”
means, with respect to an Entity, collectively, (a) such Entity’s current and former Affiliates and (b) such Entity’s
and such Entity’s current and former Affiliates’ directors, managers, officers, shareholders, equity holders (regardless of
whether such interests are held directly or indirectly), affiliated investment funds or investment vehicles, predecessors, participants,
successors, assigns (whether by operation of law or otherwise), subsidiaries, current, former, and future associated entities, managed
or advised entities, accounts or funds, partners, limited partners, general partners, principals, members, management companies, fund
advisors, managers, fiduciaries, trustees, employees, agents (including any disbursing agent), advisory board members, financial advisors,
attorneys, accountants, investment bankers, consultants, other representatives, and other professionals, representatives, advisors, predecessors,
successors, and assigns, each solely in their capacities as such (including any other attorneys or professionals retained by any current
or former director or manager in his or her capacity as director or manager of an Entity), and the respective heirs, executors, estates,
servants and nominees of the foregoing.
“Released Parties”
means each of, and in each case in their capacity as such: (a) the Debtors; (b) the Reorganized Debtors; (c) the Consenting
Stakeholders; (d) the Agents; (e) the Releasing Parties; and (f) each Related Party of each Entity in clause (a) through
this clause (e); provided, that any Holder of a Claim or Interest that opts out of the releases contained in the Plan shall not be a “Released
Party.”
“Releasing Parties”
means each of, and in each case in its capacity as such: (a) the Debtors; (b) the Reorganized Debtors; (c) the Consenting
Stakeholders; (d) the Agents; (e) all Holders of Claims that vote to accept the Plan; (f) all Holders of Claims or Interests
that are presumed to accept the Plan and who do not affirmatively opt out of the releases provided by the Plan; (g) all Holders of
Claims or Interests that are deemed to reject the Plan and who do not affirmatively opt out of the releases provided by the Plan; (h) all
Holders of Claims who abstain from voting on the Plan and who do not affirmatively opt out of the releases provided by the Plan; (i) all
Holders of Claims who vote to reject the Plan and who do not affirmatively opt out of the releases provided by the Plan; and (k) each
Related Party of each Entity in clauses (a) through (i) for which such Entity is legally entitled to bind such Related Party
to the releases contained in the Plan under applicable law; provided that, for the avoidance of doubt, each Holder of Claims and/or Interests
that is party to or has otherwise signed the Restructuring Support Agreement shall not opt out of the releases
Annex 2
CEO STI Side Letter Agreement
Exhibit B
Plan
IN THE
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| |
|
) |
|
| In re: |
|
) |
Chapter 11 |
| |
|
) |
|
| LANNETT COMPANY, INC., et al.,1 |
|
) |
Case No. 23-[_____] (___) |
| |
|
) |
|
| |
Debtors. |
|
) |
(Joint Administration Requested) |
| |
|
) |
|
JOINT PREPACKAGED
CHAPTER 11 PLAN
OF REORGANIZATION
OF LANNETT COMPANY, INC. AND ITS DEBTOR AFFILIATES
| THIS CHAPTER 11 PLAN IS BEING SOLICITED FOR ACCEPTANCE OR REJECTION IN ACCORDANCE WITH SECTION 1125 OF THE BANKRUPTCY CODE AND WITHIN THE MEANING OF SECTION 1126 OF THE BANKRUPTCY CODE. THIS CHAPTER 11 PLAN WILL BE SUBMITTED TO THE BANKRUPTCY COURT FOR APPROVAL FOLLOWING SOLICITATION AND THE DEBTORS’ FILING FOR CHAPTER 11 BANKRUPTCY. |
| Howard A. Cohen (DE Bar No. 4082) |
|
Nicole L. Greenblatt, P.C. (pro hac vice pending) |
| Stephanie J. Slater (DE Bar No. 6922) |
|
KIRKLAND & ELLIS LLP |
| FOX ROTHSCHILD LLP |
|
KIRKLAND & ELLIS INTERNATIONAL LLP |
| 919 North Market Street |
|
601 Lexington Avenue |
| Wilmington, Delaware 19899 |
|
New York, New York 10022 |
| Telephone: |
|
Telephone: |
(212) 446-4800 |
| Facsimile: |
|
Facsimile: |
(212) 446-4900 |
| Email: |
hcohen@foxrothschild.com |
|
Email: |
nicole.greenblatt@kirkland.com |
| |
sslater@foxrothschild.com |
|
|
| |
|
-and- |
| Proposed Co-Counsel for the Debtors |
|
|
| and Debtors in Possession |
|
Joshua M. Altman (pro hac vice pending) |
| |
|
KIRKLAND & ELLIS LLP |
| |
|
KIRKLAND & ELLIS INTERNATIONAL LLP |
| |
|
300 North LaSalle Street |
| |
|
Chicago, Illinois 60654 |
| |
|
Telephone: |
(312) 862-2000 |
| |
|
Facsimile: |
(312) 862-2200 |
| |
|
Email: |
josh.altman@kirkland.com |
| |
|
|
| |
|
Proposed Co-Counsel for the Debtors |
| |
|
and Debtors in Possession |
| |
|
|
| Dated: April 30, 2023 |
|
|
| 1 | The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal
tax identification number, are: Lannett Company, Inc. (7699), Kremers Urban Pharmaceuticals, Inc. (0780), Cody Laboratories, Inc.
(1425) and Silarx Pharmaceuticals, Inc. (1798). The location of the Debtors’ service address is: 1150 Northbrook Drive,
Ste 155, Trevose, Pennsylvania 19053. |
TABLE OF CONTENTS
| Article I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, and governing law |
1 |
| A. |
Defined Terms |
1 |
| B. |
Rules of Interpretation |
12 |
| C. |
Computation of Time |
13 |
| D. |
Governing Law |
13 |
| E. |
Reference to Monetary Figures |
13 |
| F. |
Reference to the Debtors or
the Reorganized Debtors |
13 |
| G. |
Controlling Document |
14 |
| H. |
Consultation, Information,
Notice, and Consent Rights |
14 |
| |
|
|
| Article II. ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS |
14 |
| A. |
Administrative Claims |
14 |
| B. |
Professional Fee Claims |
14 |
| C. |
Priority Tax Claims |
15 |
| D. |
Payment of Statutory Fees |
15 |
| E. |
Payment of Certain Fees and
Expenses |
16 |
| |
|
|
| Article III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS |
16 |
| A. |
Classification of Claims and
Interests |
16 |
| B. |
Treatment of Claims and Interests |
17 |
| C. |
Special Provision Governing
Unimpaired Claims |
20 |
| D. |
Elimination of Vacant Classes |
20 |
| E. |
Voting Record Date and Voting
Deadline |
20 |
| F. |
Intercompany Interests |
21 |
| G. |
Confirmation Pursuant to Sections
1129(a)(10) and 1129(b) of the Bankruptcy Code |
21 |
| H. |
Controversy Concerning Impairment |
21 |
| I. |
Subordinated Claims and Interests |
21 |
| |
|
|
| Article IV. MEANS FOR IMPLEMENTATION OF THE PLAN |
21 |
| A. |
General Settlement of Claims and Interests |
21 |
| B. |
Restructuring Transactions |
22 |
| C. |
Reorganized Debtors |
22 |
| D. |
Sources of Consideration for
Plan Distributions |
23 |
| E. |
Corporate Existence |
25 |
| F. |
Vesting of Assets in the Reorganized
Debtors |
25 |
| G. |
Cancellation of Existing Securities
and Agreements |
25 |
| H. |
Corporate Action |
26 |
| I. |
New Organizational Documents |
26 |
| J. |
New Stockholders Agreement |
27 |
| K. |
Indemnification Obligations |
27 |
| L. |
Directors and Officers of
the Reorganized Debtors |
27 |
| M. |
Effectuating Documents; Further
Transactions |
27 |
| N. |
Existing Letter of Credit
Cash Collateralization |
27 |
| O. |
Section 1146 Exemption |
28 |
| P. |
Director and Officer Liability Insurance |
28 |
| Q. |
Management Incentive Plan |
28 |
| R. |
Preservation of Causes of
Action |
29 |
| S. |
Release of Avoidance Actions |
29 |
| |
|
|
| Article V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES |
30 |
| A. |
Assumption and Rejection of Executory Contracts and Unexpired Leases |
30 |
| B. |
Claims Based on Rejection
of Executory Contracts or Unexpired Leases |
31 |
| C. |
Cure of Defaults for Assumed
Executory Contracts and Unexpired Leases |
31 |
| D. |
Preexisting Obligations to
the Debtors Under Executory Contracts and Unexpired Leases |
32 |
| E. |
Insurance Policies |
32 |
| F. |
Reservation of Rights |
32 |
| G. |
Nonoccurrence of Effective
Date |
32 |
| H. |
Employee Compensation and
Benefits |
33 |
| I. |
Contracts and Leases Entered
Into After the Petition Date |
33 |
| |
|
|
| Article VI. PROVISIONS GOVERNING DISTRIBUTIONS |
33 |
| A. |
Distributions on Account of
Claims Allowed as of the Effective Date |
33 |
| B. |
Disbursing Agent |
34 |
| C. |
Rights and Powers of Disbursing
Agent |
34 |
| D. |
Delivery of Distributions
and Undeliverable or Unclaimed Distributions |
34 |
| E. |
Manner of Payment |
35 |
| F. |
Indefeasible Distributions |
36 |
| G. |
Securities Law Matters |
36 |
| H. |
Compliance with Tax Requirements |
36 |
| I. |
Allocations |
37 |
| J. |
No Postpetition Interest on
Claims |
37 |
| K. |
Foreign Currency Exchange
Rate |
37 |
| L. |
Setoffs and Recoupment |
37 |
| M. |
Claims Paid or Payable by Third Parties |
37 |
| |
|
|
| Article VII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS |
38 |
| A. |
Disputed Claims Process |
38 |
| B. |
Allowance of Claims |
38 |
| C. |
Claims Administration Responsibilities |
39 |
| D. |
Estimation of Claims and Interests |
39 |
| E. |
Adjustment to Claims or Interests without Objection |
39 |
| F. |
Disallowance of Claims or
Interests |
39 |
| G. |
No Distributions Pending Allowance |
40 |
| H. |
Distributions After Allowance |
40 |
| |
|
|
| Article VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS |
40 |
| A. |
Discharge of Claims and Termination of Interests |
40 |
| B. |
Release of Liens |
40 |
| C. |
Releases by the Debtors |
41 |
| D. |
Releases by the Releasing Parties |
42 |
| E. |
Exculpation |
43 |
| F. |
Injunction |
43 |
| G. |
Protections Against Discriminatory Treatment |
43 |
| H. |
Document Retention |
44 |
| I. |
Reimbursement or Contribution |
44 |
| |
|
|
| Article IX. CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN |
44 |
| A. |
Conditions Precedent to the Effective Date |
44 |
| B. |
Waiver of Conditions |
45 |
| C. |
Effect of Failure of Conditions |
45 |
| D. |
Substantial Consummation |
45 |
| |
|
|
| Article X. EFFECT OF CONFIRMATION OF THE PLAN |
45 |
| A. |
Jurisdiction and Venue |
46 |
| B. |
Voting Report |
46 |
| C. |
Judicial Notice |
46 |
| D. |
Transmittal and Mailing of Materials; Notice |
46 |
| E. |
Solicitation |
46 |
| F. |
Burden of Proof |
46 |
| G. |
Bankruptcy Rule 3016(a) Compliance |
47 |
| H. |
Securities Under the Plan |
47 |
| I. |
Releases and Discharges |
47 |
| J. |
Release and Retention of Causes of Action |
47 |
| K. |
Approval of Restructuring Support Agreement and Other Restructuring Documents and Agreements |
47 |
| L. |
Confirmation Hearing Exhibits |
48 |
| M. |
Objections to Confirmation of the Plan |
48 |
| N. |
Retention of Jurisdiction |
48 |
| O. |
Plan Supplement |
48 |
| |
|
|
| Article XI. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN |
48 |
| A. |
Modification and Amendments |
48 |
| B. |
Effect of Confirmation on Modifications |
48 |
| C. |
Revocation or Withdrawal of Plan |
48 |
| |
|
|
| Article XII. RETENTION OF JURISDICTION |
49 |
| |
|
| Article XIII. MISCELLANEOUS PROVISIONS |
50 |
| A. |
Immediate Binding Effect |
50 |
| B. |
Additional Documents |
51 |
| C. |
Statutory Committee and Cessation of Fee and Expense Payment |
51 |
| D. |
Reservation of Rights |
51 |
| E. |
Successors and Assigns |
51 |
| F. |
Notices |
51 |
| G. |
Term of Injunctions or Stays |
52 |
| H. |
Entire Agreement |
52 |
| I. |
Plan Supplement |
52 |
| J. |
Nonseverability of Plan Provisions |
53 |
| K. |
Votes Solicited in Good Faith |
53 |
| L. |
Closing of Chapter 11 Cases |
53 |
| M. |
Waiver or Estoppel |
53 |
INTRODUCTION
Lannett
Company, Inc. (“LCI”) and the other above-captioned debtors and debtors in possession (collectively, the “Debtors”)
propose this joint prepackaged chapter 11 plan of reorganization (as may be altered, amended, modified, or
supplemented from time to time in accordance with its terms and the Restructuring Support Agreement (as defined below), this “Plan”)
for the resolution of the outstanding Claims against, and Interests in, the Debtors. Although proposed jointly for administrative purposes,
the Plan constitutes a separate Plan for each Debtor for the resolution of outstanding Claims and Interests pursuant to the Bankruptcy
Code. The Debtors are the proponents of the Plan within the meaning of section 1129 of the Bankruptcy Code.
Reference is made to the accompanying
Disclosure Statement for the Joint Prepackaged Chapter 11 Plan of Reorganization of Lannett Company, Inc. and Its Debtor Affiliates.
Holders of Claims against or Interests in the Debtors may refer to the Disclosure Statement for a discussion on the Debtors’ history,
business, properties and operations, valuation, projections, risk factors, a summary and analysis of the Plan and the transactions contemplated
thereby, and certain related matters.
ALL HOLDERS OF CLAIMS, TO
THE EXTENT APPLICABLE, ARE ENCOURAGED TO READ THE PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT
THE PLAN.
Article I.
DEFINED TERMS, RULES OF INTERPRETATION,
COMPUTATION OF TIME, and governing law
As used in this Plan, capitalized
terms have the meanings set forth below.
1. “Administrative
Claim” means a Claim against any of the Debtors arising on or after the Petition Date and before the Effective Date for a cost
or expense of administration of the Chapter 11 Cases pursuant to sections 503(b), 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy
Code, including: (a) the actual and necessary costs and expenses of preserving the Estates and operating the businesses of the Debtors
incurred on or after the Petition Date and through the Effective Date; (b) the Allowed Professional Fee Claims; and (c) all
fees and charges assessed against the Estates under chapter 123 of the Judicial Code.
2. “Affiliate”
has the meaning set forth in section 101(2) of the Bankruptcy Code. With respect to each Entity that is not a Debtor, the term “Affiliate”
shall apply to such Entity as if the Entity were a Debtor.
3. “Agent”
means any administrative agent, collateral agent, trustee or similar Entity under the First Lien Indenture or the Second Lien Term Loan
Agreement, including any successors thereto.
4. “Allowed”
means, with respect to a Claim or Interest, any Claim or Interest (or portion thereof) against any Debtor that: (a) is deemed allowed
under the Bankruptcy Code; (b) is allowed, compromised, settled, or otherwise resolved pursuant to the terms of the Plan, in any
stipulation that is approved by a Final Order of the Bankruptcy Court, or pursuant to any contract, instrument, indenture, or other agreement
entered into or assumed in connection herewith; or (c) has been allowed by a Final Order of the Bankruptcy Court. For the avoidance
of doubt, any Claim or Interest (or portion thereof), that has been disallowed pursuant to a Final Order shall not be an “Allowed”
Claim. Except as otherwise specified in the Plan or any Final Order, the amount of an Allowed Claim shall not include interest or other
charges on such Claim from and after the Petition Date.
5. “Avoidance
Actions” means any and all actual or potential avoidance, recovery, subordination, or other Claims, Causes of Action, or remedies
that may be brought by or on behalf of the Debtors or their Estates or other authorized parties in interest under the Bankruptcy Code
or applicable non-bankruptcy law, including Claims, Causes of Action, or remedies arising under chapter 5 of the Bankruptcy Code or under
similar or related local, state, federal, or foreign statutes or common law, including fraudulent transfer laws.
6. “Bankruptcy
Code” means title 11 of the United States Code, 11 U.S.C. §§ 101–1532, as amended from time to time.
7. “Bankruptcy
Court” means the United States Bankruptcy Court for the District of Delaware presiding over the Chapter 11 Cases, or any other
court having jurisdiction over the Chapter 11 Cases, including, to the extent of the withdrawal of reference under 28 U.S.C. § 157
and/or the General Order of the District Court pursuant to section 151 of the Judicial Code, the United States District Court for the
District of Delaware.
8. “Bankruptcy
Rules” means the Federal Rules of Bankruptcy Procedure promulgated under section 2075 of the Judicial Code and the
general, local, and chambers rules of the Bankruptcy Court, each, as amended from time to time.
9. “Base
Intercreditor Agreement” means that certain Base Intercreditor Agreement, dated as of December 7, 2020, by and among the
Second Lien Agent and Wells Fargo Bank, National Association as administrative agent and collateral agent under the Revolving Credit Facility,
which governs, among other things, the respective rights, interests, obligations, priority, and positions of the Term Loan Secured Parties
and the ABL Secured Parties (each as defined in the Base Creditor Agreement) with respect to the assets and properties of the Debtors
and other obligors.
10. “Beachpoint
Stakeholders” means those Consenting Stakeholders that are Affiliates of Beach Point Capital Management LP.
11. “Brigade
Stakeholders” means those Consenting Stakeholders that are Affiliates of Brigade Capital Management.
12. “Business
Day” means any day other than a Saturday, Sunday, or “legal holiday” (as defined in Bankruptcy Rule 9006(a)),
or other day on which commercial banks in the State of Delaware or the State of New York are closed for business as a result of federal,
state, or local holiday.
13. “Cash”
means cash in legal tender of the United States of America and cash equivalents, including bank deposits, checks, and other similar items.
14. “Cash
Collateral Orders” means, collectively, the interim order and final order, as applicable, of the Bankruptcy Court authorizing
the Debtors to, among other things, use cash collateral (as defined in section 363(a) of the Bankruptcy Code).
15. “Cashflow
Intercreditor Agreement” means that certain Cash Flow Intercreditor Agreement, dated as of April 22, 2021 by and among
the Agents (as amended, restated, or otherwise modified from time to time), which governs, among other things, the respective rights,
interests, obligations, priority, and positions of the Holders of First Lien Senior Secured Notes Claims and the Holders of Second Lien
Term Loan Claims with respect to the assets and properties of the Debtors and other obligors.
16. “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,
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.
17. “CEO
STI Side Letter Agreement” means that certain side letter agreement dated as of April 30, 2023 by and among LCI and Tim
Crew attached to the Restructuring Term Sheet as Annex 2.
18. “Chapter
11 Cases” means (a) when used with reference to a particular Debtor, the case pending for that Debtor under chapter 11
of the Bankruptcy Code in the Bankruptcy Court and (b) when used with reference to all the Debtors, the procedurally consolidated
chapter 11 cases pending for the Debtors in the Bankruptcy Court.
19. “Claim”
means any claim, as defined in section 101(5) of the Bankruptcy Code.
20. “Claims
Register” means the official register of Claims maintained by the Solicitation Agent or the clerk of the Bankruptcy Court.
21. “Class”
means a class of Claims or Interests as set forth in Article III of the Plan pursuant to section 1122(a) of the Bankruptcy
Code.
22. “CM/ECF”
means the Bankruptcy Court’s Case Management and Electronic Case Filing system.
23. “Combined
Scheduling Order” means the order entered by the Bankruptcy Court scheduling a combined hearing on the Disclosure Statement
and confirmation of the Plan, among other things.
24. “Company
Parties” means, collectively, Lannett Company, Inc., a company incorporated under the Laws of Delaware, Kremers Urban Pharmaceuticals, Inc.,
a company incorporated under the Laws of Indiana, Cody Laboratories, Inc., a company incorporated under the Laws of Wyoming, and
Silarx Pharmaceuticals, Inc., a company incorporated under the Laws of New York, each in its capacity as a party to the Restructuring
Support Agreement.
25. “Compensation
and Benefits Programs” means all employment and severance agreements and policies, and all employment, wages, compensation,
and benefit plans and policies, workers’ compensation programs, savings plans, retirement plans, deferred compensation plans, supplemental
executive retirement plans, healthcare plans, disability plans, severance benefit plans, incentive and retention plans, programs, and
payments, life and accidental death and dismemberment insurance plans and programs of the Debtors, and all amendments and modifications
thereto (including any amendments entered into in connection with the Restructuring Support Agreement), applicable to the Debtors’
employees, former employees, retirees, and non-employee directors and managers, in each case existing with the Debtors as of immediately
prior to the Effective Date.
26. “Confirmation”
means the Bankruptcy Court’s entry of the Confirmation Order on the docket of the Chapter 11 Cases.
27. “Confirmation
Date” means the date on which the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11 Cases
within the meaning of Bankruptcy Rules 5003 and 9021.
28. “Confirmation
Hearing” means the hearing(s) before the Bankruptcy Court under section 1128 of the Bankruptcy Code to consider Confirmation
of the Plan and approval of the Disclosure Statement and Solicitation Materials, as such hearing(s) may be adjourned or continued
from time to time.
29. “Confirmation
Order” means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code, and
approving the Disclosure Statement and the Solicitation Materials, which order shall be in form and substance acceptable to the Debtors
and the Required Consenting Stakeholders.
30. “Consenting
First Lien Noteholders” means holders of, or investment advisors, sub-advisors, or managers of funds or accounts that hold,
First Lien Senior Secured Note Claims, solely in their capacity as such, that have executed and delivered counterpart signature pages to
the Restructuring Support Agreement, a Joinder, or a Transfer Agreement to counsel to the Debtors.
