GMDAQ Gamida Cell Ltd (PK)

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): May 24, 2024

 

 

Gamida Cell Ltd.

(Exact name of registrant as specified in its Charter)

 

 

Israel		001-38716		Not Applicable
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

116 Huntington Avenue, 7th Floor, Boston, MA		02116
(Address of principal executive offices)		(Zip Code)

 

(617) 892-9080

(Registrant’s telephone number, including area code)

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

☐

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol		Name of each exchange on which registered
Ordinary Shares, NIS 0.01 par value		GMDAQ		*

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

*

On April 8, 2024, the issuer’s ordinary shares were suspended from trading on The Nasdaq Stock Market LLC (“Nasdaq”). Effective April 16, 2024, trades in the issuer’s ordinary shares began being quoted on the OTC Pink Marketplace under the symbol “GMDAQ.” On April 25, 2024, Nasdaq filed a Form 25 to delist the issuer’s ordinary shares and to remove it from registration under Section 12(b) of the Securities Exchange Act of 1934, as amended.

 

 

 

Explanatory Note

 

As previously disclosed, on March 26, 2024, Gamida Cell Ltd. (the “Company”) entered into a Restructuring Support Agreement (the “Support Agreement”) with certain funds managed by Highbridge Capital Management, LLC (such funds, collectively, “Highbridge”) in order to set forth the terms for the restructuring of the Company’s outstanding debt and equity. On March 27, 2024, the Company commenced a debt arrangement proceeding under Israel’s Bankruptcy and Economic Rehabilitation Law, 5778-2018 and Economic Rehabilitation Regulations, 5779-2019 (the “Restructuring Proceeding”) in the District Court of Beersheba, Israel (the “Israeli Court”) to restructure its outstanding debt and equity (the “Debt Arrangement”) under Part 10 of the Israeli Restructuring and Financial Rehabilitation Law, 2018. On May 8, 2024, the Israeli Court entered a Judgment in the Restructuring Proceeding, which, among other things, (i) approved the Debt Arrangement and other terms and conditions of the Company’s restructuring as set forth in the Support Agreement, subject to an amendment of section 5.3 of the Debt Arrangement improving the terms of the contingent value rights (“CVRs”) in accordance with the District Court expert’s recommendation; and (ii) rejected all of the requests and claims made by certain shareholders of the Company. On April 22, 2024, Abigail Jenkins, solely in her capacity as a duly authorized foreign representative (the “Foreign Representative”) of Gamida Cell Ltd. filed a petition for recognition for relief under Chapter 15 of Title 11 (“Chapter 15”) of the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”) in the U.S. Bankruptcy Court for the District of Delaware (“U.S. Court”). The Foreign Representative sought recognition of the Restructuring Proceeding commenced before the Israeli Court, Case No. 63461-03-24, as (i) a foreign main proceeding or, (ii) in the alternative, a foreign nonmain proceeding. The Foreign Representative additionally sought recognition and enforcement of the Israeli Court’s order approving the Debt Arrangement. On May 15, 2024, the U.S. Court issued two orders: (i) granting recognition of the Restructuring Proceeding as the foreign main proceeding on a final basis; and (ii) recognizing and enforcing the Israeli Court’s order approving the Debt Arrangement in the territorial jurisdiction of the United States. On May 24, 2024 (the “Effective Date”), the Debt Arrangement and the U.S. Plan (as defined below) became effective. As a result, Highbridge, through a newly formed holding company, became the owner of 100% of the Company’s ordinary shares, NIS 0.01 par value (the “Ordinary Shares”), and 100% of the common stock issued by Gamida Cell, Inc., the Company’s U.S. subsidiary (the “Subsidiary”).

 

Item 1.02 Termination of a Material Definitive Agreement.

 

Equity Interests

 

On the Effective Date, by operation of the Debt Arrangement, all agreements, instruments, and other documents evidencing, relating to or connected with any equity interests of the Company, including the Ordinary Shares, warrants and options to purchase Ordinary Shares, restricted shares, restricted share units and other rights to receive equity in the Company that were issued and outstanding immediately prior to the Effective Date and any rights of any holder in respect thereof, were cancelled, discharged and of no further force or effect.

 

Notes

 

On the Effective Date, by operation of the Debt Arrangement and the U.S. Plan, the Company’s senior unsecured exchangeable notes issued on February 16, 2021 (the “2021 Notes”) due in 2026 was cancelled and the applicable agreements governing such obligations were terminated.

 

Item 3.03 Material Modification to the Rights of Security Holders.

 

The information set forth in the Explanatory Note and Items 1.02, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.

 

 

Item 5.01 Changes in Control of Registrant.

 

On the Effective Date, pursuant to the Debt Arrangement and the U.S. Plan, all of the 2021 Notes, Ordinary Shares (together with any warrants and options to purchase Ordinary Shares, restricted shares, restricted share units and any other right to receive equity in the Company and any rights of any holder in respect thereof), in each case, outstanding immediately prior to the Effective Date, were cancelled, discharged and of no further force and effect. As of the Effective Date, pursuant to the Debt Arrangement, Highbridge, through a newly formed holding company, became the 100% owner of the ordinary shares of the Company. As the sole holder of all outstanding Ordinary Shares as of the Effective Date, Highbridge will be in a position to control matters requiring approval by the holders of shares of the Company, including, among other things, the election of directors and the approval of a change of control.

 

Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.

 

Chief Executive Officer Separation

 

In connection with the restructuring of the Company’s outstanding debt and equity and the anticipated appointment of a new management team, the board of directors of the Company (the “Board”) approved on May 16, 2024 the separation of the Company’s Chief Executive Officer, Abigail Jenkins, effective as of the Effective Date. Ms. Jenkins is entitled to receive severance benefits and other payments as provided under that certain Employment Agreement, by and between the Subsidiary and Ms. Jenkins, effective September 19, 2022 and as amended on March 12, 2024 (the “Jenkins Employment Agreement”), the terms of which are described in the Company’s Annual Report on Form 10-K (the “10-K”) filed with the U.S. Securities and Exchange Commission on March 27, 2024. The foregoing description of the terms and conditions of the severance payments under the Jenkins Employment Agreement does not purport to be complete and is qualified in its entirety by the full text of the Jenkins Employment Agreement, a copy of which is attached as Exhibit 10.15 to the Company’s 10-K filed on March 27, 2024 and is incorporated herein by reference.

 

Departure of Directors of the Company

 

On the Effective Date, Shawn Tomasello, Abigail Jenkins, Kenneth Moch, Julian Adams, Stephen Wills and Ivan Borrello resigned from the Board, effective immediately. In addition, Ms. Jenkins resigned from the board of directors of the Subsidiary, effective immediately. There were no known disagreements between such directors and the Company which led to their respective resignations. New directors were be appointed to the Board.

 

Item 8.01 Other Events

 

Chapter 11 Bankruptcy Petition

 

On May 13, 2024, the Subsidiary filed a voluntary petition in the U.S. Court seeking relief under Chapter 11 of Title 11 of the Bankruptcy Code. The case is being administered under the caption In re: Gamida Cell Inc. (Case No. 24-11003). On May 22, 2024, the U.S. Court entered an order, Docket No. 70 (the “Confirmation Order”), confirming the Prepackaged Chapter 11 Plan of Reorganization of the Subsidiary (the “U.S. Plan”). The U.S. Plan has become effective with the satisfaction or waiver of certain conditions as set forth in the Plan. The full text of the Confirmation Order and U.S. Plan, each of which is attached hereto as Exhibits 99.3 and 99.4, respectively, is incorporated by reference herein. Copies of the Confirmation Order and U.S. Plan are available free of charge at https://cases.ra.kroll.com/Gamida11/. The information set forth on the foregoing website shall not be deemed to be a part of or incorporated by reference into this Current Report on Form 8-K.

 

The Subsidiary continues to operate its businesses as “debtor-in-possession” under the jurisdiction of the U.S. Court and in accordance with the applicable provisions of the Bankruptcy Code and orders of the U.S. Court.

 

Exit Financing

 

On the Effective Date, the Company and Highbridge will enter into a $50 million secured debt facility comprised of (i) $30 million of new funding to be funded by way of a senior secured loan, (ii) the remaining principal amount owed under the first lien secured note issued on December 12, 2022 pursuant to the Loan and Security Agreement dated December 12, 2022 with certain funds managed by Highbridge, as the lenders, and Wilmington Savings Fund Society, FSB, as collateral agent and administrative agent and (iii) $15 million of additional commitments to be funded by way of delayed draw term loans.

 

 

Chapter 15 Bankruptcy Court Orders

 

On May 15, 2024, the U.S. Court issued two orders (the “U.S. Orders”): (i) granting recognition of the Restructuring Proceeding as the foreign main proceeding on a final basis; and (ii) recognizing and enforcing the Israeli Court’s order approving the Debt Arrangement in the territorial jurisdiction of the United States.

 

The full text of the U.S. Orders, each of which is attached hereto as Exhibits 99.1 and 99.2, respectively, is incorporated by reference herein.

 

CVR Agreement

 

On the Effective Date, Ayrmid Ltd., a company incorporated under the laws of England and Wales for the purposes of holding all outstanding equity interest in the Company and the Subsidiary, following the effectiveness of the Debt Arrangement and U.S. Plan, and Broadridge Corporate Issuer Solutions, LLC, as rights agent (the “CVR Agent”), entered into a certain Contingent Value Rights Agreement consistent with the terms of the Debt Arrangement (the “CVR Agreement”). Pursuant to the terms of the CVR Agreement, each holder (“Holder”) of Ordinary Shares, vested restricted shares and vested restricted share units immediately prior to the Effective Date is entitled to one CVR to be issued in book-entry form and entered in a registry held and maintained by the CVR Agent for each Ordinary Share held by such Holder. The foregoing description of the CVR Agreement is qualified in its entirety by reference to the full text of the CVR Agreement, a copy of which is attached as Exhibit 10.1 of this Current Report on Form 8-K and is incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

Exhibit No.
10.1		Contingent Value Rights Agreement, dated as of May 24, 2024 by and between Ayrmid Ltd. and Broadridge Corporate Issuer Solutions, LLC
99.1		U.S. Order recognizing the Restructuring Proceeding as Foreign Main Proceeding, dated May 15, 2024
99.2		U.S. Order recognizing and enforcing the Debt Arrangement in the territorial jurisdiction of the United States, dated May 15, 2024
99.3		Order Confirming the Amended Prepackaged Chapter 11 Plan of Reorganization of Gamida Cell Inc., dated May 22, 2024
99.4		Amended Prepackaged Chapter 11 Plan of Reorganization of Gamida Cell Inc., dated May 20, 2024
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Dated: May 24, 2024

GAMIDA CELL LTD.

 

	By:	/s/ Abigail Jenkins
		Abigail Jenkins
		Chief Executive Officer

 

 

4

 

Exhibit 10.1

 

CONTINGENT VALUE RIGHTS AGREEMENT

 

This CONTINGENT VALUE RIGHTS AGREEMENT, dated as of May 24, 2024 (this “Agreement”), is entered into by and between Ayrmid Ltd., a company incorporated under the laws of England and Wales (the “Company”), and Broadridge Corporate Issuer Solutions, LLC, a Pennsylvania limited liability company, as rights agent (the “Rights Agent”).

 

RECITALS

 

WHEREAS, on March 26, 2024, Gamida Cell, Ltd., a limited liability company organized under the laws of the State of Israel (“Gamida Ltd.”), and Gamida Cell Inc., a Delaware corporation and wholly-owned subsidiary of Gamida Ltd. (“Gamida Inc.”), entered into that certain Restructuring Support Agreement (the “Support Agreement”) with certain funds managed by Highbridge Capital Management, LLC pursuant to which the parties agreed to a restructuring of all of the outstanding equity and debt of Gamida Ltd. and Gamida Inc.;

 

WHEREAS, on March 27, 2024, pursuant to Part 10 to the Israeli Restructuring and Financial Rehabilitation Law, 2018, Gamida Ltd. filed a voluntary proceeding for debt rearrangement (the “Israeli Restructuring Proceedings”) in the District Court of Beersheba, Israel (the “Israeli Court”);

 

WHEREAS, on April 22, 2024, a duly authorized foreign representative on behalf of Gamida Ltd. Filed a petition for recognition for relief under Chapter 15 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 (such case, the “Chapter 15 Case” and together with Israeli Restructuring Proceedings, collectively the “Restructuring Proceedings”);

 

WHEREAS, the restructuring contemplated by the Restructuring Proceedings and the Support Agreement will be effectuated pursuant to the plan of arrangement approved as part of the Israeli Restructuring Proceedings (the “Restructuring Plan”), together with any additional relief in any other Restructuring Proceedings in order to effectuate the restructuring; and

 

WHEREAS, pursuant to the Restructuring Plan, on or about the Plan Effective Date (as defined below), the Company will deliver contingent payment obligations as contemplated by this Agreement to the holders of Gamida Ltd. ordinary shares that are issued and outstanding (including those issued and outstanding as a result of the settlement of vested restricted stock units or vested restricted shares) as of Plan Effective Date (the “Cancelled Ordinary Shares”).

 

NOW, THEREFORE, in consideration of the foregoing and the consummation of the transactions referred to above, the Company and the Rights Agent agree, for the equal and proportionate benefit of all Holders (as hereinafter defined), as follows:

 

1. DEFINITIONS

 

1.1. Definitions. As used in this Agreement, the following terms shall have the following meanings:

 

“Acting Holders” means, at the time of determination, Holders of at least a majority of the outstanding CVRs as set forth on the CVR Register (it being understood that to the extent such Holders are nominees, they may be directed by the beneficial owners of such CVRs).

 

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person. As used in this Agreement, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto.

 

“Aggregate Omisirge US Revenues” means, for any period, the Company’s aggregate consolidated net revenues from Omisirge in the United States during such period.

  

All calculations of Aggregate Omisirge US Revenues will be made (x) in United States Dollars, (y) in accordance with the Company’s standard allocation procedures, allowance methodologies and accounting methods, consistently applied, and (z) in accordance with United States generally accepted accounting principles or the equivalent applicable accounting principles then used by the Company.

 

“Assignee” has the meaning set forth in Section 7.3.

 

“Business Day” means any day other than a Saturday, Sunday or any other day on which (i) banks in New York, New York are authorized or obligated by law to be closed or (ii) trading on the New York Stock Exchange does not occur.

 

“Change of Control” means (i) a sale or other disposition of all or substantially all of the assets of the Company on a consolidated basis (other than to any direct or indirect wholly owned Subsidiary of the Company), (ii) a merger or consolidation involving the Company in which the Company is not the surviving entity, and (iii) any other transaction involving the Company in which the Company is the surviving entity but in which the shareholders of the Company, respectively, immediately prior to such transaction own less than 50% of the surviving entity’s voting power immediately after the transaction, other than any bona fide equity financing transaction related to the continued financing of the operations of the Company and its Subsidiaries.

 

 

“Compliance Statement” has the meaning set forth in Section 4.5.

 

“CVR” means the contractual rights of a Holder to receive contingent payments in the form of cash on the terms and subject to the conditions set forth in this Agreement.

 

“CVR Register” has the meaning set forth in Section 2.3(b).

 

“DTC” means The Depository Trust Company or any successor entity thereto.

 

“Event of Default” with respect to the CVRs, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of applicable law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any governmental authority):

 

(i) default in the payment by the Company pursuant to the terms of this Agreement of all or any part of the Milestone Payment after a period of ten (10) Business Days after the Milestone Payment shall become due and payable; or

 

(ii) material default in the performance, or breach in any material respect, of any covenant or warranty of the Company in this Agreement and continuance of such default or breach for a period of ninety (90) days after a written notice specifying such default or breach and requiring it to be remedied is given, which written notice states that it is a “Notice of Default” hereunder and is sent by registered or certified mail to the Company by the Rights Agent or to the Company and the Rights Agent by the Acting Holders.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“Fee Schedule” has the meaning set forth in Section 3.2(k).

 

“Holder” means a Person in whose name a CVR is registered in the CVR Register at the applicable time.

 

“Initial CVRs” has the meaning set forth in Section 2.1.

 

“Inspector” means a Person appointed by the Israeli Court based on the recommendation of the Israeli Commission of Insolvency for the purpose of exercising the inspection rights specified in Section 4.8.

 

“Israel Securities Law” means the Israeli Securities Law of 1968, as amended from time to time, and the regulations promulgated thereunder.

 

“Milestone” means any of Milestone 1, Milestone 2, Milestone 3 or Milestone 4.

 

 

“Milestone 1” means the first instance in which the Aggregate Omisirge US Revenues during any Milestone Measuring Period exceeds $75,000,000.

 

“Milestone 1 Payment” means a contingent payment equal to $5,000,000.

 

“Milestone 2” means the first instance in which the Aggregate Omisirge US Revenues during any Milestone Measuring Period exceeds $100,000,000.

 

“Milestone 2 Payment” means a contingent payment equal to $15,000,000.

 

“Milestone 3” means the first instance in which the Aggregate Omisirge US Revenues during any Milestone Measuring Period exceeds $150,000,000.

 

“Milestone 3 Payment” means a contingent payment equal to $15,000,000.

 

“Milestone 4” means the entry on or after the date hereof and on or before the Milestone Deadline Date by the Company or any of its Affiliates into a commercialization agreement for any NK NAM Product that results in net proceeds actually received by the Company and its Affiliates of at least $15,000,000; provided that this Milestone 4 may not be deemed to be satisfied more than once.

 

“Milestone 4 Payment” means a contingent payment equal to $5,000,000.

 

“Milestone Measuring Period” means any four consecutive fiscal quarters ending and measured as of March 31, June 30, September 30 and December 31, all of which fiscal quarters occur prior to the Milestone Deadline Date.

 

“Milestone Deadline Date” means the date that is the last day of the applicable fiscal quarter that includes the date that is six (6) years following the Plan Effective Date.

 

“Milestone Non-Achievement Notice” has the meaning set forth in Section 2.4(e).

 

“Milestone Notice” has the meaning set forth in Section 2.4(a).

 

“Milestone Payment” means the Milestone 1 Payment, the Milestone 2 Payment, the Milestone 3 Payment or the Milestone 4 Payment, as applicable.

 

“NK NAM Platform” means a nicotinamide-based cell expansion platform for multiple cell types including stem cells and natural killer cells.

 

“NK NAM Product” means a product other than omidubicel that is associated with the NK NAM Platform.

 

“Officer’s Certificate” means a certificate signed by the chief executive officer, president, chief financial officer, controller or secretary of the Company, in his or her capacity as such an officer and not individually, and delivered to the Rights Agent.

 

“Omisirge” means Omisirge® (omidubicel-onlv).

 

“Permitted Transfer” means a transfer of CVRs (a) upon death of a Holder by will or intestacy or by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee, (b) pursuant to a court order, (c) by operation of law (including by consolidation, scheme of arrangement or merger) or without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity, (d) in the case of CVRs held through a nominee (including CVRs held through DTC), from a nominee to another nominee or to a beneficial owner (and if applicable, through an intermediary so long as such transfer ends with such beneficial owner), to the extent allowed by such nominee, (e) if Holder is a partnership or limited liability company, a distribution by the transferring partnership or limited liability company to its partners or members, as applicable or (f) as provided in Section 2.6.

 

 

“Person” means any individual, corporation, partnership, limited liability partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality of such government or political subdivision (in each case whether or not having separate legal personality).

 

“Plan Effective Date” means May 24, 2024.

 

“Pro Rata Percentage” means, with respect to a Holder, the percentage equal to (a) the total number of CVRs held by such Holder as of the applicable date of determination, divided by (b) the number of Initial CVRs.

 

“Rights Agent” means the Rights Agent named in the first paragraph of this Agreement, until a successor Rights Agent becomes such pursuant to the applicable provisions of this Agreement, and thereafter “Rights Agent” shall mean such successor Rights Agent.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Subsidiary” means, with respect to any Person, any partnership, limited liability partnership, limited liability company, association, trust or other entity or organization (a) of which such first Person directly or indirectly owns or controls a majority of the securities and other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions, (b) of which such first Person is a general partner or managing member or (c) that is otherwise controlled by such first Person.

 

1.2. Rules of Construction. For purposes of this Agreement: (a) whenever the context requires, the singular number shall include the plural, and vice versa; (b) words denoting any gender include all genders; (c) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and does not simply mean “if”; (d) the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation;” (e) where a word or phrase is defined in this Agreement, each of its other grammatical forms has a corresponding meaning unless the context otherwise requires; (f) a reference to any specific applicable law or to any provision of any applicable law includes any amendment to, and any modification, re-enactment or successor thereof, any legislative provision substituted therefor and all rules, regulations and statutory instruments issued thereunder or pursuant thereto; (g) references to any agreement or contract are to that agreement or contract as amended, modified or supplemented; (h) the parties have been represented by legal counsel during the negotiation and execution and delivery of this Agreement and therefore waive the application of any applicable law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document; and (i) the word “or” shall not be exclusive. The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement. All references to “Dollars” or “$” are to United States Dollars, unless expressly stated otherwise.

 

 

2. CONTINGENT VALUE RIGHTS

 

2.1. CVRs. The CVRs represent the contractual right of Holders to receive contingent cash payments if and to the extent payable pursuant to this Agreement. The initial persons entitled to be Holders shall be the holders of Cancelled Ordinary Shares. Each Holder shall be entitled to one CVR for each Cancelled Ordinary Share pursuant to the Restructuring Plan. Pursuant to the Restructuring Plan, each Holder is automatically deemed to have accepted the terms of this Agreement and is automatically deemed to be a party hereto as if, and with the same effect as if, such Holder had delivered a duly executed counterpart signature page to this Agreement without any further action by any party. The Holders are deemed to hereby acknowledge that the CVRs are not “securities” within the meaning of the Securities Act, Exchange Act, the Israel Securities Law or any other applicable federal, state or foreign securities laws. The maximum aggregate number of CVRs that may be outstanding under this Agreement is limited to 153,995,503 (the “Initial CVRs”), which is the number of CVRs that were issued pursuant to the Restructuring Plan and in accordance with this Section 2.1. The number of outstanding CVRs at any given time may be less than the number of Initial CVRs, if reduced in accordance with Section 2.6 upon the abandonment of a CVR. Following the issuance of the Initial CVRs pursuant to the Restructuring Plan, the Company shall not be permitted to issue any additional CVRs under this Agreement.

 

2.2. Non-transferable. The CVRs are non-transferable and may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, other than through a Permitted Transfer that is reflected on the CVR Register; the foregoing restrictions shall apply notwithstanding that certain of the CVRs will be held through DTC. Any such sale, assignment, transfer, pledge, encumbrance or disposal that is not a Permitted Transfer that is reflected on the CVR Register shall be null and void ab initio and of no effect. The CVRs will not be listed on any quotation system or traded on any securities exchange.

 

2.3. No Certificate; Registration; Registration of Transfer; Change of Address.

 

(a) The CVRs shall be issued in book-entry form only and shall not be evidenced by a certificate or other instrument.

 

(b) The Rights Agent shall keep a register (the “CVR Register”) for the registration of CVRs in a book-entry position for each Holder. The CVR Register shall set forth the name and address of each Holder and the number of CVRs held by such Holder. The CVR Register shall be updated as necessary by the Rights Agent to reflect the addition or removal of Holders (including pursuant to any Permitted Transfers or abandonment pursuant to Section 2.6), upon receipt of such information by the Rights Agent. The Company may receive and inspect a copy of the CVR Register, from time to time, upon request made to the Rights Agent. The CVR Register will show one position for Cede & Co. representing all the CVRs held by DTC on behalf of the street holders of the Cancelled Ordinary Shares. The Rights Agent will have no responsibility whatsoever directly to the street name holders with respect to transfers of CVRs. With respect to any payments to be made under Section 2.4, the Rights Agent may accomplish the payment to any former street name holders of Cancelled Ordinary Shares by sending one lump payment to DTC. The Rights Agent will have no responsibilities whatsoever with regard to the distribution of payments by DTC to such street name holders.

 

 

(c) Subject to the restrictions on transferability set forth in Section 2.2 and subject to the Rights Agent’s bona fide procedures to validate the identity of a Holder, every request made to transfer a CVR must be in writing to the Rights Agent and accompanied by a written instrument of transfer and other documentation reasonably requested by the Rights Agent (including documentation establishing that such Transfer is a Permitted Transfer) in form reasonably satisfactory to the Rights Agent pursuant to its guidelines, which may include a guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program, duly executed by the Holder thereof, the Holder’s attorney duly authorized in writing, the Holder’s personal representative or the Holder’s survivor, as applicable, and setting forth in reasonable detail the circumstances relating to the transfer. Upon receipt of such written request and proper validation of the identity of such Holder, the Rights Agent shall, subject to its reasonable determination that the transfer instrument is in proper form, notify the Company that it has received such written notice. Upon receipt of such notice from the Rights Agent, the Company shall reasonably determine whether the transfer otherwise complies with the other terms and conditions of this Agreement (including the provisions of Section 2.2), and if the Company so reasonably determines that it does so comply, the Company shall reply to the Rights Agent in writing with instructions to register the transfer of such CVR in the CVR Register and notify the Company of the same. Upon receiving such written reply from the Company, the Rights Agent shall register the transfer of the CVRs in the CVR Register and notify the Company of the same. No service charge shall be made for any registration of transfer of a CVR, but the Company and the Rights Agent may require payment of a sum sufficient to cover any stamp or other tax or charge that is imposed in connection with any such registration of transfer. The Rights Agent shall have no duty or obligation to take any action under any section of this Agreement that requires the payment of applicable taxes or charges unless and until the Rights Agent is satisfied that all such taxes or charges have been paid. No transfer of a CVR shall be permitted or effected unless the Company and the Rights Agent are satisfied that any and all withholding obligations with respect to Israeli taxes have been met. All duly transferred CVRs registered in the CVR Register shall be the valid obligations of the Company and shall entitle the transferee to the same benefits and rights under this Agreement as those held immediately prior to the transfer by the transferor. No transfer of a CVR shall be valid unless and until registered in the CVR Register.

