Full Press Release Details
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
| x | ||
| : | ||
| In re | : | |
| : | Chapter 11 Case No. | |
| SIGA TECHNOLOGIES, INC., | : | |
| : | 14-12623 (SHL) | |
| Debtor. | : | |
| : | ||
| x |
DEBTOR'S CHAPTER 11 PLAN
| WEIL, GOTSHAL & MANGES LLP | |
| Stephen Karotkin | |
| 767 Fifth Avenue | |
| New York, New York 10153 | |
| (212) 310-8000 | |
| Attorneys for Debtor and | |
| Debtor in Possession |
| Article I. | Definitions and Interpretation | 1 |
| 1.1 | Administrative Expenses | 1 |
| 1.2 | Allowed | 1 |
| 1.3 | Amended and Restated By-laws | 2 |
| 1.4 | Amended and Restated Certificate of Incorporation | 2 |
| 1.5 | Arbitration Agreement | 2 |
| 1.6 | Arbitrator | 2 |
| 1.7 | Avoidance Action | 2 |
| 1.8 | Bankruptcy Code | 2 |
| 1.9 | Bankruptcy Court | 2 |
| 1.10 | Bankruptcy Rules | 2 |
| 1.11 | Board of Directors | 2 |
| 1.12 | Board Observer | 3 |
| 1.13 | Business Day | 3 |
| 1.14 | Cash | 3 |
| 1.15 | Cash Collateral | 3 |
| 1.16 | Causes of Action | 3 |
| 1.17 | Chapter 11 Case | 3 |
| 1.18 | Claim | 3 |
| 1.19 | Class | 3 |
| 1.20 | Collateral | 3 |
| 1.21 | Commencement Date | 3 |
| 1.22 | Confirmation Date | 3 |
| 1.23 | Confirmation Hearing | 4 |
| 1.24 | Confirmation Order | 4 |
| 1.25 | Creditors' Committee | 4 |
| 1.26 | Cure | 4 |
| 1.27 | Cure Dispute | 4 |
| 1.28 | Debtor | 4 |
| 1.29 | Debtor in Possession | 4 |
| 1.30 | Delaware Chancery Court Decision | 4 |
| 1.31 | Disbursing Agent | 4 |
| 1.32 | Disclosure Statement | 4 |
| 1.33 | Disputed | 5 |
| 1.34 | Distribution Record Date | 5 |
| 1.35 | District Court | 5 |
| 1.36 | Effective Date | 5 |
| 1.37 | Entity | 5 |
| 1.38 | Equity Interest | 5 |
| 1.39 | Escrow Account | 5 |
| 1.40 | Escrow Agent | 5 |
| 1.41 | Escrow Agreement | 5 |
| 1.42 | Estimated Damages | 6 |
| 1.43 | Exculpated Parties | 6 |
| 1.44 | Existing Common Stock | 6 |
| 1.45 | Final Order | 6 |
| 1.46 | General Unsecured Claim | 6 |
| 1.47 | Insurance Plans | 6 |
| 1.48 | Lien | 6 |
| 1.49 | [Reserved] | 6 |
| 1.50 | Monitor | 6 |
| 1.51 | New Common Stock | 6 |
| 1.52 | Notification Date | 7 |
| 1.53 | Person | 7 |
| 1.54 | Petition for Certiorari | 7 |
| 1.55 | PharmAthene | 7 |
| 1.56 | PharmAthene Action | 7 |
| 1.57 | PharmAthene Allowed Claim | 7 |
| 1.58 | PharmAthene Allowed Claim Treatment Date | 7 |
| 1.59 | PharmAthene Claim | 8 |
| 1.60 | PharmAthene Final Order | 8 |
| 1.61 | PharmAthene Final Order Date | 8 |
| 1.62 | Plan | 8 |
| 1.63 | Plan Covenants | 8 |
| 1.64 | Plan Covenant Event of Default | 8 |
| 1.65 | Plan Covenant Termination Date | 9 |
| 1.66 | Plan Supplement | 9 |
| 1.67 | Plan Supplement Filing Date | 10 |
| 1.68 | Postpetition Interest Rate | 10 |
| 1.69 | Prior Appeal Bond | 10 |
| 1.70 | Priority Non-Tax Claim | 10 |
| 1.71 | Priority Tax Claim | 10 |
| 1.72 | Reconsideration Motion | 10 |
| 1.73 | Released Parties | 10 |
| 1.74 | Reorganized Debtor | 11 |
| 1.75 | Schedules | 11 |
| 1.76 | Schedule of Assumed Contracts and Leases | 11 |
| 1.77 | Schedule of Rejected Contracts and Leases | 11 |
| 1.78 | Schedule of Plan Covenants | 11 |
| 1.79 | Secured Claim | 11 |
| 1.80 | SIGA Pharmaceuticals (Europe) Limited | 11 |
| 1.81 | Subsidiary | 11 |
| 1.82 | Transition Plan | 11 |
| 1.83 | 2004 Derivative Causes of Action | 11 |