31. “Consenting
Second Lien Term Lenders” means holders of, or investment advisors, sub-advisors, or managers of funds or accounts that hold,
Second Lien Term Loan Claims, solely in their capacity as such, that have executed and delivered counterpart signature pages to the
Restructuring Support Agreement, a Joinder, or a Transfer Agreement to counsel to the Debtors.
32. “Consenting
Stakeholders” means, collectively, the Consenting First Lien Noteholders and the Consenting Second Lien Term Lenders.
33. “Consummation”
means the occurrence of the Effective Date.
34. “Convertible
Notes” means indebtedness under that certain Indenture, by and among LCI, the lenders from time to time party thereto, and Wilmington
Trust National Association, as trustee, dated as of September 27, 2019 (as further amended, supplemented, amended and restated, or
otherwise modified from time to time.
35. “Convertible
Notes Claims” means any Claim against any Debtor derived from, based upon, or arising under the Convertible Notes.
36. “Crossover
Group” means that certain ad hoc group of certain Holders of First Lien Senior Secured Notes Claims and Second Lien Term
Loan Claims represented by the Crossover Group Advisors.
37. “Crossover
Group Advisors” means Sullivan and Cromwell LLP, Houlihan Lokey Inc., Potter Anderson & Corroon LLP, and any other
professionals and/or consultants for the Crossover Group, if any, as may be mutually agreed to by the Crossover Group and the Debtors.
38. “Cure”
means all amounts, including an amount of $0, required to cure any monetary defaults under any Executory Contract or Unexpired Lease (or
such lesser amount as may be agreed upon by the parties under an Executory Contract or Unexpired Lease) that is to be assumed by the Debtors
pursuant to sections 365 or 1123 of the Bankruptcy Code.
39. “D&O
Liability Insurance Policies” means all insurance policies (including any “tail policy”) covering any of the Debtors’
current or former directors’, managers’, officers’ and/or employees’ liability and all agreements, documents,
or instruments relating thereto.
40. “Debtors”
has the meaning set forth in the preamble.
41. “Debtors’
CEO” means the chief executive officer of the LCI as of the day prior to the Effective Date.
42. “Debtor
Release” means the releases given on behalf of the Debtors and their Estates as set forth in Article VIII.C of the Plan.
43. “Deerfield
Stakeholders” means those Consenting Stakeholders that are Affiliates of Deerfield Mgmt III, L.P.
44. “Disbursing
Agent” means the Reorganized Debtors or, as applicable, the Entity or Entities selected by the Debtors or the Reorganized Debtors
to make or facilitate distributions pursuant to the Plan.
45. “Disclosure
Statement” means the disclosure statement for the Plan, including all exhibits and schedules thereto, to be approved by the
Confirmation Order.
46. “Disputed”
means, as to a Claim or an Interest, any Claim or Interest (or portion thereof): (a) that is not Allowed; (b) that is not disallowed
by the Plan, the Bankruptcy Code, or a Final Order, as applicable; and (c) with respect to which a party in interest has Filed a
Proof of Claim or otherwise made a written request to a Debtor for payment, without any further notice to or action, order, or approval
of the Bankruptcy Court.
47. “Distribution
Date” means, except as otherwise set forth herein, the date or dates determined by the Debtors or the Reorganized Debtors, on
or after the Effective Date, with the first such date occurring on or as soon as is reasonably practicable after the Effective Date, upon
which the Disbursing Agent shall make distributions to Holders of Allowed Claims entitled to receive distributions under the Plan (or
their Permitted Designees).
48. “Distribution
Record Date” means the record date for purposes of determining which Holders of Allowed Claims against or Allowed Interests
in the Debtors are eligible to receive distributions under the Plan, which date shall be the Confirmation Date or such other
date as agreed to by the Debtors and the Required Consenting Stakeholders.
49. “Effective
Date” means the date on which (a) all conditions precedent to the occurrence of the Effective Date set forth in Article IX.A
of the Plan have been satisfied or waived in accordance with Article IX.B of the Plan and (b) the Plan is declared effective
by the Debtors.
50. “Entity”
has the meaning set forth in section 101(15) of the Bankruptcy Code.
51. “Estate”
means as to each Debtor, the estate created for such Debtor in its Chapter 11 Case pursuant to sections 301 and 541 of the Bankruptcy
Code upon the commencement of such Debtor’s Chapter 11 Case.
52. “Exculpated
Parties” means collectively, and in each case in its capacity as such, the Debtors and each Related Party of the Debtors; provided
that Exculpated Parties shall not include non-Debtor Affiliates and such non-Debtor Affiliates’ Related Parties.
53. “Exchange
Act” means the Securities Exchange Act of 1934, as amended and including any rule or regulation promulgated thereunder.
54. “Executory
Contract” means a contract to which one or more of the Debtors is a party and that is subject to assumption or rejection under
section 365 or 1123 of the Bankruptcy Code.
55. “Existing
Interests” means any Interest in LCI existing immediately prior to the occurrence of the Effective Date.
56. “Existing
Letter of Credit” means any letter of credit issued and outstanding as of the Petition Date.
57. “Federal
Judgment Rate” means the federal judgment rate in effect as of the Petition Date.
58. “File,”
“Filed,” or “Filing” means file, filed, or filing with the Bankruptcy Court or its authorized designee
in the Chapter 11 Cases.
59. “Final
Order” means, as applicable, an order or judgment of the Bankruptcy 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, seek certiorari,
or move for a new trial, reargument, or rehearing has expired and as to which no appeal, petition for certiorari, or other proceeding
for a new trial, reargument, or rehearing 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 withdrawn with prejudice, 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 has been denied, resulted in no stay pending
appeal or modification of such order, or has otherwise been dismissed with prejudice; provided that the possibility that a motion
under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed with
respect to such order will not preclude such order from being a Final Order.
60. “First
Lien Agent” means the trustee and collateral agent under the First Lien Indenture, its successors, assigns, or any replacement
trustee or agent appointed pursuant to the terms of the First Lien Indenture.
61. “First
Lien Senior Secured Notes” means notes outstanding under the First Lien Indenture.
62. “First
Lien Senior Secured Notes Claims” means any Claim against any Debtor derived from, based upon, or arising under the First Lien
Indenture.
63. “First
Lien Indenture” means the Indenture, dated April 22, 2021, as amended, restated, or modified from time to time among the
LCI, as borrower, the lenders from time to time party thereto, and Wilmington Trust, National Associate, as trustee.
64. “General
Unsecured Claim” means any Unsecured Claim against any of the Debtors that is not: (a) an Administrative Claim; (b) a
Priority Tax Claim; (c) an Other Priority Claim; (d) a First Lien Senior Secured Notes Claim; (e) a Second Lien Term Loan
Claim; (f) a Convertible Notes Claim; (g) an Intercompany Claim; or (h) a Section 510(b) Claim.
65. “Governmental
Unit” has the meaning set forth in section 101(27) of the Bankruptcy Code.
66. “Holder”
means an Entity holding a Claim against or an Interest in any Debtor, as applicable.
67. “Impaired”
means with respect to a Class of Claims or Interests, a Class of Claims or Interests that is impaired within the meaning of
section 1124 of the Bankruptcy Code.
68. “Insider”
has the meaning set forth in section 101(31) of the Bankruptcy Code.
69. “Intercompany
Claim” means any Claim against any Debtor held by a Debtor or an Affiliate of a Debtor.
70. “Intercompany
Interest” means an Interest in a Debtor held by another Debtor.
71. “Intercreditor
Agreements” means the Cash Flow Intercreditor Agreement and the Base Intercreditor Agreement.
72. “Interest”
means any equity security (as defined in section 101(16) of the Bankruptcy Code), equity, ownership, profit interest, unit or share in
any Debtor and any other rights, options, warrants, rights, restricted stock awards, performance share awards, performance share units,
stock appreciation rights, phantom stock rights, redemption rights, repurchase rights, stock-settled restricted stock units, cash-settled
restricted stock units, other securities, agreements to acquire the common stock, preferred stock, limited liability company interests,
or other equity, ownership, or profits interests of any Debtor or any other agreements, arrangements or commitments of any character relating
to, or whose value is related to, any such interest or other ownership interest in any Debtor (whether or not arising under or in
connection with any employment agreement, separation agreement, or employee incentive plan or program of a Debtor as of the Petition Date
and whether or not certificated, transferable, preferred, common, voting, or denominated “stock” or similar security).
73. “Joinder”
means a joinder to the Restructuring Support Agreement substantially in the form attached thereto as Exhibit C.
74. “Judicial
Code” means title 28 of the United States Code, 28 U.S.C. §§ 1–4001, as amended from time to time.
75. “L/C
Issuer” means Wells Fargo Bank, National Association.
76. “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).
77. “LCI”
means Lannett Company, Inc. prior to the Effective Date.
78. “Lien”
has the meaning set forth in section 101(37) of the Bankruptcy Code.
79. “Management
Incentive Plan” means a management incentive plan for the Reorganized Debtors as contemplated by and consistent with Article IV.Q
of the Plan.
80. “MIP
New Common Stock” means any New Common Stock issued pursuant to the Management Incentive Plan.
81. “Named
Executive Officer” means the three named executive officers of LCI as of the day before the Plan Effective Date.
82. “New
Board” means the board of directors or the board of managers, as applicable, of Reorganized LCI, which shall include the Debtors’
CEO and two (2) other directors who will be determined by the Consenting First Lien Noteholders in consultation with the Debtors’
CEO. The identities of directors on the New Board as of the Effective Date shall be set forth in the Plan Supplement, to the extent
known at the time of filing of the Plan Supplement, but in any event prior to the Effective Date.
83. “New
Common Stock” means the common equity interests of Reorganized LCI.
84. “New
Employment Agreements” has the meaning given to such term in Article V.H.1 of the Plan.
85. “New
Organizational Documents” means the forms of the organizational documents of the Reorganized Debtors, including certificates
or articles of incorporation, bylaws, shareholder agreements, or other formation or governance documents in form and substance acceptable
to the Required Consenting First Lien Noteholders and the Debtors and reasonably acceptable to the Required Consenting Second Lien Term
Lenders.
86. “New
RCF” means a new revolving credit facility established on the Effective Date to replace the Revolving Credit Facility.
87. “New
RCF Agent” means the administrative agent and collateral agent under the New RCF Documents.
88. “New
RCF Documents” means, collectively, all agreements, documents, and instruments entered into in connection with the New RCF,
which shall be in form and substance acceptable to the Debtors and the Required Consenting First Lien Noteholders and reasonably acceptable
to the Required Consenting Second Lien Term Lenders.
89. “New
Stockholders Agreement” means the definitive shareholders agreement or other applicable agreement (including all annexes, exhibits,
and schedules thereto) governing the New Common Stock, which agreement shall be acceptable to the Debtors and the Required Consenting
First Lien Noteholders and reasonably acceptable to the Required Consenting Second Lien Term Lenders.
90. “New
Warrant Agreement” means that certain agreement governing the terms of the New Warrants, which shall be in form and substance
acceptable to the Debtors, the Required Consenting First Lien Noteholders and the Required Consenting Second Lien Term Lenders.
91. “New
Warrants” means warrants to purchase 12.5% of the New Common Stock (subject to dilution by the Management Incentive Plan), with
an initial exercise price per share struck at the equity value of Reorganized LCI implied by a total enterprise value of $315 million.
92. “Other
Priority Claim” means any Claim, other than an Administrative Claim or a Priority Tax Claim, entitled to priority in right of
payment under section 507(a) of the Bankruptcy Code.
93. “Other
Secured Claim” means any Secured Claim other than a First Lien Senior Secured Notes Claim or a Second Lien Term Loan Claim.
94. “Permitted
Designee” means, with respect to any Holder of an Allowed First Lien Senior Secured Notes Claim or Allowed Second Lien Term
Loan Claim, an entity that is designated (in writing in the form established by the Debtors to be delivered to the Solicitation Agent
no less than 20 days prior to the Distribution Record Date, or such other date as agreed to by the Debtors and the Required Consenting
Stakeholders) by such Holder to receive all or any portion of the distributions issuable to such Holder pursuant to Article III.B
of the Plan.
95. “Person”
has the meaning set forth in section 101(41) of the Bankruptcy Code.
96. “Petition
Date” means the first date on which any of the Debtors commence a Chapter 11 Case.
97. “Plan
Distribution” means a payment or distribution to Holders of Allowed Claims or other eligible Entities in accordance with the
Plan (or their Permitted Designees).
98. “Plan
Supplement” means the compilation of documents and forms of documents, agreements, schedules, and exhibits to the Plan (in each
case, as may be altered, amended, modified, or supplemented from time to time in accordance with the terms hereof and in accordance with
the Bankruptcy Code and Bankruptcy Rules) to be Filed with the Bankruptcy Court, and any additional documents Filed as amendments to the
Plan Supplement, including the following, as applicable: (a) certain of the New Organizational Documents; (b) the New Stockholders
Agreement; (c) the New Warrant Agreement; (d) the Takeback Exit Facility; (e) certain of the New RCF Documents, as applicable;
(f) to the extent known, the identities of the members of the New Board; (g) the Rejected Executory Contracts and Unexpired
Leases Schedule (if any); (h) the Schedule of Proposed Cure Amounts; (i) the Schedule of Retained Causes of Action; and (j) the
Restructuring Transactions Memorandum. To the extent any document to be set forth in the Plan Supplement is an exhibit to the Disclosure
Statement, the Plan Supplement may cross-refer to such exhibit. The documents constituting the Plan Supplement shall be consistent
with the terms of the Restructuring Support Agreement and the Restructuring Term Sheet, including any consent rights contained therein,
as applicable. The Debtors shall have the right to alter, amend, modify, or supplement the documents contained in the Plan Supplement
in accordance with this Plan and the Restructuring Support Agreement on or before the Effective Date. The Plan Supplement shall be deemed
incorporated into and part of the Plan as if set forth herein in full; provided that in the event of a conflict between the Plan
and the Plan Supplement, the Plan Supplement shall control in accordance with Article I.G.
99. “Prepetition
Credit Agreements” means the First Lien Indenture and the Second Lien Term Loan Agreement.
100. “Prepetition
Secured Parties” means, collectively, each Holder of a First Lien Senior Secured Notes Claim and each Holder of Second Lien
Term Loan Claim.
101. “Priority
Tax Claim” means any Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the Bankruptcy Code.
102. “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.
103. “Professional”
means an Entity: (a) employed in the Chapter 11 Cases pursuant to a Bankruptcy Court order in accordance with sections 327, 328,
363, or 1103 of the Bankruptcy Code and to be compensated for services rendered prior to or as of the Confirmation Date, pursuant to sections
327, 328, 329, 330, or 331 of the Bankruptcy Code; or (b) awarded compensation and reimbursement by the Bankruptcy Court pursuant
to section 503(b)(4) of the Bankruptcy Code.
104. “Professional
Escrow Account” means an account funded by the Debtors with Cash on the Effective Date in an amount equal to the Professional
Fee Amount.
105. “Professional
Fee Amount” means the aggregate amount of Professional Fee Claims and other unpaid fees and expenses that the Professionals
estimate they have incurred or will incur in rendering services to the Debtors prior to and as of the Confirmation Date, which estimates
Professionals shall deliver to the Debtors as set forth in Article II.B of the Plan.
106. “Professional
Fee Claim” means any Claim by a Professional for compensation for services rendered or reimbursement of expenses incurred by
such Professional through and including the Confirmation Date under sections 328, 330, 331, 503(b)(2), 503(b)(4), or 503(b)(5) of
the Bankruptcy Code to the extent such fees and expenses have not been paid pursuant to an order of the Bankruptcy Court. To the extent
the Bankruptcy Court denies or reduces by a Final Order any amount of a Professional’s requested fees and expenses, then the amount
by which such fees or expenses are reduced or denied shall reduce the applicable Professional Fee Claim.
107. “Proof
of Claim” means a proof of Claim Filed against any of the Debtors in the Chapter 11 Cases.
108. “Reinstate,”
“Reinstated,” or “Reinstatement” means with respect to a Claim or Interest, that the Claim or Interest
shall be rendered Unimpaired in accordance with section 1124 of the Bankruptcy Code.
109. “Rejected
Executory Contracts and Unexpired Leases Schedule” means, to the extent applicable, a schedule (including any amendments,
supplements, or modifications thereto) of Executory Contracts and Unexpired Leases (if any) to be rejected by the Debtors pursuant
to the Plan, which schedule (if any) shall be included in the Plan Supplement.
110. “Related
Parties” means, with respect to an Entity, collectively, (a) such Entity’s current and former Affiliates and (b) such
Entity’s and such Entity’s current and former Affiliates’ directors, managers, officers, shareholders, equity holders
(regardless of whether such interests are held directly or indirectly), affiliated investment funds or investment vehicles, predecessors,
participants, successors, assigns (whether by operation of law or otherwise), subsidiaries, current, former, and future associated entities,
managed or advised entities, accounts or funds, partners, limited partners, general partners, principals, members, management companies,
fund advisors, managers, fiduciaries, trustees, employees, agents (including any disbursing agent), advisory board members, financial
advisors, attorneys, accountants, investment bankers, consultants, other representatives, and other professionals, representatives, advisors,
predecessors, successors, and assigns, each solely in their capacities as such (including any other attorneys or professionals retained
by any current or former director or manager in his or her capacity as director or manager of an Entity), and the respective heirs, executors,
estates, servants and nominees of the foregoing.
111. “Released
Party” means each of, and in each case in their capacity as such: (a) the Debtors; (b) the Reorganized Debtors; (c) the
Consenting Stakeholders; (d) the Agents; (e) the Releasing Parties; and (f) each Related Party of each Entity in clause
(a) through this clause (e); provided, that any Holder of a Claim or Interest that opts out of the releases contained in the Plan
shall not be a “Released Party.”
112. “Releasing
Party” means each of, and in each case in its capacity as such: (a) the Debtors; (b) the Reorganized Debtors; (c) the
Consenting Stakeholders; (d) the Agents; (e) all Holders of Claims that vote to accept the Plan; (f) all Holders of Claims
or Interests that are presumed to accept the Plan and who do not affirmatively opt out of the releases provided by the Plan; (g) all
Holders of Claims or Interests that are deemed to reject the Plan and who do not affirmatively opt out of the releases provided by the
Plan; (h) all Holders of Claims who abstain from voting on the Plan and who do not affirmatively opt out of the releases provided
by the Plan; (i) all Holders of Claims who vote to reject the Plan and who do not affirmatively opt out of the releases provided
by the Plan; and (k) each Related Party of each Entity in clauses (a) through (i) for which such Entity is legally entitled
to bind such Related Party to the releases contained in the Plan under applicable law; provided that, for the avoidance of doubt, each
Holder of Claims and/or Interests that is party to or has otherwise signed the Restructuring Support Agreement shall not opt out of the
releases.
113. “Reorganized
Debtors” means, collectively, the Debtors, as reorganized pursuant to and under the Plan, on and after the Effective Date, or
any successor or assign thereto, by merger, consolidation, or otherwise, including any new entity established in connection with the implementation
of the Restructuring Transactions.
114. “Required
Consenting First Lien Noteholders” means, as of the relevant date, Consenting First Lien Noteholders holding at least 66.67%
of the aggregate outstanding principal amount of First Lien Senior Secured Notes that are held by Consenting First Lien Noteholders; provided
that Required Consenting First Lien Noteholders must include each of the Beach Point Stakeholders and Brigade Stakeholders.
115. “Required
Consenting Second Lien Lenders” means, as of the relevant date, Consenting Second Lien Term Lenders holding at least 66.67%
of the aggregate outstanding principal amount of Second Lien Term Loan that are held by Consenting Second Lien Term Lenders; provided
that Required Consenting Second Lien Term Lenders must include the Deerfield Stakeholders.
116. “Required
Consenting Stakeholders” means each of the Required Consenting Second Lien Term Lenders and the Required Consenting First Lien
Noteholders.
117. “Restructuring
Documents” means the documents listed in section 3.01 of the Restructuring Support Agreement, in each case consistent
with the Plan and the Restructuring Support Agreement (including any consent rights contained therein).
118. “Restructuring
Expenses” means, collectively, all of the Crossover Group’s and Agents’ reasonable and documented fees, costs and
expenses incurred through the Effective Date in connection with the Restructuring Transactions, including, without limitation, all reasonable
and documented fees, costs and expenses of the Crossover Group Advisors, in each case, without any requirement for the filing of retention
applications in the Chapter 11 Cases, to be paid on the Effective Date.
119. “Restructuring
Transactions Memorandum” means the summary of transaction steps to complete the restructuring contemplated by the Plan, which
shall be (a) included in the Plan Supplement; and (b) consistent with the Plan and the Restructuring Support Agreement (including
any consent rights contained therein).
120. “Restructuring
Support Agreement” means that certain Restructuring Support Agreement, entered into and dated as of April 30, 2023,
by and among the Debtors and the Consenting Stakeholders, including all exhibits, schedules, and other attachments thereto, as such agreement
may be further amended, modified, or supplemented from time to time, solely in accordance with its terms, which is attached as Exhibit B
to the Disclosure Statement.
121. “Restructuring
Term Sheet” means that certain term sheet attached as Exhibit B to the Restructuring Support Agreement.
122. “Restructuring
Transactions” means any transaction and any actions as may be necessary or appropriate to effect a corporate restructuring of
the Debtors’ and the Reorganized Debtors’ respective businesses or a corporate restructuring of the overall corporate structure
of the Debtors on the terms set forth in the Plan and Restructuring Support Agreement, including the issuance of all Securities, notes,
instruments, certificates, and other documents required to be issued pursuant to the Plan, one or more inter-company mergers, consolidations,
amalgamations, arrangements, continuances, restructurings, conversions, dissolutions, transfers, liquidations, or other corporate transactions,
as described in Article IV.B of the Plan.
123. “Revolving
Credit Facility” means the revolving credit facility issued pursuant to the Revolving Credit Facility Agreement that was terminated
on or around May 1, 2023.