 

(d) A Holder may make a written request to the Rights Agent to change such Holder’s address of record in the CVR Register. The written request must be duly executed by the Holder. Upon receipt of such written request and proper validation of the identity of such Holder, the Rights Agent is hereby authorized to, and shall promptly, record the change of address in the CVR Register.

 

2.4. Payment Procedures.

 

(a) Subject to the remainder of this Section 2.4, if any Milestone is achieved prior to the Milestone Deadline Date, the Company shall, within thirty (30) Business Days of the achievement of such Milestone, deliver to the Rights Agent a notice (a “Milestone Notice”) indicating the achievement of such Milestone and that each Holder is entitled to receive its Pro Rata Percentage of the applicable Milestone Payment.

 

 

(b) Subject to any procedures implemented pursuant to Section 2.7, the Rights Agent shall promptly, and in any event within fifteen (15) Business Days of receipt of funds from the Company as required pursuant to Section 4.2, (i) send each Holder at its registered address (or, in the case of Cede & Co., pursuant to the applicable procedures of DTC) a copy of such Milestone Notice and (ii) subject to receipt of cash from the Company in accordance with Section 4.2 and any letter of instruction reasonably required by the Rights Agent, cause the payment to each Holder of CVRs an amount in cash equal to such Holder’s Pro Rata Percentage of such Milestone Payment (x) by check mailed to the address of such Holder reflected in the CVR Register as of 5:00 p.m. New York City time on the date of the Milestone Notice, (y) with respect to any such Holder who has provided the Rights Agent wiring instructions in writing as of the close of business on the date of the Milestone Notice and who (I) is due an amount in excess of $10,000 in the aggregate or (II) resides outside of the United States based on the address for such Holder recorded in the CVR Register, by wire transfer of immediately available funds to the account specified on such instructions (it being understood that the fees for any such wire transfer shall be deducted from the proceeds otherwise sent to such Holder) or (z) with respect to Cede & Co., by wire transfer of immediately available funds pursuant to the applicable procedures of DTC. All amounts delivered by the Company shall be delivered in U.S. dollars.

 

(c) If any funds delivered to the Rights Agent as Milestone Payments remain undistributed to the Holders on the date that is one year after the date of the applicable Milestone Notice, the Company shall be entitled to require the Rights Agent to deliver to the Company or its designee any funds which had been made available to the Rights Agent in connection with such Milestone Payment and not disbursed to the Holders (without interest), and, thereafter, such Holders shall look only to the Company for the payment of such Holder’s Pro Rata Percentage of such Milestone Payment (subject to abandoned property, escheat and other similar applicable laws and regulations), calculated as set forth in Section 2.4(b), only as general creditors thereof with respect to such Pro Rata Percentage of such Milestone Payments that may be payable.

 

(d) Neither the Company, the Rights Agent nor any of their Affiliates shall be liable to any Holder for any portion of any Milestone Payments delivered to a public official pursuant to any abandoned property, escheat or other similar applicable laws and regulations. Any amounts remaining unclaimed by such Holders at such time at which such amounts would otherwise escheat to or become property of any governmental authority shall become, to the extent permitted by applicable laws and regulations, the property of the Company or its designee, free and clear of all claims or interest of any Person previously entitled thereto. In addition to and not in limitation of any other indemnity obligation herein, the Company agrees to indemnify and hold harmless the Rights Agent with respect to any liability, penalty, cost or expense the Rights Agent may incur or be subject to in connection with transferring such property to the Company.

 

(e) If a Milestone is not achieved prior to the Milestone Deadline Date, the Company shall, within thirty (30) Business Days of the Milestone Deadline Date, deliver to the Rights Agent a notice (a “Milestone Non-Achievement Notice”) indicating that such Milestone has not been achieved. The Rights Agent shall promptly, and in any event within fifteen (15) Business Days of receipt, deliver a copy of such Milestone Non-Achievement Notice to the Holders. The Rights Agent will deliver to the Company a certificate certifying the date of delivery of such Milestone Non-Achievement Notice to the Holders. If the Rights Agent does not receive from the Acting Holders a written objection to a Milestone Non-Achievement Notice within thirty (30) Business Days after the date of delivery of such Milestone Non-Achievement Notice by the Rights Agent to the Holders, the Holders will be deemed to have accepted such Milestone Non-Achievement Notice, and neither the Company nor its Affiliates will have any further obligation hereunder with respect to such Milestone Payment or otherwise with respect to such Milestone; provided that the foregoing shall not limit any remedies available to the Holders under this Agreement with respect to any breach by the Company arising prior to the time such Milestone Non-Achievement Notice is deemed to be accepted pursuant to this sentence.

 

 

2.5. No Voting, Dividends or Interest; No Equity or Ownership Interest; No Fiduciary Duties.

 

(a) The CVRs shall not have any voting or dividend rights, and interest shall not accrue on any amounts payable on the CVRs to any Holder.

 

(b) The CVRs shall not represent any equity, stock or other ownership interest in the Company, Gamida Ltd., Gamida Inc. or any of their respective Affiliates.

 

(c) Neither the Company, the Rights Agent nor any of their respective Affiliates, nor any of their respective officers or directors owe or will be deemed to owe fiduciary or similar duties of any kind to the Holders by virtue of the CVRs or this Agreement.

 

2.6. Ability to Abandon CVR. A Holder may at any time, at such Holder’s option, abandon all of such Holder’s remaining rights in a CVR by transferring such CVR to the Company or any of its Affiliates without consideration therefor. The Company shall notify the Rights Agent in writing of the abandonment by Holder of such CVR. Nothing in this Agreement shall prohibit the Company or any of its Affiliates from offering to acquire or acquiring any CVRs for consideration from the Holders, in private transactions or otherwise, in its sole discretion. Any CVRs acquired by the Company or any of its Affiliates shall be automatically deemed extinguished and no longer outstanding for purposes of the definition of Acting Holders and Article 5 and Article 6. The Company shall notify the Rights Agent in writing of any such extinguishment of a CVR.

 

2.7. Tax Withholding. The Company and its Affiliates (or any agent on their behalf) shall be entitled to deduct and withhold from the Milestone Payments, such amounts, if any, of tax as they are required to deduct and withhold with respect to the making of such payments or delivery under any applicable law or regulation. The Company will cooperate in good faith with the Holders to implement payment arrangements in respect of the settlement of the Milestone Payments (which may include, if and as deemed appropriate by the Company in its sole discretion (x) approaching the Israel Tax Authority for issuance of a tax ruling governing any withholding obligations in connection with any such payments and (y) deposit of any such payments with appropriate agents appointed by the Company for receipt and further disbursement of such payments to Holders (which may, notwithstanding anything in this Agreement to the contrary, result in a delay in such payments being made to any and all Holders beyond the timelines otherwise set forth in this Agreement), in each case and to the extent legally permissible, to minimize both the amount of, and the administrative burdens associated with, such deduction or withholding). To the extent that amounts of tax are so deducted and withheld, such deducted and withheld amounts (i) shall be remitted to the applicable taxing authority within the time limits imposed by any applicable law or regulation and (ii) shall be treated for all purposes of this Agreement and the Restructuring Plan as having been paid to the Person in respect of which such deduction and withholding was made.

 

 

3. THE RIGHTS AGENT

 

3.1. Certain Duties and Responsibilities; Authority of the Company. The Company hereby appoints the Rights Agent to act as rights agent for the Company in accordance with the express terms and conditions set forth in this Agreement (and no implied terms and conditions), and the Rights Agent hereby accepts such appointment. The Company has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by the Rights Agent, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Rights Agent shall not have any liability for any actions taken, suffered or omitted to be taken in connection with this Agreement, except to the extent of its gross negligence, bad faith or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction).

 

3.2. Certain Rights of the Rights Agent. The Rights Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Rights Agent. In addition:

 

(a) the Rights Agent may rely and shall be protected and held harmless by the Company in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, power of attorney, endorsement, direction, consent, order or other paper or document believed by it, in the absence of bad faith, to be genuine and to have been signed, executed and, where necessary, verified, acknowledged or presented by the proper party or parties;

 

(b) the Rights Agent may rely on and shall be protected and held harmless by the Company in acting upon written (including electronically transmitted) or oral instructions from the Company with respect to any matter relating to its acting as Rights Agent;

 

(c) whenever the Rights Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Rights Agent may rely upon an Officer’s Certificate, which certificate shall be full authorization and protection to the Rights Agent, and the Rights Agent shall, in the absence of gross negligence, bad faith or willful misconduct on its part (in each case as determined by a final judgment of a court of competent jurisdiction), incur no liability and be held harmless by the Company for or in respect of any action taken, suffered or omitted to be taken by it under the provisions of this Agreement in reliance upon such certificate;

 

(d) the Rights Agent may engage and consult with counsel of its selection and the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection and shall be held harmless by the Company in respect of any action taken, suffered or omitted by it hereunder in the absence of bad faith and in reliance thereon;

 

 

(e) the permissive rights of the Rights Agent to do things enumerated in this Agreement shall not be construed as a duty;

 

(f) the Rights Agent shall not be required to give any note or surety in respect of the execution of such powers or otherwise in respect of the premises;

 

(g) the Rights Agent shall not be liable for or by reason of, and shall be held harmless by the Company with respect to any of the statements of fact or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only;

 

(h) the Rights Agent shall not be responsible for, or be required to verify, any calculations or events that are required to be reported in accordance with the terms of this Agreement, including the Aggregate Omisirge US Revenue amount or the occurrence of any Milestone events;

 

(i) the Rights Agent shall have no liability and shall be held harmless by the Company in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Rights Agent and the enforceability of this Agreement against the Rights Agent assuming the due execution and delivery hereof by the Company), nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement, except for any such breach resulting from the Rights Agent’s gross negligence, bad faith or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction);

 

(j) the Rights Agent shall not be required to perform any action if such action would cause the Rights Agent to violate any applicable law, regulation or court order;

 

(k) the Rights Agent shall not be deemed to have any knowledge of any event of which it was to receive notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith, unless and until it has received such notice in writing;

 

(l) the Rights Agent shall not assume any obligations or relationship of agency or trust with any Holder of CVRs;

 

(m) the Company agrees to indemnify the Rights Agent and its Affiliates, and its and their respective employees, officers, directors, representatives, contractors and advisors for, and hold such Persons harmless against, any loss, liability, damage, judgment, fine, penalty, cost, or expense (including reasonable and documented legal expenses) arising out of or in connection with the execution, acceptance, administration, exercise and performance of Rights Agent’s duties under this Agreement or enforcing its rights hereunder, including the reasonable out-of-pocket costs and expenses of defending Rights Agent against any claim, charge, demand, suit or loss, unless such loss has been determined by final, non-appealable order of a court of competent jurisdiction to be a result of Rights Agent’s gross negligence, bad faith or willful misconduct;

 

(n) in no event will the Rights Agent be liable for special, punitive, incidental, indirect or consequential damages arising out of or related to this Agreement (including lost profits, damage to reputation or lost savings), even if foreseeable and even if the Rights Agent has been advised of the possibility of such damages, or for any special, punitive, incidental, indirect or consequential damages arising out of any act or failure to act hereunder;

 

 

(o) the Company agrees (i) to pay the fees and expenses of the Rights Agent in connection with this Agreement as agreed upon by the Rights Agent and the Company in the written fee addendum (the “Fee Schedule”) executed on or prior to the date hereof, and (ii) to reimburse the Rights Agent for all taxes and governmental charges, reasonable out-of-pocket expenses and other charges of any kind and nature incurred by the Rights Agent in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder (other than taxes imposed on or measured by the Rights Agent’s net income and franchise or similar taxes imposed on it (in lieu of net income taxes));

 

(p) no provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it;

 

(q) the Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself (through its officers, directors and employees) or by or through its attorneys or agents. The Rights Agent shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company resulting from any such act, omission, default, neglect or misconduct in the absence of gross negligence, bad faith or willful misconduct of the Rights Agent (each as determined by a final judgment of a court of competent jurisdiction) in the selection and continued employment thereof;

 

(r) notwithstanding anything in this Agreement to the contrary, any liability of the Rights Agent under this Agreement will be limited to the aggregate of the Initial Set Up fee (as defined and set forth in the Fee Schedule) and the amount of fees paid (not including reimbursed expenses) by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought other than to the extent such liabilities are a result of the gross negligence, bad faith or willful misconduct of the Rights Agent (each as determined by a final judgment of a court of competent jurisdiction); and

 

(s) all funds received by Rights Agent under this Agreement that are to be distributed or applied by the Rights Agent in the performance of services hereunder (the “Funds”) shall be held by the Rights Agent as agent for the Company and deposited in one or more bank accounts to be maintained by the Rights Agent in its name as agent for the Company. Until paid pursuant to the terms of this Agreement, the Rights Agent will hold the Funds through such accounts in deposit accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). The Rights Agent shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by the Rights Agent in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. The Rights Agent may from time to time receive interest, dividends or other earnings in connection with such deposits. The Rights Agent shall not be obligated to pay such interest, dividends or earnings to the Company, any Holder or any other Person, unless there is a diminution of the Funds due to a deposit or investment made by the Rights Agent, in which case, the Rights Agent agrees that such interest, dividends or earnings shall accrue to the benefit of the Company to the extent of such diminution of the Fund.

 

 

The provisions of this Section 3 shall survive the termination of this Agreement, the resignation, replacement or removal of the Rights Agent and the exercise, termination and the expiration of the CVRs.

 

3.3. Resignation and Removal; Appointment of Successor.

 

(a) The Rights Agent may resign at any time by giving written notice thereof to the Company specifying a date when such resignation shall take effect, which notice shall be sent at least thirty (30) days prior to the date so specified. The Company has the right to remove the Rights Agent at any time by specifying a date when such removal shall take effect. Notice of such removal shall be given by the Company to the Rights Agent, which notice shall be sent at least thirty (30) days prior to the date so specified.

 

(b) If the Rights Agent provides notice of its intent to resign, is removed or becomes incapable of acting, the Company shall, as soon as is reasonably practicable, appoint a qualified successor Rights Agent who shall be a stock transfer agent of national reputation or the corporate trust department of a commercial bank. Notwithstanding the foregoing, if the Company shall fail to make such appointment within a period of sixty (60) days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent, then the Acting Holders may apply (if the Rights Agent so elects) to any court of competent jurisdiction for the appointment of a new Rights Agent. The successor Rights Agent so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 3.4, become the successor Rights Agent.

 

(c) The Company shall give notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent through the facilities of DTC in accordance with DTC’s procedures (in respect of CVRs registered in the name of Cede & Co. only) or by mailing written notice of such event by first-class mail to the Holders as their names and addresses appear in the CVR Register. Each notice shall include the name and address of the successor Rights Agent. If the Company fails to send such notice within ten (10) Business Days after acceptance of appointment by a successor Rights Agent, the successor Rights Agent shall cause the notice to be transmitted at the expense of the Company. Failure to give any notice provided for in this Section 3.3, however, shall not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.

 

(d) Notwithstanding anything else in this Section 3.3, unless consented to in writing by the Acting Holders, the Company shall not appoint as a successor Rights Agent any Person that is not a stock transfer agent of national reputation or the corporate trust department of an international commercial bank.

 

(e) As long as all fees and charges that are due and payable to the Rights Agent for the performance of services hereunder have been paid in full, the Rights Agent will cooperate with the Company and any successor Rights Agent as reasonably requested in connection with the transition of the duties and responsibilities of the Rights Agent to the successor Rights Agent, including transferring the CVR Register to the successor Rights Agent. The Rights Agent shall be entitled to reimbursement by the Company for costs and expenses related to such transition services.

 

 

3.4. Acceptance of Appointment by Successor. Every successor Rights Agent appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and thereupon such successor Rights Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Rights Agent. On request of the Company or the successor Rights Agent, the retiring Rights Agent shall execute and deliver an instrument transferring to the successor Rights Agent all the rights, powers, trusts and duties of the retiring Rights Agent, except for such rights of the retiring Rights Agent which expressly survive its termination or resignation hereunder.

 

4. COVENANTS

 

4.1. List of Holders. Promptly following the Plan Effective Date, the Company shall furnish or cause to be furnished to the Rights Agent in such form as the Company receives from Gamida Ltd.’s transfer agent (or other agent performing similar services for Gamida Ltd.), the names and addresses of the Holders.

 

4.2. Payment of Milestone Payments. If a Milestone has been achieved in accordance with this Agreement, the Company shall, promptly (but in any event no later than ten (10) Business Days) following the delivery of a Milestone Notice, deposit with the bank or financial institution designated by the Rights Agent, for payment to the Holders in accordance with Section 2.4, the aggregate amount of the applicable Milestone Payment.

 

4.3. Books and Records. The Company shall, and shall cause its Subsidiaries to, keep true, complete and accurate records in sufficient detail to enable the Inspector and its consultants or professional advisors to determine the amounts payable hereunder. No review of the Company’s or any of its Subsidiaries’ records shall be permitted pursuant to this Agreement except as set forth in Section 4.8.

 

4.4. Further Assurances. The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.

 

4.5. Compliance Statements. Within sixty (60) days of the end of each calendar year ending after the date hereof and prior to the termination of this Agreement pursuant to Section 7.8, the Company shall provide the Rights Agent and the Inspector with a written statement setting forth in reasonable detail the status of each Milestone as of the end of each fiscal quarter during the immediately preceding calendar year (each, a “Compliance Statement”).

 

4.6. Actions in Good Faith. Neither the Company nor any of its Subsidiaries shall act in bad faith for the purpose of avoiding achievement of the Milestones or the payment of any Milestone Payment.

 

4.7. Non-Use of Name. Neither the Rights Agent nor the Holders shall use the name, trademark, trade name or logo of the Company, its Affiliates, or their respective employees in any publicity or news release relating to this Agreement or its subject matter, without the prior express written permission of the Company, other than (in the case of the name of the Company, its Affiliates, or their respective employees) with respect to (a) a dispute pursuant to this Agreement between any of the Holders, the Rights Agent, the Company or its Affiliates, (b) as required by law or regulation or (c) in the case of the Rights Agent, as necessary to perform the services of the Rights Agent under this Agreement.

 

 

4.8. Inspection Rights.

 

(a) Upon the written request of the Inspector made during the first quarter of each calendar year, but no more than once per calendar year, the Company shall provide the Inspector with reasonable access during normal business hours to such of the records of the Company and its Subsidiaries as the Inspector may reasonably request to verify the accuracy of the Compliance Statement and the figures underlying the calculations set forth therein.

 

(b) If the Inspector determines, upon review of any Compliance Statement and any reasonably requested records provided pursuant to Section 4.8(a), that any particular Milestone (i) was not achieved during the calendar year covered by such Compliance Statement, then such determination shall be final, binding and conclusive on the Company and the Holders and such Milestone shall be deemed for all purposes of this Agreement not to have occurred during such calendar year, and (ii) was achieved during the calendar year covered by such Compliance Statement but the applicable Milestone Payment was not paid to the Holders, then the Inspector shall draft a notice to the Holders disclosing the Inspector’s determination and the Rights Agent shall send such notice (at the Company’s sole cost and expense) to each Holder at its registered address (or, in the case of Cede & Co., pursuant to the applicable procedures of DTC). If the Inspector (once appointed) elects not to review any Compliance Statement during the first quarter of the calendar year immediately following the calendar year covered by such Compliance Statement, then the conclusions contained in such Compliance Statement shall be final, binding and conclusive on the Company and the Holders. The Inspector shall provide the Company and the Rights Agent with a written statement setting forth the Inspector’s determination of whether each Milestone has been met during the applicable calendar year promptly following any review conducted pursuant to this Section 4.8.

 

(c) All reasonable and documented fees and expenses of the Inspector in exercising the inspection rights set forth in this Section 4.8 shall be reimbursed by the Company following a written request from the Inspector.

 

(d) Prior to receiving any records of the Company or any of its Subsidiaries pursuant to this Section 4.8, the Inspector shall enter into a reasonable confidentiality agreement in a form satisfactory to the Company pursuant to which the Inspector will agree, among other matters, that (i) the Inspector will keep all information disclosed by the Company and its Subsidiaries confidential, other than as necessary to provide the notice to Holder contemplated by Section 4.8(b) or in connection with any dispute pursuant to this Agreement between any of the Holders, the Rights Agent, the Company or its Affiliates, and (ii) the Inspector will only use any information disclosed by the Company and its Subsidiaries for the purpose of conducting the inspection contemplated by this Section 4.8.

 

(e) No person other than the Inspector shall be entitled to review any records of the Company or any of its Subsidiaries for the purposes set forth in this Section 4.8.

 

 

5. AMENDMENTS

 

5.1. Amendments without Consent of Holders.

 

(a) Without the consent of any Holders, the Company and the Rights Agent at any time and from time to time, may enter into one or more amendments hereto, for any of the following purposes:

 

(i) to evidence the succession of another Person as a successor Rights Agent and the assumption by any such successor of the covenants and obligations of the Rights Agent herein;

 

(ii) to add to the covenants of the Company such further covenants, restrictions, conditions and provisions as the Company shall consider to be for the protection or benefit of the Holders; provided that, in each case, such provisions do not adversely affect the interests of the Holders in any material respect;

 

(iii) to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Agreement; provided that, in each case, such provisions do not adversely affect the interests of the Holders in any material respect;

 

(iv) as may be necessary or appropriate to ensure that the CVRs are not subject to registration under the Securities Act, the Exchange Act or any applicable state securities or “blue sky” laws;

 

(v) to evidence the assignment of this Agreement by the Company as provided in Section 7.3;

 

(vi) to amend Section 4.8 (and any definitions related thereto) consistent with any order entered by the Israeli Court;

 

(vii) to cure any inconsistency or discrepancy between the provisions of this Agreement and the provisions of the Restructuring Term Sheet approved by the Israeli Court as part of the Restructuring Proceedings; or

 

(viii) any other amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, unless such addition, elimination or change is adverse to the interests of the Holders in any material respect.

 

(b) Without the consent of any Holders, the Company and the Rights Agent, at any time and from time to time, may enter into one or more amendments thereto to reduce the number of CVRs, in the event any Holder agrees to renounce such Holder’s rights under this Agreement in accordance with Section 7.4 or to transfer CVRs to the Company pursuant to Section 2.6.

 

(c) Promptly after the execution by the Company or the Rights Agent of any amendment pursuant to the provisions of this Section 5.1, the Company shall transmit or cause the Rights Agent to transmit (at the Company’s sole cost and expense) a notice thereof through the facilities of DTC in accordance with DTC’s procedures (in respect of CVRs registered in the name of Cede & Co. only) or by first class mail to the Holders at their addresses as they appear on the CVR Register, setting forth such amendment.

 

 

5.2. Amendments with Consent of Holders.

 

(a) Subject to Section 5.1 (which amendments pursuant to Section 5.1 may be made without the consent of any Holder), with the consent of the Acting Holders, whether evidenced in writing or taken at a meeting of the Holders, the Company and the Rights Agent may enter into one or more amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, even if such addition, elimination or change is materially adverse to the interest of the Holders.

 

(b) Promptly after the execution by the Company and the Rights Agent of any amendment pursuant to the provisions of this Section 5.2, the Company shall transmit (or cause the Rights Agent to transmit at the Company’s sole cost and expense) a notice thereof through the facilities of DTC in accordance with DTC’s procedures (in respect of CVRs registered in the name of Cede & Co. only) or by first class mail to the Holders at their addresses as they appear on the CVR Register, setting forth such amendment.

 

5.3. Execution of Amendments. Prior to executing any amendment permitted by this Section 5, the Rights Agent shall be entitled to receive, and shall be fully protected in relying upon, an Officer’s Certificate stating that the execution of such amendment is authorized or permitted by this Agreement. Each amendment to this Agreement shall be evidenced by a writing signed by the Rights Agent and the Company. The Rights Agent may, but is not obligated to, enter into any such amendment that affects the Rights Agent’s own rights, powers, privileges, covenants or duties under this Agreement or otherwise.

 

5.4. Effect of Amendments. Upon the execution of any amendment under this Section 5, this Agreement shall be modified in accordance therewith, such amendment shall form a part of this Agreement for all purposes and every Holder shall be bound thereby.