| 1.84 | U.S. Trustee | 12 |
| 1.85 | Voting Deadline | 12 |
| Article II. | Administrative Expenses and Priority Tax Claims | 12 |
| 2.1 | Administrative Expenses | 12 |
| 2.2 | Compensation and Reimbursement Claims | 13 |
| 2.3 | Priority Tax Claims | 13 |
| Article III. | Classification of Claims and Interests | 13 |
| 3.1 | Summary | 13 |
| 3.2 | Special Provision Governing Unimpaired Claims | 14 |
| Article IV. | Treatment of Claims and Equity Interests | 14 |
| 4.1 | Class 1 - Secured Claims | 14 |
| 4.2 | Class 2 - Priority Non-Tax Claims | 14 |
| 4.3 | Class 3 - General Unsecured Claims | 14 |
| 4.4 | Class 4 - Equity Interests | 22 |
| Article V. | Provisions Governing Distributions | 22 |
| 5.1 | Distribution Record Date | 22 |
| 5.2 | Date of Distributions | 23 |
| 5.3 | Disbursing Agent | 23 |
| 5.4 | Delivery of Distributions and Undeliverable Distributions | 23 |
| 5.5 | Cash Payments | 23 |
| 5.6 | Time Bar to Cash Payments | 23 |
| 5.7 | Distributions After Effective Date | 24 |
| 5.8 | Allocation of Plan Distribution Between Principal and Interest | 24 |
| 5.9 | Setoff and Recoupment; Waiver of Avoidance Actions | 24 |
| 5.10 | Withholding and Reporting Requirements | 24 |
| Article VI. | Means for Implementation and Execution of the Plan | 25 |
| 6.1 | Establishment of Escrow Account | 25 |
| 6.2 | Tax Treatment of Escrow Account | 25 |
| 6.3 | Compliance with the Plan Covenants | 25 |
| 6.4 | Termination of Plan Covenants | 25 |
| 6.5 | Determination of Plan Covenants Event of Default | 27 |
| 6.6 | Consequences of Plan Covenant Event of Default | 28 |
| 6.7 | Appointment of Board Observer | 29 |
| 6.8 | Cancellation of Existing Agreements and Instruments | 30 |
| 6.9 | Cancellation of Liens | 30 |
| 6.10 | Reverse Stock Split | 30 |
| 6.11 | Authorization and Issuance of New Common Stock | 31 |
| 6.12 | Effectiveness of Transition Plan | 31 |
| 6.13 | Section 1145 Exemption | 31 |
| 6.14 | Equity Interests in Subsidiary | 32 |
| 6.15 | Reorganized Debtor | 32 |
| 6.16 | Corporate Reorganization Actions, Effectuating Documents, and Further Transactions | 33 |
| 6.17 | Nonconsensual Confirmation | 33 |
| 6.18 | Transactions on Business Days | 33 |
| 6.19 | Notice of Effective Date | 33 |
| Article VII. | Procedures for Disputed Claims | 34 |
| 7.1 | Objections to Claims | 34 |
| 7.2 | Resolution of Disputed Administrative Expenses and Disputed Claims | 34 |
| 7.3 | No Distribution Pending Allowance | 34 |
| 7.4 | Distributions After Allowance | 34 |
| 7.5 | Estimation | 34 |
| Article VIII. | Executory Contracts and Unexpired Leases | 35 |
| 8.1 | General Treatment of Executory Contracts and Unexpired Leases | 35 |
| 8.2 | Determination of Cure Disputes and Deemed Consent | 35 |
| 8.3 | Payments Related to Assumption or Assignment of Contracts and Leases | 36 |
| 8.4 | Rejection | 36 |
| 8.5 | Survival of the Debtor's Indemnification Obligations | 36 |
| 8.6 | Compensation and Benefits | 37 |
| 8.7 | Insurance Plans | 37 |
| 8.8 | Intellectual Property Licenses and Agreements | 37 |
| 8.9 | Assignment | 37 |
| 8.10 | Approval of Assumption, Rejection, or Assignment of Executory Contracts and Unexpired Leases | 38 |
| 8.11 | Modifications, Amendments, Supplements, Restatements, or Other Agreements | 38 |
| 8.12 | Reservation of Rights | 38 |