124. “Revolving
Credit Facility Agreement” means that certain Credit and Guaranty Agreement among the Debtors, the lenders from time to time
party thereto, and Wells Fargo Bank, National Association, as administrative agent and collateral agent, dated as of December 7,
2020, amended April 22, 2021 (as further amended, supplemented, amended and restated, or otherwise modified from time to time).
125. “Schedule
of Proposed Cure Amounts” means any schedule (including any amendments, supplements, or modifications thereto) of the Debtors’
proposed Cure amounts (if any) with respect to each of the Executory Contracts and Unexpired Leases to be assumed by the Debtors pursuant
to the Plan.
126. “Schedule
of Retained Causes of Action” means the schedule of certain Causes of Action of the Debtors that are not released, waived, or
transferred pursuant to the Plan, as the same may be amended, modified, or supplemented from time to time and which shall be acceptable
to the Debtors and the Required Consenting First Lien Noteholders and reasonably acceptable to the Required Consenting Second Lien Term
Lenders.
127. “Second
Lien Agent” means the administrative agent and collateral agent under the Second Lien Term Loan Agreement, its successors,
assigns, or any replacement agent appointed pursuant to the terms of the Second Lien Term Loan Agreement.
128. “Second
Lien Term Loan” means the loans issued pursuant to the Second Lien Term Loan Agreement.
129. “Second
Lien Term Loan Agreement” means that certain Second Lien Credit and Guaranty Agreement, by and among LCI, as company, the guarantors
thereunder, the lenders from time to time party thereto, and the Second Lien Agent, dated as of April 22, 2021, as amended and restated,
supplemented, or otherwise modified from time to time prior to the Petition Date.
130. “Second
Lien Term Loan Documents” means the Second Lien Term Loan Agreement and all other “Loan Documents” as defined in
the Second Lien Term Loan Agreement.
131. “Second
Lien Term Loan Claims” means any Claim against any Debtor derived from, based upon, or arising under the Second Lien Term Loan
Documents and any fees, costs, and expenses that are reimbursable by any Debtor pursuant to the Second Lien Term Loan Documents.
132. “Section 510(b) Claims”
means any Claim subject to subordination pursuant to section 510(b) of the Bankruptcy Code.
133. “Secured
Claim” means a Claim that is: (a) secured by a Lien on property in which any of the Debtors has an interest, which Lien
is valid, perfected, and enforceable pursuant to applicable law or by reason of a Bankruptcy Court order, or that is subject to a valid
right of setoff pursuant to section 553 of the Bankruptcy Code, to the extent of the value of the creditor’s interest in the Debtors’
interest in such property or to the extent of the amount subject to setoff, as applicable, as determined pursuant to section 506(a) of
the Bankruptcy Code; or (b) Allowed pursuant to the Plan, or separate order of the Bankruptcy Court, as a secured claim.
134. “Securities
Act” means the Securities Act of 1933, as amended, 15 U.S.C. §§ 77a–77aa, or any similar federal, state,
or local law, as now in effect or hereafter amended, and the rules and regulations promulgated thereunder.
135. “Security”
means any security, as defined in section 2(a)(1) of the Securities Act.
136. “Short
Term Incentive Plan” means the FY2023 short-term incentive plan for LCI’s employees in existence as of the effective date
of the Restructuring Support Agreement, as amended by the CEO STI Side Letter Agreement.
137. “Solicitation
Agent” means Omni Agent Solutions, the notice, claims, and solicitation agent proposed to be retained by the Debtors in the
Chapter 11 Cases.
138. “Solicitation
Materials” means, collectively, the solicitation materials with respect to the Plan.
139. “Takeback
Exit Documents” means, collectively, all agreements, documents, and instruments entered into in connection with the Takeback
Exit Facility, which shall be in form and substance acceptable to the Debtors and the Required Consenting First Lien Noteholders and reasonably
acceptable to the Required Consenting Second Lien Term Lenders.
140. “Takeback
Exit Facility” means a financing facility to be entered into by the Reorganized Debtors in the principal amount of $60 million,
which shall (i) accrue interest, payable in-kind, at a rate of 2.00%, (ii) be secured by all assets of the Reorganized Debtors,
(iii) mature on the date that is seven (7) years from the Plan Effective Date, and (iv) include an event of default in
the event (x) any judgment or judgments are rendered against any one or more of the Reorganized Debtors in an amount in excess of
$7,500,000 in the aggregate or (y) any Reorganized Debtor fails to pay and discharge any obligation or liability timely when due
in excess of $5,000,000 in the aggregate and such obligation remains unpaid and past due for more than 90 days, and shall otherwise include
customary terms and conditions for a facility of this kind and be acceptable to the Debtors and the Required Consenting First Lien Noteholders
and reasonably acceptable to the Required Consenting Second Lien Term Lenders.
141. “Takeback
Exit Facility Agent” means the administrative agent and collateral agent under the Takeback Exit Documents.
142. “Third-Party
Release” means the releases set forth in Article VIII.D of the Plan.
143. “Transfer
Agreement” means an executed form of the transfer agreement providing, among other things, that a transferee is bound by the
terms of the Restructuring Support Agreement and substantially in the form attached thereto as Exhibit D.
144. “U.S.
Trustee” means the United States Trustee for the District of Delaware.
145. “Unclaimed
Distribution” means any distribution under the Plan on account of an Allowed Claim or Allowed Interest to a Holder that has
not: (a) accepted a particular distribution or, in the case of distributions made by check, negotiated such check within 180 calendar
days of receipt; (b) given notice to the Reorganized Debtors of an intent to accept a particular distribution within 180 calendar
days of receipt; (c) responded to the Debtors’ or Reorganized Debtors’ requests for information necessary to facilitate
a particular distribution prior to the deadline included in such request for information; or (d) timely taken any other action necessary
to facilitate such distribution.
146. “Unexpired
Lease” means a lease to which one or more of the Debtors is a party that is subject to assumption or rejection under section
365 of the Bankruptcy Code.
147. “Unimpaired”
means with respect to a Class of Claims or Interests, a Class of Claims or Interests that is unimpaired within the meaning of
section 1124 of the Bankruptcy Code.
148. “Voting
Deadline” means May 16, 2023, at 5:00 p.m. (prevailing Eastern Time).
149. “Voting
Record Date” means April 21, 2023.
150. “Voting
Report” means the report certifying the methodology for the tabulation of votes and result of voting on the Plan.
| B. | Rules of
Interpretation. |
For purposes of this Plan:
(1) 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;
(2) 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 the referenced document shall be substantially in
that form or substantially on those terms and conditions; provided that nothing in this clause (2) shall affect any party’s
consent rights over any of the Restructuring Documents or any amendments thereto as provided for in the Restructuring Support Agreement;
(3) unless otherwise specified, any reference herein to an existing document, schedule, or exhibit, whether or not Filed, having
been Filed or to be Filed shall mean that document, schedule, or exhibit, as it may thereafter be amended, modified, or supplemented in
accordance with the Plan; (4) any reference to an Entity as a Holder of a Claim or Interest includes that Entity’s successors
and assigns; (5) unless otherwise specified, all references herein to “Articles” are references to Articles hereof or
hereto; (6) unless otherwise specified, all references herein to exhibits are references to exhibits in the Plan Supplement; (7) unless
otherwise specified, the words “herein,” “hereof,” and “hereto” refer to the Plan in its entirety
rather than to a particular portion of the Plan; (8) subject to the provisions of any contract, certificate of incorporation, bylaw,
instrument, release, or other agreement or document entered into in connection with the Plan, the rights and obligations arising pursuant
to the Plan shall be governed by, and construed and enforced in accordance with the applicable federal law, including the Bankruptcy Code
and Bankruptcy Rules; (9) 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 the Plan; (10) unless otherwise specified herein, the rules of construction
set forth in section 102 of the Bankruptcy Code shall apply; (11) 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; (12) all references to docket numbers of documents Filed in the Chapter 11 Cases
are references to the docket numbers under the Bankruptcy Court’s CM/ECF system; (13) all references to statutes, regulations,
orders, rules of courts, and the like shall mean as amended from time to time, and as applicable to the Chapter 11 Cases,
unless otherwise stated; (14) 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”; (15) references to “Proofs
of Claim,” “Holders of Claims,” “Disputed Claims,” and the like shall include “Proofs of Interest,”
“Holders of Interests,” “Disputed Interests,” and the like, as applicable; (16) any immaterial effectuating
provisions may be interpreted by the Reorganized Debtors in such a manner that is consistent with the overall purpose and intent of the
Plan all without further notice to or action, order, or approval of the Bankruptcy Court or any other Entity; and (17) all references
herein to consent, acceptance, or approval may be conveyed by counsel for the respective parties that have such consent, acceptance, or
approval rights, including by electronic mail.
Unless otherwise specifically
stated herein, the provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed or allowed herein.
If the date on which a transaction may occur pursuant to the Plan shall occur on a day that is not a Business Day, then such transaction
shall instead occur on the next succeeding Business Day. Any action to be taken on the Effective Date may be taken on or as soon as reasonably
practicable after the Effective Date.
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 New York, without giving effect to the principles of conflict of laws (other than section 5-1401 and section
5-1402 of the New York General Obligations Law), shall govern the rights, obligations, construction, and implementation of the Plan, any
agreements, documents, instruments, or contracts executed or entered into in connection with the 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
that corporate governance matters relating to the Debtors or the Reorganized Debtors, as applicable, not incorporated in New York shall
be governed by the laws of the state of incorporation or formation of the relevant Debtor or the Reorganized Debtors, as applicable.
| E. | Reference to Monetary Figures. |
All references in the Plan
to monetary figures shall refer to currency of the United States of America, unless otherwise expressly provided herein.
| F. | Reference to the Debtors or the Reorganized Debtors. |
Except as otherwise specifically
provided in the Plan to the contrary, references in the Plan to the Debtors or the Reorganized Debtors shall mean the Debtors and the
Reorganized Debtors, as applicable, to the extent the context requires.
In
the event of an inconsistency between the Plan and the Disclosure Statement, the terms of the Plan shall control in all respects. In the
event of an inconsistency between the Plan and the Plan Supplement, the terms of the relevant provision in the Plan Supplement
shall control (unless stated otherwise in such Plan Supplement document or in the Confirmation Order). In the event of an inconsistency
between the Confirmation Order and the Plan, the Confirmation Order shall control.
| H. | Consultation, Information, Notice, and Consent Rights. |
Notwithstanding anything herein
to the contrary, any and all consultation, information, notice, and consent rights of the parties to the Restructuring Support Agreement
set forth in the Restructuring Support Agreement (including the exhibits thereto) with respect to the form and substance of this Plan,
all exhibits to the Plan, and the Plan Supplement, and all other Restructuring Documents, including any amendments, restatements, supplements,
or other modifications to such agreements and documents, and any consents, waivers, or other deviations under or from any such documents,
shall be incorporated herein by this reference (including to the applicable definitions in Article I.A hereof) and fully enforceable
as if stated in full herein.
Failure to reference the rights
referred to in the immediately preceding paragraph as such rights relate to any document referenced in the Restructuring Support Agreement
shall not impair such rights and obligations.
Article II.
ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS
In accordance with section
1123(a)(1) of the Bankruptcy Code, Administrative Claims, Professional Fee 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.
Except
with respect to the Professional Fee Claims and Claims for fees and expenses pursuant to section 1930 of chapter 123 of the Judicial Code,
and except to the extent that a Holder of an Allowed Administrative Claim and the Debtors against which such Allowed Administrative Claim
is asserted agree to less favorable treatment for such Holder or such Holder has been paid by any Debtor on account of such Allowed Administrative
Claim prior to the Effective Date, each Holder of an Allowed Administrative Claim will receive in full and final satisfaction of
its Administrative Claim an amount of Cash equal to the amount of such Allowed Administrative Claim in accordance with the following:
(1) if an Administrative 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 Administrative Claim is due or as soon as reasonably practicable thereafter);
(2) if such Administrative Claim is not Allowed as of the Effective Date, on the date of such allowance or as soon as reasonably
practicable thereafter, but in any event no later than thirty (30) days after the date on which an order allowing such Administrative
Claim becomes a Final Order; (3) if such Allowed Administrative Claim is based on liabilities incurred by the Debtors in the ordinary
course of their business after the Petition Date in accordance with the terms and conditions of the particular transaction giving rise
to such Allowed Administrative Claim without any further action by the Holder of such Allowed Administrative Claim; (4) at such time
and upon such terms as may be agreed upon by such Holder and the Debtors or the Reorganized Debtors, as applicable; or (5) at such
time and upon such terms as set forth in an order of the Bankruptcy Court.
| B. | Professional Fee Claims. |
1. Final
Fee Applications and Payment of Professional Fee Claims.
All requests for payment of
Professional Fee Claims for services rendered and reimbursement of expenses incurred prior to the Confirmation Date must be Filed no later
than forty-five (45) days after the Effective Date. The Bankruptcy Court shall determine the Allowed amounts of such Professional Fee
Claims after notice and a hearing in accordance with the procedures established by the Bankruptcy Court. The Reorganized Debtors shall
pay Professional Fee Claims in Cash in the amount the Bankruptcy Court allows, including from the Professional Escrow Account, and which
Allowed amount shall not be subject to disallowance, setoff, recoupment, subordination, recharacterization or reduction of any kind, including
pursuant to section 502(d) of the Bankruptcy Code.
2. Professional
Escrow Account.
No
later than the Effective Date, the Debtors shall, establish and fund the Professional Escrow Account with Cash equal to the Professional
Fee Amount. The Professional Escrow Account shall be maintained in trust solely for the Professionals until all Professional Fee
Claims Allowed by the Bankruptcy Court have been irrevocably paid in full pursuant to one or more Final Orders. Such funds shall not be
considered property of the Estates of the Debtors or the Reorganized Debtors. The amount of Allowed Professional Fee Claims shall be paid
in Cash to the Professionals by the Reorganized Debtors from the Professional Escrow Account as soon as reasonably practicable after such
Professional Fee Claims are Allowed; provided that the Debtors’ and the Reorganized Debtors’ obligations to pay Allowed
Professional Fee Claims shall not be limited nor be deemed limited to funds held in the Professional Escrow Account. When such Allowed
Professional Fee Claims have been paid in full, any remaining amount in the Professional Escrow Account shall promptly be transferred
to the Reorganized Debtors without any further notice to or action, order, or approval of the Bankruptcy Court.
3. Professional
Fee Amount.
Professionals shall reasonably
estimate their unpaid Professional Fee Claims and other unpaid fees and expenses incurred in rendering services to the Debtors before
and as of the Confirmation Date, and shall deliver such estimate to the Debtors no later than five (5) days before the Effective
Date; provided 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 the Chapter 11 Cases. If a Professional does not provide an estimate, the Debtors
or Reorganized Debtors may estimate the unpaid and unbilled fees and expenses of such Professional.
4. Post-Confirmation
Date Fees and Expenses.
Except as otherwise specifically
provided in the Plan, from and after the Confirmation Date, the Debtors shall, in the ordinary course of business and without any further
notice to or action, order, or approval of the Bankruptcy Court, pay in Cash the reasonable and documented legal, professional, or other
fees and expenses related to implementation of the Plan and Consummation incurred by the Debtors. Upon the Confirmation 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 Debtors may employ and pay any Professional in the ordinary course of business
for the period after the Confirmation Date without any further notice to or action, order, or approval of the Bankruptcy Court.
Except to the extent that
a Holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and
discharge of and in exchange for each Allowed Priority Tax Claim, each Holder of such Allowed Priority Tax Claim shall be treated in accordance
with the terms set forth in section 1129(a)(9)(C) of the Bankruptcy Code.
| D. | Payment of Statutory Fees. |
All fees due and payable by
the Debtors pursuant to section 1930 of Title 28 of the United States Code before the Effective Date shall be paid by the Debtors on the
Effective Date. After the Effective Date, the Reorganized Debtors shall pay any and all such fees when due and payable and shall File
with the Bankruptcy Court quarterly reports in a form reasonably acceptable to the United States Trustee.
| E. | Payment of Certain Fees and Expenses. |
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 (to the extent not previously paid during the course of the Chapter 11 Cases) in accordance with, and subject to, the
terms set forth herein, in the Restructuring Support Agreement, and in the Cash Collateral Order without any requirement to file a fee
application with the Bankruptcy Court and 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; provided, however, that such estimates
shall not be considered an admission or limitation with respect to such Restructuring Expenses. On the Effective Date, invoices in the
form of an invoice summary without time entries 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 Reorganized Debtors (as applicable) shall continue to pay, when due and payable
in the ordinary course, Restructuring Expenses related to implementation, consummation, and defense of the Plan, whether incurred before,
on, or after the Effective Date without any requirement: (1) to file a fee application with the Bankruptcy Court; and (2) for
review or approval by the Bankruptcy Court or any other party.
Article III.
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
| A. | Classification of Claims and Interests. |
Except for the Claims addressed
in Article II hereof, all Claims and Interests are classified in the Classes set forth below in accordance with sections 1122
and 1123(a)(1) of the Bankruptcy Code. A Claim or an Interest, or any portion thereof, is classified in a particular Class only
to the extent that any portion of such Claim or Interest fits within the description of that Class and is classified in other Classes
to the extent that any portion of the Claim or Interest fits within the description of such other Classes. A Claim or an Interest also
is classified in a particular Class for the purpose of receiving distributions under the Plan only to the extent that such Claim
or Interest is an Allowed Claim or Interest in that Class and has not been paid, released, or otherwise satisfied prior to the Effective
Date.
This Plan constitutes a separate
Plan proposed by each Debtor, and the classification of Claims and Interests set forth herein shall apply separately to each of the Debtors
(except for Class 10 Existing Interests, which shall only apply to LCI). All of the potential Classes for the Debtors are set forth
herein. Such groupings shall not affect any Debtor’s status as a separate legal Entity, change the organizational structure of the
Debtors’ business enterprise, constitute a change of control of any Debtor for any purpose, cause a merger or consolidation of any
legal Entities, or cause the transfer of any assets, and, except as otherwise provided by or permitted under the Plan, all Debtors shall
continue to exist as separate legal Entities after the Effective Date.
| 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 |
First Lien Senior Secured Notes Claims |
Impaired |
Entitled to Vote |
| Class 4 |
Second Lien Term Loan Claims |
Impaired |
Entitled to Vote |
| Class 5 |
General Unsecured Claims |
Unimpaired |
Not Entitled to Vote (Deemed to Accept) |
| Class 6 |
Convertible Notes Claims |
Impaired |
Not Entitled to Vote (Deemed to Reject) |
| Class 7 |
Intercompany Claims |
Unimpaired/Impaired |
Not Entitled to Vote (Deemed to Accept or Reject) |
| Class |
Claims and Interests |
Status |
Voting Rights |
| Class 8 |
Intercompany Interests |
Unimpaired/Impaired |
Not Entitled to Vote (Deemed to Accept or Reject) |
| Class 9 |
Section 510(b) Claims |
Impaired |
Note Entitled to Vote (Deemed to Reject) |
| Class 10 |
Existing Interests |
Impaired |
Not Entitled to Vote (Deemed to Reject) |
| B. | Treatment of Claims and Interests. |
Each Holder of an Allowed
Claim or Allowed Interest, as applicable, shall receive under the 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 or the Reorganized Debtors, as applicable, 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, if payment is not then due, in accordance with such Claim’s or Interest’s terms in the ordinary course of business)
or as soon as reasonably practicable thereafter.