 

6. REMEDIES OF THE HOLDERS

 

6.1. General Enforcement of Rights of Holders. Any actions seeking the enforcement of the rights of Holders hereunder shall be brought by the Acting Holders, acting on behalf of the Holders; provided that any actions taken by the Acting Holders shall be undertaken in accordance with applicable law and the provisions of this Agreement. Upon the occurrence of an Event of Default, the Acting Holders may commence an arbitration proceeding to protect the rights of the Holders, including to obtain payment for any amounts then due and payable. In the event that, at any time after the Acting Holders shall have commenced such arbitration proceeding, and before any award shall have been obtained, the Company shall pay or shall deposit with a bank or financial institution designated by the Rights Agent a sum sufficient to pay all amounts which shall have become due under this Agreement and such amount as shall be sufficient to cover reasonable compensation to the Rights Agent, its agents, attorneys and counsel (if any), and all Events of Default under this Agreement shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Acting Holders, by written notice to the Company and to the Rights Agent, shall waive all defaults that are the subject of such arbitration proceeding, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default.

 

 

6.2. Rights upon Certain Insolvency Proceedings Involving the Company. In the event of an insolvency, bankruptcy or similar proceeding of the Company, Holders shall be entitled to assert claims against the Company in such proceeding and take related actions in pursuit of such claims with respect to any payment that may be claimed by or on behalf of the Company or by any creditor of the Company. Notwithstanding any other provision of this Agreement, the right of any Holder to receive payment of the amounts that a Milestone Notice indicates are payable on or after the applicable due date, or to commence arbitration proceedings for the enforcement of such payment on or after such date, shall not be impaired or affected without the consent of such Holder.

 

7. OTHER PROVISIONS OF GENERAL APPLICATION

 

7.1. Notices to the Rights Agent and the Company. Any notice or other communication required or permitted to be delivered to the Company or the Rights Agent under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) two (2) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (b) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide or international overnight courier service, (c) immediately upon delivery by hand, or (d) on the date of receipt, if delivered by email (to the extent that no “bounce back” or similar message indicating non-delivery is received with respect thereto from the primary recipient thereof); provided that in each case the notice or other communication is sent to the physical address or email address, as applicable, set forth beneath the name of such party below (or to such other physical address or email address as such party shall have specified in a written notice given to the other party):

 

If to the Rights Agent, to it at:

 

Broadridge Corporate Issuer Solutions, LLC

Attn: BCIS IWS

51 Mercedes Way

Edgewood, NY 11717

Email:

[***]

[***]

 

With a copy (which shall not constitute notice) to:

 

Broadridge Financial Solutions, Inc.

2 Gateway Center

Newark, NJ 07102

Attn: General Counsel

 

If to the Company, to it at:

 

Ayrmid Ltd.

c/o Gamida Cell, Inc.

116 Huntington Avenue, 7th Floor

Attention: Chief Financial Officer

 

 

With a copy to:

 

King & Spalding LLP

1180 Peachtree Street, NE

Suite 1600

Atlanta, Georgia 30309

Attention:

[***]

Email:

[***]

 

and

 

King & Spalding LLP

110 N. Wacker Drive

Suite 3800

Chicago, Illinois 60606

Attention:

[***]

Email:

[***]

 

The Rights Agent or the Company may specify a different address or email address by giving notice in accordance with this Section 7.1.

 

7.2. Notice to Holders. Where this Agreement provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and transmitted through the facilities of DTC in accordance with DTC’s procedures (in respect of CVRs registered in the name of Cede & Co. only) or mailed, first-class postage prepaid, to each Holder affected by such event, at the Holder’s address as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date, if any, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder will affect the sufficiency of such notice with respect to other Holders.

 

7.3. Company Successors and Assigns. The Company may not directly or indirectly assign any or all of its rights, interests or obligations hereunder to any person or entity without the prior written consent of the Acting Holders; provided, that the Company may assign, any or all of its rights, interests and obligations hereunder (a) in its sole discretion and without the consent of any other Person, to one or more direct or indirect wholly-owned Subsidiaries of the Company (but only so long as they remain wholly-owned Subsidiaries of the Company) (provided that such assignment would not be adverse to the Holders), (b) in its sole discretion and without the consent of any other Person, to its successor in interest in connection with a Change of Control and (c) to any other person or entity with the prior written consent of the Acting Holders (each permitted assignee under clause (a), (b) or (c) and any subsequent assignee under the next sentence, an “Assignee”); provided that the Assignee agrees in a writing delivered to the Rights Agent to assume and be bound by all of the terms and conditions of this Agreement. This Agreement will be binding upon, inure to the benefit of and be enforceable by the Company’s successors and each Assignee. Subject to compliance with the requirements set forth in this Section 7.3 relating to assignments, this Agreement shall not restrict the Company’s, any Assignee’s or any of their respective successors’ ability to merge or consolidate with, or sell, issue, license or dispose of its stock or other equity interests or assets to, any other Person, or spin-off or split-off. Each of the Company’s successors (including following a Change of Control) and each Assignee shall, by a supplemental contingent consideration payment agreement or other acknowledgement executed and delivered to the Rights Agent, expressly assume payment of amounts on all of the CVRs and the performance of every obligation, agreement and covenant of this Agreement on the part of the Company to be performed or observed. Any Person into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the stock transfer or other shareholder service business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. The purchase of all or substantially all of the Rights Agent’s assets employed in the performance of transfer agent or corporate trust activities shall be deemed a merger or consolidation for purposes of this Section 7.3. Any attempted assignment of this Agreement or any rights, interests or obligations in violation of this Section 7.3 shall be void and of no effect.

 

 

7.4. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, shall give to any Person (other than the Rights Agent, the Company, the Company’s successors and Assignees, each of whom is intended to be, and is, a beneficiary hereunder, and other than the Acting Holders and the Holders, each of whom is intended to be, and is, a third party beneficiary solely to the extent set forth in Sections 2.7, 3.3 and 6) any benefit or any legal or equitable right, remedy or claim under this Agreement or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the Rights Agent, the Company, the Company’s successors and Assignees, the Acting Holders and the Holders. Except for the rights of the Rights Agent set forth herein, the Acting Holders will have the sole right, on behalf of all Holders, by virtue of or under any provision of this Agreement, to institute any action or proceeding at law or in equity or in bankruptcy or otherwise (including any arbitration proceeding) upon or under or with respect to this Agreement, and no individual Holder or other group of Holders will be entitled to exercise such rights. The Acting Holders must enforce any such legal or equitable rights, remedies or claims under this Agreement against the Company and may not enforce them against the Rights Agent. The Holders of CVRs shall have no rights except the contractual rights as are expressly set forth in this Agreement. Notwithstanding anything to the contrary contained herein, any Holder may at any time agree to renounce, in whole or in part, whether or not for consideration, such Holder’s rights under this Agreement by written notice to the Rights Agent and the Company, which notice, if given, shall be irrevocable, and the Company may, in its sole discretion, at any time offer consideration to Holders in exchange for their agreement to irrevocably renounce their rights, in whole or in part, hereunder.

 

7.5. Governing Law. This Agreement, the CVRs and all actions arising under or in connection herewith and therewith (whether sounding in contract, tort or otherwise) shall be governed by and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

 

7.6. Arbitration; Jurisdiction; Waiver of Jury Trial.

 

(a) Any dispute, controversy or claim (including any claim for breach hereof) based upon, relating to or arising out of this Agreement or any transaction contemplated hereby (other than a dispute, controversy or claim asserted against or by the Rights Agent to the extent pertaining to the Rights Agent’s rights, immunities, liabilities, duties, responsibilities or obligations hereunder) shall be resolved by binding arbitration conducted in accordance with the Rules of Arbitration (“Rules”) of the International Chamber of Commerce (the “ICC”). The arbitration shall be conducted by a panel of three arbitrators, each of whom shall be independent and a lawyer or retired judge with at least fifteen years’ experience in the pharmaceutical industry. No later than fifteen (15) days after an arbitration proceeding is commenced under this Section 7.6(a), the Company shall nominate one arbitrator and the Acting Holders shall nominate one arbitrator, and the two so nominated arbitrators shall select the third arbitrator. If the two arbitrators cannot or fail to agree upon the third arbitrator within fifteen (15) days of their confirmation by the ICC, the third arbitrator shall be appointed by the ICC in accordance with the Rules. The arbitration shall be administered by the ICC acting through its International Court of Arbitration. The arbitration shall be conducted in the English language and the seat, or place, of the arbitration shall be the city of New York, New York. Hearings shall be conducted in New York, New York, or at such other location as mutually agreed by the Company and the Acting Holders that are party to the arbitration proceeding. The arbitration award shall be final, conclusive, binding and non-appealable and shall not be subject to further review by any court. The arbitrator shall have no power to amend or supplement the terms of this Agreement or act ex aequo et bono. Judgment upon the award may be entered in any court having jurisdiction thereof. Each party shall bear his, her or its own costs of any such arbitration or investigation in respect of any dispute. Any award payable in favor of the Holders as a result of arbitration shall be distributed to the Holders on a pro rata basis, based on the number of CVRs held by each Holder.

 

 

(b) With regard to any dispute, controversy or claim asserted against or by the Rights Agent to the extent pertaining to the Rights Agent’s rights, immunities, liabilities, duties, responsibilities or obligations hereunder, each of the parties hereto hereby (i) expressly and irrevocably submits to the exclusive personal jurisdiction of each United States federal court and New York state court located in the Borough of Manhattan, in the City of New York, New York, U.S.A. (and the appellate courts thereof) (the “Chosen Courts”), in the event any dispute arises out of this Agreement, (ii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iii) agrees that it shall not bring any action relating to this Agreement in any court other than the Chosen Courts; provided that each of the parties hereto has the right to bring any action or proceeding for enforcement of a judgment entered by such court in any other court or jurisdiction. Notwithstanding the foregoing, the Company and the Rights Agent may mutually agree to a jurisdiction other than the Chosen Courts for any litigation directly between the Company and the Rights Agent arising out of or relating to this Agreement. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT.

 

7.7. Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement shall continue in full force and effect and the application of such provision to other Persons or circumstances shall be interpreted so as reasonably to effect the intent of the parties. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision; provided, however, that if any excluded language shall adversely affect rights, immunities, liabilities, duties, responsibilities or obligations of the Rights Agent, the Rights Agent shall be entitled to resign immediately.

 

 

7.8. Termination. This Agreement shall be terminated and of no force or effect, the parties hereto shall have no liability hereunder (other than those rights of the Rights Agent which shall under the express terms of this Agreement), and no payments shall be required to be made, upon the earliest to occur of (a) the payment of the full amount of the potential Milestone Payments required to be paid under the terms of this Agreement pursuant to Section 2.4, and (b) March 31, 2031. Notwithstanding the foregoing, no such termination shall affect any rights or obligations accrued prior to the effective date of such termination (including in respect of breaches of this Agreement by the Company prior to such termination) or this Section 7, which shall survive the termination of this Agreement, or the resignation, replacement or removal of the Rights Agent.

 

7.9. Entire Agreement; Counterparts. As between the Company and the Holders, this Agreement constitutes the entire agreement and supersede all contemporaneous and prior agreements and understandings, both written and oral, with respect to the subject matter hereof and thereof. As between the Company and the Rights Agent, this Agreement, the Fee Schedule and any schedule or exhibit attached hereto constitutes the entire agreement and supersede all prior agreements and understandings, both written and oral, with respect to the subject matter hereof and thereof. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by .PDF shall be sufficient to bind the parties to the terms and conditions of this Agreement.

 

7.10. Force Majeure. Notwithstanding anything to the contrary contained herein, the Rights Agent shall promptly notify the Company of and shall not be liable for any delays or failures in performance of any act, duty, obligation or responsibility by reason of any occurrence beyond its reasonable control (but only for so long as and to the extent that such occurrence continues) including, without limitation, acts of God, terrorist acts, epidemics, pandemics, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of any utilities, communications, or computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest. The Rights Agent shall promptly resume performance under this Agreement following the end of such occurrence.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 

IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.

 

	COMPANY:
	Ayrmid Ltd.

 

	By:	/s/ Rory Nealon
	Name:	Rory Nealon
	Title:	Authorized Signatory

 

	RIGHTS AGENT:
	Broadridge Corporate Issuer Solutions, LLC

 

	By:	/s/ John P. Dunn
	Name:	John P. Dunn
	Title:	Senior Vice President

 

[Signature Page to Contingent Value Rights Agreement]

 

 

 

Exhibit 99.1

 

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

 

In re:   Gamida Cell Ltd.1   Debtor in a Foreign Proceeding.

Chapter 15   Case No. 24-10847 (JKS)   Re. Docket Nos. 4, 5, 6, 22, 28, 37, 38, 39

 

FINAL ORDER GRANTING RECOGNITION AND
RELIEF IN AID OF A FOREIGN MAIN PROCEEDING

 

Upon a hearing having been held before this Court on May15, 2024 (the “Hearing”) to consider the Verified Petition Under Chapter 15 for Recognition of the Israeli Proceeding as a Foreign Main Proceeding or, Alternatively, a Foreign Nonmain Proceeding and the Official Form 401 – Chapter 15 Petition for Recognition of a Foreign Proceeding (collectively, the “Petition”)² (i) commencing this Chapter 15 case and (ii) seeking recognition of the above-captioned Debtor’s debt arrangement proceeding commenced under the Bankruptcy and Economic Rehabilitation Law, 5778-2018 (as amended and modified, the “Israeli Insolvency Law”) and Bankruptcy and Economic Rehabilitation Regulations, 5779-2019 (the “Israeli Regulations”) pending before the District Court in Be’er-Sheva (the “Israeli Court”), Case No. 63461-03-24 (the “Israeli Proceeding”), as a “foreign main proceeding” under Chapter 15 of the Bankruptcy Code; and the Court having considered and reviewed all pleadings, exhibits, declarations and other documents filed in connection with, and in support of, the Petition (collectively the “Supporting Documents”) submitted by Abigail Jenkins, the foreign representative of the Debtor in the Israeli Proceeding (the “Foreign Representative”); and it appearing that due and timely notice of the filing of the Petition and the Hearing has been given by the Foreign Representative consistent with this Court’s previous Order scheduling a hearing on the Petition, dated April 22, 2024; and such notice appearing to be adequate for all purposes such that no other or further notice thereof need be given; and no objections or other responses having been interposed; and all interested parties having had due and proper notice and an opportunity to be heard; and the Court having heard argument by counsel appearing at the Hearing; and after due deliberation and sufficient cause appearing therefore, the Court makes the following findings of fact and conclusions of law:

 

A. The findings and conclusions set forth herein constitute this Court’s findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such.

 

1

The Debtor is a company incorporated in Israel and the last 4 digits of its company number are 1204.

2

Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Petition.

 

 

 

B. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334, section 1501 of the Bankruptcy Code, and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated February 29, 2012.

 

C. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(P), and this Court may enter a final order consistent with Article III of the United States Constitution.

 

D. Venue is proper in this district pursuant to 28 U.S.C. § 1410.

 

E. This case was properly commenced pursuant to sections 1504, 1509, and 1515 of the Bankruptcy Code.

 

F. The Chapter 15 Petition meets the requirements of section 1515 of the Bankruptcy Code and Bankruptcy Rules 1004.2, 1007(a)(4) and 2002.

 

G. The Israeli Proceeding is a “foreign proceeding” within the meaning of section 101(23) of the Bankruptcy Code.

 

H. The Israeli Proceeding takes place in Israel, which is the country where the Debtor’s center of main interests is located and, as such, the Israeli Proceeding is entitled to recognition as a “foreign main proceeding” pursuant to sections 1502(4) and 1517(b)(1) of the Bankruptcy Code.

 

 

I. The Israeli Proceeding is entitled to recognition by this Court pursuant to sections 1515 and 1517(a) of the Bankruptcy Code.

 

J. The Foreign Representative is a person within the meaning of section 101(41) of the Bankruptcy Code and is the foreign representative of the Debtor within the meaning of section 101(24) of the Bankruptcy Code.

 

K. The Foreign Representative is entitled to all the relief available pursuant to section 1520 of the Bankruptcy Code, including, without limitation, application of the automatic stay, pursuant to section 362 of the Bankruptcy Code.

 

L. The relief granted hereby pursuant to sections 1507, 1515, 1517, 1520, and 1521 of the Bankruptcy Code is necessary and appropriate to effectuate the purposes of Chapter 15, to protect the Debtor and the interests of its creditors and other parties in interest, and is consistent with the laws of the United States, international comity, public policy, and the policies of the Bankruptcy Code.

 

M. Absent the relief granted herein, the Debtor may be subject to the prosecution of judicial, quasi-judicial, arbitration, administrative or regulatory actions or proceedings in connection with the claims against it or its property, thereby interfering with and causing harm to, the Debtor, its creditors and other parties in interest in the Israeli Proceeding and, as a result, the Debtor, its creditors and such other parties in interest would suffer irreparable injury for which there is no adequate remedy at law, a result contrary to the purposes of Chapter 15.

 

N. Appropriate notice of the filing of, and the hearing on, the Chapter 15 Petition was given, which notice was deemed adequate for all purposes and satisfied Bankruptcy Rule 2002(q), and no further notice need be given.

 

NOW THEREFORE, IT IS HEREBY ORDERED THAT:

 

1. The Petition and the relief requested therein is granted.

 

2. The Israeli Proceeding is granted recognition as a foreign main proceeding pursuant to sections 1517(a) and (b)(1) of the Bankruptcy Code.

 

 

3. All relief afforded to a foreign main proceeding pursuant to sections 1507 and 1520 of the Bankruptcy Code is granted to the Debtor and the Foreign Representative, as applicable.

 

4. Section 362 of the Bankruptcy Code shall hereby apply with respect to the Debtor and its property that is within the territorial jurisdiction of the United States.

 

5. All entities (as that term is defined in section 101(15) of the Bankruptcy Code), other than the Foreign Representative and her authorized representatives and/or agents, are hereby enjoined from, without limitation:

 

a.

executing against any of the Debtor’s assets or other properties in accordance with sections 1520(a)(1) and 1521(a)(2) of the Bankruptcy Code;

 

b.

commencing or continuing, including the issuance or employment of process, of a judicial, administrative, arbitral, or other action or proceeding, or to recover a claim against the Debtor in the United States in accordance with sections 362(a)(1), 1520(a)(1), and 1521(a)(1) of the Bankruptcy Code;

 

c.

commencing, or continuing an individual action or proceeding concerning the Debtor’s assets, rights, obligations, or liabilities in accordance with section 1521(a)(1) of the Bankruptcy Code;

 

d.

any act to create, perfect, or enforce a lien or other security interest, set-off, or other claim against the Debtor or any of their property in accordance with sections 362(a)(4), (5) & (7), 1520(a)(1), 1521(a)(2) of the Bankruptcy Code; and

 

e.

transferring, encumbering, or otherwise disposing of any assets of the Debtor to any entity (as that term is defined in section 101(15) of the Bankruptcy Code) other than the Foreign Representative in accordance with section 1521(a)(3) of the Bankruptcy Code.

  

6. Subject to sections 1520 and 1521 of the Bankruptcy Code, the Israeli Proceeding, shall be granted comity and given full force and effect in the United States to the same extent as in Israel.

 

 

7. Nothing herein shall enjoin a police or regulatory act of a governmental unit, including a criminal action or proceeding, to the extent set forth in sections 362(b) and 1521(d) of the Bankruptcy Code.

 

8. Notwithstanding any applicable Bankruptcy Rules to the contrary, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry.

 

9. The Foreign Representative is authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Petition.

 

10. The Foreign Representative, the Debtor, and/or each of their successors, representatives, advisors, or counsel shall be entitled to the protections contained in sections 306 and 1510 of the Bankruptcy Code.

 

11. 

 

12. This Court shall retain jurisdiction with respect to the enforcement, amendment or modification of this Order, any request for additional relief, any adversary proceeding brought in and through this Chapter 15 case, and any request by an entity for relief from the provisions of this Order that is properly commenced and within the jurisdiction of this Court.

 

	/s/ J. Kate Stickles
Dated: May 15th, 2024	J. KATE STICKLES
Wilmington, Delaware	UNITED STATES BANKRUPTCY JUDGE

 

 

5

Exhibit 99.2

 

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

 

In re:   Gamida Cell Ltd.1   Debtor in a Foreign Proceeding.

Chapter 15 Case No. 24-11003 (JKS)   Re. Docket Nos. 5, 6, 22, 29, 37, 38, and 40

 

FINAL ORDER GRANTING MOTION

(I) RECOGNIZING AND ENFORCING THE DEBT ARRANGEMENT

AND ISRAELI CONFIRMATION ORDER PURSUANT TO 11 U.S.C.

§§ 105(a), 1145, 1507(a), 1521, AND 1525(A), AND (II) GRANTING RELATED RELIEF

 

Upon consideration of the motion (the “Motion”)² of Abigail Jenkins, solely in her capacity as the duly authorized foreign representative (the “Foreign Representative”) of Gamida Cell Ltd. (the “Debtor”), in its debt arrangement proceeding commenced under the Bankruptcy and Economic Rehabilitation Law, 5778-2018 (as amended and modified, the “Israeli Insolvency Law”) and Bankruptcy and Economic Rehabilitation Regulations, 5779-2019 (the “Israeli Regulations”), pending before the District Court in Be’er-Sheva (the “Israeli Court”), Case No. 63461-03-24 (the “Israeli Proceeding”), seeking an order (i) recognizing and giving full force and effect and granting comity in the United States to the Debt Arrangement and the Israeli Confirmation Order, (ii) except as otherwise provided in this Order, permanently enjoying all parties from commencing, continuing, or taking any action in the United States to interfere with the Debt Arrangement, (iii) declaring to the extent the offer, exchange, and issuance of CVRs under the Debt Arrangement constitute an exchange of securities under the Securities Act, that such offer, exchange, and issuance is exempt from registration pursuant to section 1145, and (iv) granting such other and further relief as the Court deems just and proper; and this Court having reviewed the Motion and the statements of counsel with respect to the Motion at a hearing before this Court (the “Hearing”); and this Court having determined that the legal and factual bases set forth in the Motion and all other pleadings and papers in this Chapter 15 Case establish just cause to grant the relief ordered herein, and after due deliberation therefor,

 

1

The Debtor is a company incorporated in Israel and the last 4 digits of its company number are 1204.

2

Capitalized terms used but not otherwise defined herein shall have the meaning given to them in the Motion.

 

 

THIS COURT HEREBY FINDS AND DETERMINES THAT:

 

A. The findings and conclusions set forth herein constitute this Court’s findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such.

 

B. The Court has jurisdiction to consider this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(P), and this Court has the statutory and constitutional authority to issue a final ruling with respect to this matter. Venue for this proceeding is proper before this Court pursuant to 28 U.S.C. § 1410.

 

C. The Foreign Representative, in her capacity as the Foreign Representative of the Debtor, has standing to make the Motion.

 

D. The Foreign Representative’s notice of the Motion and opportunity for a hearing was adequate and appropriate under the circumstances and no other or further notice need be provided.

 

E. The Foreign Representative and the Debtor, as applicable, are entitled to the relief granted hereby, including, without limitation, the additional assistance and discretionary relief requested in the Motion pursuant to section 1507 and 1521(a) of the Bankruptcy Code.

 

F. The Foreign Representative and the Debtor, as applicable, are entitled to the Court’s cooperation under section 1525(a) of the Bankruptcy Code in implementing the Debt Arrangement and the Israeli Confirmation Order in the form of relief granted by this Order on the terms provided herein. The terms of the Debt Arrangement and Israeli Confirmation Order before the Israeli Court provided creditors and parties in interest with appropriate due process and are not manifestly contrary to U.S. public policy.

 

 

G. The relief granted hereby: (i) is necessary and appropriate in the interests of the public and international comity; (ii) is consistent with the laws and public policy of the United States; (iii) is available and warranted pursuant to sections 105(a), 1145, 1507(a), 1521(a), and 1525(a); and (iv) will not cause the Debtor’s creditors or other parties in interest any hardship that is not outweighed by the benefits to the Debtor, its creditors and shareholders of granting the relief herein.

 

H. The relief granted hereby (i) is necessary to give effect to the Israeli Proceeding, Debt Arrangement, and the Israeli Confirmation Order, (ii) is an integral element of the Israeli Proceeding, the Debt Arrangement, and the Israeli Confirmation Order, and is necessary to their effectuation, and (iii) confers material benefits on and is in the best interests of the Debtor, its creditors, its shareholders, and other parties in interest.

 

I. Absent the relief granted hereby, the Israeli Proceeding and the Debtor’s efforts to consummate the Debt Arrangement could be impeded by the actions of certain creditors and/or other persons, a result that would be contrary to the purposes of Chapter 15 of the Bankruptcy Code set forth, inter alia, in section 1501(a) of the Bankruptcy Code. If taken, such actions could threaten, frustrate, delay, and ultimately jeopardize the Israeli Proceeding and implementation of the Debt Arrangement, and, as a result, the Debtor, its creditors, and other parties in interest would suffer irreparable harm for which there is no adequate remedy at law.

 

J. Each of the injunctions contained in this Order (i) is within the Court’s jurisdiction, (ii) is necessary and appropriate to the success of the Debt Arrangement and the Israeli Confirmation Order, (iii) confers material benefits on, and is in the best interests of the Debtor, and its creditors and shareholders, and (iv) is important to the overall objectives of the Debtor’s restructuring.