| Article IX. | Effectiveness of the Plan | 39 |
| 9.1 | Conditions Precedent to Confirmation of Plan | 39 |
| 9.2 | Conditions Precedent to Effective Date | 39 |
| 9.3 | Satisfaction and Waiver of Conditions | 39 |
| 9.4 | Effect of Non-Occurrence of Effective Date | 40 |
| Article X. | Effect of Confirmation | 40 |
| 10.1 | Claims of Subordination | 40 |
| 10.2 | Vesting of Assets | 40 |
| 10.3 | Discharge of Claims | 40 |
| 10.4 | Release and Discharge of Debtor | 41 |
| 10.5 | Term of Injunctions or Stays | 41 |
| 10.6 | Injunction Against Interference with Plan | 41 |
| 10.7 | Injunction | 42 |
| 10.8 | Exculpation | 42 |
| 10.9 | Releases by the Debtor | 43 |
| 10.10 | Retention of Causes of Action/Reservation of Rights | 43 |
| 10.11 | Special Provisions for Governmental Units | 44 |
| 10.12 | Plan Supplement | 44 |
| Article XI. | Retention of Jurisdiction | 44 |
| 11.1 | Jurisdiction of Bankruptcy Court | 44 |
| Article XII. | Rights and Powers of Disbursing Agent | 46 |
| 12.1 | Exculpation | 46 |
| 12.2 | Powers of the Disbursing Agent | 47 |
| Article XIII. | Miscellaneous Provisions | 47 |
| 13.1 | Dissolution of Creditors' Committee | 47 |
| 13.2 | Substantial Consummation | 47 |
| 13.3 | Exemption from Transfer Taxes | 47 |
| 13.4 | Expedited Tax Determination | 47 |
| 13.5 | Payment of Statutory Fees | 47 |
| 13.6 | Plan Modifications and Amendments | 48 |
| 13.7 | Revocation or Withdrawal of Plan | 48 |
| 13.8 | Courts of Competent Jurisdiction | 48 |
| 13.9 | Severability | 48 |
| 13.10 | Governing Law | 49 |
| 13.11 | Exhibits and Schedules | 49 |
| 13.12 | Successors and Assigns | 49 |
| 13.13 | Time | 49 |
| 13.14 | Deemed Acts | 49 |
| 13.15 | Notices | 49 |
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
| x | ||
| : | ||
| In re | : | |
| : | Chapter 11 Case No. | |
| SIGA TECHNOLOGIES, INC., | : | |
| : | 14-12623 (SHL) | |
| Debtor. | : | |
| : | ||
| x |
DEBTOR'S CHAPTER 11 PLAN
SIGA Technologies Inc., the above-captioned debtor, proposes the following chapter 11 plan pursuant to section 1121(a) of title 11 of the United States Code:
Definitions and Interpretation
Definitions. The following terms used herein shall have the respective meanings defined below (such meanings to be equally applicable to both the singular and plural):
1.1 Administrative Expenses means costs or expenses of administration of the Chapter 11 Case arising on or prior to the Effective Date and allowed under section 503(b) of the Bankruptcy Code and entitled to priority pursuant to section 507(a)(2) of the Bankruptcy Code that have not already been paid by the Debtor, including, without limitation, any actual and necessary costs and expenses of preserving the Debtor's estate and/or operating the Debtor's business, any indebtedness or obligations incurred or assumed by the Debtor, as Debtor in Possession, during the Chapter 11 Case, including, without limitation, for the acquisition or lease of property or an interest in property or the performance of services, any compensation and reimbursement of expenses to the extent allowed by Final Order under sections 330 or 503 of the Bankruptcy Code, and any fees or charges assessed against the estate of the Debtor under section 1930 of chapter 123 of title 28 of the United States Code.