1. Class 1
– Other Secured Claims
| (a) | Classification: Class 1 consists of all Other Secured Claims. |
| (b) | Treatment: On the Effective Date, except to the extent less favorable treatment is agreed to by
the Debtors or the Reorganized Debtors, as applicable, and a Holder of an Allowed Other Secured Claim, each Holder of an Allowed Other
Secured Claim shall receive, in full and final satisfaction of such Allowed Other Secured Claim, at the option of the applicable Debtor,
in consultation with the Crossover Group: |
| (i) | payment in full in Cash of its Allowed Other Secured Claim; |
| (ii) | the collateral securing its Allowed Other Secured Claim; |
| (iii) | Reinstatement of its Allowed Other Secured Claim; or |
| (iv) | such other treatment rendering its Allowed Other Secured Claim Unimpaired in accordance with section 1124
of the Bankruptcy Code. |
| (c) | Voting: Class 1 is Unimpaired under the Plan. Holders of Allowed Other Secured Claims are
conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the Plan. |
2. Class 2
– Other Priority Claims
| (a) | Classification: Class 2 consists of all Other Priority Claims. |
| (b) | Treatment: On the Effective Date, except to the extent less favorable treatment is agreed to by
the Debtors or the Reorganized Debtors, as applicable, and a Holder of an Allowed Other Priority Claim, each Holder of an Allowed Other
Priority Claim shall receive, in full and final satisfaction of such Allowed Other Priority Claim, treatment in a manner consistent with
section 1129(a)(9) of the Bankruptcy Code, which renders such Allowed Other Priority Claim Unimpaired in accordance with section
1124 of the Bankruptcy Code. |
| (c) | Voting: Class 2 is Unimpaired under the Plan. Holders of Allowed Other Priority Claims are
conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the Plan. |
3. Class 3
– First Lien Senior Secured Notes Claims
| (a) | Classification: Class 3 consists of all First Lien Senior Secured Notes Claims. |
| (b) | Allowed Amount: As of the Effective Date, the First Lien Senior Secured Notes Claims shall be Allowed
and deemed to be Allowed Claims in the amount of approximately $350 million of principal plus applicable interest, fees, costs, expenses,
and premiums owed under the First Lien Indenture through the Effective Date. |
| (c) | Treatment: On the Effective Date, except to the extent less favorable treatment is agreed to by
the Debtors or the Reorganized Debtors, as applicable, and a Holder of an Allowed First Lien Senior Secured Notes Claim, each Holder of
an Allowed First Lien Senior Secured Notes Claim shall receive, in full and final satisfaction of such Allowed First Lien Senior
Secured Notes Claim, its Pro Rata share of 97% of the Takeback Exit Facility and its Pro Rata share of 97% of the New Common Stock, subject
to dilution on account of the MIP New Common Stock and the New Warrants. |
| (d) | Voting: Class 3 is Impaired under the Plan. Holders of Allowed First Lien Senior Secured Notes
Claims are entitled to vote to accept or reject the Plan. |
4. Class 4
– Second Lien Term Loan Claims
| (a) | Classification: Class 4 consists of all Second Lien Term Loan Claims. |
| (b) | Allowed Amount: As of the Effective Date, the Second Lien Term Loan Claims shall be Allowed and
deemed to be Allowed Claims in the amount of approximately $220.92 million of principal plus applicable interest, fees, costs, expenses,
and premiums owed under the Second Lien Term Loan Agreement through the Effective Date. |
| (c) | Treatment: On the Effective Date, except to the extent less favorable treatment is agreed to by
the Debtors or the Reorganized Debtors, as applicable, and a Holder of an Allowed Second Lien Term Loan Claim, each Holder of an Allowed
Second Lien Term Loan Claim shall receive, in full and final satisfaction of such Allowed Second Lien Term Loan Claim: (1) its Pro
Rata Share of 3% of the Takeback Exit Facility; (2) its Pro Rata share of 3% of the New Common Stock, subject to dilution
on account of the MIP New Common Stock and the New Warrants; and (3) its Pro Rata share of the New Warrants. |
| (d) | Voting: Class 4 is Impaired under the Plan. Holders of Allowed Second Lien Term Loan Claims
are entitled to vote to accept or reject the Plan. |
5. Class 5
– General Unsecured Claims
| (a) | Classification: Class 5 consists of all General Unsecured Claims. |
| (b) | Treatment: On the Effective Date, except to the extent less favorable treatment is agreed to by
the Debtors or the Reorganized Debtors, as applicable, and a Holder of an Allowed General Unsecured Claim, each Allowed General Unsecured
Claim shall, at the option of the applicable Debtor, be either (i) Reinstated or (ii) paid in full in Cash on the later of (x) the
Effective Date and (y) the date on which such payment would otherwise be due in the ordinary course of business in accordance with
the terms and conditions of the particular transaction giving rise to such Allowed General Unsecured Claim. |
| (c) | Voting: Class 5 is Unimpaired under the Plan. Holders of Allowed General Unsecured Claims
are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders
are not entitled to vote to accept or reject the Plan. |
6. Class 6
– Convertible Notes Claims
| (a) | Classification: Class 6 consists of all Convertible Notes Claims. |
| (b) | Allowed Amount: As of the Effective Date, the Convertible Notes Claims shall be Allowed and deemed
to be Allowed Claims in the amount of approximately $86.25 million of principal plus applicable interest, fees, costs, expenses,
and premiums owed under the Convertible Notes through the Effective Date. |
| (c) | Treatment: On the Effective Date, all Allowed Convertible Notes Claims shall be canceled, released,
and extinguished, and will be of no further force or effect, without any distribution to Holders of Convertible Notes Claims. |
| (d) | Voting: Class 6 is Impaired under the Plan. Holders of Allowed Convertible Notes Claims are
conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the Plan. |
7. Class 7
– Intercompany Claims
| (a) | Classification: Class 7 consists of all Intercompany Claims. |
| (b) | Treatment: On the Effective Date, except to the extent less favorable treatment is agreed to by
the Debtors or the Reorganized Debtors, as applicable, and a Holder of an Allowed Intercompany Claim, each Allowed Intercompany Claim
shall be, at the option of the applicable Debtor (with the consent of the Required Consenting Stakeholders), either Reinstated, converted
to equity, or otherwise set off, settled distributed, contributed, canceled, or released, in each case, in accordance with the Restructuring
Steps Memorandum; provided that no distributions shall be made on account of any Intercompany Claims. |
| (c) | Voting: Class 7 is Unimpaired under the Plan if Intercompany Claims are Reinstated or Impaired
under the Plan if Intercompany Claims are canceled. Holders of Intercompany Claims are conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code or conclusively deemed to have rejected the Plan pursuant to section 1126(g) of
the Bankruptcy Code. Therefore, such Holders are not entitled to vote to accept or reject the Plan. |
8. Class 8
– Intercompany Interests
| (a) | Classification: Class 8 consists of all Intercompany Interests. |
| (b) | Treatment: On the Effective Date, Intercompany Interests shall, at the option of the applicable
Debtor (with the consent of the Required Consenting Stakeholders), be (i) Reinstated or (ii) set off, settled, addressed, distributed,
contributed, merged, canceled, or released, in each case in accordance with the Restructuring Steps Memorandum. |
| (c) | Voting: Class 8 is Unimpaired under the Plan. Holders of Intercompany Interests are conclusively
presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not entitled to
vote to accept or reject the Plan. |
9. Class 9
– Section 510(b) Claims
| (a) | Classification: Class 9 consists of all Section 510(b) Claims. |
| (b) | Treatment: On the Effective Date, all Allowed Section 510(b) Claims, if any, shall be
canceled, released, and extinguished, and will be of no further force or effect, without any distribution to Holders of Section 510(b) Claims. |
| (c) | Voting: Class 9 is Impaired under the Plan. Holders (if any) of Allowed Section 510(b) Claims
are conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, such Holders (if
any) are not entitled to vote to accept or reject the Plan. |
10. Class 10
– Existing Interests
| (a) | Classification: Class 10 consists of all Existing Interests. |
| (b) | Treatment: On the Effective Date and without the need for any further corporate or limited liability
company action or approval of any board of directors, board of managers, members, shareholders or officers of any Debtor or Reorganized
Debtor, as applicable, all Existing Interests shall be canceled, released, and extinguished and will be of no further force or effect,
without any distribution to Holders of Existing Interests. |
| (c) | Voting: Class 10 is Impaired under the Plan. Holders of Existing Interests are conclusively
deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, Holders of Existing Interests are
not entitled to vote to accept or reject the Plan. |
| C. | Special Provision Governing Unimpaired Claims. |
Except as otherwise provided
in the Plan, nothing under the Plan shall affect the Debtors’ or the Reorganized Debtors’ rights regarding any Unimpaired
Claim, including all rights regarding legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claim.
| 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 Bankruptcy
Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of voting to accept or reject the
Plan and for purposes of determining acceptance or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the
Bankruptcy Code.
| E. | Voting Record Date and Voting Deadline. |
The
Voting Record Date is April 21, 2023. The Voting Record Date is the date on which it will be determined which Holders
of Claims in the voting Classes are entitled to vote to accept or reject the Plan and whether Claims have been properly assigned or transferred
under Bankruptcy Rule 3001(e) such that an assignee or transferee, as applicable, can vote to accept or reject the Plan as the
Holder of a Claim.
The
Voting Deadline is May 16, 2023, at 5:00 p.m. (prevailing Eastern Time). In order to be counted as votes to accept
or reject the Plan, all ballots must be: (a) electronically submitted utilizing the electronic portal maintained by the Solicitation
Agent on or before the Voting Deadline; or (b) properly executed, completed, and delivered (by first class mail, overnight courier,
personal delivery, or via electronic mail) so that the ballots are actually received by the Solicitation Agent on or before
the Voting Deadline.
| F. | Intercompany Interests. |
To the extent Reinstated under
the Plan, distributions (if any) on account of Intercompany Interests are not being received by Holders of such Intercompany Interests
on account of their Intercompany Interests but for the purposes of administrative convenience and due to the importance of maintaining
the prepetition corporate structure for the ultimate benefit of the holders of New Common Stock, and in exchange for the Debtors’
and Reorganized Debtors’ agreement under the Plan to make certain distributions to the Holders of Allowed Claims. For the avoidance
of doubt, unless otherwise set forth in the Restructuring Transactions Memorandum, to the extent Reinstated pursuant to the Plan, on and
after the Effective Date, all Intercompany Interests shall be owned by the same Reorganized Debtor that corresponds with the Debtor that
owned such Intercompany Interests immediately prior to the Effective Date.
| G. | Confirmation Pursuant to Sections 1129(a)(10) and 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 Article III.B of the Plan. The Debtors shall seek Confirmation of the Plan pursuant to section 1129(b) of
the Bankruptcy Code with respect to any rejecting Class of Claims or Interests. The Debtors reserve the right to modify the Plan
in accordance with Article XI hereof and the Restructuring Support Agreement, with the consent of the Required Consenting Stakeholders
(which consent shall not be unreasonably withheld), to the extent, if any, that Confirmation pursuant to section 1129(b) of the Bankruptcy
Code requires modification, including by modifying the treatment applicable to a Class of Claims or Interests or reclassifying Claims
to the extent permitted by the Bankruptcy Code and the Bankruptcy Rules.
| H. | Controversy Concerning Impairment. |
If a controversy arises as
to whether any Claims or Interests, or any Class of Claims or Interests, are Impaired, the Bankruptcy Court shall, after notice and
a hearing, determine such controversy on or before the Confirmation Date.
| I. | Subordinated Claims and Interests. |
The allowance, classification,
and treatment of all Allowed Claims and Allowed Interests and the respective distributions and treatments under the Plan 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, section 510(b) of
the Bankruptcy Code, or otherwise, including the Intercreditor Agreements. Pursuant to section 510 of the Bankruptcy Code, the Debtors
or Reorganized Debtors reserve the right to re-classify any Allowed Claim or Allowed Interest in accordance with any contractual, legal,
or equitable subordination relating thereto.
Article IV.
MEANS FOR IMPLEMENTATION OF THE PLAN
| A. | General Settlement of Claims and Interests. |
To the extent provided for
by the Bankruptcy Code and in consideration for the classification, distributions, releases, and other benefits provided under the Plan,
on the Effective Date, the provisions of the Plan shall constitute a good-faith compromise and settlement of all Claims, Interests,
Causes of Action, and controversies released, settled, compromised, discharged, or otherwise resolved pursuant to the Plan, including
(1) any challenge to the amount, validity, perfection, enforceability, priority or extent of the First Lien Senior Secured Notes
Claims, and Second Lien Term Loan Claims and (2) any claim to avoid, subordinate, or disallow any First Lien Senior Secured Notes
Claims, and Second Lien Term Loan Claims, whether under any provision of chapter 5 of the Bankruptcy Code, on any equitable theory (including
equitable subordination, equitable disallowance, or unjust enrichment) or otherwise. To the extent provided for by the Bankruptcy Code,
the Plan shall be deemed a motion to approve the good-faith compromise and settlement of all such Claims, Interests, Causes of Action,
and controversies, and the entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of such compromise and
settlement, as well as a finding by the Bankruptcy 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 hereof, all distributions made to Holders of Allowed Claims
and Allowed Interests (as applicable) in any Class are intended to be and shall be final.
| B. | Restructuring Transactions. |
On
or before the Effective Date, the applicable Debtors or the Reorganized Debtors shall enter into and shall take any actions as may be
necessary or appropriate to effect the Restructuring Transactions, as set forth in the Restructuring Transactions Memorandum or as otherwise
reasonably acceptable to the Required Consenting Stakeholders, which may include: (1) the execution and delivery of appropriate
agreements or other documents of merger, amalgamation, consolidation, restructuring, conversion, disposition, transfer, arrangement, continuance,
dissolution, sale, purchase, or liquidation containing terms that are consistent with the terms of the Plan, the Restructuring Support
Agreement, and that satisfy the applicable requirements of applicable law and any other terms to which the applicable Entities may agree,
including the documents constituting the Plan Supplement; (2) 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 and the Restructuring Support Agreement, and having other terms for which the applicable Entities may agree; (3) the
execution, delivery, and filing, if applicable, of appropriate certificates or articles of incorporation, formation, reincorporation,
merger, consolidation, conversion, amalgamation, arrangement, continuance, or dissolution pursuant to applicable law; (4) the
execution and delivery of the New Organizational Documents (including the New Stockholders Agreement); and the issuance, distribution,
reservation, or dilution, as applicable, of the New Common Stock, as set forth herein; (5) the execution and delivery of
the New RCF Documents and Takeback Exit Documents; (6) the execution and delivery of the New Warrant Agreement, including the issuance
and distribution of the New Warrants; and (7) all other actions that the applicable Entities determine, with the consent of the Required
Consenting Stakeholders (which consent shall not be unreasonably withheld), to be necessary, including making filings or recordings that
may be required by applicable law in connection with the Plan. 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, contemplated by, or necessary to effectuate the Plan, including the Restructuring Transactions.
On the Effective Date, the
New Board shall be established, and the Reorganized Debtors shall adopt their New Organizational Documents. The Reorganized Debtors shall
be authorized to adopt any other agreements, documents, and instruments and to take any other actions contemplated under the Plan as necessary
to consummate the Plan. Cash payments to be made pursuant to the Plan will be made by the Debtors or Reorganized Debtors. The Debtors
and Reorganized Debtors will be entitled to transfer funds between and among themselves as they determine to be necessary or appropriate
to enable the Debtors or Reorganized Debtors, as applicable, to satisfy their obligations under the Plan. Except as set forth herein,
any changes in intercompany account balances resulting from such transfers will be accounted for and settled in accordance with the Debtors’
historical intercompany account settlement practices and will not violate the terms of the Plan.
From and after the Effective
Date, the Reorganized Debtors, subject to any applicable limitations set forth in any post-Effective Date agreement, including the Takeback
Exit Documents and New RCF Documents, shall have the right and authority, without further order of the Bankruptcy Court, to raise additional
capital and obtain additional financing, subject to the New Organizational Documents, as the boards of directors or boards of managers
of the applicable Reorganized Debtors deem appropriate.
| D. | Sources of Consideration for Plan Distributions. |
The Debtors and the Reorganized
Debtors, as applicable, shall fund distributions under the Plan with: (1) Cash on hand, including Cash from operations; (2) the
New Common Stock; (3) the New Warrants; (4) the Takeback Exit Facility; and (5) the New RCF.
1. Issuance
of New Common Stock.
On the Effective Date, Reorganized
LCI shall issue the New Common Stock pursuant to the Plan. The issuance of the New Common Stock, including equity awards reserved
for the Management Incentive Plan, by the Reorganized Debtors shall be authorized without the need for any further corporate action or
without any further action by the Debtors or Reorganized Debtors or by Holders of any Claims or Interests, as applicable.
All of the shares (or comparable
units) of New Common Stock issued pursuant to the Plan shall be duly authorized, validly issued, fully paid, and non-assessable. Each
distribution and issuance of New Common Stock shall be governed by the terms and conditions set forth in the Plan applicable to such distribution
or issuance and by the terms and conditions of the instruments evidencing or relating to such distribution or issuance, which terms and
conditions shall bind each Entity receiving such distribution or issuance without the need for execution by any party thereto other than
the applicable Reorganized Debtor(s). Any Entity’s acceptance of New Common Stock shall be deemed as its agreement to the New Organizational
Documents, as the same may be amended or modified from time to time following the Effective Date in accordance with their respective terms.
As a condition to receiving the New Common Stock, Holders of Allowed First Lien Senior Secured Notes Claims and Second Lien Term Loan
Claims will be required to execute and deliver the New Stockholders Agreement; provided, however, that, notwithstanding
any failure to execute the New Stockholders Agreement, any Entity that is entitled to and accepts a distribution of New Common Stock under
the Plan, by accepting such distribution, will be deemed to have accepted and consented to the terms of the New Stockholders Agreement
(solely in such Entity’s capacity as a stockholder of Reorganized LCI), without the need for execution by any party thereto. The
New Stockholders Agreement will be effective as of the Effective Date and, as of such date, will be deemed to be valid, binding, and enforceable
in accordance with its terms, and each holder of New Common Stock will be bound thereby in all respects. The New Common Stock will not
be registered under the Securities Act or listed on any exchange as of the Effective Date and will not meet the eligibility requirements
of the Depository Trust Company.
As of the Effective Date,
the Reorganized Debtors will not be subject to any reporting requirements promulgated by the SEC.
2. Issuance
of New Warrants.
On the Effective Date, Reorganized
LCI shall issue the New Warrants pursuant to the Plan. The issuance of the New Warrants and the shares of New Common Stock that may be
issued upon exercise of the New Warrants shall be authorized without the need for any further corporate action or without any further
action by the Debtors or Reorganized Debtors or by Holders of any Claims or Interests, as applicable. All of the New Warrants and the
shares of New Common Stock that may be issued upon exercise of the New Warrants issued pursuant to the Plan shall be duly authorized,
validly issued, fully paid, and non-assessable. Each distribution and issuance of New Warrants shall be governed by the terms and conditions
set forth in the Plan applicable to such distribution or issuance and by the terms and conditions of the instruments evidencing or relating
to such distribution or issuance, which terms and conditions shall bind each Entity receiving such distribution or issuance without the
need for execution by any party thereto other than the applicable Reorganized Debtor(s). Any Entity’s acceptance of New Warrants
shall be deemed as its agreement to the New Warrant Agreement, as the same may be amended or modified from time to time following the
Effective Date in accordance with its terms. The New Warrant Agreement shall be effective as of the Effective Date and, as of such date,
shall be deemed to be valid, binding, and enforceable in accordance with its terms, and each Holder of New Warrants shall be bound thereby
(without any further action or signature) in all respects, whether or not such Holder has executed the New Warrant Agreement. The New
Warrants will not be registered under the Securities Act or listed on any exchange as of the Effective Date and will not meet the eligibility
requirements of the Depository Trust Company.
3. Takeback
Exit Facility.
On the Effective Date, the
Reorganized Debtors shall enter into the Takeback Exit Facility pursuant to the Takeback Exit Documents. To the extent applicable, Confirmation
of the Plan shall be deemed (a) approval of the Takeback Exit Facility (including the transactions and related agreements contemplated
thereby, and all actions to be taken, undertakings to be made, and obligations to be incurred and fees and expenses to be paid by the
Debtors or the Reorganized Debtors, as applicable, in connection therewith), and (b) authorization for the Debtors and the Reorganized
Debtors, as applicable, to, without further notice to or order of the Bankruptcy Court, (i) execute and deliver those documents and
agreements necessary or appropriate to pursue or obtain the Takeback Exit Facility, including the Takeback Exit Documents, and incur and
pay any fees and expenses in connection therewith, and (ii) act or take action under applicable law, regulation, order, or rule or
vote, consent, authorization, or approval of any Person, subject to such modifications as the Debtors or the Reorganized Debtors, as applicable,
may deem to be necessary to consummate the Takeback Exit Facility.
As of the Effective Date,
all of the Liens and security interests to be granted by the Debtors in accordance with the Takeback Exit Documents: (a) shall be
deemed to be granted; (b) shall be legal, valid, binding, automatically perfected, non-avoidable, and enforceable Liens on, and security
interests in, the applicable collateral specified in the Takeback Exit Documents; and (c) shall not be subject to avoidance, recharacterization,
or equitable subordination for any purposes whatsoever and shall not constitute preferential transfers, fraudulent transfers, or fraudulent
conveyances under the Bankruptcy Code or any applicable non-bankruptcy law. To the extent provided in the Takeback Exit Documents, the
Takeback Exit Facility agent is authorized to file with the appropriate authorities mortgages, financing statements and other documents,
and to take any other action in order to evidence, validate, and perfect such Liens or security interests. The priorities of such Liens
and security interests shall be as set forth in the Takeback Exit Documents. The Takeback Exit Facility agent shall be authorized to make
all filings and recordings 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. The guarantees granted under the Takeback Exit
Documents have been granted in good faith, for legitimate business purposes, and for reasonably equivalent value as an inducement to the
lenders thereunder to extend credit thereunder and shall be deemed to not constitute a fraudulent conveyance or fraudulent transfer and
shall not otherwise be subject to avoidance, recharacterization, or subordination for any purposes whatsoever and shall not constitute
preferential transfers or fraudulent conveyances under the Bankruptcy Code or any applicable nonbankruptcy law.
4. New
RCF.
On the Effective Date, the
Reorganized Debtors shall enter into the New RCF pursuant to the New RCF Documents. To the extent applicable, Confirmation of the
Plan shall be deemed (a) approval of the New RCF and the New RCF Documents; as applicable and (b) authorization for the
Debtors and the Reorganized Debtors, as applicable, to take any and all actions necessary or appropriate to consummate the New RCF, including
executing and delivering the New RCF Documents, in each case, without any further notice to or order of the Bankruptcy Court.
As of the Effective Date,
and to the extent applicable, all of the Liens and security interests to be granted by the Debtors in accordance with the New RCF Documents,
as applicable: (a) shall be deemed to be granted; (b) shall be legal, valid, binding, automatically perfected, non-avoidable,
and enforceable Liens on, and security interests in, the applicable collateral specified in the New RCF Documents, as applicable;
and (c) shall not be subject to avoidance, recharacterization, or equitable subordination for any purposes whatsoever and shall not
constitute preferential transfers, fraudulent transfers, or fraudulent conveyances under the Bankruptcy Code or any applicable non-bankruptcy
law. To the extent provided in the New RCF Documents, the New RCF Agent is authorized to file with the appropriate authorities
mortgages, financing statements and other documents, and to take any other action in order to evidence, validate, and perfect such Liens
or security interests. The priorities of such Liens and security interests shall be as set forth in the New RCF Documents, as applicable.
The New RCF Agent shall be authorized to make all filings and recordings 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.
The guarantees granted under the New RCF Documents, as applicable, have been granted in good faith, for legitimate business purposes,
and for reasonably equivalent value as an inducement to the lenders thereunder to extend credit thereunder and shall be deemed to not
constitute a fraudulent conveyance or fraudulent transfer and shall not otherwise be subject to avoidance, recharacterization, or subordination
for any purposes whatsoever and shall not constitute preferential transfers or fraudulent conveyances under the Bankruptcy Code or any
applicable nonbankruptcy law.