 

 

K. Specifically, the injunctive relief set forth in this Order is appropriate and necessary to prevent the risk that the Debt Arrangement and Israeli Confirmation Order in the Israeli Proceeding may be thwarted by the actions of particular parties in interest.

 

L. The relief granted herein will not cause undue hardship or inconvenience to any party in interest, and to the extent that any hardship or inconvenience may result to such parties, it is outweighed by the benefits of the requested relief to the Foreign Representative, Debtor, and its creditors and shareholders.

 

THIS COURT HEREBY FINDS AND DETERMINES THAT:

 

1. The Motion is granted to the extent provided herein.

 

2. The Israeli Confirmation Order and the Debt Arrangement, and any amendments, modifications and exhibits thereto, in each case subject to all terms, conditions, and limitations set forth therein, are hereby recognized, granted comity, and given full force and effect within the territorial jurisdiction of the United States and for purposes of U.S. law with respect to the Debtor, and is binding on all creditors and shareholders of the Debtor and the Directed Parties, subject to the terms of this Order.

 

3. Except as provided by or that may be necessary to enforce the terms of the Debt Arrangement, the Israeli Confirmation Order, or this Order, all entities (as such term is defined in section 101(15) of the Bankruptcy Code), other than the Foreign Representative, the Debtor, and their respective expressly authorized representatives and agents in the United States, are hereby permanently enjoined and restrained from:

 

a.

execution against any of the Debtor’s assets in contravention of the terms of the Debt Arrangement, the Israeli Confirmation Order, or this Order;

 

b.

the direct or indirect commencement or continuation, including the issuance or employment of process or discovery, of a judicial, administrative, arbitral, or other action or proceeding, or to recover a claim (as such term is defined in section 101(5) of the Bankruptcy Code), which in any way relates to, or would interfere with, the administration of the Israeli Proceeding, the implementation or consummation of the transactions contemplated by the Debt Arrangement and the Israeli Confirmation Order including, without limitation, the consummation of the Exit Financing Facility (as defined in the Restructuring Support Agreement), the conversion of 100% of the outstanding 2026 Senior Notes into 100% of the Debtor’s equity (or that of an affiliate of the Debtor), and after the conversion the cancellation of the 2026 Senior Notes;

 

 

c.

taking or continuing any act to create, perfect, or enforce a lien or other security interest, set off, or other claim against the Debtor, except as provided for in the Debt Arrangement or Israeli Confirmation Order;

 

d.

transferring, relinquishing, or disposing of any property of the Debtor to any entity (as such term is defined in section 101(15) of the Bankruptcy Code) other than the Foreign Representative and her authorized representatives and agents in the United States or in any way attempting to obtain possession or control over any property of the Debtor, other than in a manner consistent with and/or not in contravention of the terms of the Debt Arrangement, the Israeli Confirmation Order, or this Order; and

 

e.

asserting any claims, commencing, or continuing any action or proceeding (including, without limitation, bringing suit in any court, arbitration, mediation, or any judicial or quasi-judicial, administrative or regulatory action, proceeding, or process whatsoever), whether directly or by way of counterclaim (and from seeking discovery of any nature related thereto)) concerning or otherwise relating to (i) the Debtor’s property, asserts, affairs, rights, obligations, or liabilities to the extent they have not been stayed pursuant to section 1520(a) and 362 of the Bankruptcy Code or (ii) any debt, claims, or interests that are extinguished, novated, cancelled, discharged, or released under the Debt Arrangement, the Israeli Confirmation Order.

 

4. Nothing herein shall enjoin a police or regulatory act of a governmental unit, including a criminal action or proceeding, to the extent set forth in 11 U.S.C. §§ 362(b) and 1521(d).

 

5. The Directed Parties are directed and authorized to take any and all lawful actions necessary to give effect to and implement the Debt Arrangement and the Israeli Confirmation Order and the transactions contemplated thereunder, including, without limitation, the consummation of conversion of 100% of the 2026 Senior Notes to 100% equity of the Debtor (or the Debtor’s affiliates) and, only thereafter and subject to the continuing effectiveness of the Debt Arrangement and Israeli Confirmation Order, the cancellation and discharge of the 2026 Senior Notes and the related Indenture.

 

 

6. Subject to the continuing effectiveness of the Debt Arrangement and Israeli Confirmation Order, and upon the issuance of the conversion of 100% of the 2026 Senior Notes to 100% equity of the Debtor (or an affiliate of the Debtor), the 2026 Senior Notes, the Indenture, and other instruments and certificates and other documents evidencing the claims and rights of holders of the 2026 Senior Notes (including claims against the Senior Notes Trustee) shall be deemed satisfied, discharged, and cancelled and of no force or effect; provided, however, that the Indenture and other instruments and certificates and other documents evidencing the claims and rights of the holders of the 2026 Senior Notes shall continue in effect solely for the purposes of (i) allowing Holders 2026 Notes to receive distributions in connection with the Debt Arrangement and Israeli Confirmation Order; (ii) enforcing the rights, claims, and interests of Senior Notes Trustee, including any rights with respect to priority of payment and/or to exercise any Lien that secures payment, or other priority right to payment, of the reasonable and documented fees and expense of the Senior Notes Trustee (including the reasonable and documented fees and expenses of counsel retained thereby) (the “Charging Lien”) against any Distributions (including, but not limited, to rights of Senior Notes Trustee to assert its Charging Lien against any Distributions to holders of the 2026 Senior Notes); (iii) permitting the Senior Notes Trustee to appear and be heard in any proceedings relating to the Indenture; (iv) enforcing any obligation owed to the Senior Notes Trustee under the Debt Arrangement and Israeli Confirmation Order; and (iv) permitting the Senior Notes Trustee to perform any function necessary to effectuate the foregoing or the making of any distributions under or as required by the Debt Arrangement and Israeli Confirmation Order and provided that nothing in this Order shall affect the indemnification rights of the Senior Notes Trustee and Secured Note Agent that are not otherwise discharged under the Debt Arrangement and Israeli Confirmation Order. Upon cancellation, all remaining positions on account of the 2026 Senior Notes on the books and records of the Senior Notes Trustee with respect to the 2026 Senior Notes and DTC shall be terminated.

 

7. The Directed Parties shall incur no liability and be exculpated and released from any liability for any action or inaction taken in furtherance of this Order, except for any liability arising from any action or inaction constituting gross negligence, actual fraud, or willful misconduct as, in each case as finally determined by this Court.

 

8. Pursuant to sections 1521(a)(7), 1507, and 1145, to the extent the offer, exchange, and issuance of CVRs under the Debt Arrangement constitute an exchange of securities under the Securities Act of 1993 (as amended, the “Securities Act”) that such offer, exchange, and issuance is exempt from registration under Section 5 of the Securities Act and other applicable state securities laws.

 

 

9. The Foreign Representative, the Debtor, and their respective expressly authorized representatives and agents in the United States are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order, including, without limitation, to implement the terms of the Debt Arrangement, the Israeli Confirmation Order, and related restructuring transactions and the Foreign Representative and the Debtor, as applicable, are authorized to use any property and to continue operating any businesses within the territorial jurisdiction of the United States.

 

10. No action taken by the Foreign Representative in preparing, disseminating, applying for, implementing, or otherwise acting in furtherance of the Debt Arrangement or any order entered in this Chapter 15 case or in any adversary proceedings or contested matters in connection therewith, shall be deemed to constitute a waiver of the immunity afforded the Foreign Representative pursuant to sections 306 and 1510 of the Bankruptcy Code.

 

11. Notwithstanding any provision in the Bankruptcy Rules to the contrary, (i) this Order shall be effective immediately and enforceable upon entry; (ii) the Foreign Representative is not subject to any stay in the implementation, enforcement, or realization of the relief granted in this Order; and (iii) the Foreign Representative is authorized and empowered, and may in her discretion and without further delay, take any action and perform any act necessary to implement and effectuate the terms of this Order.

 

12. In no event shall this Order prevent the implementation of any amendments or modifications to the Debt Arrangement that may be agreed upon by and among the Debtor and the applicable creditors and approved by the Israeli Court (or as otherwise permitted under applicable law).

 

13. A copy of this Order, confirmed to be true and correct, shall be served by mail or email, where applicable, within forty-eight hours (48) of entry of this Order, upon the Notice Parties, with such service being good and sufficient service and adequate notice for all purposes.

 

14. Court shall retain jurisdiction with respect to all matters arising from or relating to the interpretation, implementation, enforcement, amendment, or modification of this Order.

 

	/s/ J. Kate Stickles
Dated: May 15th, 2024	J. KATE STICKLES
Wilmington, Delaware	UNITED STATES BANKRUPTCY JUDGE

 

 

Exhibit 99.3

 

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

 

In re:   GAMIDA CELL INC.,1   Debtor.

Chapter 11   Case No. 24-11003 (JKS)   Re: Docket Nos. 4, 5, 60

 

ORDER (I) APPROVING
THE DISCLOSURE STATEMENT FOR, AND CONFIRMING,
THE PREPACKAGED CHAPTER 11 PLAN OF REORGANIZATION
OF GAMIDA CELL INC., AND (II) GRANTING RELATED RELIEF

 

The above-captioned debtor and debtor in possession (the “Debtor”), having, in accordance with the terms of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules of Bankruptcy Practice and Procedure of the United States District Court for the District of Delaware (the “Local Rules”):

 

a.

distributed, on or about April 17, 2024, (i) the Prepackaged Chapter 11 Plan of Reorganization of Gamida Cell Inc. [Docket No. 4] (as amended, supplemented, or otherwise modified from time to time, including by the Amended Prepackaged Chapter 11 Plan of Reorganization of Gamida Cell Inc. [Docket No. 60], the “Plan”),2 (ii) the Disclosure Statement for the Prepackaged Chapter 11 Plan of Reorganization of Gamida Cell Inc. [Docket No. 5] (as amended, supplemented, or otherwise modified from time to time, the “Disclosure Statement”), (iii) the notice of the Combined Hearing, which is attached as Exhibit 1 to the Scheduling Order [Docket No. 54] (the “Combined Hearing Notice”), and (iv) the ballots for voting on the Plan (the “Ballots”) (each applicable Ballot, together with the Plan, the Disclosure Statement, and the Combined Hearing Notice, a “Solicitation Package”), which forms of Ballots were attached as Exhibit B-1 and Exhibit B-2 to the Scheduling Motion, to Holders of Claims entitled to vote on the Plan, namely Holders of Claims in Class 3 (the “Senior Secured Loans Claims”) and Class 4 (the “Unsecured Notes Claims”);

 

1

The Debtor is a company incorporated in Delaware and the last 4 digits of its federal tax identification number are 3346.

2

Capitalized terms used but not defined in these findings of fact, conclusions of law, and order (collectively, this “Confirmation Order”) shall have the meanings ascribed to them in the Plan. The rules of interpretation set forth in Article I.B of the Plan shall apply.

 

 

b.

distributed, on or about April 17, 2024, (i) the Combined Hearing Notice and (ii) the Notice of Non-Voting Status of Certain Claims and Interests, substantially in the form attached as Exhibit B-3 to the Scheduling Motion (the “Notice of Non-Voting Status”), to Holders of Claims in Class 1, Class 2, Class 5, Class 6, and Class 7;

 

c.

solicited, beginning on April 17, 2024 (the “Solicitation Commencement Date”) and through May 15, 2024 at 10:00 a.m. (prevailing Eastern Time) (the “Voting Deadline”), votes on the Plan from Holders of Claims in Class 3 and Class 4 (collectively, the “Voting Classes”);

 

d.

published, on April 22, 2024 in The New York Times (national edition), and on April 24, 2024 in USA Today, a short-form of the Combined Hearing (the “Publication Notice”), as evidenced by the notices of publication thereof [Docket No. 15];

 

e.

distributed, on May 8, 2024, the Plan Supplement to the Voting Classes;

 

f.

obtained unanimous approval of the Plan from all creditors in each of the Voting Classes by the Voting Deadline;

 

g.

commenced, on May 13, 2024 (the “Petition Date”), the Chapter 11 Case by filing a voluntary petition for relief under chapter 11 of the Bankruptcy Code;

 

 

h.

filed, on or around the Petition Date, the Plan, the Disclosure Statement, the Notice of Plan Supplement to Prepackaged Chapter 11 Plan of Reorganization of Gamida Cell Inc. [Docket No. 7], the Notice of Amended Plan Supplement to Prepackaged Chapter 11 Plan of Reorganization of Gamida Cell Inc. [Docket No. 8], the Declaration of Abigail Jenkins, President and Chief Executive Officer of Gamida Cell Inc., in Support of Chapter 11 Petitions and First Day Motions [Docket No. 3] (the “First Day Declaration”), the Debtor’s Motion for Entry of an Order (I) Scheduling Combined Hearing on Adequacy of Disclosure Statement and Confirmation of Pre-Packaged Plan; (II) Approving Procedures for Objecting to Disclosure Statement and Pre-Packaged Plan; (III) Approving Prepetition Solicitation Procedures and Form and Manner of Notice of Commencement, Combined Hearing, and Objection Deadline; (IV) Approving Notice and Objection Procedures for the Assumption of Executory Contracts and Unexpired Leases; (V) Conditionally (A) Directing the United States Trustee Not to Convene Section 341(a) Meeting of Creditors and (B) Waiving Requirement of Filing Schedules and Statements and Rule 2015.3 Reports; and (VI) Granting Related Relief [Docket No. 11] (the “Scheduling Motion”), and the Declaration of Alex Orchowski of Kroll Restructuring Administration, LLC Regarding Solicitation of Votes and Tabulation of Ballots Cast on the Pre-Packaged Plan of Reorganization of Gamida Cell Inc. [Docket No. 9] (the “Voting Declaration”);

 

i.

filed, on or around the Petition Date, several affidavits of service [Docket Nos. 14, 16, 17] (collectively, and including all other affidavits of service and publication in this Chapter 11 Case, the “Affidavits”);

 

 

j.

distributed, on or around May 16, 2024, (i) the Notice of (A) Combined Hearing to Consider (I) Adequacy of Disclosure Statement and (II) Confirmation of Pre-Packaged Plan; (B) Assumption of Executory Contracts and Unexpired Leases; (C) Objection Deadlines; and (D) Commencement of Chapter 11 Case (the “Notice of Commencement and Supplemental Combined Hearing Notice”), to all parties in interest;

 

k.

filed, on May 13, 2024, (i) the Debtor’s Memorandum of Law in Support of an Order Approving the Debtor’s Disclosure Statement for, and Confirming, the Pre-Packaged Plan of Reorganization of Gamida Cell Inc. [Docket No. 21] (the “Confirmation Brief”), and (ii) the Declaration of Abigail Jenkins, President and Chief Executive Officer of Gamida Cell Inc., in Support of the Debtor’s Disclosure Statement for, and Confirmation of, the Pre-Packaged Chapter 11 Plan of Reorganization of Gamida Cell Inc. [Docket No. 22] (the “Jenkins Declaration”);

 

l.

operated its business and managed its properties during the Chapter 11 Case as debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.

 

The Bankruptcy Court, having:

 

a.

reviewed the solicitation procedures regarding votes to accept or reject the Plan and elections to opt in to the Consenting Creditor Release, as the case may be (the “Solicitation Procedures”);

 

b.

entered, on May 16, 2024, the Scheduling Order [Docket No. 54], which, among other things, set (i) May 22, 2024 at 9:30 a.m. (prevailing Eastern Time) as the date and time for the Combined Hearing and (ii) May 20, 2024, at 9:00 a.m. (prevailing Eastern Time) as the deadline for objections to the adequacy of the Disclosure Statement and Confirmation of the Plan;

 

 

c.

reviewed the Plan, the Disclosure Statement, the Plan Supplement, the Confirmation Brief, the Jenkins Declaration, the Voting Declaration, the Affidavits, the Combined Hearing Notice, the Ballots, the Notice of Non-Voting Status, the Publication Notice, the Notice of Commencement and Supplemental Combined Hearing Notice, and all other filed pleadings, exhibits, statements, affidavits, declarations, and comments regarding approval of the Disclosure Statement and Confirmation of the Plan, including all objections, statements, and reservations of rights;

 

d.

reviewed the discharge, compromises, settlements, releases, exculpations, and injunctions set forth in Article VII of the Plan;

 

e.

held the Combined Hearing on May 22, 2024, at 9:30 a.m. (prevailing Eastern Time);

 

f.

heard and considered the statements and arguments made by counsel in respect of approval of the Disclosure Statement and Confirmation of the Plan, including any objections thereto;

 

g.

considered all oral representations, affidavits, testimony, documents, filings, and other evidence regarding approval of the Disclosure Statement and Confirmation of the Plan, including any objections thereto; and

 

h.

considered the filings and the record of this Chapter 11 Case, including all evidence and arguments presented at the Combined Hearing.

 

 

NOW, THEREFORE, it appearing to the Bankruptcy Court that notice of the Combined Hearing and the opportunity for any party in interest to object to approval of the Disclosure Statement and Confirmation of the Plan have been adequate and appropriate as to all Entities affected or to be affected by the Plan and the transactions contemplated thereby, and that the legal and factual bases set forth in the documents filed in support of approval of the Disclosure Statement and Confirmation of the Plan and the arguments and evidence presented at the Combined Hearing establish just cause for the relief granted herein, and after due deliberation thereon and good cause appearing therefor, the Bankruptcy Court hereby makes and issues the following findings of fact, conclusions of law, and orders:

 

IT IS DETERMINED, FOUND, ADJUDGED, DECREED, AND ORDERED THAT:

 

I.

Findings and Conclusions.

 

1. The findings and conclusions set forth herein and in the record of the Combined Hearing constitute the Bankruptcy Court’s findings of fact and conclusions of law under Rule 52 of the Federal Rules of Civil Procedure, as made applicable herein by Bankruptcy Rules 7052 and 9014. To the extent any of the following conclusions of law constitute findings of fact, or vice versa, they are adopted as such.

 

II.

Jurisdiction and Venue, Eligibility for Relief, Burden of Proof, and Notice.

 

2. The Bankruptcy Court has jurisdiction over this Chapter 11 Case pursuant to sections 157 and 1334 of title 28 of the United States Code, 28 U.S.C. §§ 1–4881 (the “Judicial Code”), and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated February 29, 2012. The Bankruptcy Court has jurisdiction to determine whether the Disclosure Statement and the Plan comply with the applicable provisions of the Bankruptcy Code and should be approved and confirmed, respectively. Venue is proper in this district pursuant to sections 1408 and 1409 of the Judicial Code. Approval of the Disclosure Statement and Confirmation of the Plan are core proceedings within the meaning of section 157(b)(2) of the Judicial Code.

 

 

III.

Commencement of this Chapter 11 Case.

 

3. On the Petition Date, the Debtor commenced this Chapter 11 Case by filing a voluntary petition for relief under chapter 11 of the Bankruptcy Code. Since the Petition Date, the Debtor has operated its business and managed its properties as debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee, examiner, or statutory committee has been appointed in this Chapter 11 Case.

 

IV.

Objections.

 

4. The Bankruptcy Court has considered the filings and the record of this Chapter 11 Case. Any resolution of objections to approval of the Disclosure Statement or Confirmation of the Plan explained on the record at the Combined Hearing is hereby incorporated by reference. All unresolved objections, statements, informal objections, and reservations of rights (except with respect to unresolved cure amounts, which shall be resolved in accordance with Article V of the Plan), if any, related to the Disclosure Statement or Confirmation of the Plan, are overruled on the merits.

 

V.

Approval of the Disclosure Statement.

 

5. The Disclosure Statement contains “adequate information” (as such term is defined in section 1125(a) of the Bankruptcy Code and used in section 1126(b)(2) of the Bankruptcy Code), and is approved in all respects. The Debtor’s use of the Disclosure Statement in solicitation of acceptances of the Plan is approved. The filing of the Disclosure Statement satisfied Bankruptcy Rule 3016(b).

 

 

VI.

Solicitation and Voting; Notice.

 

6. The Solicitation Procedures, including all documents related thereto (including, for the avoidance of doubt, the Combined Hearing Notice, the Publication Notice, the Ballots, and the Notice of Non-Voting Status), and the procedures for the tabulation of Ballots, satisfy the requirements of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules, and are approved in all respects. The Debtor provided due, adequate, and sufficient notice of the Voting Deadline, the Objection Deadline, and the Combined Hearing in compliance with the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules. No other or further notice is or shall be required.

 

7. As described in the Voting Report and the Affidavits, the Debtor transmitted the Solicitation Package, the Combined Hearing Notice, the Notice of Non-Voting Status, and the Notice of Commencement and Supplemental Combined Hearing Notice to all Holders of Claims and Interests as of the Voting Record Date and all other parties in interests on or after the Petition Date. Specifically, as described in the Voting Report and the Affidavits, (a) prior to the Petition Date, the Debtor transmitted (i) the Solicitation Package to Holders of Claims in the Voting Classes, (ii) the Notice of Non-Voting Status and Combined Hearing Notice to Holders of Claims in Class 1, Class 2, Class 5, Class 6, and Class 7, and (iii) the Combined Hearing Notice to all other Holders of Claims and Interests, and (b) subsequent to the Petition Date, the Debtor transmitted the Notice of Commencement and Supplemental Combined Hearing Notice to all other parties in interest. Transmission and service of the foregoing, and any and all other documents associated with the Debtor’s solicitation, complied with the Bankruptcy Code (including, but not limited to, 11 U.S.C. § 1125(g)), the Bankruptcy Rules, and the Local Rules, and were timely, adequate, and sufficient, and no other or further notice is or shall be required.

 

8. The 28-day period during which the Debtor solicited acceptances or rejections of the Plan was a reasonable and sufficient period of time for Holders of Claims in the Voting Classes to make an informed decision to accept or reject the Plan. The solicitation of votes to accept or reject the Plan was conducted in good faith and in compliance with the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules. The Debtor, the Reorganized Debtor, the Consenting Creditors, and each of their respective Affiliates, agents, representatives, members, principals, shareholders, officers, directors, employees, advisors, and attorneys are hereby granted the protections provided under section 1125(e) of the Bankruptcy Code.

 

 

9. Holders of Claims in Class 3 and Class 4 were eligible to vote on the Plan in accordance with the Solicitation Procedures. The Ballots used to solicit votes to accept or reject the Plan from Holders in the Voting Classes were appropriate and adequately addressed the particular needs of this Chapter 11 Case. As evidenced by the Voting Report, 100% of Class 3 and 100% of Class 4 voted to accept the Plan in accordance with section 1126 of the Bankruptcy Code.

 

10. Class 1, Class 2, and Class 5, are Unimpaired and conclusively presumed to accept the Plan, Class 6 is Unimpaired and conclusively presumed to accept the Plan or Impaired and deemed to reject the Plan, and Class 7 is Impaired and deemed to reject the Plan (the foregoing Classes, collectively, the “Non-Voting Classes”). The Debtor was not required to solicit votes from Holders of Claims or Interests, as applicable, in the Non-Voting Classes.

 

11. The solicitation of votes on the Plan complied with the Bankruptcy Code, Bankruptcy Rules, and Local Rules, and was appropriate and satisfactory and is approved in all respects.

 

VII.

Opt-In Procedures.

 

12. The procedures for opting in to the Consenting Creditor Release (the “Opt-In Procedures”) set forth in the Ballots, are good, sufficient, and adequate to establish the applicable party’s consent to the Consenting Creditor Release and are approved in all respects.

 

13. The procedures used for tabulations of elections to opt in to the Consenting Creditor Release are approved in all respects.

 

 

VIII.

Plan Supplement.

 

14. The Plan Supplement complies with the Bankruptcy Code and the terms of the Plan, and the filing and notice of such documents were good, proper, and in accordance with the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules, and no other or further notice is or shall be required with respect to the Plan Supplement and all of the documents included therein.

 

15. All documents included in the Plan Supplement, including any amendments, modifications, and supplements thereto, and all documents and agreements related thereto (including all exhibits and attachments thereto), are integral to, part of, and incorporated by reference into the Plan and this Confirmation Order.

 

16. Subject to the terms of the Plan, the Restructuring Support Agreement (including any consent rights set forth or incorporated therein), and this Confirmation Order, the Debtor’s right to alter, amend, update, or modify the Plan Supplement on or before the Effective Date is reserved. All parties were provided due, adequate, and sufficient notice of the Plan Supplement.

 

IX.

Modifications to Plan.