1.2 Allowed means, (i) with reference to any Claim (other than the PharmAthene Claim) (a) any Claim against the Debtor that has been listed by the Debtor in the Schedules, as such Schedules may be amended by the Debtor from time to time in accordance with Bankruptcy Rule 1009, as liquidated in amount and not disputed or contingent and for which no contrary proof of Claim has been filed, (b) any Claim listed on the Schedules or included in a timely filed proof of Claim, as to which no objection to its allowance has been, or subsequently is, interposed in accordance with Section 7.1 hereof or prior to the expiration of such other applicable period of limitation fixed by the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court, or if an objection to such Claim's allowance has been timely interposed, the allowed amount of such Claim as determined by a Final Order, or (c) any other Claim expressly allowed by a Final Order, and (ii) with respect to the PharmAthene Claim, the PharmAthene Allowed Claim; provided, however, that after the fifth (5th) Business Day prior to the Voting Deadline, no claim of an Insider or Affiliate of the Debtor may be added to the Schedules and Allowed without the Creditors' Committee's written consent (or PharmAthene's written consent, if after the Effective Date), or a Bankruptcy Court order issued after notice to the Creditors' Committee and a hearing, or if after the Effective Date, notice to PharmAthene and a hearing.
1.3 Amended and Restated By-laws means the by-laws of the Reorganized Debtor, to be amended and restated as of the Effective Date, in substantially the form included in the Plan Supplement, which shall be in form and substance reasonably acceptable to the Debtor and the Creditors' Committee.
1.4 Amended and Restated Certificate of Incorporation means the certificate of incorporation of the Reorganized Debtor, to be amended and restated as of the Effective Date, in substantially the form included in the Plan Supplement, which shall be in form and substance reasonably acceptable to the Debtor and the Creditors' Committee.
1.5 Arbitration Agreement means the arbitration agreement, which shall be substantially in the form filed in the Plan Supplement and which shall be in form and substance reasonably acceptable to the Debtor, the Creditors' Committee and PharmAthene, setting forth, among other things, the procedures for arbitration, if applicable, of the matters set forth in Section 6.4(b)(ii) and/or 6.4(a)(ii)(Z) hereof. The Arbitration Agreement shall provide, among other things, that any decision shall be rendered by the Arbitrator within sixty (60) days of its submission to the Arbitrator, unless otherwise agreed to in writing by the Reorganized Debtor and PharmAthene.
1.6 Arbitrator means the arbitrator identified in the Arbitration Agreement (or any successor thereto appointed pursuant to the Arbitration Agreement).
1.7 Avoidance Action means any and all avoidance, equitable subordination or recovery Causes of Action arising under or in connection with chapter 5 of the Bankruptcy Code.
1.8 Bankruptcy Code means title 11 of the United States Code, as amended from time to time and applicable to the Chapter 11 Case.
1.9 Bankruptcy Court means the United States Bankruptcy Court for the Southern District of New York, having subject matter jurisdiction over the Chapter 11 Case and, to the extent of any reference withdrawal made under section 157(d) of title 28 of the United States Code, the District Court having subject matter jurisdiction over the Chapter 11 Case.
1.10 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States Code, and the Local Bankruptcy Rules for the Southern District of New York, in each case as amended from time to time and applicable to the Chapter 11 Case.
1.11 Board of Directors means the Board of Directors of the Debtor or Reorganized Debtor, as it may exist from time to time.
1.12 Board Observer means a person designated by PharmAthene (or any successor thereto) who shall act as an observer of the Reorganized Debtor's Board of Directors as provided in Section 6.7 of the Plan. The initial Board Observer shall be Jeffrey Steinberg.