Except as otherwise provided
in the Plan or any agreement, instrument, or other document incorporated in the Plan or the Plan Supplement, each Debtor shall continue
to exist after the Effective Date as a separate corporate entity, limited liability company, partnership, or other form, as the case may
be, with all the powers of a corporation, limited liability company, partnership, or other form, 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 formation documents) in effect prior to the Effective Date, except to the extent such certificate of incorporation
and bylaws (or other formation documents) are amended under the Plan or otherwise, in each case, consistent with the Restructuring Support
Agreement and the consent rights therein (which are incorporated herein pursuant to Article I.H), and to the extent such documents
are amended in accordance therewith, 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, or federal law). After the Effective Date, the respective
certificate of incorporation and bylaws (or other formation documents) of one or more of the Reorganized 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. On or after the Effective Date, one or more of the Reorganized 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.
| F. | Vesting of Assets in the Reorganized Debtors. |
Except as otherwise provided
in the Confirmation Order, the Plan, or any agreement, instrument, or other document incorporated in, or entered into in connection with
or pursuant to, the Plan or Plan Supplement, on the Effective Date, all property in each Estate, all Causes of Action, and any property
acquired by any of the Debtors pursuant to the Plan shall vest in each respective Reorganized Debtor, free and clear of all Liens, Claims,
charges, or other encumbrances. On and after the Effective Date, except as otherwise provided in the Plan, each Reorganized Debtor may
operate its business and may use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Causes of Action
without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.
For the avoidance of doubt, no Reorganized Debtor shall be treated as being liable on any Claim that is discharged pursuant to the Plan.
| G. | Cancellation of Existing Securities and Agreements. |
On
the Effective Date, except to the extent otherwise provided in the Plan or Confirmation Order, all notes, instruments, certificates,
and other documents evidencing Claims or Interests shall be canceled, and the obligations of the Debtors or the Reorganized Debtors
and any non-Debtor Affiliates thereunder or in any way related thereto shall be discharged and deemed satisfied in full, and the Agents
shall be released from all duties and obligations thereunder; provided, however, that notwithstanding any provision of the
Plan or Confirmation Order to the contrary, including, without limitation, Article VIII of the Plan, Confirmation, or the occurrence
of the Effective Date, any credit document or agreement, including, without limitation, the First Lien Indenture and the Second Lien Term
Loan Documents, that governs the rights of the Holder of a Claim or Interest shall continue in effect solely for purposes of (a) allowing
Holders of Allowed Claims to receive distributions under the Plan; (b) allowing and preserving the rights of the Agents to make and
the Holders to receive distributions pursuant to the Plan; (c) permitting the Agents to enforce any obligation (if any) owed to such
Agents under the Plan; (d) preserving the Agents’ respective rights to compensation, participations, reimbursement and indemnification
as against any money or property distributable to the Holders of Claims, including permitting an Agents’ right to maintain, enforce,
and exercise their charging liens or other priority of payment, if any, against such distribution; (e) preserving all rights, remedies,
indemnities, powers, and protections, including rights of enforcement, of the Agents against any person other than the Debtors and their
Affiliates, including with respect to indemnification, participations, reimbursements or contribution from the Holders of First Lien Senior
Secured Notes Claims and Second Lien Term Loan Claims, pursuant and subject to the terms of the First Lien Indenture and the Second Lien
Term Loan Documents, as in effect on the Effective Date, and preserving all exculpations of the Prepetition First Lien Agent and the Prepetition
Second Lien Agent (f) permitting the Agents to enforce any obligation (if any) owed to the Agents under the Plan; (g) permitting
the Agents to appear in the Chapter 11 Cases or in any proceeding in the Bankruptcy Court or any other court; and (h) permitting
the Agents to perform any functions that are necessary to effectuate the foregoing; provided, further, however, that
(1) the preceding proviso shall not affect the discharge of Claims or Interests pursuant to the Bankruptcy Code, the Confirmation
Order, or the Plan, or result in any expense or liability to the Debtors or Reorganized Debtors, as applicable, except as expressly provided
for in the Plan or Confirmation Order; and (2) except as otherwise provided in the Plan, the terms and provisions of the Plan shall
not modify any existing contract or agreement that would in any way be inconsistent with distributions under the Plan. The Agents shall
be discharged and shall have no further duty, obligation or liability except as provided in the Plan and Confirmation Order, and after
the performance by the Agents and their representatives and professionals of any obligations and duties required under or related to the
Plan or Confirmation Order, the Agents shall be relieved of and released from any obligations and duties arising thereunder.
Subject
to the Restructuring Support Agreement, on or before the Effective Date, as applicable, all actions contemplated under the Plan (including
the Restructuring Transactions Memorandum and the other documents contained in the Plan Supplement) shall be deemed authorized and approved
by the Bankruptcy Court in all respects without any further corporate or equity holder action, including, as applicable: (1) the
adoption or assumption, as applicable, of the Compensation and Benefits Programs; (2) the selection of the directors and officers
for the Reorganized Debtors, including the appointment of the New Board; (3) the authorization, issuance and distribution of the
Takeback Exit Facility, the New RCF, as applicable, the New Common Stock, the New Warrants, and the execution, delivery, and filing of
any documents pertaining thereto, as applicable; (4) the implementation of the Restructuring Transactions; (5) the entry into
the Takeback Exit Documents and the New RCF Documents, as applicable; (6) all other actions contemplated under the Plan (whether
to occur before, on, or after the Effective Date); (7) the adoption of the New Organizational Documents (including the New Stockholders
Agreement); (8) the assumption, assumption and assignment, or rejection (to the extent applicable), as applicable,
of Executory Contracts and Unexpired Leases; and (9) all other acts or actions contemplated or reasonably necessary or appropriate
to promptly consummate the Restructuring Transactions 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 the Debtors or the Reorganized Debtors,
and any corporate, partnership, limited liability company, or other governance action required by the Debtors or the Reorganized Debtors,
as applicable, in connection with the Plan shall be deemed to have occurred and shall be in effect, without any requirement of further
action by the Security holders, members, directors, or officers of the Debtors or the Reorganized Debtors, as applicable. On or (as applicable)
prior to the Effective Date, the appropriate officers of the Debtors or the Reorganized Debtors, as applicable, shall be authorized and
(as applicable) directed to issue, execute, and deliver the agreements, documents, Securities, and instruments contemplated under the
Plan (or necessary or desirable to effect the transactions contemplated under the Plan) in the name of and on behalf of the Reorganized
Debtors, including the New Common Stock, the New Warrants, the New Warrant Agreement, the New Organizational Documents (including the New Stockholders
Agreement), the Takeback Exit Documents, the New RCF Documents, as applicable, and any and all other agreements, documents, Securities,
and instruments relating to the foregoing. The authorizations and approvals contemplated by this Article IV.G shall be effective
notwithstanding any requirements under nonbankruptcy law.
| I. | New Organizational Documents. |
On or immediately prior to
the Effective Date, the New Organizational Documents (including the New Stockholders Agreement) shall be automatically
adopted by the applicable Reorganized Debtors. To the extent required under the Plan or applicable non-bankruptcy law, each of the Reorganized
Debtors will file its New Organizational Documents with the applicable authorities in its respective jurisdiction of organization if and
to the extent required in accordance with the applicable laws of such jurisdiction. The New Organizational Documents will, among other
things, (a) authorize the issuance of the New Common Stock and (b) prohibit the issuance of non-voting equity Securities, solely
to the extent required under section 1123(a)(6) of the Bankruptcy Code. After the Effective Date, each Reorganized Debtor may amend
and restate its certificate of incorporation and other formation and constituent documents as permitted by the laws of its respective
jurisdiction of formation and the terms of the New Organizational Documents.
| J. | New Stockholders Agreement. |
From and after the Effective
Date, all holders of New Common Stock shall be subject to the terms and conditions of the New Stockholders Agreement.
| K. | Indemnification Obligations. |
All indemnification provisions
currently in place consistent with applicable law (whether in the by-laws, certificates of incorporation or formation, limited liability
company agreements, other organizational documents, board resolutions, indemnification agreements, employment contracts, or otherwise)
as of the Petition Date for the current and former directors, officers, managers, employees, attorneys, accountants, investment bankers,
and other professionals of the Debtors, as applicable, shall, to the fullest extent permitted by applicable law (including being subject
to the limitations of the Delaware General Corporation Law, including the limitations contained therein on a corporation’s ability
to indemnify officers and directors), be reinstated and remain intact, irrevocable, and shall survive the Effective Date on terms no less
favorable to such current and former directors, officers, managers, employees, attorneys, accountants, investment bankers, and other professionals
of the Debtors than the indemnification provisions in place prior to the Effective Date.
| L. | Directors and Officers of the Reorganized Debtors. |
As of the Effective Date,
the term of the current members of the board of directors of LCI shall expire, such current directors shall be deemed to have resigned,
and all of the directors for the initial term of the New Board shall be appointed. The New Board shall consist of the Debtors’ CEO
and two (2) such other members to be appointed by the Consenting First Lien Noteholders in consultation with the Debtors’ CEO.
To the extent known, the identity of the members of the New Board will be disclosed in the Plan Supplement or prior to the Confirmation
Hearing, consistent with section 1129(a)(5) of the Bankruptcy Code. In subsequent terms, the directors shall be selected in accordance
with the New Organizational Documents. Each director and officer of the Reorganized Debtors shall serve from and after the Effective Date
pursuant to the terms of the applicable New Organizational Documents and other constituent documents.
| M. | Effectuating Documents; Further Transactions. |
On and after the Effective
Date, the Reorganized Debtors, and their respective officers, directors, members, or managers (as applicable), are authorized to and may
issue, execute, deliver, file, or record such contracts, Securities, instruments, releases, and other agreements or documents and take
such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Plan, the
new Takeback Exit Facility entered into, the New RCF, as applicable, entered into, and the Securities issued pursuant to the Plan in the
name of and on behalf of the Reorganized Debtors, without the need for any approvals, authorization, or consents except for those expressly
required pursuant to the Plan.
| N. | Existing Letter of Credit Cash Collateralization. |
On the Effective Date, all
undrawn Existing Letters of Credit and all obligations related thereto shall either be returned to the applicable L/C Issuer or cash collateralized.
| O. | Section 1146 Exemption. |
To the fullest extent permitted
by section 1146(a) of the Bankruptcy Code, any transfers (whether from a Debtor to a Reorganized Debtor or to any other Person) of
property under the Plan or pursuant to: (1) the issuance, distribution, transfer, or exchange of any debt, equity Security, or other
interest in the Debtors or the Reorganized Debtors, including the New Common Stock and the New Warrants, (2) the Restructuring Transactions;
(3) the creation, modification, consolidation, termination, refinancing, and/or recording of any mortgage, deed of trust, or other
security interest, or the securing of additional indebtedness by such or other means; (4) the making, assignment, or recording of
any lease or sublease; (5) the grant of collateral as security for the Reorganized Debtors’ obligations under and in connection
with the Takeback Exit Facility and the New RCF, as applicable; or (6) the making, delivery, or recording of any deed or other instrument
of transfer under, in furtherance of, or in connection with, the Plan, including any deeds, bills of sale, assignments, or other instrument
of transfer executed in connection with any transaction arising out of, contemplated by, or in any way related to the Plan, shall not
be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax,
personal property transfer tax, sales or use tax, mortgage recording tax, Uniform Commercial Code filing or recording fee, regulatory
filing or recording fee, or other similar tax or governmental assessment, and upon entry of the Confirmation Order, the appropriate state
or local governmental officials or agents shall forego the collection of any such tax or governmental assessment and accept for filing
and recordation any of the foregoing instruments or other documents without the payment of any such tax, recordation fee, or governmental
assessment. All filing or recording officers (or any other Person with authority over any of the foregoing), wherever located and by whomever
appointed, shall comply with the requirements of section 1146(a) of the Bankruptcy Code, shall forego the collection of any
such tax or governmental assessment, and shall accept for filing and recordation any of the foregoing instruments or other documents without
the payment of any such tax or governmental assessment.
| P. | Director and Officer Liability Insurance. |
Notwithstanding anything in
the Plan to the contrary, the Reorganized Debtors shall be deemed to have assumed all of the Debtors’ D&O Liability Insurance
Policies pursuant to section 365(a) of the Bankruptcy Code effective as of the Effective Date. Entry of the Confirmation Order will
constitute the Bankruptcy Court’s approval of the Reorganized Debtors’ foregoing assumption of each of the unexpired D&O
Liability Insurance Policies. Notwithstanding anything to the contrary contained in the Plan, Confirmation of the Plan shall not discharge,
impair, or otherwise modify any indemnity obligations assumed by the foregoing assumption of the D&O Liability Insurance Policies,
and each such indemnity obligation will be deemed and treated as an Executory Contract that has been assumed by the Debtors under the
Plan as to which no Proof of Claim need be filed.
In addition, after the Effective
Date, none of the Reorganized Debtors shall terminate or otherwise adversely affect the coverage under any D&O Liability Insurance
Policies (including any “tail policy”) in effect on or after the Petition Date, with respect to conduct occurring prior thereto,
and all directors and officers of the Debtors who served in such capacity at any time prior to the Effective Date shall be entitled to
the full benefits of any such policy for the full term of such policy, to the extent set forth therein, regardless of whether such directors
and officers remain in such positions after the Effective Date.
| Q. | Management Incentive Plan. |
After the Effective Date,
the Reorganized Debtors shall adopt and implement the Management Incentive Plan, which shall be designed, implemented, and determined
by New Board, under which no less than 10% of the New Common Stock outstanding on the Effective Date (on a fully diluted and fully distributed
basis, treating the Management Incentive Plan as fully allocated) will be reserved for grants made from time to time to the management
or officers of the Reorganized Debtors. The Plan will provide that grants of at least 30% of the New Common Stock reserved under the Management
Incentive Plan will be allocated within 60 days of the Effective Date.
On the Effective Date, the
employment agreement for the Debtors’ CEO shall be amended to provide the Debtors’ CEO with the right to resign for “good
reason” pursuant to the terms of such agreement in the event the terms and conditions (including allocation) of the award to the
Debtors’ CEO under the Management Incentive Plan are not reasonably acceptable to the Debtors’ CEO. On the Effective Date,
the employment agreements for the non-CEO Named Executive Officers shall be amended to provide the non-CEO Named Executive Officers with
the right to resign for “good reason” pursuant to the terms of such agreements, in which case they will be entitled to 75%
of their applicable severance payments, in the event the award to such Named Executive Officer under the Management Incentive Plan (i) is
not on substantially similar terms and conditions (but not allocation) as the award reasonably acceptable to the Debtors’ CEO or
(ii) provides for an allocation to such Named Executive Officer that is materially less than the award that the Debtors’ CEO
recommends to the New Board in writing.
| R. | Preservation of Causes of Action. |
In accordance with section
1123(b) of the Bankruptcy Code, but subject to Article VIII hereof, each Reorganized Debtor, as applicable, shall retain and
may enforce all rights to commence and pursue, as appropriate, any and all Causes of Action of the Debtors, whether arising before or
after the Petition Date, including any actions specifically enumerated in the Schedule of Retained Causes of Action, and the Reorganized
Debtors’ rights to commence, prosecute, or settle such Causes of Action shall be preserved notwithstanding the occurrence of the
Effective Date, other than the Causes of Action released or exculpated herein (including, without limitation, by the Debtors) pursuant
to the releases and exculpations contained in the Plan, including in Article VIII hereof, which shall be deemed released and waived
by the Debtors and the Reorganized Debtors as of the Effective Date.
The Reorganized Debtors may
pursue such retained Causes of Action, as appropriate, in accordance with the best interests of the Reorganized Debtors. No Entity
(other than the Released Parties) may rely on the absence of a specific reference in the Plan, the Plan Supplement, or the Disclosure
Statement to any Cause of Action against it as any indication that the Debtors or the Reorganized Debtors, as applicable, will not pursue
any and all available Causes of Action of the Debtors against it. The Debtors and the Reorganized Debtors expressly reserve all rights
to prosecute any and all Causes of Action against any Entity, except as otherwise expressly provided in the Plan, including Article VIII
hereof. The Reorganized Debtors may settle any such Cause of Action without any further notice to or action, order, or approval of
the Bankruptcy Court. If there is any dispute between the Reorganized Debtors and the Entity against whom the Reorganized Debtors are
asserting the Cause of Action regarding the inclusion of any Cause of Action on the Schedule of Retained Causes of Action that remains
unresolved for thirty (30) days, such objection shall be resolved by the Bankruptcy Court. Unless any Causes of Action of the Debtors
against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or a Final Order, the
Reorganized Debtors expressly reserve all Causes of Action, for later adjudication, and, therefore, no preclusion doctrine, including
the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable, or otherwise),
or laches, shall apply to such Causes of Action upon, after, or as a consequence of the Confirmation or Consummation.
The
Reorganized Debtors reserve and shall retain such Causes of Action of the Debtors notwithstanding the rejection or repudiation (to
the extent applicable) of any Executory Contract or Unexpired Lease during the Chapter 11 Cases or pursuant to the Plan. In accordance
with section 1123(b)(3) of the Bankruptcy Code, any Causes of Action that a Debtor may hold against any Entity shall vest in the
Reorganized Debtors, except as otherwise expressly provided in the Plan, including Article VIII hereof. The applicable Reorganized
Debtors, through their authorized agents or representatives, shall retain and may exclusively enforce any and all such Causes of Action.
The Reorganized Debtors shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce,
abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action and to decline to do any of the foregoing
without the consent or approval of any third party or further notice to or action, order, or approval of the Bankruptcy Court. For the
avoidance of doubt, in no instance will any Cause of Action preserved pursuant to this Article IV.Q include any Claim or Cause of
Action with respect to, or against, a Released Party or Exculpated Party.
| S. | Release of Avoidance Actions. |
On
the Effective Date, the Debtors, on behalf of themselves and their Estates, shall release any and all Avoidance Actions, and the Debtors,
the Reorganized Debtors, and any of their successors or assigns, and any Entity acting on behalf of the Debtors or the Reorganized Debtors
shall be deemed to have waived the right to pursue any and all Avoidance Actions, except for Avoidance Actions brought as counterclaims
or defenses to Claims asserted against the Debtors.
Article V.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
| A. | Assumption and Rejection of Executory Contracts and Unexpired Leases. |
On
the Effective Date, except as otherwise provided in Article V.H.1 and elsewhere herein, all Executory Contracts or Unexpired Leases
not otherwise assumed or rejected (to the extent applicable) will be deemed assumed by the applicable Reorganized
Debtor in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those
that are: (1) identified on the Rejected Executory Contracts and Unexpired Leases Schedule (if any); (2) previously expired
or terminated pursuant to their own terms; (3) have been previously assumed or rejected (to the extent applicable)
by the Debtors pursuant to a Final 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.
Entry
of the Confirmation Order shall constitute an order of the Bankruptcy Court approving the assumptions, assumptions and assignments, and
related Cure amounts with respect thereto, or rejections (to the extent applicable) of the Executory Contracts or
Unexpired Leases as set forth in the Plan or the Schedule of Proposed Cure Amounts or the Rejected Executory Contracts and Unexpired Leases
Schedule (if any), pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Except as otherwise specifically set forth herein
or in the Plan Supplement, assumptions or rejections (to the extent applicable) of Executory Contracts and Unexpired Leases
pursuant to the Plan are effective as of the Effective Date. Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or
by Bankruptcy Court order but not assigned to a third party before the Effective Date shall re-vest in and be fully enforceable by the
applicable contracting Reorganized Debtor in accordance with its terms, except as such terms may have been modified by the provisions
of the Plan or any order of the Bankruptcy Court authorizing and providing for its assumption. Any motions to assume Executory Contracts
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 Reorganized Debtors.
Except as otherwise provided
herein or agreed to by the Debtors (with the consent of the Required Consenting Stakeholders, which consent shall not be unreasonably
withheld) and the applicable counterparty, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments,
supplements, restatements, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses,
permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements,
and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11
Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount
of any Claims that may arise in connection therewith.
To the maximum extent permitted
by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan
restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment
of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be
deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory
Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto.
Notwithstanding
anything to the contrary in the Plan, the Debtors or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify,
or supplement the Rejected Executory Contracts and Unexpired Leases Schedule (if any) or Schedule of Proposed Cure Amounts, with the consent
of the Required Consenting Stakeholders (which consent shall not be unreasonably withheld) at any time up to forty-five (45) days after
the Effective Date. The Debtors or the Reorganized Debtors, as applicable, shall file with the Bankruptcy Court and serve on the
applicable counterparty notice regarding any change to the Rejected Executory Contracts and Unexpired Leases Schedule (if any) or
the Schedule of Proposed Cure Amounts, as applicable, and the counterparty shall have fourteen (14) days from service of such notice to
file an objection with the Bankruptcy Court.
To the extent any provision
of the Bankruptcy Code or the Bankruptcy Rules requires the Debtors to assume or reject an Executory Contract or Unexpired Lease,
such requirement shall be satisfied if the Debtors make an election to assume or reject such Executory Contract or Unexpired Lease prior
to the deadline set forth by the Bankruptcy Code or the Bankruptcy Rules, as applicable, regardless of whether or not the Bankruptcy Court
has actually ruled on such proposed assumption or rejection prior to such deadline.
If certain, but not all, of
a contract counterparty’s Executory Contracts or Unexpired Leases are assumed pursuant to the Plan, the Confirmation Order shall
be a determination that such counterparty’s Executory Contracts or Unexpired Leases that are being rejected pursuant to the Plan
are severable agreements that are not integrated with those Executory Contracts and/or Unexpired Leases that are being assumed pursuant
to the Plan. Parties seeking to contest this finding with respect to their Executory Contracts and/or Unexpired Leases must file a timely
objection to the Plan on the grounds that their agreements are integrated and not severable, and any such dispute shall be resolved by
the Bankruptcy Court at the Confirmation Hearing (to the extent not resolved by the parties prior to the Confirmation Hearing).
| B. | Claims Based on Rejection of Executory Contracts or Unexpired Leases. |
Unless
otherwise provided by a Final Order of the Bankruptcy Court, to the extent applicable, all Proofs of Claim with
respect to Claims arising from the rejection of Executory Contracts or Unexpired Leases, including pursuant to the Plan or the Confirmation
Order, must be Filed with the Bankruptcy Court within thirty (30) days after the later of (1) the date of service of an order of
the Bankruptcy Court (including the Confirmation Order) approving such rejection, (2) the effective date of such rejection, or (3) the
Effective Date.