 

17. Pursuant to section 1127 of the Bankruptcy Code, the modifications to the Plan after solicitation of the Plan, as reflected in the Plan or in this Confirmation Order (including any modifications announced on the record of the Combined Hearing), constitute technical or clarifying changes, changes with respect to particular Claims by agreement with Holders of such Claims or their authorized representatives, or modifications that do not otherwise materially and adversely affect or change the treatment of any other Claim under the Plan. After giving effect to these modifications, the Plan continues to satisfy the requirements of sections 1122 and 1123 of the Bankruptcy Code, and notice of these modifications was adequate and appropriate under the facts and circumstances of this Chapter 11 Case. In accordance with Bankruptcy Rule 3019, these modifications do not require additional disclosure under section 1125 of the Bankruptcy Code or the resolicitation of votes under section 1126 of the Bankruptcy Code, and they do not require that Holders of Claims be afforded an opportunity to cast new votes on the Plan or change previously cast acceptances or rejections of the Plan. Accordingly, the Plan is properly before the Bankruptcy Court and all votes cast with respect to the Plan prior to such modification shall be binding and shall apply with respect to the Plan. All Holders of Claims who voted to accept the Plan or who are conclusively presumed to accept the Plan are deemed to have accepted the Plan as modified, revised, supplemented, or otherwise amended, and all Holders of Claims and Interests who are conclusively deemed to have rejected the Plan are deemed to have rejected the Plan as modified, revised, supplemented, or otherwise amended.

 

 

X.

Confirmation of the Plan.

 

18. The Plan, a copy of which is attached hereto as Exhibit A, is confirmed pursuant to section 1129 of the Bankruptcy Code. The Debtor, as proponent of the Plan, has met its burden of proving the applicable elements of sections 1129(a) and 1129(b) of the Bankruptcy Code by a preponderance of the evidence, which is the applicable evidentiary standard for Confirmation of the Plan.

 

19. Any and all objections to the Plan that have not been withdrawn or resolved prior to the Combined Hearing are hereby overruled.

 

20. The terms of the Plan, including the Plan Supplement (including all documents included therein and any supplements, amendments, or modifications thereof in accordance with this Confirmation Order and the Plan), are incorporated by reference into and are an integral part of this Confirmation Order. The Debtor and Reorganized Debtor, as applicable, are authorized to enter into the Plan, the Plan Supplement, and any other documents filed in connection with the Plan and/or executed or to be executed in connection with the transactions contemplated by the Plan, including, for the avoidance of doubt, the Exit Facility Documents, and all amendments and modifications thereof made or to be made in accordance with the Plan and this Confirmation Order. The Debtor and the Reorganized Debtor (as applicable) are authorized to take all actions required under the Plan and the Plan Supplement documents to effectuate the Plan and the Restructuring Transactions (including, for the avoidance of doubt, any Restructuring Transactions contemplated in the Restructuring Support Agreement and associated term sheet that are necessary to effectuate the terms of the Israeli Debt Arrangement).

 

 

XI.

Assumption and Assignment of Contracts and Leases.

 

21. The Debtor has exercised sound business judgment in determining whether to reject, assume, or assume and assign each of its Executory Contracts and Unexpired Leases pursuant to sections 365 and 1123(b)(2) of the Bankruptcy Code, Article V of the Plan, and as set forth in the Plan Supplement.

 

22. The provisions governing the treatment of Executory Contracts and Unexpired Leases set forth in Article V of the Plan (including the procedures regarding the resolution of any and all disputes concerning the assumption and assignment, as applicable, of such Executory Contracts and Unexpired Leases) shall be, and hereby are, approved in their entirety.

 

23. Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan and full payment of any applicable Cure pursuant to Article V.B of the Plan 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 other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date of assumption.

 

24. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed pursuant to the Plan restricts or prevents, purports to restrict or prevent, or is breached or deemed breached by, the assumption of such Executory Contract or Unexpired Lease (including any “change of control” provision), 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.

 

 

XII.

Implementation.

 

25. The provisions governing the means for implementation of the Plan set forth in Article IV of the Plan shall be, and hereby are, approved in their entirety. All documents and agreements necessary to implement the Plan and the Restructuring Transactions, and all other relevant and necessary documents with respect to the Restructuring Transactions, including: the New Organizational Documents; the Exit Facility Credit Agreement; to the extent known, the identities of the members of the New Board; the Schedule of Proposed Cure Amounts; any other documents contained in the Plan Supplement, and all other relevant and necessary documents, have been or will be negotiated in good faith and at arm’s-length, are in the best interests of the Debtor, and shall, upon completion of documentation and execution, be valid, binding, and enforceable documents and agreements.

 

XIII.

Notice of Confirmation and the Effective Date.

 

26. Within forty-eight (48) hours of entry of this Confirmation Order, the Debtor shall serve on all parties in interest a copy of this Confirmation Order. As soon as practicable following occurrence of the Effective Date, the Debtor shall serve on all parties in interest a notice of occurrence of the Effective Date (the “Effective Date Notice”). Mailing of this Confirmation Order and the Effective Date Notice in the time and manner set forth in this paragraph shall be deemed good and sufficient notice of entry of this Confirmation Order and occurrence of the Effective Date and no further notice is or will be necessary.

 

 

XIV.

Effectiveness of All Actions.

 

27. All actions contemplated by the Plan, including all actions in connection with the Plan Supplement, as the same may be modified from time to time prior to the Effective Date (including, without limitation, any restructuring transaction steps set forth in one or more documents contained in the Plan Supplement), are hereby authorized to be taken on, prior to, or after the Effective Date, as applicable, without further application to or order of the Bankruptcy Court, or further action by the respective officers, directors, managers, members, or equity holders of the Debtor or the Reorganized Debtor, and with the effect that such actions had been taken by the unanimous action, consent, approval, and vote of each of such officers, directors, managers, members, or equity holders.

 

28. On or (as applicable) prior to the Effective Date, the appropriate officers of the Debtor or the Reorganized Debtor, 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 Debtor, the New Organizational Documents, the Exit Facility Documents, and any and all other agreements, documents, Securities, and instruments relating to the foregoing. The authorizations and approvals contemplated by Article IV.H of the Plan shall be effective notwithstanding any requirements under non-bankruptcy law.

 

 

XV.

Exit Facility.

 

29. On or after the Effective Date, the Reorganized Debtor shall execute and deliver the Exit Facility Documents, and such documents shall become effective in accordance with their terms. Upon execution and delivery, the Exit Facility Documents shall constitute legal, valid, and binding obligations of the Reorganized Debtor, and shall be enforceable in accordance with their respective terms. Upon execution and delivery of the Exit Facility Documents, all of the claims, Liens and security interests to be granted in accordance with the Exit Facility 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 Exit Facility 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, and the Exit Facility Agent for the benefit of the lenders under the Exit Facility Loan Agreement shall have a valid, binding, perfected, nonavoidable, and enforceable first-priority lien on and security interest in the collateral specified in the Exit Facility Documents. The guarantees, mortgages, pledges, Liens, and other security interests granted to secure the obligations arising under the Exit Facility 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, and the priorities of such Liens and security interests shall be as set forth in the Exit Facility Documents. The Reorganized Debtor and the persons and entities granted such Liens and security interests shall be authorized to make all filings and recordings, and to obtain all governmental approvals and consents necessary to establish and perfect such Liens and security interests under the provisions of the applicable state, federal, or other law that would be applicable in the absence of the Plan and the Confirmation Order (it being understood that perfection shall occur automatically by virtue of the entry of the Confirmation Order and any such filings, recordings, approvals, and consents shall not be required), and will thereafter cooperate to make all other filings and recordings that otherwise would be necessary under applicable law to give notice of such Liens and security interests to third parties.

 

 

XVI.

Non-Disputed General Unsecured Claims.

 

30. Notwithstanding any provision of the Plan or this Confirmation Order, all General Unsecured Claims that are not Disputed nor Disallowed (Class 5) shall receive a full recovery by, at the option of the Debtor or the Reorganized Debtor, as applicable, (i) leaving unaltered the legal, equitable, and contractual rights of a Holder of a General Unsecured Claim, (ii) paying such General Unsecured Claim in full in Cash on the Effective Date or as soon thereafter as is practicable, (iii) paying such General Unsecured Claim in a manner agreed to by the Holder of such Claim, or (iv) reinstating the legal, equitable, and contractual rights of the Holder of an General Unsecured Claim in accordance with section 1124(2) of the Bankruptcy Code.

 

XVII.

Discharge, Release, Injunction, Exculpation, and Related Provisions.

 

31. The Debtor has satisfied the business judgment standard with respect to the propriety of the Debtor Release set forth in Article VII.C of the Plan. The Debtor Release is a necessary and integral element of the Plan, and is fair, reasonable, and in the best interests of the Debtor, the Estate, Holders of Claims and Interests, and all of the Debtor’s stakeholders. The Debtor Release, provided pursuant to Article VII.C of the Plan, is: (i) in exchange for the good and valuable consideration provided by the Released Consenting Creditor Parties, including the Released Consenting Creditor Parties’ contribution to facilitating the Restructuring Transactions and implementing the Plan; (ii) a good faith settlement and compromise of the Claims released by the Debtor Release; (iii) in the best interests of the Debtor and all Holders of Claims and Interests; (iv) fair, equitable, and reasonable; (v) given and made after due notice and opportunity for a hearing; and (vi) a bar to the Debtor, the Reorganized Debtor, or the Debtor’s Estates asserting any Claim or Cause of Action released pursuant to the Debtor Release.

 

 

32. The Consenting Creditor Release provides finality for the Debtor, the Reorganized Debtor, and the other Released Debtor Parties regarding the parties’ respective obligations under the Plan and with respect to the Reorganized Debtor. The Combined Notice, and the Publication Notice published in The New York Times (national edition) on April 22. 2024, and in USA Today on April 24, 2024, and the Ballots, the Notice of Non-Voting Status Notice, sent to all Holders of Claims and Interests entitled to vote on the Plan, as applicable, in each case, unambiguously stated that the Plan contains the Consenting Creditor Release and, where applicable, the procedures for opting in to such release. The Consenting Creditor Release is consensual and a necessary and integral element of the Plan, and is fair, equitable, reasonable, and in the best interests of the Debtor, the Estate, and all Holders of Claims and Interests.

 

33. The exculpation provided by Article VII.E of the Plan for the benefit of the Exculpated Parties is appropriately tailored to the circumstances of this Chapter 11 Case.

 

34. The injunction provision set forth in Article VII.F of the Plan is necessary to implement, preserve, and enforce the Debtor’s discharge, the Debtor Release, the Consenting Creditor Release, and the exculpation, and is narrowly tailored to achieve this purpose.

 

35. The discharge, release, injunction, exculpation, and related provisions set forth in Article VII of the Plan, as modified herein, including but not limited to those provisions set forth below, are hereby approved and authorized.

 

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 Debtor), 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 Debtor or any of its 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 Debtor 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 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.

 

 

B.

Release of Liens.

 

Except as otherwise provided in the Exit Facility Documents, 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 Secured Claim that is Allowed as of the Effective Date, except for Other Secured Claims that the Debtor elects to Reinstate in accordance with this Plan, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estate 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 Debtor and its 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 Debtor, to release any collateral or other property of the 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 Debtor 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 take any and all steps requested by the Debtor, the Reorganized Debtor, or the Exit Facility Agent 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 Debtor shall be entitled to make any such filings or recordings on such Holder’s behalf.

 

 

C.

Releases by the Debtor Releasing Parties.

 

Notwithstanding anything contained in the Plan to the contrary, pursuant to section 1123(b) of the Bankruptcy Code, upon entry of the Confirmation Order and effective as of the Effective Date, to the fullest extent permitted by applicable law, each Released Consenting Creditor Party is, and is deemed hereby to be, fully, conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged by each and all of the Debtor Releasing Parties, in each case on behalf of themselves and their respective successors, assigns, and representatives, from any and all Claims, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever, whether known or unknown, including any derivative claims, asserted or assertable on behalf of any of the Debtor Releasing Parties, that any such Person or Entity would have been legally entitled to assert in its own right (whether individually or collectively) or on behalf of the holder of any Claim against or any legal interests, equitable interests, contractual interests or Interests in the Debtor or other Person or Entity, or that any holder of any Claims or Interests against or in the Debtor or other Person or Entity could have asserted on behalf of the Debtor Releasing Parties, based on or relating to, or in any manner arising from, in whole or in part, any of the Debtor Releasing Parties (including the Debtor Releasing Parties’ capital structure, management, ownership, or operation thereof or otherwise), the subject matter of, or the transactions or events giving rise to, any Claims or Interests that is treated in the Plan, the business or contractual arrangements between the Debtor and any Released Consenting Creditor Party, the Debtor Releasing Parties’ in- or out-of-court restructuring efforts, the purchase, sale, or rescission of any security of the Debtor Releasing Parties, the Chapter 11 Case or the commencement, filing or execution thereof, the Israeli Proceeding or the commencement, filing or execution thereof, the Chapter 15 Case or the commencement, filing or execution thereof, the formulation, preparation, dissemination, solicitation, negotiation, entry into, filing or consummation of the Restructuring Support Agreement, the Plan, any Restructuring Transaction, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the Plan, any of the Restructuring Transactions, the Israeli Proceedings or the commencement, filing or execution thereof, the Chapter 11 Case or the commencement, filing or execution thereof, the Chapter 15 Case or the commencement, filing or execution thereof, the pursuit of Confirmation Order, the pursuit of the Israeli Confirmation Order, the pursuit of the Recognition Order, the pursuit of any additional orders from the Bankruptcy Court or Israeli Court in furtherance of the Restructuring Transactions, the pursuit of consummation of the Plan or any Restructuring Transaction, 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 upon any other related act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date, 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.

 

 

Notwithstanding anything to the contrary in the foregoing, the releases set forth above do not release: (1) any obligations arising on or after the Effective Date of any party, Person or Entity under the Plan, the Confirmation Order, or any post-Effective Date transaction contemplated by the Plan or the Restructuring Transactions, or any document, instrument, or agreement (including those set forth in any supplement to the Plan, if any) executed to implement the Plan or the Restructuring Transactions; or (2) 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 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 Consenting Creditor Parties, including, the Released Consenting Creditor 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 Debtor 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 the Debtor, the Reorganized Debtor, or the Debtor’s Estate asserting any Claim or Cause of Action released pursuant to the Debtor Release.

 

 

D.

Releases by the Consenting Creditor Releasing Parties.

 

Notwithstanding anything to the contrary contained in the Plan, upon entry of the Confirmation Order and effective as of the Effective Date, to the fullest extent permitted by applicable law, each Released Debtor Party is, and is deemed hereby to be, fully, conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged by each and all of the Consenting Creditor Releasing Parties, in each case on behalf of themselves and their respective successors, assigns, and representatives, (including any manager or foreign representative appointed in the Israeli Proceeding) from any and all Claims, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever, whether known or unknown, including any derivative claims, asserted or assertable on behalf of any of the Consenting Creditor Releasing Parties, that any such Person or Entity would have been legally entitled to assert in its own right (whether individually or collectively) or on behalf of the holder of any Claim against or Interest in a Released Debtor Party or a Consenting Creditor or other Person or Entity, or that any Holder of any Claims or Interests against or in a Released Debtor Party or a Consenting Creditor or other Person or Entity could have asserted on behalf of a Consenting Creditor Releasing Party, based on or relating to, or in any manner arising from, in whole or in part, any of the Released Debtor Parties (including the Released Debtor Parties’ capital structure, management, ownership, or operation thereof or otherwise), the subject matter of, or the transactions or events giving rise to, any Claims or Interests that is treated in the Plan, the business or contractual arrangements between any Consenting Creditor Releasing Party and any Released Debtor Party, the Released Debtor Parties’ in- or out-of-court restructuring efforts, the purchase, sale, or rescission of any security of any Released Debtor Party, any intercompany transactions between or among the Released Debtor Parties or an Affiliate of the Released Debtor Parties and a Released Debtor Party or Affiliate of a Debtor Released Party, the Chapter 11 Case or the commencement, filing or execution thereof, the Israeli Proceedings or the commencement, filing or execution thereof, the Chapter 15 Case or the commencement, filing or execution thereof, the formulation, preparation, dissemination, solicitation, negotiation, entry into, filing or consummation of the Restructuring Support Agreement, the Plan, any Restructuring Transaction, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the Plan, any of the Restructuring Transactions, the Chapter 11 Case or the commencement, filing or execution thereof, the Israeli Proceedings or the commencement, filing or execution thereof, the Chapter 15 Case or the commencement, filing or execution thereof, the pursuit of Confirmation Order, the pursuit of the Israeli Confirmation Order, the pursuit of Recognition Order, the pursuit of any additional orders from the Bankruptcy Court or Israeli Court in furtherance of the Restructuring Transactions, the pursuit of consummation of the Plan or any Restructuring Transaction, 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 upon any other related act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date, 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. 

 

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, the Restructuring Documents, or any post-Effective Date transaction contemplated by the Restructuring Transactions (including under the Exit Facility), or any document, instrument, or agreement (including those set forth in the Exit Facility) 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 Consenting Creditor 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 Consenting Creditor 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 Debtor Parties; (d) a good faith settlement and compromise of the Claims released by the Consenting Creditor Release; (e) in the best interests of the Debtor and its Estate; (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 Consenting Creditor Releasing Parties asserting any Claim or Cause of Action released pursuant to the Consenting Creditor Release.

 

E.

Exculpation.

 

Except as otherwise specifically provided in the Plan, and to the fullest extent permitted under 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 Case, the formulation, preparation, dissemination, negotiation, or filing of the Restructuring Support Agreement, the Disclosure Statement, the Plan, the Exit Facility, the New Common Equity, or any Restructuring Transaction, or any contract, instrument, release or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the Disclosure Statement, the Exit Facility, the New Common Equity, or the Plan, the filing of the Chapter 11 Case, 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. Notwithstanding anything to the contrary in the foregoing, the exculpation set forth above relates solely to liabilities on or after the Petition Date and prior to or on the Effective Date, and does not exculpate any post-Effective Date obligations of any Person or Entity under the Plan, any post-Effective Date transaction contemplated by the Restructuring Transactions (including under the Exit Facility), or any document, instrument, or agreement (including those set forth in the Exit Facility) executed to implement the Plan.

 

 

F.

Injunction.

 

Effective as of the Effective Date, all Entities that have held, hold, or may hold Claims, Interests, or Causes of Actions 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 Debtor, the Reorganized Debtor, 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, or Causes of Actions; (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, or Causes of Actions; (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, or Causes of Actions; (4) asserting any right of setoff, subrogation, or recoupment 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, or Causes of Actions unless such Holder has filed a motion requesting the right to perform such setoff on or before the Effective Date, and notwithstanding an indication of a claim or interest or otherwise 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, or Causes of Actions 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 post-Effective Date obligations of any Person or Entity under the Plan, any post-Effective Date transaction contemplated by the Restructuring Transactions (including under the Exit Facility), or any document, instrument, or agreement (including those set forth in the Exit Facility) 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 VII.F.

 

 

XVIII.

Cancellation of Existing Agreements, Notes, and Equity Interests and Release of Liens.

 

36. The cancellation of existing agreements, notes, and equity interests described in Article IV.G of the Plan, and the release and discharge of all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates described in Article VII.B of the Plan, are necessary to implement the Plan, and the Debtor is authorized to take such action as set forth in the Plan. Such provisions are appropriate, fair, equitable, and reasonable, and are in the best interests of the Debtor, the Estate, and Holders of Claims and Interests.

 

37. Notwithstanding anything to the contrary in the Plan, the Senior Secured Credit Agreement and Unsecured Notes Indenture shall continue in effect solely for purposes of: (i) allowing Senior Secured Lenders or Holders of Unsecured Notes Claims, as applicable, to receive Distributions under or in connection with the Plan; (ii) enforcing the rights, claims, and interests of the Senior Secured Agent and Unsecured Notes Trustee, including any rights with respect to priority of payment and/or to exercise any Lien that secures payment, or other priority right to payment, of the reasonable and documented fees and expense of the Senior Secured Agent or Unsecured Notes Trustee (including the reasonable and documented fees and expenses of counsel retained thereby) (the “Charging Lien”) against any Distributions (including, but not limited, to rights of the Senior Secured Agent and Unsecured Notes Trustee to assert their applicable Charging Lien against any Distributions to Senior Secured Lenders or Holders of Unsecured Notes Claims, as applicable); (iii) permitting the Senior Secured Agent and Unsecured Notes Trustee to appear and be heard in any proceedings in the Bankruptcy Court or any other court relating to the Senior Secured Credit Agreement and Unsecured Notes Indenture, as applicable; (iv) enforcing any obligation owed to the Senior Secured Agent and Unsecured Notes Trustee under the Plan, any Plan Supplement, or this Confirmation Order; (v) preserving all rights (including rights of enforcement), remedies, exculpations, indemnities (including with respect to any indemnification or contribution from the Senior Secured Lenders or Holders of Unsecured Notes Claims, as applicable Prepetition Term Documents, as applicable), powers, and protections of the Senior Secured Agent and Unsecured Notes Trustee against any Entity other than the Debtor, pursuant to and subject to the terms of the Senior Secured Credit Agreement and Unsecured Notes Indenture, as applicable and (vi) permitting the Senior Secured Agent and Unsecured Notes Trustee to perform any function necessary to effectuate the foregoing or the making of any Distributions under or as required by the Plan. 

 

 

38. Holders of mortgages, deeds of trust, Liens, pledges, or other security interests subject to release pursuant to Article VII.B of the Plan shall execute such documents as may be reasonably requested by the Debtor or the Reorganized Debtor, as applicable, to reflect or effectuate such releases, and all of the right, title, and interest of any Holders of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Reorganized Debtor and its successors and assigns.

 

XIX.

Payment of Fees and Expenses of Senior Secured Agent and Unsecured Notes Trustee

 

39. On or before the Effective Date, the Debtor shall pay all fees and expenses of the Senior Secured Agent and Unsecured Notes Trustee, including the reasonable and documented fees and expenses of counsel retained thereby, upon presentment of an invoice or fee statement.

 

XX.

Waiver of Section 341(a) Meeting and Certain Filings and Reporting.

 

40. Subject to the occurrence of the Effective Date on or before July 27, 2024, the following are hereby permanently waived: (a) the requirement that the U.S. Trustee convene a meeting of creditors or equity holders pursuant to section 341(a) of the Bankruptcy Code; (b) the requirements that the Debtor files Schedules, SOFAs, and 2015.3 Reports (each as defined in the Scheduling Motion); and (c) any other requirement under section 521 of the Bankruptcy Code or Bankruptcy Rule 1007 obligating the Debtor to file any list, schedule, or statement with the Bankruptcy Court or U.S. Trustee as to any such list, schedule, or statement not filed as of the entry of this Confirmation Order.

 

 

41. After the Confirmation Date, the Debtor or Reorganized Debtor, as applicable, unless otherwise specified herein, shall have no obligation to (a) provide any reports to any parties otherwise required under any orders entered in the Chapter 11 Case or (b) file with the Bankruptcy Court or serve on any party reports that the Debtor were obligated to file under the Bankruptcy Code or a Bankruptcy Court order; provided that the Reorganized Debtor will seek authority to close the Chapter 11 Case in accordance with the Bankruptcy Code and the Bankruptcy Rules; and provided, further, that, notwithstanding the foregoing, the Reorganized Debtor shall timely file all required monthly operating reports and post-confirmation quarterly reports in a form prescribed by the U.S. Trustee until the Chapter 11 Case is converted, dismissed, or closed, whichever occurs first.

 

XXI.

Authorization to Consummate.

 

42. The Debtor is authorized to consummate the Plan in accordance with its terms at any time after the entry of this Confirmation Order, subject to the satisfaction or waiver of the conditions precedent in Article VIII of the Plan. The Debtor or Reorganized Debtor, as applicable, including their officers, managers, and directors (including the members of the New Board, as applicable), are hereby immediately authorized, without further application to or order of the Bankruptcy Court, to enter into and effectuate the Restructuring Transactions and to take any and all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Plan and the Restructuring Transactions to the extent consistent with the Plan (including the consent rights therein). To the extent not approved by the Bankruptcy Court previously, upon entry of this Confirmation Order, the Debtor shall be authorized to enter into the Restructuring Transactions (including the transactions and related agreements contemplated thereby, including by the Restructuring Support Agreement, the Exit Facility Documents, and all actions to be taken, undertakings to be made, and obligations to be incurred and fees and expenses to be paid by the Debtor or the Reorganized Debtor, as applicable, in connection therewith are hereby effective and authorized to be taken.

 

 

XXII.

Directors and Officers of the Reorganized Debtor.

 

43. In accordance with Article IV.K of the Plan, on the Effective Date, the term of each of the current members of the board of directors of the Debtor 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.

 

XXIII.

Government Matters.