Any
Claims arising from the rejection of an Executory Contract or Unexpired Lease not Filed with the Bankruptcy Court within such time will
be automatically disallowed, forever barred from assertion, and shall not be enforceable against the Debtors or the Reorganized Debtors,
the Estates, or their property without the need for any objection by the Reorganized Debtors or further notice to, or action, order, or
approval of the Bankruptcy Court or any other Entity, and any Claim arising out of the rejection of the Executory Contract
or Unexpired Lease shall be deemed fully satisfied, released, and discharged, notwithstanding anything in the Proof of Claim to the contrary.
| C. | Cure of Defaults for Assumed Executory Contracts and Unexpired Leases. |
On the Effective Date, the
Debtors or the Reorganized Debtors, as applicable, shall, in accordance with the Schedule of Proposed Cure Amounts, pay all Cure costs
(if any) relating to Executory Contracts and Unexpired Leases that are being assumed under the Plan in the ordinary course of business.
Unless otherwise agreed upon in writing by the parties to the applicable Executory Contract or Unexpired Lease, all requests for payment
of Cure costs that differ from the amounts paid or proposed to be paid by the Debtors or the Reorganized Debtors to a counterparty must
be Filed on or before fourteen (14) days after the Filing of the Schedule of Proposed Cure Amounts or fourteen (14) days after notice
of a change to the Schedule of Proposed Cure Amounts. Any such request that is not timely Filed shall be disallowed and forever barred,
estopped, and enjoined from assertion, and shall not be enforceable against any Debtor or Reorganized Debtor, without the need for any
objection by the Debtors or Reorganized Debtors or any other party in interest or any further notice to or action, order, or approval
of the Bankruptcy Court. Any Cure costs shall be deemed fully satisfied, released, and discharged upon payment by the Debtors or the Reorganized
Debtors of the applicable Cure costs. The Reorganized Debtors also may settle any Cure costs without any further notice to or action,
order, or approval of the Bankruptcy Court. In addition, any objection to the assumption of an Executory Contract or Unexpired Lease under
the Plan must be Filed with the Bankruptcy Court on or before the Confirmation Hearing. Any such objection will be scheduled to be heard
by the Bankruptcy Court at the Confirmation Hearing or as otherwise scheduled for hearing by the Bankruptcy Court. Any counterparty to
an Executory Contract or Unexpired Lease that fails to timely object to the proposed assumption of any Executory Contract or Unexpired
Lease will be deemed to have consented to such assumption.
If there is any dispute regarding
any Cure costs, the ability of the Reorganized Debtors or any assignee to provide “adequate assurance of future performance”
within the meaning of section 365 of the Bankruptcy Code, or any other matter pertaining to assumption, then payment of any Cure costs
shall occur as soon as reasonably practicable after entry of a Final Order resolving such dispute, approving such assumption (and, if
applicable, assignment), or as may be agreed upon by the Debtors or the Reorganized Debtors, as applicable, and the counterparty to the
Executory Contract or Unexpired Lease. The Debtors and Reorganized Debtors, as applicable, with the consent of the Required Lenders, which
consent shall not be unreasonably withheld, reserve the right at any time to move to reject any Executory Contract or Unexpired Lease
based upon the existence of any such unresolved dispute. If the Bankruptcy Court determines that the Allowed Cure cost with respect to
any Executory Contract or Unexpired Lease is greater than the amount set forth in the Schedule of Proposed Cure Amounts, the Debtors shall
have the right (with the consent of the Required Lenders, which consent shall not be unreasonably withheld) to add such Executory Contract
or Unexpired Lease to the Schedule of Rejected Executory Contracts and Unexpired Leases, in which case such Executory Contract or Unexpired
Lease will be deemed rejected as of the Effective Date subject to the applicable counterparty’s right to object to such rejection.
Assumption of any Executory
Contract or Unexpired Lease pursuant to the Plan or otherwise shall result in the full release and satisfaction of any Cures, Claims,
or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest
composition or any bankruptcy-related defaults, arising at any time prior to the effective date of assumption. Any and all Proofs of
Claims based upon Executory Contracts or Unexpired Leases that have been assumed in the Chapter 11 Cases, including pursuant to the Confirmation
Order, shall be deemed disallowed and expunged as of the later of (1) the date of entry of an order of the Bankruptcy Court (including
the Confirmation Order) approving such assumption, (2) the effective date of such assumption, or (3) the Effective Date without
the need for any objection thereto or any further notice to or action, order, or approval of the Bankruptcy Court.
| D. | Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired Leases. |
To the extent applicable,
rejection of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall not constitute a termination of preexisting
obligations owed to the Debtors or the Reorganized Debtors, as applicable, under such Executory Contracts or Unexpired Leases. In particular,
notwithstanding any non-bankruptcy law to the contrary, the Reorganized 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 or Unexpired Leases (if any).
Each of the Debtors’
insurance policies and any agreements, documents, or instruments relating thereto, are treated as Executory Contracts under the Plan.
Unless otherwise provided in the Plan, on the Effective Date, (1) the Debtors shall be deemed to have assumed all insurance policies
and any agreements, documents, and instruments relating to coverage of all insured Claims and (2) such insurance policies and any
agreements, documents, or instruments relating thereto shall revest in the Reorganized Debtors.
Nothing contained in the Plan
or the Plan Supplement shall constitute an admission by the Debtors or any other party that any contract or lease is in fact an Executory
Contract or Unexpired Lease or that any Reorganized Debtor has any liability thereunder. If there is a dispute regarding whether a contract
or lease is or was executory or unexpired at the time of assumption or rejection (to the extent applicable), the Debtors or the Reorganized
Debtors, as applicable, shall have forty-five (45) days following entry of a Final Order resolving such dispute to alter their treatment
of such contract or lease.
| G. | Nonoccurrence of Effective Date. |
In the event that the Effective
Date does not occur, the Bankruptcy Court shall retain jurisdiction with respect to any request to extend the deadline for assuming or
rejecting Unexpired Leases pursuant to section 365(d)(4) of the Bankruptcy Code.
| H. | Employee Compensation and Benefits. |
1. Compensation
and Benefits Programs.
Except as otherwise set forth
herein, on the Effective Date, the Debtors shall assume all employment agreements or letters, indemnification agreements, severance agreements,
retention agreements, or other agreements entered into with current and former officers and other employees, including the Short Term
Incentive Plan. Notwithstanding the foregoing, pursuant to section 1129(a)(13) of the Bankruptcy Code, from and after the Effective
Date, all retiree benefits (as such term is defined in section 1114 of the Bankruptcy Code), if any, shall continue
to be paid in accordance with applicable law.
Subject to the provisions
of the Plan, all Compensation and Benefits Programs shall be treated as Executory Contracts under the Plan and deemed assumed on the Effective
Date pursuant to the provisions of sections 365 and 1123 of the Bankruptcy Code, except for:
| (a) | all employee equity or equity-based incentive plans, and any provisions set forth in the Compensation
and Benefits Programs that provide for rights to acquire Existing Interests in any of the Debtors, which shall not constitute or be deemed
to constitute Executory Contracts and shall be deemed terminated on the Effective Date; |
| (b) | Compensation and Benefits Programs that have been rejected pursuant to an order of a Bankruptcy Court;
and |
| (c) | Compensation and Benefits Programs that, as of the entry of the Confirmation Order, have been specifically
waived by the beneficiaries of any Compensation and Benefits Program. |
2. Workers’
Compensation Programs.
As of the Effective Date,
except as set forth in the Plan Supplement, the Debtors and the Reorganized Debtors shall continue to honor their obligations under: (a) all
applicable workers’ compensation laws in states in which the Reorganized Debtors operate; and (b) the Debtors’ written
contracts, agreements, agreements of indemnity, self-insured workers’ compensation bonds, policies, programs, and plans for workers’
compensation and workers’ compensation insurance. All Proofs of Claims on account of workers’ compensation shall be deemed
withdrawn automatically and without any further notice to or action, order, or approval of the Bankruptcy Court; provided that
nothing in the Plan shall limit, diminish, or otherwise alter the Debtors’ or Reorganized Debtors’ defenses, Causes of Action,
or other rights under applicable non-bankruptcy law with respect to any such contracts, agreements, policies, programs, and plans; provided
further that nothing herein shall be deemed to impose any obligations on the Debtors in addition to what is provided for under applicable
non-bankruptcy law.
| I. | 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 Reorganized 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. | Distributions on Account of Claims Allowed as of the Effective Date. |
Except as otherwise provided
herein, in a Final Order, or as otherwise agreed to by the Debtors or the Reorganized Debtors, as the case may be, and the Holder of the
applicable Allowed Claim on the first Distribution Date, the Reorganized Debtors shall make initial distributions under the Plan on account
of Claims Allowed on or before the Effective Date, subject to the Reorganized Debtors’ right to object to Claims; provided
that (1) Allowed Administrative Claims with respect to liabilities incurred by the Debtors in the ordinary course of business during
the Chapter 11 Cases or assumed by the Debtors prior to the Effective Date shall be paid or performed in the ordinary course of business
in accordance with the terms and conditions of any controlling agreements, course of dealing, course of business, or industry practice,
(2) Allowed Priority Tax Claims shall be paid in accordance with Article II.C of the Plan, and (3) Allowed General Unsecured
Claims shall be paid in accordance with Article III.B.6 of the Plan. To the extent any Allowed Priority Tax Claim is not due and
owing on the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors
and the Holder of such Claim or as may be due and payable under applicable non-bankruptcy law or in the ordinary course of business.
All Plan Distributions shall
be made by the 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 Bankruptcy 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 Reorganized Debtors.
All Plan Distributions to
any Disbursing Agent on behalf of the Holders of Claims listed on the Claims Register (or the Permitted Designees of such Holder, as applicable)
shall be deemed completed by the Debtors when received by such Disbursing Agent. The Plan Distributions shall be made to any such Holders
(or the Permitted Designees of such Holder, as applicable) at the direction of the applicable Disbursing Agent.
| C. | Rights and Powers of Disbursing Agent. |
1. Powers
of the 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 the Plan; (b) make all 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 Bankruptcy Court, pursuant
to the 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 Bankruptcy Court, the amount of any reasonable fees and expenses incurred by the Disbursing Agent on or after the Effective Date
(including taxes), and any reasonable compensation and expense reimbursement claims (including reasonable attorney fees and expenses),
made by the Disbursing Agent shall be paid in Cash by the Reorganized Debtors.
| D. | Delivery of Distributions and Undeliverable or Unclaimed Distributions. |
1. Record
Date for Distribution.
On the Distribution Record
Date, the Claims Register and the loan registers maintained by the Agents shall be closed and any party responsible for making distributions
shall instead be authorized and entitled to recognize only those record Holders listed on the Claims Register or such loan registers as
of the close of business on the Distribution Record Date (or the Permitted Designees of such Holders, as applicable). If a Claim 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.
2. Delivery
of Distributions in General.
Except as otherwise provided
herein, distributions payable to Holders of Allowed Claims shall be made by the Disbursing Agent to the Permitted Designee of each such
Holder as of the Distribution Record Date or, if such Holder has not identified a Permitted Designee, to such Holder at the address for
each such Holder (or its Permitted Designee) as indicated on the Debtors’ records as of the date of any such distribution; provided
that the manner of such distributions shall be determined at the discretion of the Reorganized Debtors.
3. Minimum
Distributions.
No fractional shares of New
Common Stock shall be distributed and no Cash shall be distributed in lieu of such fractional amounts. When any distribution pursuant
to the Plan on account of an Allowed Claim would otherwise result in the issuance of a number of shares of New Common Stock that is not
a whole number, the actual distribution of shares of New Common Stock shall be rounded as follows: (a) fractions of one-half (½)
or greater shall be rounded to the next higher whole number and (b) fractions of less than one-half (½) shall be rounded to
the next lower whole number with no further payment therefor. The total number of authorized shares of New Common Stock to be distributed
to Holders of Allowed Claims (or their Permitted Designees) hereunder shall be adjusted as necessary to account for the foregoing rounding.
4. Undeliverable
Distributions and Unclaimed Property.
In the event that any distribution
to any Holder of Allowed Claims (or its Permitted Designee, as applicable) is returned as undeliverable, no distribution to such Holder
(or its Permitted Designee, as applicable) shall be made unless and until the Disbursing Agent has determined the then-current address
of such Holder (or its Permitted Designee, as applicable), at which time such distribution shall be made to such Holder without interest;
provided that such distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the
expiration of six months from the Effective Date. After such date, all unclaimed property or interests in property shall revert to the
Reorganized Debtors automatically and without need for a further order by the Bankruptcy Court (notwithstanding any applicable federal,
provincial or state escheat, abandoned, or unclaimed property laws to the contrary) and, to the extent such unclaimed distribution comprises
New Common Stock, such New Common Stock shall be canceled. Upon such revesting, the Claim of the Holder or its successors with respect
to such property shall be canceled, discharged, and forever barred notwithstanding any applicable federal or state escheat, abandoned,
or unclaimed property laws, or any provisions in any document governing the distribution that is an Unclaimed Distribution, to the contrary.
The Disbursing Agent shall adjust the number of shares of New Common Stock outstanding as of the date of such cancelation to ensure that
the distributions of New Common Stock contemplated under the Plan are given full force and effect.
5. 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 that has been
canceled in accordance with Article IV.F hereof shall be deemed to have surrendered such certificate or instrument to the Disbursing
Agent. Such surrendered certificate or instrument shall be canceled solely with respect to the Debtors and such cancelation shall not
alter the obligations or rights of any non-Debtor third parties (other than the Foreign Guarantor Subsidiaries) in respect of one another
with respect to such certificate or instrument, including with respect to any indenture or agreement that governs the rights of the Holder
of a Claim or Interest, which shall continue in effect for purposes of allowing Holders to receive distributions under the Plan, charging
liens, priority of payment, and reimbursement and indemnification rights. Notwithstanding anything to the contrary herein, this paragraph
shall not apply to certificates or instruments evidencing Claims that are Unimpaired under the Plan.
1. Except
as otherwise provided in the Plan or any agreement, instrument, or other document incorporated by the Plan or the Plan Supplement, all
distributions of the New Common Stock to the Holders of the applicable Allowed Claims (or their Permitted Designees) under the Plan shall
be made by the Disbursing Agent on behalf of the Debtors or Reorganized Debtors, as applicable.
2. All
distributions of Cash, as applicable, to the Holders of the applicable Allowed Claims (or their Permitted Designees) under the Plan shall
be made by the Disbursing Agent on behalf of the applicable Debtor or Reorganized Debtor.
3. 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.
| F. | Indefeasible Distributions. |
Any and all distributions
made under the Plan shall be indefeasible and not subject to clawback or turnover provisions.
| G. | Securities Law Matters. |
The offering, issuance and
distribution (if applicable) of any Securities before the Petition Date and any Securities issuable pursuant to the Management Incentive
Plan (to the extent not issued pursuant to a registration statement) will be issued pursuant to section 4(a)(2) of the Securities
Act. Any Securities distributed pursuant to section 4(a)(2) under the Securities Act will be considered “restricted securities”
as defined by Rule 144 of the Securities Act and may not be resold under the Securities Act or applicable state securities laws absent
an effective registration statement, or pursuant to an applicable exemption from registration, under the Securities Act and applicable
state securities laws and subject to any restrictions in the New Organizational Documents, the New Stockholders Agreement and the New
Warrant Agreement, as applicable.
Pursuant to section 1145 of
the Bankruptcy Code, the offering, issuance, and distribution of the Securities issuable pursuant to the Plan, excluding the MIP New Common
Stock, after the Petition Date, shall be exempt from, among other things, the registration requirements of section 5 of the Securities
Act or any similar federal, state, or local law in reliance on section 1145 of the Bankruptcy Code or, only to the extent such exemption
under Section 1145 of the Bankruptcy Code is not available, any other available exemption from registration under the Securities
Act. Pursuant to section 1145 of the Bankruptcy Code, such Securities (other than the MIP New Common Stock) will be freely tradable
in the U.S. without registration under the Securities Act by the recipients thereof, subject to the provisions of (1) section 1145(b)(1) of
the Bankruptcy Code relating to the definition of an underwriter in section 2(a)(11) of the Securities Act and compliance with any
applicable state or foreign securities laws, if any, and the rules and regulations of the Securities and Exchange Commission, if
any, applicable at the time of any future transfer of such Securities or instruments, (2) any other applicable regulatory approvals,
and (3) any restrictions in the Reorganized Debtors’ New Organizational Documents (including the New Stockholders Agreement)
and the New Warrant Agreement, as applicable.
Recipients of the New Common
Stock and New Warrants are advised to consult with their own legal advisors as to the availability of any exemption from registration
under the Securities Act and any applicable Blue Sky Laws.
Notwithstanding anything to
the contrary in the Plan, no Entity shall be entitled to require a legal opinion regarding the validity of any transaction contemplated
by the Plan, including, for the avoidance of doubt, whether the New Common Stock, the New Warrants and any MIP New Common Stock are exempt
from the registration requirements of section 5 of the Securities Act.
Recipients of the New Common
Stock, including any MIP New Common Stock, and New Warrants are advised to consult with their own legal advisors as to the availability
of any exemption from registration under the Securities Act and any applicable Blue Sky Laws.
| H. | Compliance with Tax Requirements. |
In connection with the Plan,
to the extent applicable, the Debtors, Reorganized Debtors, 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 distributions made pursuant to the Plan shall
be subject to such withholding and reporting requirements. Notwithstanding any provision in the 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 the 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 (subject to reasonable consultation with the Required Consenting Stakeholders). The Debtors and Reorganized
Debtors reserve the right to allocate all distributions made under the Plan in compliance with all applicable wage garnishments, alimony,
child support, and similar spousal awards, Liens, and encumbrances.
Distributions in respect of
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.
| J. | No Postpetition Interest on Claims. |
Unless otherwise specifically
provided for in the Plan or the Confirmation Order, or required by applicable bankruptcy and non-bankruptcy law, postpetition interest
shall not accrue or be paid on any prepetition Claims, and no Holder of a Claim shall be entitled to interest accruing on or after the
Petition Date on such Claim. Additionally, and without limiting the foregoing, interest shall not accrue or be paid on any Disputed Claim
with respect to the period from the Effective Date to the date a final distribution is made on account of such Disputed Claim, if and
when such Disputed Claim becomes an Allowed Claim.
| K. | Foreign Currency Exchange Rate. |
Except as otherwise provided
in a Bankruptcy 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.
| L. | Setoffs and Recoupment. |
Except as expressly provided
in this Plan, each Reorganized Debtor 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 Reorganized Debtor 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 Reorganized
Debtor(s) and the Holder of the Allowed Claim or (2) otherwise adjudicated by the Bankruptcy Court or another court of competent
jurisdiction; provided 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 Reorganized Debtor or its successor of any and all claims, rights, and Causes of Action that such
Reorganized Debtor or its 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 Debtors or the Reorganized Debtors, as applicable, unless such Holder
actually has performed such recoupment and provided notice thereof in writing to the Debtors in accordance with Article XIII.F hereof
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.
| M. | Claims Paid or Payable by Third Parties. |
1. Claims
Paid by Third Parties.
The Debtors or the Reorganized
Debtors, 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 Bankruptcy 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 or a Reorganized Debtor. Subject to the last sentence of this
paragraph, to the extent a Holder of a Claim receives a distribution on account of such Claim and receives payment from a party that is
not a Debtor or a Reorganized Debtor on account of such Claim, such Holder shall, within fourteen (14) days of receipt thereof, repay
or return the distribution to the applicable Reorganized Debtor, to the extent the Holder’s total recovery on account of such Claim
from the third party and under the Plan exceeds the amount of such Claim as of the date of any such distribution under the Plan. The failure
of such Holder to timely repay or return such distribution shall result in the Holder owing the applicable Reorganized Debtor annualized
interest at the Federal Judgment Rate on such amount owed for each Business Day after the fourteen-day grace period specified above
until the amount is repaid.
2. Claims
Payable by Third Parties.
No distributions under the
Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors’ insurance policies until the Holder
of such Allowed Claim has exhausted all remedies with respect to such insurance policy. To the extent that one or more of the Debtors’
insurers agrees to satisfy in full or in part a Claim (if and to the extent adjudicated by a court of competent jurisdiction), 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 Bankruptcy Court.
3. Applicability
of Insurance Policies.
Except as otherwise provided
in the Plan, distributions to Holders of Allowed Claims shall be in accordance with the provisions of any applicable insurance policy.
Nothing contained in the 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 policies of insurance, nor shall anything contained herein constitute or be deemed a waiver
by such insurers of any defenses, including coverage defenses, held by such insurers.
Article VII.
PROCEDURES FOR RESOLVING CONTINGENT,
UNLIQUIDATED, AND DISPUTED CLAIMS
| A. | Disputed Claims Process. |
There is no requirement to
file a Proof of Claim (or move the Bankruptcy Court for allowance) to have a Claim Allowed for the purposes of the Plan, except as provided
in Article V.B of the Plan. On and after the Effective Date, except as otherwise provided in this Plan, all Allowed Claims
shall be satisfied in the ordinary course of business of the Reorganized Debtors. The Debtors and the Reorganized Debtors, as applicable,
shall have the exclusive authority to (1) determine, without the need for notice to or action, order, or approval of the Bankruptcy
Court, that a claim subject to any Proof of Claim that is Filed is Allowed and (2) file, settle, compromise, withdraw, or litigate
to judgment any objections to Claims as permitted under this Plan. If the Debtors or Reorganized Debtors dispute any Claim, such
dispute shall be determined, resolved, or adjudicated, as the case may be, in the manner as if the Chapter 11 Cases had not been
commenced and shall survive the Effective Date as if the Chapter 11 Cases had not been commenced; provided
that the Debtors (in consultation with the Required Consenting Stakeholders) or the Reorganized Debtors may elect
to object to any Claim (other than Claims expressly Allowed by this Plan) and to have the validity or amount of any Claim adjudicated
by the Bankruptcy Court; provided, further, that Holders of Claims may elect to resolve the validity or amount of any Claim in
the Bankruptcy Court. If a Holder makes such an election, the Bankruptcy Court shall apply the law that would have governed the dispute
if the Chapter 11 Cases had not been filed. All Proofs of Claim Filed in the Chapter 11 Cases shall be considered objected
to and Disputed without further action by the Debtors. Except as otherwise provided herein, all Proofs of Claim Filed after the
Effective Date shall be disallowed and forever barred, estopped, and enjoined from assertion, and shall not be enforceable against any
Reorganized Debtor, without the need for any objection by the Reorganized Debtors or any further notice to or action, order, or approval
of the Bankruptcy Court.