 

44. Notwithstanding any provision in the Plan, the Plan Supplement, the Amended Plan Supplement, the Restructuring Support Agreement, the Assumed Agreement Schedule, this Confirmation Order, or other related Plan documents (collectively, “Plan Documents”):

 

a. Nothing discharges or releases the Debtor, the Reorganized Debtor, or any non-debtor from any right, claim, liability, defense or cause of action of the United States or any State or impairs the ability of the United States or any State to pursue any right, claim, liability, defense, or cause of action against any Debtor, Reorganized Debtor or non-debtor. Contracts, purchase orders, agreements, grants, leases, covenants, guaranties, indemnifications, operating rights agreements or other interests of or with the United States or any State shall be, subject to any applicable legal or equitable rights or defenses of the Debtor, Reorganized Debtor, and/or any non-debtor under applicable non-bankruptcy law, paid, treated, determined and administered in the ordinary course of business as if the Debtor’s bankruptcy case was never filed and the Debtor and Reorganized Debtor shall comply with all applicable non-bankruptcy law. All rights, claims, liabilities, defenses or causes of action, of or to the United States or any State shall survive the Chapter 11 Case as if it had not been commenced and be determined in the ordinary course of business, including in the manner and by the administrative or judicial tribunals in which such rights, claims, liabilities, defenses or causes of action would have been resolved or adjudicated if the Chapter 11 Case had not been commenced; provided, that nothing in the Plan Documents shall alter any legal or equitable rights or defenses of the Debtor, the Reorganized Debtor, and/or any non-debtor under non-bankruptcy law with respect to any such claim, liability, or cause of action. Without limiting the foregoing, for the avoidance of doubt, nothing shall: (i) require the United States or any State to file any proofs of claim or administrative expense claims in the Chapter 11 Case for any right, claim, liability, defense, or cause of action; (ii) affect or impair the exercise of the United States’ or any State’s police and regulatory powers against the Debtor, the Reorganized Debtor or any non-debtor; (iii) be interpreted to set cure amounts or to require the United States or any State to novate or otherwise consent to the assumption, transfer, or assignment of any federal or state contracts, purchase orders, agreements, grants, leases, covenants, guaranties, indemnifications, operating rights agreements or other interests; (iv) affect or impair the United States’ or any State’s rights and defenses of setoff and recoupment, or ability to assert setoff or recoupment against the Debtor or the Reorganized Debtor and such rights and defenses are expressly preserved; (v) constitute an approval or consent by the United States or any State without compliance with all applicable legal requirements and approvals under non-bankruptcy law; or (vi) relieve any party from compliance with all licenses and permits issued by governmental units in accordance with non-bankruptcy law.

 

b. Nothing shall (i) preclude the United States Securities and Exchange Commission (the “SEC”) from enforcing its police or regulatory powers, or (ii) enjoin, limit, impair, or delay the SEC from commencing or continuing any claims, causes of action, proceedings, or investigations against any non-debtor person or non-debtor entity in any forum.

 

 

XXIV.

Post-Confirmation Modifications.

 

45. Without the need for further order or authorization of the Bankruptcy Court, the Debtor or the Reorganized Debtor, as applicable, are authorized and empowered to make any and all modifications to any and all documents that are necessary to effectuate the Plan that do not materially modify the terms of such documents and are consistent with the Plan and the Restructuring Support Agreement (subject to the applicable consent and consultation rights set forth therein).

 

XXV.

Immediate Binding Effect.

 

46. Subject to Article VIII.A of the Plan 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 and instruments contained in the Plan Supplement) shall be immediately effective and enforceable to the fullest extent permitted under the Bankruptcy Code and applicable nonbankruptcy law.

 

XXVI.

Waiver of Stay and Final Order.

 

47. For good cause shown, the requirements under Bankruptcy Rule 3020(e) that an order confirming a plan is stayed until the expiration of 14 days after entry of the order are waived. This Confirmation Order shall be effective and enforceable immediately upon its entry by the Bankruptcy Court as a final order and shall not be stayed pursuant to the Bankruptcy Code, Bankruptcy Rules 3020(e), 6004(h), 6006(d), or 7062, or otherwise.

 

XXVII.

Headings; References to and Omissions of Plan Provisions.

 

48. Headings utilized herein are for convenience and reference only, and do not constitute a part of the Plan or this Confirmation Order for any other purpose.

 

 

49. References to articles, sections, and provisions of the Plan are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of the Plan. The failure to specifically include or to refer to any particular article, section, or provision of the Plan in this Confirmation Order shall not diminish or impair the effectiveness of such article, section, or provision, it being the intent of the Bankruptcy Court that the Plan be confirmed in its entirety, except as expressly modified herein, and incorporated herein by this reference.

 

XXVIII.

Retention of Jurisdiction.

 

50. The Bankruptcy Court may properly, and upon the Effective Date shall, to the full extent set forth in the Plan, retain jurisdiction over all matters arising out of, and related to, this Chapter 11 Case, including the matters set forth in Articles IX and X of the Plan and section 1142 of the Bankruptcy Code.

 

XXIX.

Applicable Non-Bankruptcy Law.

 

51. Pursuant to sections 1123(a) and 1142(a) of the Bankruptcy Code, the provisions of this Order, the Plan, and any related documents, or any amendments or modifications thereto, shall apply and be enforceable notwithstanding any otherwise applicable non-bankruptcy law.

 

XXX.

Exemption from Certain Transfer Taxes and Fees.

 

52. Pursuant to section 1146(a) of the Bankruptcy Code, any transfers of property pursuant to the Plan shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, stamp act, real estate or personal property transfer tax, sale or use tax, mortgage recording tax, or other similar tax or governmental assessment, and upon entry of the Order, the appropriate governmental officials or agents shall forgo the collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents pursuant to such transfers of property without the payment of any such tax, recordation fee, or governmental assessment.

 

XXXI.

This Order Controlling.

 

53. If there is any express conflict between the Plan and this Order, the terms of this Order shall control.

 

	/s/ J KATE STICKLES
Dated: May 22nd, 2024	J. KATE STICKLES
Wilmington, Delaware	UNITED STATES BANKRUPTCY JUDGE

 

 

29

 

Exhibit 99.4

 

EXHIBIT A

 

 

 

 

 

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

 

In re:   GAMIDA CELL INC.   Debtor.

) ) ) ) ) ) )

Chapter 11   Case No. 24-11003 (JKS)

 

AMENDED PREPACKAGED CHAPTER 11 PLAN OF REORGANIZATION

OF GAMIDA CELL INC.

 

Stanley B. Tarr (DE Bar No. 5535) BLANK ROME LLP 1201 N. Market Street, Suite 800 Wilmington, Delaware 19801

Michael Klein Evan Lazerowitz COOLEY LLP 55 Hudson Yards New York, New York 10001-2157

 

Telephone:	(302) 425-6400	Telephone:	(212) 479-6000
Facsimile:	(302) 425-6464	Email:	mklein@cooley.com
Email:	stanley.tarr@blankrome.com		elazerowitz@cooley.com

 

John E. Lucian BLANK ROME LLP 130 N. 18th Street Philadelphia, Pennsylvania 19103

Olya Antle COOLEY LLP 1299 Pennsylvania Ave, NW, Suite 700 Washington, DC 20004-2400

 

Telephone:	(215) 569-5500	Telephone:	(202) 842-7800
Facsimile:	(215) 569-5555	Email:	oantle@cooley.com
Email:	john.lucian@blankrome.com

 

Proposed Co-Counsel for the Debtor and Debtor in Possession

Proposed Co-Counsel for the Debtor and Debtor in Possession

 

Dated: May 20, 2024

 

 

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 Debtor or the Reorganized Debtor.	13
G.	Controlling Document.	13
H.	Consultation, Information, Notice, and Consent Rights.	14
Article II	ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS	14
A.	Administrative Claims.	14
B.	Professional Fee Claims.	15
C.	Priority Tax Claims.	16
D.	Payment of Statutory Fees.	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.	Subordinated Claims	20
E.	Elimination of Vacant Classes.	20
F.	Voting Deadline.	20
G.	Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code.	21
H.	Controversy Concerning Impairment.	21
Article IV	MEANS FOR IMPLEMENTATION OF THE PLAN	21
A.	General Settlement of Claims and Interests.	21
B.	Corporate and Organizational Existence.	21
C.	Restructuring Transactions.	22
D.	Reorganized Debtor.	22
E.	Sources of Consideration for Plan Distributions.	23
F.	Vesting of Assets in the Reorganized Debtor.	24
G.	Cancelation of Existing Securities and Agreements.	25
H.	Corporate Action.	25
I.	New Organizational Documents.	25
J.	Indemnification Obligations.	26
K.	Directors and Officers of the Reorganized Debtor.	26
L.	Effectuating Documents; Further Transactions.	26
M.	Section 1146 Exemption.	26
N.	Preservation of Causes of Action.	27

 

 

Article V	TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES	28
A.	Assumption of Executory Contracts and Unexpired Leases.	28
B.	Cure of Defaults for Assumed Executory Contracts and Unexpired Leases.	28
C.	Insurance Policies.	29
D.	Reservation of Rights.	29
E.	Nonoccurrence of Effective Date.	30
F.	Contracts and Leases Entered Into After the Petition Date.	30
G.	Employee Compensation and Benefits.	30
Article VI	PROVISIONS GOVERNING DISTRIBUTIONS	31
A.	Distributions on Account of Claims Allowed as of the Effective Date.	31
B.	Disbursing Agent.	31
C.	Rights and Powers of Disbursing Agent.	31
D.	Delivery of Distributions.	32
E.	Manner of Payment.	32
F.	Allocation Between Principal and Interest	33
G.	Securities Law Matters.	33
H.	Compliance with Tax Requirements.	33
Article VII	SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS	33
A.	Discharge of Claims and Termination of Interests.	33
B.	Release of Liens.	34
C.	Releases by the Debtor Releasing Parties.	35
D.	Releases by the Consenting Creditor Releasing Parties.	36
E.	Exculpation.	37
F.	Injunction.	38
G.	Protections Against Discriminatory Treatment.	39

 

 

Article VIII	CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN	39
A.	Conditions Precedent to the Effective Date.	39
B.	Waiver of Conditions.	40
C.	Effect of Failure of Conditions.	40
D.	Substantial Consummation	41
Article IX	MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN	41
A.	Modification and Amendments.	41
B.	Effect of Confirmation on Modifications.	41
C.	Revocation or Withdrawal of Plan.	41
Article X	RETENTION OF JURISDICTION	42
Article XI	MISCELLANEOUS PROVISIONS	44
A.	Immediate Binding Effect.	44
B.	Additional Documents.	44
C.	Reservation of Rights.	44
D.	Successors and Assigns.	45
E.	Notices.	45
F.	Term of Injunctions or Stays.	46
G.	Entire Agreement.	47
H.	Nonseverability of Plan Provisions.	47
I.	Waiver or Estoppel.	47

 

 

INTRODUCTION

 

Gamida Cell Inc., the above-captioned debtor and debtor in possession (the “Debtor”), proposes this prepackaged chapter 11 plan of reorganization (as amended, supplemented, or otherwise modified from time to time, this “Plan”) for the resolution of the outstanding Claims against, and Interests in, the Debtor. The Debtor is the proponent 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 Gamida Cell Inc. Holders of Claims against or Interests in the Debtor may refer to the Disclosure Statement for a discussion on the Debtor’s 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

 

A. Defined Terms.

 

As used in this Plan, capitalized terms have the meanings set forth below.

 

1. “Administrative Claim” means a Claim against the Debtor arising on or after the Petition Date and before the Effective Date for a cost or expense of administration of the Chapter 11 Case 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 Estate and operating the businesses of the Debtor incurred on or after the Petition Date and through the Effective Date; (b) the Allowed Professional Fee Claims; (c) all fees and charges assessed against the Estate under chapter 123 of the Judicial Code.

 

2. “Affiliate” has the meaning set forth in section 101(2) of the Bankruptcy Code.

 

3. “Allowed” means, with respect to a Claim or Interest, any Claim or Interest (or portion thereof) against the Debtor that: (a) 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; (b) has been allowed by a Final Order of the Bankruptcy Court; or (c) allowed by agreement between the Holder of such Claim, on one hand and the Debtor or Reorganized Debtor, as applicable, on the other hand. 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.

 

 

4. “Assumed Agreement” means an Executory Contract or Unexpired Lease which has been assumed by the Debtor either pursuant to the terms of the Plan or pursuant to an order of the Bankruptcy Court.

 

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 Debtor or its Estate 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. “Ballot” means, with respect to a Holder of a Claim or Interest in a Voting Class, the applicable voting form distributed to such Holder on which the Holder is to indicate, among other things, acceptance or rejection of the Plan in accordance with the instructions contained therein and make any other elections or representations required pursuant to the Plan or as described in the Disclosure Statement.

 

7. “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as amended from time to time.

 

8. “Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware.

 

9. “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.

 

10. “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.

 

11. “Bylaws” means the bylaws of the Reorganized Debtor to be adopted on the Effective Date.

 

12. “Cash” means cash in legal tender of the United States of America and cash equivalents, including bank deposits, checks, and other similar items.

 

13. “Causes of Action” means any and all claims, actions, interests, controversies, actions, proceedings, reimbursement claims, contribution claims, recoupment rights, debts, third-party claims, agreements, indemnity claims, damages, remedies, causes of action, demands, rights, suits, obligations, liabilities, accounts, judgments, defenses, offsets, powers, privileges, licenses, Liens, guarantees, franchises, Avoidance Actions, counterclaims and cross-claims, of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, contingent or non-contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, asserted or unasserted, direct or indirect, assertable directly or derivatively, choate or inchoate, reduced to judgment or otherwise, secured or unsecured, whether arising before, on, or after the Petition Date, in contract, tort, law, equity, or otherwise pursuant to any theory of law. 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 of the Bankruptcy Code; and (d) such claims and defenses as fraud, mistake, duress, usury, and any other defenses set forth in section 558 of the Bankruptcy Code.

 

 

14. “Chapter 11 Case” means the case commenced by the Debtor under chapter 11 of the Bankruptcy Code on the Petition Date in the Bankruptcy Court.

 

15. “Chapter 15 Case” means a case for the Parent under chapter 15 of the Bankruptcy Code that is expected to be filed in the Bankruptcy Court.

 

16. “Claim” means any claim, as defined in section 101(5) of the Bankruptcy Code.

 

17. “Claims Register” means the official register of Claims maintained by the Solicitation Agent or the clerk of the Bankruptcy Court.

 

18. “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.

 

19. “CM/ECF” means the Bankruptcy Court’s Case Management and Electronic Case Filing system.

 

20. “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 Debtor, and all amendments and modifications thereto, applicable to the Debtor’s employees, former employees, retirees, and non-employee directors and managers, in each case existing with the Debtor as of immediately prior to the Effective Date.

 

21. “Confirmation” means the Bankruptcy Court’s entry of the Confirmation Order on the docket of the Chapter 11 Case.

 

22. “Confirmation Date” means the date on which the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11 Case within the meaning of Bankruptcy Rules 5003 and 9021.

 

23. “Confirmation Hearing” means the hearing before the Bankruptcy Court under section 1128 of the Bankruptcy Code to consider Confirmation of the Plan and approval of the Disclosure Statement, as such hearing may be adjourned or continued from time to time.

 

24. “Confirmation Order” means the order of the Bankruptcy Court confirming the Plan and approving the Disclosure Statement pursuant to section 1129 of the Bankruptcy Code substantially in the form filed with the Bankruptcy Court on the Petition Date and otherwise in form and substance reasonably satisfactory to the Consenting Creditors.

 

 

25. “Consenting Creditor Release” means the releases given on behalf of the Consenting Creditor Releasing Parties as set forth in Article VII.D of the Plan.

 

26. “Consenting Creditors” has the meaning ascribed to such term in the Restructuring Support Agreement.

 

27. “Consenting Creditor Releasing Parties” means, collectively, and in each case in its capacity as such: (a) the Consenting Creditors; (b) the Unsecured Notes Trustee; (c) the Secured Note Agent, (d) from and after the Effective Date, the Debtor Releasing Parties, and (e) to the maximum extent permitted by Law, each Related Party of each Entity in clause (a) through this clause (e).

 

28. “Consummation” means the occurrence of the Effective Date.

 

29. “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 Debtor pursuant to sections 365 or 1123 of the Bankruptcy Code.

 

30. “Debtor” has the meaning set forth in the preamble.

 

31. “Debtor Release” means the releases given on behalf of the Debtor and its Estate as set forth in Article VII.C of the Plan.

 

32. “Debtor Releasing Parties” means the Debtor and its Estate, and, to the maximum extent permitted by Law, the Debtor, on behalf of its Related Parties.

 

33. “Disbursing Agent” means the Reorganized Debtor or, as applicable, the Entity or Entities selected by the Debtor or the Reorganized Debtor to make or facilitate distributions pursuant to the Plan.

 

34. “Disclosure Statement” means that certain Disclosure Statement for the Prepackaged Chapter 11 Plan of Reorganization of Gamida Cell Inc., as may be amended, supplemented, amended and restated, or otherwise modified from time to time, and that is prepared and distributed in accordance with sections 1125 and 1126 of the Bankruptcy Code, Bankruptcy Rules 3016 and 3018 and applicable non-bankruptcy law and otherwise in form and substance reasonably satisfactory to the Consenting Creditors.

 

35. “Distribution Date” means, except as otherwise set forth herein, the date or dates determined by the Debtor or the Reorganized Debtor, 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).

 

36. “Distribution Record Date” means the record date for purposes of determining which Holders of Allowed Claims against or Allowed Interests in the Debtor are eligible to receive distributions under the Plan, which date shall be the Confirmation Date, or such other date as determined by the Debtor. For the avoidance of doubt, the Distribution Record Date shall not apply to publicly traded securities, the holders of which shall receive a distribution in accordance with the customary procedures of The Depository Trust Company.

 

 

37. “Effective Date” means the date on which (a) all conditions precedent to the occurrence of the Effective Date set forth in Article VIII.A of the Plan have been satisfied or waived in accordance with Article VIII.B of the Plan and (b) the Plan is declared effective by the Debtor.

 

38. “Entity” has the meaning set forth in section 101(15) of the Bankruptcy Code.

 

39. “Estate” means the estate created for the Debtor in the Chapter 11 Case pursuant to sections 301 and 541 of the Bankruptcy Code upon the commencement of the Debtor’s Chapter 11 Case.

 

40. “Exculpated Parties” means collectively, and in each case in its capacity as such, (a) the Debtor and (b) solely to the extent they are Estate fiduciaries who served in such capacity between the Petition Date and Effective Date, each Related Party of the Debtor.

 

41. “Executory Contract” means a contract to which the Debtor is a party and that is subject to assumption or rejection under section 365 or 1123 of the Bankruptcy Code.

 

42. “Existing Interests” means any Interest in the Debtor existing immediately prior to the occurrence of the Effective Date.

 

43. “Exit Facility” means the $49.4 million original principal amount senior first-lien secured term loan credit facility to be entered into by Reorganized Debtor and Reorganized Parent on the Effective Date pursuant to the Exit Facility Documents.

 

44. “Exit Facility Loan Agreement” means the Loan Agreement, dated as of the Effective Date, by and among Reorganized Debtor, Reorganized Parent, the Exit Facility Agent and each of the lenders party thereto.

 

45. “Exit Facility Documents” means, collectively, the Exit Facility Loan Agreement and all other agreements, documents, and instruments to be delivered or entered into in connection therewith, including any guarantee agreements, pledge and collateral agreements, and other security documents, in each case, the terms of which shall be consistent with the Restructuring Support Agreement.

 

46. “Exit Facility Term Loans” means the loans made by the lenders under the Exit Facility Loan Agreement on the Effective Date.

 

47. “File,” “Filed,” or “Filing” means file, filed, or filing with the Bankruptcy Court or its authorized designee in the Chapter 11 Case.

 

48. “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.

 

 

49. “General Unsecured Claim” means any Unsecured Claim against the Debtor, other than: (a) an Administrative Claim; (b) a Professional Fee Claim; (c) an Unsecured Notes Claim; (d) a Priority Tax Claim, (e) an Other Priority Claim; or (f) an Intercompany Claim.

 

50. “Governmental Unit” has the meaning set forth in section 101(27) of the Bankruptcy Code.

 

51. “Holder” means an Entity holding a Claim against or an Interest in the Debtor as of the applicable date of determination.

 

52. “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.

 

53. “Insider” has the meaning set forth in section 101(31) of the Bankruptcy Code.

 

54. “Intercompany Claim” means any Claim against the Debtor held by an Affiliate of the Debtor.

 

55. “Interest” means any equity security (as defined in section 101(16) of the Bankruptcy Code), equity, ownership, profit interest, unit or share in the 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 the 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 the Debtor (whether or not arising under or in connection with any employment agreement, separation agreement, or employee incentive plan or program of the Debtor as of the Petition Date and whether or not certificated, transferable, preferred, common, voting, or denominated “stock” or similar security).

 

56. “IRC” means the Internal Revenue Code of 1986.

 

57. “Israeli Confirmation Order” mean an order issued by the Israeli Court approving the Israeli Debt Arrangement under the Israeli Proceeding.

 

58. “Israeli Court” means the District Court in Be’er-Sheva, Israel.

 

59. “Israeli Debt Arrangement” means the debt arrangement under Part 10 of the Israeli Insolvency Law pursuant to which Reorganized Parent effectuated a reorganization of its financial affairs in the Israeli Proceeding.

 

 

60. “Israeli Insolvency Law” means the Israeli Insolvency and Financial Rehabilitation Law 5778-2018.

 

61. “Israeli Proceeding” means the insolvency proceeding of Parent commenced under the Israeli Insolvency Law pending before the Israeli Court, Case No. 63461-03-24.

 

62. “Judicial Code” means title 28 of the United States Code, 28 U.S.C. §§ 1-4001, as amended from time to time.

 

63. “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).

 

64. “Lien” has the meaning set forth in section 101(37) of the Bankruptcy Code, and with respect to any asset, includes, without limitation, any mortgage, lien, pledge, security interest or other encumbrance of any kind, or any other type of preferential arrangement that has the practical effect of creating a security interest, in respect of such asset.

 

65. “New Board” means the board of directors or the board of managers, as applicable, of the Reorganized Debtor. The identities of directors on the New Board shall be disclosed at or before the Confirmation Hearing to the extent known at or before the Confirmation Hearing, but in any event prior to the Effective Date.

 

66. “New Common Equity” means the common equity interests of Reorganized Debtor.

 

67. “New Organizational Documents” means the Bylaws and such other applicable documents providing for corporate governance of the Reorganized Debtor, which shall be consistent with the Restructuring Support Agreement.

 

68. “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.

 

69. “Other Secured Claim” means any Secured Claim other than a Senior Secured Loans Claim.

 

70. “Parent” means Gamida Cell Ltd., an Israeli corporation.

 

71. “Permitted Designee” means, with respect to any Holder of an Allowed Unsecured Note Claim, an entity that is designated (in writing to be delivered to the Solicitation Agent on or before the Distribution Record Date, or such other date as agreed to by the Debtor) by such Holder to receive all or any portion of the distributions issuable to such Holder pursuant to Article III.B of the Plan.

 

 

72. “Person” has the meaning set forth in section 101(41) of the Bankruptcy Code, and also includes any natural person, corporation, general or limited partnership, limited liability company, firm, trust, association or other Entity, whether acting in an individual, fiduciary or other capacity.

 

73. “Petition Date” means the date on which the Debtor filed its petition for relief commencing the Chapter 11 Case.

 

74. “Plan Distribution” means a payment or distribution to Holders of Allowed Claims (or their Permitted Designees) or other eligible Entities in accordance with the Plan.

 

75. “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 delivered to the Holders of Claims in Class 3 and Class 4 at least seven (7) days prior to the Voting Deadline, and any additional documents Filed as amendments to the Plan Supplement, including the following, as applicable: (a) the New Organizational Documents; (b) the Exit Facility Loan Agreement or term sheet; (d) to the extent known, the identities of the members of the New Board; and (e) the Schedule of Proposed Cure Amounts. 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 Debtor 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 (and subject to the applicable consent rights thereunder which are incorporated herein pursuant to Article I.H) 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.

 

76. “Priority Tax Claim” means any Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the Bankruptcy Code.

 

77. “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.

 

78. “Professional” means an Entity: (a) employed in the Chapter 11 Case 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.

 

79. “Professional Escrow Account” means an account funded by the Debtor with Cash on the Effective Date in an amount equal to the Professional Fee Amount.

 

80. “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 Debtor prior to and as of the Confirmation Date, which estimates Professionals shall deliver to the Debtor as set forth in Article II.B of the Plan.

 

 

81. “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 327, 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.

 

82. “Proof of Claim” means a proof of Claim Filed against the Debtor in the Chapter 11 Case.

 

83. “Recognition Order” means one or more orders issued by the Bankruptcy Court in the Chapter 15 Case (i) recognizing the Israeli Proceeding as foreign main or foreign non-main proceeding, (ii) recognizing and giving full force and effect to the Israeli Debt Arrangement, and (iii) granting any related relief.

 

84. “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.

 

85. “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.

 

86. “Released Claims” means any Claims or Interests that have been released, satisfied, stayed, terminated, discharged, or are subject to exculpation, compromise, and settlement pursuant to this Plan.

 

87. “Released Debtor Parties” means, collectively, and in each case in its capacity as such: (a) the Debtor; (b) the Reorganized Debtor; and (c) each Related Party of each Entity in clause (a) through (b).

 

88. “Released Consenting Creditor Parties” means, collectively, and in each case in its capacity as such: (a) the Consenting Creditors; (b) the Unsecured Notes Trustee; (c) the Secured Note Agent; and (d) each Related Party of each Entity in clause (a) through (c).

 

 

89. “Reorganized Debtor” means the Debtor, 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.

 

90. “Reorganized Parent” means a private company organized under the laws of the United Kingdom as provided for under the Israeli Debt Arrangement, or any successor or assign thereto, by merger, consolidation, or otherwise.