After the Effective Date,
except as otherwise expressly set forth herein, each of the Reorganized Debtors shall have and retain any and all rights and defenses
such Debtor had with respect to any Claim or Interest immediately prior to the Effective Date. The Debtors may affirmatively determine
to deem Unimpaired Claims Allowed to the same extent such Claims would be allowed under applicable non-bankruptcy law.
| C. | Claims Administration Responsibilities. |
Except as otherwise specifically
provided in the Plan, after the Effective Date, the Reorganized Debtors shall have the sole authority: (1) to File, withdraw, or
litigate to judgment, objections to Claims or Interests; (2) to settle or compromise any Disputed Claim without any further notice
to or action, order, or approval by the Bankruptcy Court; and (3) to administer and adjust the Claims Register to reflect any such
settlements or compromises without any further notice to or action, order, or approval by the Bankruptcy Court. For the avoidance of doubt,
except as otherwise provided herein, from and after the Effective Date, each Reorganized Debtor shall have and retain any and all rights
and defenses such Debtor had immediately prior to the Effective Date with respect to any Disputed Claim or Interest, including the Causes
of Action retained pursuant to Article IV.Q of the Plan.
Notwithstanding the foregoing,
the Debtors and Reorganized Debtors shall be entitled to dispute and/or otherwise object to any General Unsecured Claim in accordance
with applicable nonbankruptcy law. If the Debtors, or Reorganized Debtors dispute any General Unsecured Claim, such dispute may be determined,
resolved, or adjudicated, as the case may be, in the manner as if the Chapter 11 Cases had not been commenced. In any action or proceeding
to determine the existence, validity, or amount of any General Unsecured Claim, any and all claims or defenses that could have been asserted
by the applicable Debtor(s) or the Entity holding such General Unsecured Claim are preserved as if the Chapter 11 Cases had not been
commenced, provided that, for the avoidance of doubt, the Allowed amount of such Claims shall be subject to the limitations or maximum
amounts permitted by the Bankruptcy Code, including sections 502 and 503 of the Bankruptcy Code to the extent applicable.
D. Estimation
of Claims and Interests
Before
or after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, may (but are not required to) at any time request
that the Bankruptcy Court estimate any Disputed Claim or Interest that is contingent or unliquidated pursuant to section 502(c) of
the Bankruptcy Code for any reason, regardless of whether any party previously has objected to such Claim or Interest or whether the Bankruptcy
Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim or Interest, including
during the litigation of any objection to any Claim or Interest or during the appeal relating to such objection. Notwithstanding any provision
otherwise in the Plan, a Claim that has been expunged from the Claims Register, but that either is subject to appeal or has not been the
subject of a Final Order, shall be deemed to be estimated at zero dollars, unless otherwise ordered by the Bankruptcy Court. In the event
that the Bankruptcy Court estimates any contingent or unliquidated Claim or Interest, that estimated amount shall constitute a maximum
limitation on such Claim or Interest for all purposes under the Plan (including for purposes of distributions), and the relevant Reorganized
Debtor may elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim or Interest.
| E. | Adjustment to Claims or Interests without Objection. |
Any duplicate Claim or Interest
or any Claim or Interest that has been paid, satisfied, amended, or superseded may be adjusted or expunged on the Claims Register by the
Reorganized Debtors without the Reorganized Debtors 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 Bankruptcy Court.
| F. | Disallowance of Claims or Interests. |
Except as otherwise expressly
set forth herein, all Claims and Interests of any Entity from which property is sought by the Debtors under sections 542, 543, 550, or
553 of the Bankruptcy Code or that the Debtors or the Reorganized Debtors 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 if: (1) the Entity, on
the one hand, and the Debtors or the Reorganized Debtors, as applicable, on the other hand, agree or the Bankruptcy 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.
| G. | No Distributions Pending Allowance. |
Notwithstanding any other
provision of the Plan, if any portion of a Claim or Interest is a Disputed Claim or Interest, as applicable, no payment or distribution
provided hereunder shall be made on account of such Claim or Interest unless and until such Disputed Claim or Interest becomes an Allowed
Claim or Interest; provided that if only the Allowed amount of an otherwise valid Claim or Interest is Disputed, such Claim or
Interest shall be deemed Allowed in the amount not Disputed and payment or distribution shall be made on account of such undisputed amount.
| H. | Distributions After Allowance. |
To the extent that a Disputed
Claim or Interest ultimately becomes an Allowed Claim or Interest, distributions (if any) shall be made to the Holder of such Allowed
Claim or Interest in accordance with the provisions of the Plan. On or as soon as reasonably practicable after the next Distribution Date
after the date that the order or judgment of the Bankruptcy Court allowing any Disputed Claim or Interest becomes a Final Order, the Disbursing
Agent shall provide to the Holder of such Claim or Interest the distribution (if any) to which such Holder is entitled under the Plan
as of the Effective Date, without any interest to be paid on account of such Claim or Interest.
Article VIII.
SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS
| A. | Discharge of Claims and Termination of Interests. |
Pursuant to section 1141(d) of
the Bankruptcy Code, and except as otherwise specifically provided in the Restructuring Documents, the Plan, or in any contract, instrument,
or other agreement or document created or entered into pursuant to the Plan, the distributions, rights, and treatment that are provided
in the 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 Reorganized 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 the Plan on account of such Claims and Interests, including
demands, liabilities, and Causes of Action that arose before the Effective Date, any liability (including withdrawal liability) to the
extent such Claims or Interests relate to services performed by employees of the Debtors prior to the Effective Date and that arise from
a termination of employment, 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 the Plan. The Confirmation Order shall be a judicial determination of
the discharge of all Claims (other than the Reinstated Claims) and Interests (other than the Intercompany Interests that are Reinstated)
subject to the occurrence of the Effective Date, except as otherwise specifically provided in the Plan or in any contract, instrument,
or other agreement or document created or entered into pursuant to the Plan.
Except as otherwise provided
in the Takeback Exit Documents and the New RCF Documents, as applicable, the Plan, the Confirmation Order, or in any contract, instrument,
release, or other agreement or document created or entered into pursuant to the Plan, on the Effective Date and concurrently with the
applicable distributions made pursuant to the 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, except for Other Secured Claims that the Debtors elect to Reinstate in accordance with this
Plan, 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 Reorganized Debtors 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 Reorganized 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 Reorganized Debtors to evidence the release of such Liens
and/or security interests, 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, records office, or department shall constitute good
and sufficient evidence of, but shall not be required to effect, the termination of such Liens.
To the extent that any
Holder of a Secured Claim that has been satisfied or discharged in full pursuant to the 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, at the sole cost and expense of the Reorganized Debtors,
take any and all steps reasonably requested by the Debtors, the Reorganized Debtors, the Takeback Exit Facility Agent, or the New RCF
Agent, as applicable, that are necessary or desirable to record or effectuate the cancelation and/or extinguishment of such Liens and/or
security interests, including the making of any applicable filings or recordings, and the Reorganized Debtors shall be entitled to make
any such filings or recordings on such Holder’s behalf.
| C. | Releases by the Debtors. |
Notwithstanding anything
contained in the Plan to the contrary, pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration, on
and after the Effective Date, each Released Party is deemed, hereby conclusively, absolutely, unconditionally, irrevocably and forever
released and discharged by the Debtors, the Reorganized Debtors, and their Estates, in each case on behalf of themselves and their respective
successors, assigns, and representatives, from any and all Claims and Causes of Action, whether known or unknown, including any derivative
claims, asserted or assertable on behalf of the Debtors, that the Debtors, the Reorganized Debtors, or their Estates, including any successors
to the Debtors or any Estate’s representative appointed or selected pursuant to section 1123(b) of the Bankruptcy Code, would
have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of any Claim
against or Interest in a Debtor or other Entity, or that any holder of any Claim against or Interest in a Debtor or other Entity could
have asserted on behalf of the Debtors, based on or relating to or in any manner arising from in whole or in part, the Debtors (including
the management, ownership, or operation thereof or otherwise), the Debtors’ in- or out-of-court restructuring efforts, any Avoidance
Actions, intercompany transactions, the Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation, entry
into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan Supplement, the Takeback Exit Facility,
the New RCF, the New Common Stock, the New Warrants, the New Warrant Agreement, or any Restructuring Transaction, contract, instrument,
release, or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the Disclosure
Statement, the Plan, the Plan Supplement, the Takeback Exit Facility, the New RCF, the New Common Stock, the New Warrants, the New Warrant
Agreement, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration
and implementation of the Plan, including the issuance or distribution of securities pursuant to the Plan, or the distribution of property
under the Plan or any other related agreement, or upon any other act or omission, transaction, agreement, event, or other occurrence taking
place on or before the Effective Date.
Notwithstanding anything
to the contrary in the foregoing, the releases set forth above do not release: (a) any post-Effective Date obligations of any party
or Entity under the Plan, the Confirmation Order, any Restructuring Document, or any post-Effective Date transaction contemplated by the
Restructuring Transactions (including under the New RCF, as applicable), or any document, instrument, or agreement (including those set
forth in the Plan Supplement and the New RCF, as applicable) executed to implement the Plan or the Restructuring Transactions; (b) the
rights of any Holder of Allowed Claims to receive distributions under the Plan; or (c) any matters retained by the Debtors and the
Reorganized Debtors pursuant to the Schedule of Retained Causes of Action.
Entry of the Confirmation
Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes
by reference each of the related provisions and definitions contained in the Plan, and further, shall constitute the Bankruptcy Court’s
finding that the Debtor Release is: (a) in exchange for the good and valuable consideration provided by the Released Parties, including,
the Released Parties’ contribution to facilitating the Restructuring Transactions and implementing the Plan; (b) a good faith
settlement and compromise of the Claims released by the Debtor Release; (c) in the best interests of the Debtors and all Holders
of Claims and Interests; (d) fair, equitable, and reasonable; (e) given and made after due notice and opportunity for a hearing;
and (f) a bar to any of the Debtors, the Reorganized Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action
released pursuant to the Debtor Release.
| D. | Releases by the Releasing Parties. |
As of the Effective Date,
each Releasing Party is deemed to have, hereby conclusively, absolutely, unconditionally, irrevocably and forever, released and discharged
each Debtor, Reorganized Debtor, and Released Party from any and all claims and Causes of Action, in each case on behalf of themselves
and their respective successors, assigns, and representatives, whether known or unknown, including any derivative claims, asserted on
behalf of the Debtors, the Reorganized Debtors, or the Estates, that such Entity would have been legally entitled to assert (whether individually
or collectively), based on or relating to or in any manner arising from, in whole or in part, the Debtors (including the management, ownership,
or operation thereof or otherwise), the Debtors’ in- or out-of-court restructuring efforts, any Avoidance Actions, intercompany
transactions, the Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan Supplement, the Takeback Exit Facility, the New RCF, the
New Common Stock, the New Warrants, the New Warrant Agreement, or any Restructuring Transaction, contract, instrument, release, or other
agreement or document created or entered into in connection with the Restructuring Support Agreement, the Disclosure Statement, the Plan,
the Plan Supplement, the Takeback Exit Facility, the New RCF, the New Common Stock, the New Warrants, the New Warrant Agreement, the Chapter
11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation
of the Plan, including the issuance or distribution of securities pursuant to the Plan, or the distribution of property under the Plan
or any other related agreement, or upon any other related act or omission, transaction, agreement, event, or other occurrence taking place
on or before the Effective Date.
Notwithstanding anything
to the contrary in the foregoing, the Third-Party Release does not release: (a) any post-Effective Date obligations of any party
or Entity under the Plan, the Confirmation Order, any Restructuring Document, or any post-Effective Date transaction contemplated by the
Restructuring Transactions (including under the New RCF, as applicable), or any document, instrument, or agreement (including those set
forth in the Plan Supplement and the New RCF, as applicable) executed to implement the Plan or the Restructuring Transactions; or (b) the
rights of any Holder of Allowed Claims to receive distributions under the Plan.
Entry of the Confirmation
Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the Third-Party Release, which
includes by reference each of the related provisions and definitions contained in the Plan, and further, shall constitute the Bankruptcy
Court’s finding that the Third-Party Release is: (a) consensual; (b) essential to the Confirmation of the Plan; (c) given
in exchange for the good and valuable consideration provided by the Released Parties; (d) a good faith settlement and compromise
of the Claims released by the Third-Party Release; (e) in the best interests of the Debtors their Estates; (f) fair, equitable,
and reasonable; (g) given and made after due notice and opportunity for a hearing; and (h) a bar to any of the Releasing Parties
asserting any Claim or Cause of Action released pursuant to the Third-Party Release.
Notwithstanding anything
contained in the Plan to the contrary, to the fullest extent permitted by applicable law, no Exculpated Party shall have or incur any
liability for, and each Exculpated Party shall be released and exculpated from any Cause of Action for any claim related to any act or
omission in connection with, relating to or arising out of the Chapter 11 Cases, the formulation, preparation, dissemination, solicitation,
negotiation, entry into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan Supplement, the
Takeback Exit Facility, the New RCF, the New Common Stock, the New Warrants, the New Warrant Agreement, or any Restructuring Transaction,
contract, instrument, release or other agreement or document created or entered into in connection with the Restructuring Support Agreement,
the Disclosure Statement, the Plan, the Plan Supplement, the Takeback Exit Facility, the New RCF, the New Common Stock, the New Warrants,
the New Warrant Agreement, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation,
the administration and implementation of the Plan, including the issuance of securities pursuant to the Plan, or the distribution of property
under the Plan or any other related agreement, except for claims related to any act or omission that is determined in a Final Order to
have constituted gross negligence, willful misconduct, or actual fraud. The Exculpated Parties have, and upon completion 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 votes 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.
Effective as of the Effective
Date, all Entities that have held, hold, or may hold Claims, Interests, Causes of Action, or liabilities that have been released,
discharged, or are subject to exculpation are permanently enjoined, from and after the Effective Date, from taking any of the following
actions against, as applicable, the Debtors, the Reorganized Debtors, the Exculpated Parties, or the Released Parties: (1) commencing
or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such
Claims, Interests, Causes of Action, or liabilities; (2) enforcing, attaching, collecting, or recovering by any manner or means
any judgment, award, decree, or order against such Entities on account of or in connection with or with respect to any such Claims, Interests,
Causes of Action, or liabilities; (3) creating, perfecting, or enforcing any encumbrance of any kind against such Entities or the
property or the estates of such Entities on account of or in connection with or with respect to any such Claims, Interests, Causes
of Action or liabilities; (4) asserting any right of setoff or subrogation of any kind against any obligation due from such Entities
or against the property of such Entities on account of or in connection with or with respect to any such Claims, Interests, Causes
of Action, or liabilities unless such Holder has filed a motion requesting the right to perform such setoff on or before the Effective
Date or has filed a Proof of Claim or proof of Interest indicating that such Holder asserts, has, or intends to preserve any right of
setoff pursuant to applicable law or otherwise; and (5) commencing or continuing in any manner any action or other proceeding of
any kind on account of or in connection with or with respect to any such Claims, Interests, Causes of Action, or liabilities released,
settled or subject to exculpation pursuant to the Plan. Notwithstanding anything to the contrary in the foregoing, the injunction set
forth above does not enjoin the enforcement of any obligations arising on or after the Effective Date of any Person or Entity under the
Plan, any post-Effective Date transaction contemplated by the Restructuring Transactions (including under the Takeback Exit Facility
and the New RCF, as applicable), or any document, instrument, or agreement (including those set forth in the Plan Supplement, the Takeback
Exit Facility, and the New RCF, as applicable) executed to implement the Plan.
Upon entry of the Confirmation
Order, all Holders of Claims and Interests and their respective current and former employees, agents, officers, directors, managers, principals,
and direct and indirect Affiliates, in their capacities as such, shall be enjoined from taking any actions to interfere with the implementation
or Consummation of the Plan. Each Holder of an Allowed Claim or Allowed Interest, as applicable, by accepting, or being eligible to accept,
distributions under or Reinstatement of such Claim or Interest, as applicable, pursuant to the Plan, shall be deemed to have consented
to the injunction provisions set forth in this Article VIII.F.
| G. | 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 Reorganized Debtors 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 Reorganized Debtors, or another Entity with whom
the Reorganized 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.
On and after the Effective
Date, the Reorganized Debtors may maintain documents in accordance with their standard document retention policy, as may be altered, amended,
modified, or supplemented by the Reorganized Debtors.
| I. | Reimbursement or Contribution. |
If the Bankruptcy 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.
Article IX.
CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN
| A. | Conditions Precedent to the Effective Date. |
It shall be a condition to
the Effective Date that the following conditions shall have been satisfied or waived pursuant to the provisions of Article IX.B hereof:
| 1. | the Restructuring Support Agreement shall not have been terminated and shall be in full force and effect
and there shall be no breach or other event that would give rise to a right to terminate the Restructuring Support Agreement as to all
parties thereto for which notice has been given in accordance with the terms thereof; |
| 2. | the Bankruptcy Court shall have entered the Cash Collateral Orders; |
| 3. | the Bankruptcy Court shall have entered the Confirmation Order, in form and substance consistent with
the Restructuring Support Agreement (including the consent rights therein), which shall be a Final Order; |
| 4. | each Restructuring Document shall have been executed (or deemed executed) or Filed, as applicable, in
form and substance consistent with the Restructuring Support Agreement and the Plan, and shall not have been modified in a manner inconsistent
therewith, and all conditions precedent (other than any conditions related to the occurrence of the Effective Date) to the effectiveness
of the Restructuring Documents shall have been satisfied or duly waived in writing in accordance with the terms of the applicable
Restructuring Document; |
| 5. | all actions, documents, and agreements necessary to implement and consummate the Plan shall have been
effected and executed (or deemed executed); |
| 6. | the New Common Stock shall have been issued; |
| 7. | the New Warrants shall have been issued in accordance with the New Warrant Agreement. |
| 8. | the Takeback Exit Documents shall have been duly executed and delivered by all of the Entities that are
parties thereto (provided that Holders of Allowed First Lien Senior Secured Notes Claims and Holders of Allowed Second Lien Term Loan
Claims shall be deemed to be parties to the Takeback Exit Documents without the requirement to deliver signature pages thereto) and
all conditions precedent (other than any conditions related to the occurrence of the Effective Date) to the effectiveness of the Takeback
Exit Facility shall have been satisfied or duly waived in writing in accordance with the terms of the Takeback Exit Documents and the
closing of the Takeback Exit Facility shall have occurred; |
| 9. | the New RCF Documents, as applicable, shall have been duly executed and delivered by all of the Entities
that are parties thereto and all conditions precedent (other than any conditions related to the Effective Date) to the effectiveness of
the New RCF shall have been satisfied or duly waived and the closing of the New RCF shall have occurred. |
| 10. | all undrawn Existing Letters of Credit shall be cash collateralized, to the extent not already cash collateralized; |
| 11. | the Debtors shall have obtained all authorizations, consents, regulatory approvals, rulings, or documents
that are necessary to implement and effectuate the Plan and the Restructuring Transactions; |
| 12. | all fees and expenses of retained professionals that require the Bankruptcy Court’s approval shall
have been paid in full or amounts sufficient to pay such fees and expenses after the Effective Date shall have been placed in the Professional
Escrow Account pending the Bankruptcy Court’s approval of such fees and expenses; and |
| 13. | all fees, expenses, and other amounts payable to the Consenting Stakeholders pursuant to the Restructuring Support
Agreement and the Agents pursuant to the Cash Collateral Orders and the Plan, including, without limitation, the Restructuring Expenses,
shall have been paid in full. |
Any one or more of the conditions
to Consummation set forth in this Article IX, except for the condition set forth in Article IX.A.12, may be waived by the Debtors
with the prior written consent (e-mail from counsel being sufficient) of the Required Consenting Stakeholders without notice, leave, or
order of the Bankruptcy Court or any formal action other than proceedings to confirm or consummate the Plan.
| C. | Effect of Failure of Conditions. |
If Consummation does not occur,
the Plan shall be null and void in all respects, and nothing contained in the Plan, the Disclosure Statement, or the Restructuring Support
Agreement shall: (1) constitute a waiver or release of any Claims by the Debtors, or any Holders of Claims against or Interests in
the Debtors; (2) prejudice in any manner the rights of the Debtors, any Holders of Claims against or Interests in the Debtors, 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 the Plan, as defined in 11 U.S.C. § 1101(2), shall be deemed to occur on the Effective Date.
Article X.
EFFECT OF CONFIRMATION OF THE PLAN
Upon entry of the Confirmation
Order, the Bankruptcy Court shall be deemed to have made and issued on the Confirmation Date the following findings of fact and conclusions
of law as though made after due deliberation and upon the record at the Confirmation Hearing. Upon entry of the Confirmation Order, any
and all findings of fact in the Plan shall constitute findings of fact even if they are stated as conclusions of law, and any and all
conclusions of law in the Plan shall constitute conclusions of law even if they are stated as findings of fact.
| A. | Jurisdiction and Venue. |
On the Petition Date, the
Debtors commenced the Chapter 11 Cases by filing voluntary petitions for relief under chapter 11 of the Bankruptcy Code. The Debtors were
and are qualified to be debtors under section 109 of the Bankruptcy Code. Venue in the District of Delaware was proper as of the Petition
Date and continues to be proper. Confirmation of the Plan is a core proceeding under 28 U.S.C. § 157(b)(2). The Bankruptcy Court
has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Bankruptcy Court has exclusive jurisdiction
to determine whether the Plan complies with the applicable provisions of the Bankruptcy Code and should be confirmed.