 

91. “Restructuring Support Agreement” means that certain Restructuring Support Agreement, entered into and dated as of March 26, 2024, by and among the Parent, the Debtor, the Consenting Creditors, the Senior Secured Agent, and the Unsecured Notes Trustee, 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.

 

92. “Restructuring Transactions” means any transaction and any actions as may be necessary or appropriate to effect a corporate restructuring of the Debtor’s and the Reorganized Debtor’s respective businesses or a corporate restructuring of the overall corporate structure of the Debtor 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.C of the Plan.

 

93. “Schedule of Proposed Cure Amounts” means any schedule (including any amendments, supplements, or modifications thereto) of the Debtor’s proposed Cure amounts (if any) with respect to each of the Executory Contracts and Unexpired Leases to be assumed by the Debtor pursuant to the Plan.

 

94. “Secured Claim” means a Claim that is: (a) secured by a Lien on property in which any of the Debtor 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 Debtor’s 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. For the avoidance of doubt, the Senior Secured Loans shall constitute Secured Claims.

 

95. “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.

 

96. “Security” means any security, as defined in section 2(a)(1) of the Securities Act.

 

97. “Senior Secured Agent” means Wilmington Savings Fund Society, FSB, in its capacity as administrative agent and collateral agent, under the Senior Secured Credit Agreement, its successors, assigns, or any replacement agent appointed pursuant to the terms of the Senior Secured Credit Agreement.

 

 

98. “Senior Secured Loan Agreement” means that certain Loan and Security Agreement, dated as of December 12, 2022, by and among the Debtor, as borrower, the Senior Secured Agent, Parent, as guarantor, and each of the lenders party thereto, as amended, amended and restated, supplemented, or otherwise modified from time to time prior to the Petition Date.

 

99. “Senior Secured Lenders” means the lenders party to the Senior Secured Loan Agreement from time to time.

 

100. “Senior Secured Loans” means the loans issued under the Senior Secured Loan Agreement.

 

101. “Solicitation Agent” means Kroll Restructuring Administration, LLC, the notice, claims, and solicitation agent proposed to be retained by the Debtor in the Chapter 11 Case.

 

102. “Solicitation Materials” means, collectively, the solicitation materials with respect to the Plan.

 

103. “U.S. Trustee” means the United States Trustee for the District of Delaware.

 

104. “Unexpired Lease” means a lease to which the Debtor is a party that is subject to assumption or rejection under section 365 of the Bankruptcy Code.

 

105. “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.

 

106. “Unsecured Claim” means any Claim that is not a Secured Claim.

 

107. “Unsecured Notes” means the 5.875% exchangeable senior notes due 2026, issued by Debtor under the Unsecured Notes Indenture.

 

108. “Unsecured Notes Claims” means any Claim against the Debtor derived from, based upon, or arising under the Unsecured Notes Indenture and any costs that are reimbursable by the Debtor pursuant to the Unsecured Notes Indenture, including all claims of the Unsecured Notes Trustee against the Debtor.

 

109. “Unsecured Notes Indenture” means that Indenture, dated February 16, 2021, by and among Debtor, as issuer, Parent, as guarantor, the Unsecured Notes Trustee, and the other guarantors party thereto, as amended, amended and restated, supplemented, or otherwise modified from time to time prior to the Petition Date.

 

110. “Unsecured Notes Trustee” means Wilmington Savings Fund Society, FSB, in its capacity as trustee under the Unsecured Notes Indenture, and its respective successors, assigns, and any replacement trustee appointed pursuant to the terms of the Unsecured Notes Indenture.

 

111. “Voting Deadline” means May 15, 2024 at 10:00 a.m. (prevailing Eastern Time).

 

 

112. “Voting Record Date” means April 12, 2024.

 

113. “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, the words “herein,” “hereof,” and “hereto” refer to the Plan in its entirety rather than to a particular portion of the Plan; (7) 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; (8) 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; (9) unless otherwise specified herein, the rules of construction set forth in section 102 of the Bankruptcy Code shall apply; (10) 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; (11) all references to docket numbers of documents Filed in the Chapter 11 Case are references to the docket numbers under the Bankruptcy Court’s CM/ECF system; (12) 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 Case, unless otherwise stated; (13) 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”; (14) references to “Proofs of Claim,” “Holders of Claims,” and the like shall include “Proofs of Interest,” “Holders of Interests,” and the like, as applicable; (15) any immaterial effectuating provisions may be interpreted by the Reorganized Debtor 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 (16) 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.

 

 

C. Computation of Time.

 

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.

 

D. Governing Law.

 

Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules) or unless otherwise specifically stated, the laws of the State of 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 Debtor or the Reorganized Debtor, 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 Debtor, 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 Debtor or the Reorganized Debtor.

 

Except as otherwise specifically provided in the Plan to the contrary, references in the Plan to the Debtor or the Reorganized Debtor shall mean the Debtor and the Reorganized Debtor, as applicable, to the extent the context requires.

 

G. Controlling Document.

 

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 (including the Plan Supplement), 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 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.

 

A. Administrative Claims.

 

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 Debtor 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 Debtor in the ordinary course of its 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 Debtor or the Reorganized Debtor, 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 thirty (30) 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 Debtor 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 Debtor 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 Estate of the Debtor or the Reorganized Debtor. The amount of Allowed Professional Fee Claims shall be paid in Cash to the Professionals by the Reorganized Debtor from the Professional Escrow Account as soon as reasonably practicable after such Professional Fee Claims are Allowed; provided that the Debtor’s and the Reorganized Debtor’s 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 Debtor 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 Debtor before and as of the Effective Date, and shall deliver such estimate to the Debtor and Consenting Creditors 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 Case. If a Professional does not provide an estimate, the Debtor or Reorganized Debtor may estimate the unpaid and unbilled fees and expenses of such Professional.

 

4. Post-Effective Date Fees and Expenses.

 

Except as otherwise specifically provided in the Plan, from and after the Effective Date, the Debtor 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 Debtor. Upon the Effective Date, any requirement that Professionals comply with sections 327 through 331, 363, and 1103 of the Bankruptcy Code in seeking retention or compensation for services rendered after such date shall terminate, and the Debtor may employ and pay any Professional in the ordinary course of business for the period after the Effective Date without any further notice to or action, order, or approval of the Bankruptcy Court.

 

 

C. Priority Tax Claims.

 

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. The Debtor is not aware of any Allowed Priority Tax Claim.

 

D. Payment of Statutory Fees.

 

All fees payable pursuant to section 1930(a) of the Judicial Code, including fees payable to the U.S. Trustee and any interest thereon pursuant to 31 U.S.C. § 3717 (“Quarterly Fees”) as determined by the Bankruptcy Court, shall be paid in full in Cash when due by the Reorganized Debtor for each quarter (including any fraction thereof) until the Chapter 11 Case of the Reorganized Debtor is converted, dismissed, or closed, whichever occurs first. Nothing in the Plan shall discharge or release any Quarterly Fees. The U.S. Trustee shall not be required to file a Proof of Claim or request for payment for Quarterly Fees. The Reorganized Debtor shall timely file all required monthly operating reports and post-confirmation quarterly reports in a form prescribed by the U.S. Trustee until the Chapter 11 Case are converted, dismissed, or closed, whichever occurs first.

 

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. All of the potential Classes for the Debtor are set forth herein.

 

Class	Claims and Interests	Status	Voting Rights
Class 1	Other Secured Claims	Unimpaired	Not Entitled to Vote (Presumed to Accept)
Class 2	Other Priority Claims	Unimpaired	Not Entitled to Vote (Presumed to Accept)
Class 3	Senior Secured Loans Claims	Impaired	Entitled to Vote
Class 4	Unsecured Notes Claims	Impaired	Entitled to Vote
Class 5	General Unsecured Claims	Unimpaired	Not Entitled to Vote (Presumed to Accept)
Class 6	Intercompany Claims	Unimpaired / Impaired	Not Entitled to Vote (Presumed to Accept or Deemed to Reject)
Class 7	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 Debtor or the Reorganized Debtor, 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: Each Holder of an Allowed Other Secured Claim shall receive, in full and final satisfaction, settlement, discharge and release of, and in exchange for, such Allowed Other Secured Claim, at the option of the Debtor:

 

(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: 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 – Senior Secured Loans Claims

 

(a)

Classification: Class 3 consists of the Senior Secured Loans Claims.

 

(b)

Allowed Amount: As of the Effective Date, the Senior Secured Loans Claims shall be Allowed and deemed to be Allowed Claims in the amount of $4,429.065.73 of principal plus accrued and unpaid interest owed under the Senior Secured Loan Agreement through the Effective Date, less any amounts paid between the date of this Plan and the Effective Date. No additional fees, costs, premiums, call protections, or charges owed under the Senior Secured Loan Agreement will be Allowed Senior Secured Loans Claims.

 

(c)

Each Holder of an Allowed Senior Secured Loans Claim shall receive, in full and final satisfaction of such Allowed Senior Secured Loans Claim, its pro rata share of loans made under the Exit Facility, on a dollar-for-dollar basis.

 

(d)

Voting: Class 3 is Impaired under the Plan. Holders of Allowed Senior Secured Loans Claims are entitled to vote to accept or reject the Plan.

 

4. Class 4 - Unsecured Notes Claims

 

(a)

Classification: Class 4 consists of all Unsecured Notes Claims.

 

(b)

Allowed Amount: As of the Effective Date, the Unsecured Notes Claims shall be Allowed and deemed to be Allowed Claims, without the need to file any Proofs of Claim, in the amount of $75,000,000.00 of principal and accrued and unpaid interest owed under the Unsecured Notes Indenture through the Petition Date, plus the fees, costs, and expenses of the Unsecured Notes Trustee owed pursuant to the Unsecured Notes Indenture as of the Effective Date. No additional fees, costs, premiums, call protections, or charges owed under the Unsecured Notes Indenture will be Allowed Unsecured Notes Claims.

 

(c)

Treatment: Each Holder of an Allowed Unsecured Notes Claim shall receive, in full and final satisfaction of such Allowed Unsecured Notes Claim, its Pro Rata share of the New Common Equity.

 

(d)

Voting: Class 4 is Impaired under the Plan. Holders of Allowed Unsecured Notes 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: All General Unsecured Claims are Unimpaired by the Plan. At the option of the Debtor or the Reorganized Debtor, as applicable, (i) the Plan may leave unaltered the legal, equitable, and contractual rights of a Holder of a General Unsecured Claim, (ii) the Debtor or the Reorganized Debtor, as applicable, may pay such General Unsecured Claim in full in Cash on the Effective Date or as soon thereafter as is practicable, (iii) the Debtor or the Reorganized Debtor, as applicable, may pay such General Unsecured Claim in a manner agreed to by the Holder of such Claim, or (iv) the Plan may reinstate the legal, equitable, and contractual rights of the Holder of an General Unsecured Claim in accordance with section 1124(2) of the Bankruptcy Code.

 

(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 - Intercompany Claims

 

(a)

Classification: Class 6 consists of all Intercompany Claims.

 

(b)

Treatment: Each Allowed Intercompany Claim shall be, at the option of the Debtor, either Reinstated, converted to equity, otherwise set off, settled, distributed, contributed, canceled, or released, in each case.

 

(c)

Voting: Class 6 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.

 

7. Class 7 - Existing Interests

 

(a)

Classification: Class 7 consists of all Existing Interests.

 

(b)

Treatment: 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 7 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 Debtor’s or the Reorganized Debtor’s rights regarding any Unimpaired Claim, including, all rights regarding legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claim.

 

D. Subordinated Claims

 

Pursuant to section 510 of the Bankruptcy Code, the Debtor or the Reorganized Debtor, as applicable, reserve the right to re-classify any Allowed Claim or Equity Interest in accordance with any contractual, legal, or equitable subordination relating thereto.

 

E. 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.

 

F. Voting Deadline.

 

The Voting Record Date is April 12, 2024. The Voting Record Date is the date on which it will be determined which Holders of Claims or Interests 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 15, 2024 at 10:00 a.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 online balloting portal maintained by the Solicitation Agent on or before the Voting Deadline, as applicable; or (b) properly executed, completed, and delivered (either by using the envelope provided, by first class mail, overnight courier, personal delivery, or via electronic mail in the limited scenario where a nominee submits a master ballot including votes for its underlying beneficial holders) so that the ballots are actually received by the Solicitation Agent on or before the Voting Deadline.

 

 

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 Debtor shall seek Confirmation of the Plan pursuant to section 1129(b) of the Bankruptcy Code with respect to any rejecting Class(es) of Claims or Interests. The Debtor, with the consent of the Consenting Creditors, reserves the right to modify the Plan in accordance with Article IX hereof and the Restructuring Support Agreement, to the extent 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.

 

Article IV
MEANS FOR IMPLEMENTATION OF THE PLAN

 

A. General Settlement of Claims and Interests.

 

Except as otherwise provided herein, pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the classification, distributions, releases, and other benefits provided under the Plan, upon the Effective Date, the provisions of the Plan shall constitute a good faith compromise and settlement of all Claims and Interests and controversies resolved pursuant to the Plan, including (1) any challenge to the amount, validity, perfection, enforceability, priority or extent of the Senior Secured Loans Claims, and (2) any claim to avoid, subordinate, or disallow any Senior Secured Loans 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. The Plan shall be deemed a motion to approve the good faith compromise and settlement of all such Claims, Interests, and controversies pursuant to Bankruptcy Rule 9019, and the entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of such compromise and settlement under section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, as well as a finding by the Bankruptcy Court that such settlement and compromise is fair, equitable, reasonable and in the best interests of the Debtor, its Estate, and Holders of Claims against and Interests in the Debtor. 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. Corporate and Organizational Existence.

 

The Reorganized Debtor shall continue to exist, pursuant to its organizational documents in effect prior to the Effective Date, except to the extent such organizational documents are amended by the Plan, without any prejudice to any right to terminate such existence (whether by merger or otherwise) in accordance with applicable law after the Effective Date. To the extent such documents are amended on or prior to the Effective Date, such documents are deemed to be amended pursuant to the Plan without any further notice to or action, order, or approval of the Bankruptcy Court.

 

 

C. Restructuring Transactions.

 

On or before the Effective Date, the Debtor or the Reorganized Debtor shall enter into and shall take any actions as may be necessary or appropriate to effect the Restructuring Transactions, which may include: (1) 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, the Restructuring Support Agreement, and having other terms for which the applicable Entities may agree; (2) the execution and delivery of the New Organizational Documents and such other applicable organizational, governance, or constitutive documents (if any) of the Reorganized Debtor (including all actions to be taken, undertakings to be made, and obligations to be incurred and fees and expenses to be paid by the Debtor and/or the Reorganized Debtor, as applicable), and the issuance, distribution, reservation, or dilution, as applicable, of the New Common Equity, as set forth herein; (3) the execution and delivery of the Exit Facility Loan Agreement (including all actions to be taken, undertakings to be made, and obligations to be incurred and fees and expenses to be paid by the Debtor and/or the Reorganized Debtor, as applicable); (4) all transactions necessary to enable the New Common Equity to be issued to the Holders of the Allowed Unsecured Notes Claims (or its Permitted Designee) in a transaction that qualifies as a reorganization pursuant to Section 368(a) of the IRC to the extent the Debtor and the applicable Class of Holders determine such transactions are desirable; and (5) all other actions that the applicable Entities determine 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.

 

D. Reorganized Debtor.

 

On the Effective Date, the New Board shall be established, and the Reorganized Debtor shall adopt its New Organizational Documents. The Reorganized Debtor 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 Debtor or Reorganized Debtor. The Debtor and Reorganized Debtor will be entitled to transfer funds between and among themselves as they determine to be necessary or appropriate to enable the Debtor or Reorganized Debtor, 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 Debtor’s historical intercompany account settlement practices and will not violate the terms of the Plan.

 

From and after the Effective Date, the Reorganized Debtor, subject to any applicable limitations set forth in any post-Effective Date agreement, including the Exit Facility Loan Agreement, 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 board of directors or board of managers of the Reorganized Debtor deems appropriate.

 

 

E. Sources of Consideration for Plan Distributions.

 

The Debtor and the Reorganized Debtor, as applicable, shall fund distributions under the Plan with: (1) Cash on hand, including Cash from operations; (2) the New Common Equity; and (3) the Exit Facility.

 

1. Exit Facility.

 

On, or as reasonably practicable following, the Effective Date, the Reorganized Debtor shall enter into the Exit Facility, pursuant to the Exit Facility Documents.

 

To the extent applicable, Confirmation of the Plan shall be deemed (a) approval of the 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 Debtor or the Reorganized Debtor, as applicable, in connection therewith), to the extent not approved by the Bankruptcy Court previously, and (b) authorization for the Debtor or the Reorganized Debtor, 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 Exit Facility, including the Exit Facility 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 Debtor or the Reorganized Debtor, as applicable, may deem to be necessary to consummate the Exit Facility.

 

As of the Effective Date, all of the Liens and security interests to be granted in accordance with the Exit Facility 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 Exit Facility 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, and the Exit Facility Agent for the benefit of the lenders under the Exit Facility Loan Agreement shall have a valid, binding, perfected, non-avoidable, and enforceable first-priority lien on and security interest in the collateral specified in the Exit Facility Documents. To the extent provided in the Exit Facility Documents, the Exit Facility Agent or holder(s) of Liens under the Exit Facility Documents are 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 guarantees, mortgages, pledges, Liens, and other security interests granted to secure the obligations arising under the Exit Facility 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, and the priorities of such Liens and security interests shall be as set forth in the Exit Facility Documents. The Reorganized Debtor and the persons and entities granted such Liens and security interests shall be authorized to make all filings and recordings, and to obtain all governmental approvals and consents necessary to establish and perfect such Liens and security interests under the provisions of the applicable state, federal, or other law that would be applicable in the absence of the Plan and the Confirmation Order (it being understood that perfection shall occur automatically by virtue of the entry of the Confirmation Order and any such filings, recordings, approvals, and consents shall not be required), and will thereafter cooperate to make all other filings and recordings that otherwise would be necessary under applicable law to give notice of such Liens and security interests to third parties.

 

 

2. Issuance of New Common Equity.

 

On the Effective Date, Reorganized Debtor shall issue the New Common Equity. The issuance of the New Common Equity by the Reorganized Debtor shall be authorized without the need for any further corporate action or without any further action by the Holders of Claims or Interests. The Reorganized Debtor shall be authorized to issue a certain number of shares, units or equity interests (as the case may be based on how the New Common Equity is denominated) of New Common Equity required to be issued under the Plan and pursuant to its New Organizational Documents and otherwise consistent with the Restructuring Support Agreement (and the exhibits thereto).

 

All of the shares, units, or equity interests (as the case may be based on how the New Common Equity is denominated) of New Common Equity issued pursuant to the Plan shall be duly authorized, validly issued, fully paid, and non-assessable. Each distribution and issuance referred to in Article VI hereof 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. The New Common Equity will not be registered under the Securities Act or listed on any exchange as of the Effective Date.

 

F. Vesting of Assets in the Reorganized Debtor.

 

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, on the Effective Date, all property in the Estate, all Causes of Action, and any property acquired by the Debtor pursuant to the Plan shall vest in the 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, the 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, Reorganized Debtor shall not be treated as being liable on any Claim that is discharged pursuant to the Plan.

 

 

G. Cancelation of Existing Securities and Agreements.

 

On the Effective Date, except to the extent otherwise provided in the Plan (and with respect to the Unsecured Notes Claims and Unsecured Notes Indenture, as provided in the paragraph below), all notes, instruments, certificates, and other documents evidencing Claims or Interests shall be canceled, and the obligations of the Debtor or the Reorganized Debtor and any non-Debtor Affiliates thereunder or in any way related thereto shall be discharged and deemed satisfied in full.

 

Subject to the occurrence of the Effective Date, all notes, instruments, certificates, and other documents evidencing Claims under the Unsecured Notes Indenture shall be canceled, and the obligations of the Debtor or the Reorganized Debtor thereunder or in any way related thereto shall be discharged and deemed satisfied in full, and the Unsecured Notes Trustee shall be released from all duties thereunder. The Debtor shall use commercially reasonable efforts to coordinate with the Unsecured Notes Trustee under the Unsecured Notes Indenture for the surrender and cancelation of the Unsecured Notes; provided that pursuant to the terms of the Plan all Unsecured Notes Claims shall be deemed canceled and discharged as of the Effective Date.

 

H. Corporate Action.

 

On or before the Effective Date, as applicable, all actions contemplated under the Plan shall be deemed authorized and approved in all respects, including: (1) adoption or assumption, as applicable, of the Compensation and Benefits Programs; (2) selection of the directors and officers for the Reorganized Debtor; (3) the issuance and distribution of the New Common Equity; (4) implementation of the Restructuring Transactions; (5) entry into the Exit Facility Documents, as applicable; (6) all other actions contemplated under the Plan (whether to occur before, on, or after the Effective Date); (7) adoption of the New Organizational Documents; (8) the rejection, assumption, or assumption and assignment, 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). All matters provided for in the Plan involving the corporate structure of the Debtor or the Reorganized Debtor, and any corporate action required by the Debtor or the Reorganized Debtor, 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 Debtor or the Reorganized Debtor, as applicable. On or (as applicable) prior to the Effective Date, the appropriate officers of the Debtor or the Reorganized Debtor, 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 Debtor, including the New Common Equity, the New Organizational Documents, the Exit Facility Documents, and any and all other agreements, documents, Securities, and instruments relating to the foregoing. The authorizations and approvals contemplated by this Article IV.H shall be effective notwithstanding any requirements under non-bankruptcy law.

 

I. New Organizational Documents.

 

On or immediately prior to the Effective Date, the New Organizational Documents shall be automatically adopted by the Reorganized Debtor. The New Organizational Documents will (a) authorize the issuance of the New Common Equity and (b) prohibit the issuance of non-voting equity Securities, to the extent required under section 1123(a)(6) of the Bankruptcy Code.

 

 

J. Indemnification Obligations.

 

All indemnification provisions currently in place consistent with applicable law (whether in the by-laws, certificates of incorporation, 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 Debtor, as applicable, shall, to the fullest extent permitted by applicable law, 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 Debtor than the indemnification provisions in place prior to the Effective Date.

 

K. Directors and Officers of the Reorganized Debtor.

 

As of the Effective Date, the term of the current members of the board of directors of the Debtor 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. To the extent not previously disclosed, the Debtor will disclose prior to or at the Confirmation Hearing, the affiliations of each Person proposed to serve on the New Board or as an officer of the Reorganized Debtor, and, to the extent such Person is an insider other than by virtue of being a manager, director or officer, the nature of any compensation for such Person.

 

L. Effectuating Documents; Further Transactions.

 

On and after the Effective Date, the Reorganized Debtor, 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 Exit Facility entered into, and the Securities issued pursuant to the Plan in the name of and on behalf of the Reorganized Debtor, without the need for any approvals, authorization, or consents except for those expressly required pursuant to the Plan.

 

M. Section 1146 Exemption.

 

To the fullest extent permitted by section 1146(a) of the Bankruptcy Code, any transfers (whether from the Debtor to the 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 Debtor or the Reorganized Debtor, including the New Common Equity; (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 Debtor’s obligations under and in connection with the Exit Facility; 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.

 

 

N. Preservation of Causes of Action.

 

In accordance with section 1123(b) of the Bankruptcy Code, but subject to Article VII hereof, the Reorganized Debtor shall retain and may enforce all rights to commence and pursue, as appropriate, any and all Causes of Action of the Debtor, whether arising before or after the Petition Date, and the Reorganized Debtor’s 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 by the Debtor pursuant to the releases and exculpations contained in the Plan, including in Article VII hereof, which shall be deemed released and waived by the Debtor and the Reorganized Debtor as of the Effective Date.

 

The Reorganized Debtor may pursue such retained Causes of Action, as appropriate, in accordance with the best interests of the Reorganized Debtor. No Entity (other than the Released Parties) may rely on the absence of a specific reference in the Plan or the Disclosure Statement to any Cause of Action against it as any indication that the Debtor or the Reorganized Debtor, as applicable, will not pursue any and all available Causes of Action of the Debtor against it. The Debtor and the Reorganized Debtor 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 VII hereof. The Reorganized Debtor may settle any such objection without any further notice to or action, order, or approval of the Bankruptcy Court. Unless any Causes of Action of the Debtor against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or a Final Order, the Reorganized Debtor 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 Debtor reserves and shall retain such Causes of Action of the Debtor notwithstanding the rejection or repudiation of any Executory Contract or Unexpired Lease during the Chapter 11 Case or pursuant to the Plan. In accordance with section 1123(b)(3) of the Bankruptcy Code, any Causes of Action that the Debtor may hold against any Entity shall vest in the Reorganized Debtor, except as otherwise expressly provided in the Plan, including Article VII hereof. The Reorganized Debtor, through its authorized agents or representatives, shall retain and may exclusively enforce any and all such Causes of Action. The Reorganized Debtor 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.

 

 

Article V
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

 

A. Assumption of Executory Contracts and Unexpired Leases.

 

On the Effective Date, except as otherwise provided in the Plan, or in any contract, instrument, release, or other agreement or document entered into in connection with the Plan, or unless such Executory Contract or Unexpired Lease (1) expired or terminated pursuant to its own terms before the Effective Date or (2) is the subject of a motion to reject filed on or before the Effective Date, the Debtor shall be deemed to have assumed each Executory Contract and Unexpired Lease in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code.

 

Without amending or altering any prior order of the Bankruptcy Court, entry of the Confirmation Order by the Bankruptcy Court will constitute approval of such assumptions pursuant to sections 365(a) and 1123 of the Bankruptcy Code as of the Effective Date. All Assumed Agreements shall remain in full force and effect for the benefit of the Reorganized Debtor, and be enforceable by the Reorganized Debtor in accordance with their terms notwithstanding any provision in such Assumed Agreement that prohibits, restricts or conditions assumption, assignment or transfer. Any provision of any Assumed Agreement that permits a person to terminate or modify such agreement or to otherwise modify the rights of the Debtor or the Reorganized Debtor, as applicable, based on the filing of the Chapter 11 Case or the financial condition of the Debtor or the Reorganized Debtor, as applicable, shall be unenforceable. To the extent any provision in any Executory Contract or Unexpired Lease assumed pursuant to the Plan (including any “change of control” provision) restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the Debtor’s assumption of such Executory Contract or Unexpired Lease, then such provision will be deemed modified such that the transactions contemplated by the Plan will not entitle the non-Debtor party or parties thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Each Assumed Agreement will revest in and be fully enforceable by the Reorganized Debtor in accordance with its terms, except as modified by the provisions of the Plan, any order of the Bankruptcy Court authorizing and providing for its assumption, or applicable law.

 

B. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases.

 

Any monetary defaults under each Executory Contract or Unexpired Lease to be assumed pursuant to the Plan will be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the applicable Cure amount in Cash, on the later of (1) the Effective Date and (2) the date such payment is due pursuant to the terms of the Assumed Agreement, in the amount set forth on the Schedule of Proposed Cure Amounts, or on such other terms as the parties to such Executory Contract or Unexpired Lease may otherwise agree. If an Executory Contract or Unexpired Lease is not listed on the Schedule of Proposed Cure Amounts, the proposed Cure amount for such Executory Contract or Unexpired Lease shall be zero dollars. The Debtor is not aware of any Cure amount owed in connection with any Executory Contract or Unexpired Lease.

 

 

Any objection by a counterparty to the Cure amount associated with any Executory Contract or Unexpired Lease to be assumed pursuant to the Plan must be filed, served and actually received by the Debtor by no later than seven (7) days prior to the date of the Confirmation Hearing.¹ Any counterparty to an Executory Contract and Unexpired Lease that fails to object timely to the proposed assumption or Cure amount will be deemed to have assented thereto and will be deemed to have forever released and waived any objection to the proposed assumption or Cure amount. In the event of a dispute regarding (1) the Cure amount, (2) the ability of the Reorganized Debtor to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the Executory Contract or Unexpired Lease to be assumed or (3) any other matter pertaining to assumption, the applicable Cure payments required by section 365(b)(1) of the Bankruptcy Code will be made following the entry of a Final Order or orders resolving the dispute and approving the assumption. Any Proof of Claim filed with respect to an Executory Contract or Unexpired Lease that is assumed shall be deemed disallowed and expunged, without further notice to or action, order or approval of the Bankruptcy Court.

 

C. Insurance Policies.

 

Each of the Debtor’s 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 Debtor 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 Debtor.

 

D. Reservation of Rights.

 

Nothing contained in the Plan shall constitute an admission by the Debtor or any other party that any contract or lease is in fact an Executory Contract or Unexpired Lease or that the 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, the Debtor or the Reorganized Debtor, 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.

 

1

Immediately upon the commencement of the Chapter 11 Case, the Debtor will file any objections received by the Debtor prior to the commencement of the Chapter 11 Case on the Bankruptcy Court’s docket on behalf of the objecting party.

 

 

E. 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.

 

F. Contracts and Leases Entered Into After the Petition Date.

 

Contracts and leases entered into after the Petition Date by the Debtor, including any Executory Contracts and Unexpired Leases assumed by the Debtor, will be performed by the 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.

 

G. Employee Compensation and Benefits.

 

Except as otherwise set forth herein, on the Effective Date, the Debtor shall (a) assume all employment agreements or letters, indemnification agreements, severance agreements, or other agreements entered into with current and former officers and other employees or (b) to the extent agreed, enter into new agreements with such officers and other employees on terms and conditions acceptable to the Debtor, such employee and, in the case of any executive officer of the Reorganized Debtor and such executive officer. 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 all plans or programs calling for stock grants, stock issuances, stock reserves, or stock options (including, without limitation, 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 the Debtor), which shall be deemed rejected with regard to such issuances, grants, reserves, and options.

 

The Debtor shall not assume any agreements or obligations relating to the Existing Interests, which shall be cancelled as of the Effective Date and shall receive no payment on account thereof from the Debtor or the Reorganized Debtor. For the avoidance of doubt, no provision in any agreement, plan, or arrangement to be assumed pursuant to the foregoing paragraph relating to the award of equity or equity-like compensation shall be binding on, or honored by, the Reorganized Debtor. Nothing in this Plan shall limit, diminish, or otherwise alter the Reorganized Debtor’s defenses, claims, Causes of Action, or other rights with respect to any such contracts, agreements, policies, programs, and plans.

 

 

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 Debtor or the Reorganized Debtor, as the case may be, and the Holder of the applicable Allowed Claim on the Distribution Date, the Reorganized Debtor shall make initial distributions under the Plan on account of Claims Allowed on or before the Effective Date, subject to the Reorganized Debtor’s right to object to Claims; provided that (1) Allowed Administrative Claims with respect to liabilities incurred by the Debtor in the ordinary course of business during the Chapter 11 Case or assumed by the Debtor 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.5 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 Debtor 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.

 

B. Disbursing Agent.

 

All distributions under the Plan 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 Debtor.

 

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 Holders, as applicable) shall be deemed completed by the Debtor when received by such Disbursing Agent. The Plan Distributions shall be made to any such Holders (or the Permitted Designees of such Holders, as applicable) at the direction of the applicable Disbursing Agent.

 

C. Rights and Powers of Disbursing Agent.

 

The Disbursing Agent shall be empowered to: (a) effect all actions and execute all agreements, instruments, and other documents necessary to perform its duties under 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. If the Distribution Agent is an entity other than the Reorganized Debtor, such entity shall be paid its reasonable fees and expenses, including the reasonable fees and expenses of its attorneys or other professionals.

 

 

D. Delivery of Distributions.

 

1. Record Date for Distribution.

 

Distributions hereunder to the Holders of Allowed Claims shall be made to the Holders of such Claims as of the Distribution Record Date. Any transfers of Claims after the Distribution Record Date shall not be recognized for purposes of the Plan unless otherwise provided herein.

 

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 such Holder at the address for each such Holder as indicated on the Debtor’s records as of the Distribution Record Date or, if such Holder has identified a Permitted Designee to the Permitted Designee of each such Holder; provided that the manner of such distributions shall be determined at the discretion of the Reorganized Debtor.

 

3. 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.G 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 Debtor, and such cancelation shall not alter the obligations or rights of any non-Debtor third parties vis-a-vis 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 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.

 

E. Manner of Payment.

 

1. Except as otherwise provided in the Plan or any agreement, instrument, or other document incorporated by the Plan, all distributions of the New Common Equity 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 Debtor or Reorganized Debtor, as applicable.

 

2. All distributions of Cash 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 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. Allocation Between Principal and Interest

 

Distributions to any Holder of an Allowed Claim shall be allocated first to the principal amount of any such Allowed Claim, and then, to the extent the consideration exceeds such amount, to the remainder of such Claim comprising interest accrued through the Effective Date, if any (but solely to the extent that interest is an allowable portion of such Allowed Claim).

 

G. Securities Law Matters.

 

Pursuant to section 1145 of the Bankruptcy Code, the offering, issuance, and distribution of the New Common Equity, as contemplated by Article III.B hereof, shall be exempt from, among other things, the registration requirements of section 5 of the Securities Act and any other applicable law requiring registration prior to the offering, issuance, distribution, or sale of Securities. In addition, under section 1145 of the Bankruptcy Code, such New Common Equity will be freely tradable in the U.S. by the recipients thereof, subject to the provisions of (i) section 1145(b)(1) of the Bankruptcy Code relating to the definition of an underwriter in section 2(a)(11) of the Securities Act, (ii) compliance with applicable securities laws and any rules and regulations of the Securities and Exchange Commission, if any, applicable at the time of any future transfer of such Securities or instruments, and (iii) any restrictions in the Reorganized Debtor’s New Organizational Documents. Recipients of the New Common Equity 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 Debtor, Reorganized Debtor, 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. The Debtor and Reorganized Debtor 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.

 

Article VII
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 Debtor), 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 Debtor or any of its 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 Debtor 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 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.

 

 

B. Release of Liens.

 

Except as otherwise provided in the Exit Facility Documents, 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 Secured Claim that is Allowed as of the Effective Date, except for Other Secured Claims that the Debtor elects to Reinstate in accordance with this Plan, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estate 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 Debtor and its 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 Debtor, to release any collateral or other property of the 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 Debtor 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 take any and all steps requested by the Debtor, the Reorganized Debtor, or the Exit Facility Agent 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 Debtor shall be entitled to make any such filings or recordings on such Holder’s behalf.

 

 

C. Releases by the Debtor Releasing Parties.

 

Notwithstanding anything contained in the Plan to the contrary, pursuant to section 1123(b) of the Bankruptcy Code, upon entry of the Confirmation Order and effective as of the Effective Date, to the fullest extent permitted by applicable law, each Released Consenting Creditor Party is, and is deemed hereby to be, fully, conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged by each and all of the Debtor Releasing Parties, in each case on behalf of themselves and their respective successors, assigns, and representatives, from any and all Claims, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever, whether known or unknown, including any derivative claims, asserted or assertable on behalf of any of the Debtor Releasing Parties, that any such Person or Entity would have been legally entitled to assert in its own right (whether individually or collectively) or on behalf of the holder of any Claim against or any legal interests, equitable interests, contractual interests or Interests in the Debtor or other Person or Entity, or that any holder of any Claims or Interests against or in the Debtor or other Person or Entity could have asserted on behalf of the Debtor Releasing Parties, based on or relating to, or in any manner arising from, in whole or in part, any of the Debtor Releasing Parties (including the Debtor Releasing Parties’ capital structure, management, ownership, or operation thereof or otherwise), the subject matter of, or the transactions or events giving rise to, any Claims or Interests that is treated in the Plan, the business or contractual arrangements between the Debtor and any Released Consenting Creditor Party, the Debtor Releasing Parties’ in- or out-of-court restructuring efforts, the purchase, sale, or rescission of any security of the Debtor Releasing Parties, the Chapter 11 Case or the commencement, filing or execution thereof, the Israeli Proceeding or the commencement, filing or execution thereof, the Chapter 15 Case or the commencement, filing or execution thereof, the formulation, preparation, dissemination, solicitation, negotiation, entry into, filing or consummation of the Restructuring Support Agreement, the Plan, any Restructuring Transaction, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the Plan, any of the Restructuring Transactions, the Israeli Proceedings or the commencement, filing or execution thereof, the Chapter 11 Case or the commencement, filing or execution thereof, the Chapter 15 Case or the commencement, filing or execution thereof, the pursuit of Confirmation Order, the pursuit of the Israeli Confirmation Order, the pursuit of the Recognition Order, the pursuit of any additional orders from the Bankruptcy Court or Israeli Court in furtherance of the Restructuring Transactions, the pursuit of consummation of the Plan or any Restructuring Transaction, 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 upon any other related act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date, 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.

 

Notwithstanding anything to the contrary in the foregoing, the releases set forth above do not release: (1) any obligations arising on or after the Effective Date of any party, Person or Entity under the Plan, the Confirmation Order, or any post-Effective Date transaction contemplated by the Plan or the Restructuring Transactions, or any document, instrument, or agreement (including those set forth in any supplement to the Plan, if any) executed to implement the Plan or the Restructuring Transactions; or (2) 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 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 Consenting Creditor Parties, including, the Released Consenting Creditor 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 Debtor 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 the Debtor, the Reorganized Debtor, or the Debtor’s Estate asserting any Claim or Cause of Action released pursuant to the Debtor Release.

 

 

D. Releases by the Consenting Creditor Releasing Parties.

 

Notwithstanding anything to the contrary contained in the Plan, upon entry of the Confirmation Order and effective as of the Effective Date, to the fullest extent permitted by applicable law, each Released Debtor Party is, and is deemed hereby to be, fully, conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged by each and all of the Consenting Creditor Releasing Parties, in each case on behalf of themselves and their respective successors, assigns, and representatives, (including any manager or foreign representative appointed in the Israeli Proceeding) from any and all Claims, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever, whether known or unknown, including any derivative claims, asserted or assertable on behalf of any of the Consenting Creditor Releasing Parties, that any such Person or Entity would have been legally entitled to assert in its own right (whether individually or collectively) or on behalf of the holder of any Claim against or Interest in a Released Debtor Party or a Consenting Creditor or other Person or Entity, or that any Holder of any Claims or Interests against or in a Released Debtor Party or a Consenting Creditor or other Person or Entity could have asserted on behalf of a Consenting Creditor Releasing Party, based on or relating to, or in any manner arising from, in whole or in part, any of the Released Debtor Parties (including the Released Debtor Parties’ capital structure, management, ownership, or operation thereof or otherwise), the subject matter of, or the transactions or events giving rise to, any Claims or Interests that is treated in the Plan, the business or contractual arrangements between any Consenting Creditor Releasing Party and any Released Debtor Party, the Released Debtor Parties’ in- or out-of-court restructuring efforts, the purchase, sale, or rescission of any security of any Released Debtor Party, any intercompany transactions between or among the Released Debtor Parties or an Affiliate of the Released Debtor Parties and a Released Debtor Party or Affiliate of a Debtor Released Party, the Chapter 11 Case or the commencement, filing or execution thereof, the Israeli Proceedings or the commencement, filing or execution thereof, the Chapter 15 Case or the commencement, filing or execution thereof, the formulation, preparation, dissemination, solicitation, negotiation, entry into, filing or consummation of the Restructuring Support Agreement, the Plan, any Restructuring Transaction, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the Plan, any of the Restructuring Transactions, the Chapter 11 Case or the commencement, filing or execution thereof, the Israeli Proceedings or the commencement, filing or execution thereof, the Chapter 15 Case or the commencement, filing or execution thereof, the pursuit of Confirmation Order, the pursuit of the Israeli Confirmation Order, the pursuit of Recognition Order, the pursuit of any additional orders from the Bankruptcy Court or Israeli Court in furtherance of the Restructuring Transactions, the pursuit of consummation of the Plan or any Restructuring Transaction, 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 upon any other related act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date, 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.

 

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, the Restructuring Documents, or any post-Effective Date transaction contemplated by the Restructuring Transactions (including under the Exit Facility), or any document, instrument, or agreement (including those set forth in the Exit Facility) 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 Consenting Creditor 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 Consenting Creditor 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 Debtor Parties; (d) a good faith settlement and compromise of the Claims released by the Consenting Creditor Release; (e) in the best interests of the Debtor and its Estate; (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 Consenting Creditor Releasing Parties asserting any Claim or Cause of Action released pursuant to the Consenting Creditor Release.

 

E. Exculpation.

 

Except as otherwise specifically provided in the Plan, and to the fullest extent permitted under 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 Case, the formulation, preparation, dissemination, negotiation, or filing of the Restructuring Support Agreement, the Disclosure Statement, the Plan, the Exit Facility, the New Common Equity, or any Restructuring Transaction, or any contract, instrument, release or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the Disclosure Statement, the Exit Facility, the New Common Equity, or the Plan, the commencement of the Israeli Proceeding or the Chapter 15 Case, the pursuit of the Israeli Confirmation Order, the filing of the Chapter 11 Case, 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. Notwithstanding anything to the contrary in the foregoing, the exculpation set forth above relates solely to liabilities on or after the Petition Date and prior to or on the Effective Date, and does not exculpate any post-Effective Date obligations of any Person or Entity under the Plan, any post-Effective Date transaction contemplated by the Restructuring Transactions (including under the Exit Facility), or any document, instrument, or agreement (including those set forth in the Exit Facility) executed to implement the Plan.

 

 

F. Injunction.

 

Effective as of the Effective Date, all Entities that have held, hold, or may hold Claims, Interests, or Causes of Actions 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 Debtor, the Reorganized Debtor, 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, or Causes of Actions; (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, or Causes of Actions; (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, or Causes of Actions; (4) asserting any right of setoff, subrogation, or recoupment 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, or Causes of Actions unless such Holder has filed a motion requesting the right to perform such setoff on or before the Effective Date, and notwithstanding an indication of a claim or interest or otherwise 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, or Causes of Actions 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 post-Effective Date obligations of any Person or Entity under the Plan, any post-Effective Date transaction contemplated by the Restructuring Transactions (including under the Exit Facility), or any document, instrument, or agreement (including those set forth in the Exit Facility) 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 VII.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 Debtor 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 Debtor, or another Entity with whom the Reorganized Debtor have been associated, solely because the Debtor has been a debtor under chapter 11 of the Bankruptcy Code, has been insolvent before the commencement of the Chapter 11 Case (or during the Chapter 11 Case but before the Debtor is granted or denied a discharge), or has not paid a debt that is dischargeable in the Chapter 11 Case.

 

Article VIII
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 VIII.B hereof:

 

1.

the Bankruptcy Court shall have entered the Confirmation Order, which shall be a Final Order;

 

2.

the Debtor shall have obtained all authorizations, consents, regulatory approvals, rulings, or documents that are necessary to implement and effectuate the Plan;

 

3.

the Israeli Court shall have entered the Israeli Confirmation Order;

 

4.

the Bankruptcy Court shall have entered the Recognition Order;

 

5.

the Restructuring Support Agreement shall remain 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 (including by the requisite parties thereunder, and it being acknowledged and agreed by the Debtor that such notice may be given notwithstanding the automatic stay resulting from the commencement of the Chapter 11 Case);

 

6.

the Exit Facility Documents 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 occurrence of the Effective Date) to the effectiveness of the Exit Facility shall have been satisfied or duly waived in writing in accordance with the terms of the Exit Facility and the closing of the Exit Facility shall have occurred;

 

7.

all (i) Professional Fees and expenses of retained professionals that require the Bankruptcy Court’s approval, and (ii) fees and expenses of advisors to the Consenting Creditors shall have been paid in full or, with respect to Professional Fees in subsection (i) herein, 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

 

8.

the Restructuring Transactions shall have been consummated or are anticipated to be consummated concurrently with the occurrence of the Effective Date in a manner consistent with the Plan, and the Plan shall have been substantially consummated or are anticipated to be substantially consummated concurrently with the occurrence of the Effective Date.

 

 

B. Waiver of Conditions.

 

Any one or more of the conditions to Consummation set forth in this Article VIII may be waived by the Debtor 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 or the Disclosure Statement shall: (1) constitute a waiver or release of any Claims by the Debtor, or any Holders of Claims against or Interests in the Debtor; (2) prejudice in any manner the rights of the Debtor, any Holders of Claims against or Interests in the Debtor, or any other Entity; or (3) constitute an admission, acknowledgment, offer, or undertaking by the Debtor, 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 IX
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), (a) the Debtor, with the consent of the Consenting Creditors, reserves 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, and (b) after the entry of the Confirmation Order, the Debtor or the Reorganized Debtor, as applicable, may, after notice and hearing and entry of an order of the Bankruptcy Court, amend, supplement, amend and restate, or otherwise modify the Plan in accordance with section 1127(b) of the Bankruptcy Code or remedy any defect or omission or reconcile any inconsistency in the Plan in such manner as may be necessary to carry out the purpose and intent of the 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, the Debtor, with the consent of the Consenting Creditors, expressly reserves its rights to revoke or withdraw, or to alter, amend, or modify the Plan 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 Debtor, with the consent of the Consenting Creditors, reserves the right to revoke or withdraw the Plan prior to the Confirmation Date and to File subsequent plans of reorganization. If the Debtor revokes or withdraws 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 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 the Debtor or any other Entity; or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtor or any other Entity.

 

 

Article X
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 Case 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 of any Executory Contract or Unexpired Lease to which the Debtor is party or with respect to which the 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 Debtor 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 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 the 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.

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;

 

9.

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;

 

10.

resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, injunctions, exculpations, and other provisions contained in Article VII hereof and enter such orders as may be necessary or appropriate to implement such releases, injunctions, and other provisions;

 

11.

enter and implement such orders as are necessary if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;

 

12.

determine any other matters that may arise in connection with or relate to the Plan, 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;

 

13.

enter an order concluding or closing the Chapter 11 Case;

 

 

14.

adjudicate any and all disputes arising from or relating to distributions under the Plan;

 

15.

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;

 

16.

determine requests for the payment of Claims and Interests entitled to priority pursuant to section 507 of the Bankruptcy Code;

 

17.

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;

 

18.

hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;

 

19.

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 VII hereof, regardless of whether such termination occurred prior to or after the Effective Date;

 

20.

enforce all orders previously entered by the Bankruptcy Court; and

 

21.

hear any other matter not inconsistent with the Bankruptcy Code.

 

As of the Effective Date, notwithstanding anything in this Article X to the contrary, the New Organizational Documents and the Exit Facility 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 XI
MISCELLANEOUS PROVISIONS

 

A. Immediate Binding Effect.

 

Subject to Article VIII.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 shall be immediately effective and enforceable and deemed binding upon the Debtor, the Reorganized Debtor, any and all Holders of Claims against or Interests in the Debtor (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 Debtor. 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.

 

B. Additional Documents.

 

Subject to and in accordance with the Restructuring Support Agreement, on or before the Effective Date, (x) the Debtor, with the consent of the Consenting Creditors, 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 (y) the Debtor or the Reorganized Debtor, as applicable, and all Holders of Claims against the Debtor 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. Reservation of Rights.

 

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 the Debtor with respect to the Plan or the Disclosure Statement shall be or shall be deemed to be an admission or waiver of any rights of the Debtor with respect to the Holders of Claims or Interests prior to the Effective Date.

 

 

D. 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 XI.D modifies section 524(e) of the Bankruptcy Code.

 

E. Notices.

 

All notices, requests, and demands to or upon the Debtor 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:

 

Debtor	Counsel to the Debtor
Gamida Cell Inc. 116 Huntington Ave, 7th Floor Boston, Massachusetts 02116 Telephone: (617) 892-9080	Stanley B. Tarr BLANK ROME LLP 1201 N. Market Street, Suite 800 Wilmington, Delaware 19801 Telephone: (302) 425-6400 Facsimile: (302) 425-6464 Email: stanley.tarr@blankrome.com   John E. Lucian BLANK ROME LLP 130 N. 18th Street Philadelphia, Pennsylvania 19103 Telephone: (215) 569-5500 Facsimile: (215) 569-5555 Email: john.lucian@blankrome.com   Michael Klein Evan Lazerowitz COOLEY LLP 55 Hudson Yards New York, New York 10001-2157 Telephone: (212) 479-6000 Email: mklein@cooley.com   elazerowitz@cooley.com   Olya Antle COOLEY LLP 1299 Pennsylvania Ave, NW, Suite 700 Washington, DC 20004-2400 Telephone: (202) 842-7800 Email: oantle@cooley.com
Counsel to the Consenting Creditors
Matthew Warren Geoffrey M. King KING & SPALDING LLP 110 N. Wacker Drive, Suite 3800 Chicago, IL 60606   Email address: mwarren@kslaw.com gking@kslaw.com   Kara Hammond Coyle YOUNG CONAWAY STARGATT & TAYLOR, LLP Rodney Square, 1000 North King Street Wilmington, DE 19801   Email address: kcoyle@ycst.com

 

 

 

F. 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 Case 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.

 

 

G. Entire Agreement.

 

Except as otherwise indicated, the Plan 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.

 

H. 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 Debtor. 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 Debtor’s or Reorganized Debtor’s and Consenting Creditors’ consent, as applicable; and (3) nonseverable and mutually dependent.

 

I. Waiver or Estoppel.

 

Each Holder of a Claim or an Interest shall be deemed to have waived any right to assert any argument, including the right to argue that its Claim or Interest should be Allowed in a certain amount, in a certain priority, secured or not subordinated by virtue of an agreement made with the Debtor or its 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: May 20, 2024	GAMIDA CELL INC.
	/s/ Abigail Jenkins
	Name: Abigail Jenkins
	Its: Sole Director

 

 

47

 

v3.24.1.1.u2

Cover	May 24, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	May 24, 2024
Entity File Number	001-38716
Entity Registrant Name	Gamida Cell Ltd.
Entity Central Index Key	0001600847
Entity Tax Identification Number	00-0000000
Entity Incorporation, State or Country Code	L3
Entity Address, Address Line One	116 Huntington Avenue
Entity Address, Address Line Two	7th Floor
Entity Address, City or Town	Boston
Entity Address, State or Province	MA
Entity Address, Postal Zip Code	02116
City Area Code	617
Local Phone Number	892-9080
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Ordinary Shares, NIS 0.01 par value
Trading Symbol	GMDAQ
Security Exchange Name	NONE
Entity Emerging Growth Company	false

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