Prior to the Confirmation
Hearing, the Solicitation Agent filed the Voting Report. All procedures used to distribute Solicitation Materials to the applicable Holders
of Claims and to tabulate the ballots were fair and conducted in accordance with the Scheduling Order, the Bankruptcy Code, the Bankruptcy
Rules, and all other applicable rules, Laws, and regulations. Pursuant to sections 1124 and 1126 of the Bankruptcy Code, at least one
Impaired Class entitled to vote on the Plan has voted to accept the Plan.
The Bankruptcy Court takes
judicial notice of the docket of the Chapter 11 Cases maintained by the clerk of the Bankruptcy Court and/or its duly appointed agent,
including all pleadings and other documents Filed, all orders entered, and all evidence and arguments made, proffered, or adduced at the
hearings held before the Bankruptcy Court during the pendency of the Chapter 11 Cases (including the Confirmation Hearing). Resolutions
of any objections to Confirmation explained on the record at the Confirmation Hearing are hereby incorporated by reference. All entries
on the docket of the Chapter 11 Cases shall constitute the record before the Bankruptcy Court for purposes of the Confirmation Hearing.
| D. | Transmittal and Mailing of Materials; Notice. |
Due, adequate, and sufficient
notice of the Disclosure Statement, the Plan, the Plan Supplement, the Confirmation Hearing, and the release and exculpation provisions
set forth in Article VIII of the Plan, along with all deadlines for voting on or objecting to the Plan, in compliance with Bankruptcy
Rules 2002(b), 3017, 3019, and 3020(b) and the Scheduling Order, has been given to (1) all known Holders of Claims and
Interests, (2) parties that requested notice in accordance with Bankruptcy Rule 2002, (3) all parties to Unexpired Leases
and Executory Contracts, and (4) all taxing authorities listed in the Claims Register. Such transmittal and service were appropriate,
adequate, and sufficient. Adequate and sufficient notice of the Confirmation Hearing and other dates, deadlines, and hearings described
in the Scheduling Order was given in compliance with the Bankruptcy Rules and such order, and no other or further notice is or shall
be required.
Votes for acceptance and rejection
of the Plan were solicited in good faith and complied with sections 1125 and 1126 of the Bankruptcy Code, Bankruptcy Rules 3017,
3018, and 3019, the Scheduling Order, all other applicable provisions of the Bankruptcy Code and all other applicable rules, Laws, and
regulations. The Debtors and the Released Parties solicited acceptance of the Plan in good faith and in compliance with the applicable
provisions of the Bankruptcy Code and they participated in good faith, and in compliance with the applicable provisions of the Bankruptcy
Code in the offer, issuance, sale, or purchase of New Common Stock, the New Warrants and any debt securities that were offered or
sold under the Plan and, pursuant to section 1125(e) of the Bankruptcy Code, and no Released Party is or shall be liable on
account of such solicitation for violation of any applicable law, rule, or regulation governing solicitation of acceptance of a chapter
11 plan or the offer, issuance, sale, or purchase of such debt securities.
The Debtors, as proponents
of the Plan, have satisfied their burden of proving the elements of sections 1129(a) and 1129(b) of the Bankruptcy Code
by a preponderance of the evidence, which is the applicable evidentiary standard. The Debtors have satisfied the elements of section 1129(a) and
1129(b) of the Bankruptcy Code by clear and convincing evidence.
| G. | Bankruptcy Rule 3016(a) Compliance. |
The Plan is dated and identifies
the proponents thereof, thereby satisfying Bankruptcy Rule 3016(a).
| H. | Securities Under the Plan. |
Pursuant to the Plan, and
without further corporate or other action, the New Common Stock, the New Warrants and any debt issued or assumed by the Reorganized Debtors
will be issued, entered into, or assumed, as applicable, on the Effective Date subject to the terms of the Plan.
| I. | Releases and Discharges. |
The releases and discharges
of Claims and Causes of Action described in the Plan, including releases by the Debtors and by Holders of Claims and Interests, constitute
good faith compromises and settlements of the matters covered thereby. Such compromises and settlements are made in exchange for consideration
and are in the best interest of Holders of Claims and Interests, are fair, equitable, reasonable, and are integral elements of the resolution
of the Chapter 11 Cases in accordance with the Plan. Each of the discharge, release, indemnification, and exculpation provisions set forth
in the Plan: (1) is within the jurisdiction of the Court under 28 U.S.C. §§ 1334(a), 1334(b), and 1334(d); (2) is
an essential means of implementing the Plan pursuant to section 1123(a)(6) of the Bankruptcy Code; (3) is an integral element
of the transactions incorporated into the Plan; (4) confers material benefit on, and is in the best interests of, the Debtors, their
Estates, and their creditors; (5) is important to the overall objectives of the Plan to finally resolve all Claims and Interests
among or against the parties in interest in the Chapter 11 Cases with respect to the Debtors; (6) is consistent with sections 105,
1123, 1129, and all other applicable provisions of the Bankruptcy Code; (7) is given and made after due notice and opportunity for
hearing; and (8), without limiting the foregoing, with respect to the releases and injunctions in Article VIII of the Plan, are (a) essential
elements of the Restructuring Transactions and Plan, terms and conditions without which the Consenting Stakeholders would not have entered
into the Restructuring Support Agreement and (b) narrowly tailored. Further, the injunction set forth in Article VIII.F is an
essential component of the Plan, the product of long-term negotiations, and achieved by the exchange of good and valuable consideration
in the Chapter 11 Cases.
| J. | Release and Retention of Causes of Action. |
It is in the best interests
of Holders of Claims and Interests that the provisions in Article VIII of the Plan be approved.
| K. | Approval of Restructuring Support Agreement and Other Restructuring Documents and Agreements. |
All documents and agreements
necessary to implement the Plan and the Restructuring Transactions, including the Restructuring Support Agreement, are essential elements
of the Plan, are necessary to consummate the Plan and the Restructuring Transactions, and entry into and consummation of the transactions
contemplated by each such document and agreement is in the best interests of the Debtors, the Estates, and Holders of Claims and Interests.
The Debtors have exercised reasonable business judgment in determining which agreements to enter into and have provided sufficient and
adequate notice of such documents and agreements. The terms and conditions of such documents and agreements have been negotiated in good
faith, at arm’s length, are fair and reasonable, and are hereby reaffirmed and approved, and, subject to the occurrence of the Effective
Date and execution and delivery in accordance with their respective terms, shall be in full force and effect and valid, binding, and enforceable
in accordance with their respective terms, without the need for any further notice to or action, order, or approval of the Bankruptcy
Court, or other action under applicable law, regulation, or rule.
| L. | Confirmation Hearing Exhibits. |
All of the exhibits presented
at the Confirmation Hearing have been properly received into evidence and are a part of the record before the Bankruptcy Court.
| M. | Objections to Confirmation of the Plan. |
Any and all objections to
Confirmation have been withdrawn, settled, overruled, or otherwise resolved.
| N. | Retention of Jurisdiction. |
The Bankruptcy Court may properly
retain jurisdiction over the matters set forth in Article XII of the Plan and section 1142 of the Bankruptcy Code.
All of the documents contained
in the Plan Supplement comply with the terms of the Plan, and the filing and notice of such documents was adequate, proper, and in accordance
with the Bankruptcy Code and the Bankruptcy Rules.
Article XI.
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
| A. | Modification and Amendments. |
Except as otherwise specifically
provided in this Plan and subject to the consent rights set forth in the Restructuring Support Agreement (which are incorporated herein
pursuant to Article I.H), the Debtors reserve the right to modify the 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 the 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 the Plan with respect to such Debtor, one or more times, after Confirmation,
and, to the extent necessary may initiate proceedings in the Bankruptcy Court to so alter, amend, or modify the Plan, or remedy any defect
or omission, or reconcile any inconsistencies in the Plan, the Disclosure Statement, or the Confirmation Order, in such matters as may
be necessary to carry out the purposes and intent of the Plan.
| B. | Effect of Confirmation on Modifications. |
Entry of the Confirmation
Order shall mean that all modifications or amendments to the Plan since the solicitation thereof are approved pursuant to section 1127(a) of
the Bankruptcy Code and shall constitute a finding that such modifications or amendments to the Plan do not require additional disclosure
or resolicitation under Bankruptcy Rule 3019.
| C. | Revocation or Withdrawal of Plan. |
To
the extent permitted by the Restructuring Support Agreement and subject to the consent rights therein (which are incorporated herein pursuant
to Article I.H), the Debtors reserve the right to revoke or withdraw the Plan prior to the Confirmation Date and to File subsequent
plans of reorganization. If the Debtors revoke or withdraw the Plan, or if Confirmation or Consummation does not occur, then: (1) the
Plan shall be null and void in all respects; (2) any settlement or compromise embodied in the Plan (including the fixing or limiting
to an amount certain, and including the Allowance or disallowance, of all or any portion of any Claim or Interest or Class of Claims
or Interests), assumption or rejection (to the extent applicable) of Executory Contracts or Unexpired Leases effected
under the Plan, and any document or agreement executed pursuant to the Plan, shall be deemed null and void; and (3) nothing contained
in the 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.
Article XII.
RETENTION OF JURISDICTION
Notwithstanding the entry
of the Confirmation Order and the occurrence of the Effective Date, on and after the Effective Date, the Bankruptcy Court shall retain
exclusive jurisdiction over all matters arising out of, or relating to, the Chapter 11 Cases and the Plan pursuant to sections 105(a) and
1142 of the Bankruptcy Code, including jurisdiction to:
| 1. | 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 Claim and the resolution
of any and all objections to the secured or unsecured status, priority, amount, or allowance of Claims or Interests; |
| 2. | 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 the Plan; |
| 3. | resolve any matters related to: (a) the assumption, assumption and assignment, or rejection (to the extent applicable)
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; (b) any
potential contractual obligation under any Executory Contract or Unexpired Lease that is assumed; (c) the Reorganized Debtors
amending, modifying, or supplementing, after the Effective Date, pursuant to Article V hereof, any Executory Contracts or Unexpired
Leases to the list of Executory Contracts and Unexpired Leases to be assumed or rejected (to the extent applicable) or
otherwise; and (d) any dispute regarding whether a contract or lease is or was executory or expired; |
| 4. | ensure that distributions to Holders of Allowed Claims and Allowed Interests (as applicable) are accomplished
pursuant to the provisions of the Plan; |
| 5. | 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; |
| 6. | adjudicate, decide, or resolve any and all matters related to section 1141 of the Bankruptcy Code; |
| 7. | enter and implement such orders as may be necessary to execute, implement, or consummate the provisions
of the Plan and all contracts, instruments, releases, indentures, and other agreements or documents created or entered into in connection
with the Plan or the Disclosure Statement, including the Restructuring Support Agreement; |
| 8. | enter and enforce any order for the sale of property pursuant to sections 363, 1123, or 1146(a) of
the Bankruptcy Code; |
| 9. | resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with
the Consummation, interpretation, or enforcement of the Plan or any Entity’s obligations incurred in connection with the Plan; |
| 10. | 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 the Plan; |
| 11. | 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; |
| 12. | 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.M hereof; |
| 13. | enter and implement such orders as are necessary if the Confirmation Order is for any reason modified,
stayed, reversed, revoked, or vacated; |
| 14. | determine any other matters that may arise in connection with or relate to the Plan, the Plan Supplement,
the Disclosure Statement, the Confirmation Order, or any contract, instrument, release, indenture, or other agreement or document
created in connection with the Plan or the Disclosure Statement, including the Restructuring Support Agreement; |
| 15. | enter an order concluding or closing the Chapter 11 Cases; |
| 16. | adjudicate any and all disputes arising from or relating to distributions under the Plan; |
| 17. | consider any modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency
in any Bankruptcy Court order, including the Confirmation Order; |
| 18. | determine requests for the payment of Claims and Interests entitled to priority pursuant to section 507
of the Bankruptcy Code; |
| 19. | hear and determine disputes arising in connection with the interpretation, implementation, or enforcement
of the Plan or the Confirmation Order, including disputes arising under agreements, documents, or instruments executed in connection with
the Plan; |
| 20. | hear and determine matters concerning state, local, and federal taxes in accordance with sections 346,
505, and 1146 of the Bankruptcy Code; |
| 21. | hear and determine all disputes involving the existence, nature, scope, or enforcement of any exculpations,
discharges, injunctions, and releases granted in the Plan, including under Article VIII hereof, regardless of whether such termination
occurred prior to or after the Effective Date; and |
| 22. | enforce all orders previously entered by the Bankruptcy Court. |
As of the Effective Date,
notwithstanding anything in this Article XII to the contrary, the New Organizational Documents and the New Stockholders Agreement
and any documents related thereto shall be governed by the jurisdictional provisions therein and the Bankruptcy Court shall not retain
jurisdiction with respect thereto.
Article XIII.
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 the Plan (including, for the avoidance of doubt, the documents contained in the Plan Supplement) shall be immediately effective
and enforceable and deemed binding upon the Debtors, the Reorganized Debtors, any and all Holders of Claims against or Interests in the
Debtors (irrespective of whether such Holders have, or are deemed to have accepted the Plan), all Entities that are parties
to or are subject to the settlements, compromises, releases, discharges, and injunctions described in the Plan, each Entity acquiring
property under the Plan, and any and all non-Debtor parties to Executory Contracts and Unexpired Leases with the Debtors. All Claims and
Interests shall be as fixed, adjusted, or compromised, as applicable, pursuant to the Plan regardless of whether any Holder of a Claim
or Interest has voted on the Plan.
Subject to and in accordance
with the Restructuring Support Agreement, on or before the Effective Date, (1) the Debtors may file with the Bankruptcy Court such
agreements and other documents as may be necessary to effectuate and further evidence the terms and conditions of the Plan and the Restructuring
Support Agreement and (2) the Debtors or the Reorganized Debtors, as applicable, and all Holders of Claims against the Debtors receiving
distributions pursuant to the 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 the Plan.
| C. | Statutory Committee and Cessation of Fee and Expense Payment |
On the Confirmation Date,
any statutory committee appointed in the Chapter 11 Cases shall dissolve and members thereof shall be released and discharged from all
rights and duties from or related to the Chapter 11 Cases. The Reorganized Debtors shall no longer be responsible for paying any fees
or expenses incurred by the members or advisors to any statutory committee after the Confirmation Date.
Except as expressly set forth
in the Plan, the Plan shall have no force or effect unless the Bankruptcy Court enters 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 the Plan, any statement or provision contained
in the Plan, or the taking of any action by any Debtor with respect to the 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.
| E. | Successors and Assigns. |
The rights, benefits, and
obligations of any Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor,
administrator, successor or assign, Affiliate, officer, manager, director, agent, representative, attorney, beneficiary, or guardian,
if any, of each Entity; provided that nothing in this Article XIII.E modifies section 524(e) of the Bankruptcy Code.
All notices, requests, and
demands to or upon the Debtors to be effective shall be in writing (including by facsimile transmission) 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 facsimile transmission,
when received and telephonically confirmed, addressed as follows:
| Debtors |
Counsel to the Debtors |
|
Lannett Company, Inc.
1150 Northbrook Drive, Suite 155
Trevose, Pennsylvania 19053
Attention: Timothy C. Crew
Samuel H. Israel
(tim.crew@lannett.com)
(samuel.israel@lannett.com) |
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attention: Nicole L. Greenblatt,
P.C.
(nicole.greenblatt@kirkland.com)
and
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, Illinois 60654
Attention: Joshua M. Altman
(josh.altman@kirkland.com)
and
Fox Rothschild LLP
919 North Market Street, Suite 300
Wilmington, Delaware 19899
Attention: Howard A. Cohen
Stephanie J. Slater
hcohen@foxrothschild.com
sslater@foxrothschild.com |
| |
|
| Counsel to the Consenting Stakeholders |
|
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004-2498
Attention: Ari B. Blaut; Benjamin S. Beller
E-mail address: blauta@sullcrom.com; bellerb@sullcrom.com |
| United States Trustee |
Office of the United States Trustee
844 King Street, Suite 2207
Wilmington, Delaware 19801 |
After the Effective Date,
the Reorganized 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 and provided
such notice was sent, the Reorganized 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. Notwithstanding anything herein to the contrary, the Reorganized
Debtors shall provide notice of any documents to all Entities whose rights are affected by any such document Filed by the Reorganized
Debtors.
| G. | Term of Injunctions or Stays. |
Unless otherwise provided
in the Plan or in the Confirmation Order, all injunctions or stays in effect in the Chapter 11 Cases pursuant to sections 105 or 362 of
the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any injunctions or stays contained
in the Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained
in the Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.
Except as otherwise indicated,
and without limiting the effectiveness of the Restructuring Support Agreement, the Plan (including, for the avoidance of doubt, 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 the Plan.
All exhibits and documents
included in the Plan Supplement are incorporated into and are a part of the Plan as if set forth in full in the Plan. After the exhibits
and documents are Filed, copies of such exhibits and documents shall be available upon written request to the Debtors’ counsel at
the address above or by downloading such exhibits and documents from the Debtors’ restructuring website at https://omniagentsolutions.com/LCI
or the Bankruptcy Court’s website at www.deb.uscourts.gov. To the extent any exhibit or document is inconsistent with the
terms of the Plan, unless otherwise ordered by the Bankruptcy Court, the non-exhibit or non-document portion of the Plan shall control.
| J. | Nonseverability of Plan Provisions. |
If, prior to Confirmation,
any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court 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; provided, however, any such alteration or interpretation shall be acceptable to the Debtors
and the Required Consenting Stakeholders. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms
and provisions of the 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 the 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 the Plan and may not be deleted or modified without the Debtors’ or Reorganized Debtors’
consent, as applicable; and (3) nonseverable and mutually dependent.
| K. | Votes Solicited in Good Faith. |
Upon entry of the Confirmation
Order, the Debtors will be deemed to have solicited votes on the Plan in good faith and in compliance with section 1125(g) of
the Bankruptcy Code, and pursuant to section 1125(e) of the Bankruptcy Code, the Debtors, the Consenting Stakeholders, and each of
their respective Affiliates, agents, representatives, members, principals, shareholders, officers, directors, employees, advisors, and
attorneys will be deemed to have participated in good faith and in compliance with the Bankruptcy Code in the offer, issuance, sale, and
purchase of securities offered and sold under the Plan and any previous plan, and, therefore, neither any of such parties or individuals
or the Reorganized Debtors will have any liability for the violation of any applicable law, rule, or regulation governing the solicitation
of votes on the Plan or the offer, issuance, sale, or purchase of the Securities offered and sold under the Plan and any previous plan.
| L. | Closing of Chapter 11 Cases. |
The
Reorganized Debtors shall, promptly after the full administration of the Chapter 11 Cases, file with the Bankruptcy Court all documents
required by Bankruptcy Rule 3022, rule 3022-1 of the Local Rules of Bankruptcy Practice and Procedure of the United
States Bankruptcy Court for the District of Delaware, and any applicable order of the Bankruptcy Court to close the Chapter 11 Cases.
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 the Plan, the Disclosure Statement, or papers Filed with the
Bankruptcy Court prior to the Confirmation Date.
| Dated: April 30, 2023 |
Lannett Company, Inc. |
| |
on behalf of itself and all other Debtors |
| |
|
| |
/s/ |
| |
Name: Timothy C. Crew |
| |
Title: Chief Executive Officer |
Exhibit C
Form of Joinder Agreement
Joinder Agreement to Restructuring Support
Agreement
The undersigned hereby acknowledges
that it has reviewed and understands the Restructuring Support Agreement (as amended, supplemented, or otherwise modified from time to
time in accordance with the terms thereof, the “Agreement”) dated as of [●], 2023, by and among Lannett
Company, Inc. and each of its Affiliates that executes the Agreement (collectively, the “Company Parties”),
certain holders of First Lien Senior Secured Notes Claims, and certain holders of the Second Lien Term Loan Claims (by the terms and conditions
thereof) and agrees to be bound by the terms and conditions thereof to the extent the Transferor was thereby bound, and shall be deemed
a “Consenting Stakeholder” under the terms of the Agreement.1
The undersigned hereby makes
the applicable representations and warranties set forth in Section 10 and Section 11 of the Agreement to each other Party, effective
as of the date hereof.
This joinder agreement shall
be governed by the governing law set forth in the Agreement.
Date: ________________, 2023
| 1 | Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Agreement. |
Exhibit D
Provision for Transfer Agreement
The undersigned (“Transferee”)
hereby acknowledges that it has read and understands the Restructuring Support Agreement, dated as of __________ (the “Agreement”),2
by and among Lannett Company, Inc. and its Affiliates and subsidiaries bound thereto and the Consenting Stakeholders, including the
transferor to the Transferee of any Company Claims/Interests (each such transferor, a “Transferor”), and agrees to
be bound by the terms and conditions thereof to the extent the Transferor was thereby bound, and shall be deemed a “Consenting Stakeholder”
and a “Consenting First Noteholder” and/or “Second Lien Term Lender,” as applicable, under the terms of the Agreement.
The Transferee specifically
agrees to be bound by the terms and conditions of the Agreement and makes all representations and warranties contained therein as of the
date of the Transfer, including the agreement to be bound by the vote of the Transferor if such vote was cast before the effectiveness
of the Transfer discussed herein.
Date Executed:
| |
|
| Name: |
|
| Title: |
|
| Address: |
|
| E-mail address(es): |
|
| Aggregate Amounts Beneficially Owned or Managed on Account of: |
| First Lien Senior Secured Notes Claims |
|
| Second Lien Term Loan Claims |
|
| Equity Interests |
|
| 2 | Capitalized
terms used but not otherwise defined herein shall having the meaning ascribed to such terms in the Agreement. |