1.13 Business Day means any day other than a Saturday, a Sunday, or any other day on which banking institutions in New York, New York are required or authorized to close by law or executive order.
1.14 Cash means legal tender of the United States of America.
1.15 Cash Collateral means "Cash Collateral" as such term is defined in Section 6.4(b) of the Plan.
1.16 Causes of Action means, without limitation, any and all actions, proceedings, causes of action, controversies, liabilities, obligations, rights, rights of setoff, recoupment rights, suits, damages, judgments, accounts, defenses, offsets, powers, privileges, licenses, franchises, claims, counterclaims, cross-claims, affirmative defenses, and demands of any kind or character whatsoever, whether known or unknown, asserted or unasserted, reduced to judgment or otherwise, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, secured or unsecured, assertable directly or derivatively, existing or hereafter arising, in contract or in tort, in law or in equity or otherwise, based in whole or in part upon any act or omission or other event occurring prior to the Commencement Date or during the course of the Chapter 11 Case, including through the Effective Date. Without limiting the generality of the foregoing, when referring to Causes of Action of the Debtor or its estate, Causes of Action shall include (i) all rights of setoff, counterclaim, or recoupment and claims on contracts or for breaches of duties imposed by law or equity, (ii) claims pursuant to sections 362, 510, 542, 543, 544 through 550, or 553 of the Bankruptcy Code, and (iii) claims and defenses such as fraud, mistake, duress, usury, and any other defenses set forth in section 558 of the Bankruptcy Code.
1.17 Chapter 11 Case means the case under chapter 11 of the Bankruptcy Code commenced by the Debtor on the Commencement Date in the Bankruptcy Court and currently styled In re SIGA Technologies, Inc., Case No. 14-12623 (SHL).
1.18 Claim means "claim," as defined in section 101(5) of the Bankruptcy Code.
1.19 Class means any group of Claims or Equity Interests classified herein pursuant to section 1123(a)(1) of the Bankruptcy Code.
1.20 Collateral means any property or interest in property of the estate of the Debtor subject to a Lien, charge, or other encumbrance to secure the payment or performance of a Claim, which Lien, charge, or other encumbrance is not avoided under the Bankruptcy Code.
1.21 Commencement Date means September 16, 2014, the date on which the Debtor commenced the Chapter 11 Case.
1.22 Confirmation Date means the date on which the Clerk of the Bankruptcy Court enters the Confirmation Order on the docket of the Bankruptcy Court.
1.23 Confirmation Hearing means the hearing held by the Bankruptcy Court regarding confirmation of the Plan, as such hearing may be adjourned or continued from time to time.
1.24 Confirmation Order means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code, which shall be in form and substance reasonably acceptable to the Debtor and the Creditors' Committee, except for any provisions that alter (i) the Plan in a manner that materially and adversely affects any holder of a Claim, or (ii) the Plan Covenants, which provisions must be acceptable to each of the Debtor and the Creditors' Committee in their absolute discretion.
1.25 Creditors' Committee means the statutory committee of unsecured claimholders appointed by the U.S. Trustee in the Chapter 11 Case pursuant to section 1102 of the Bankruptcy Code, as same may be constituted from time to time.
1.26 Cure means the payment of Cash by the Debtor, or the distribution of other property (as the parties may agree or the Bankruptcy Court may order), as necessary to permit the Debtor to assume or, if applicable, assume and assign, such executory contract or unexpired lease under section 365(a) of the Bankruptcy Code.
1.27 Cure Dispute means a pending objection regarding assumption, assignment, Cure, "adequate assurance of future performance" (within the meaning of section 365 of the Bankruptcy Code), or other issues relating to assumption of a contract or lease pursuant to section 365 of the Bankruptcy Code.
1.28 Debtor means SIGA Technologies, Inc., a Delaware corporation.
1.29 Debtor in Possession means the Debtor in its capacity as debtor in possession pursuant to sections 1101, 1107(a), and 1108 of the Bankruptcy Code.
1.30 Delaware Chancery Court Decision means any or all of (i) the August 15, 2013, Bench Ruling issued by the Delaware Court of Chancery in the PharmAthene Action, (ii) the August 8, 2014, Memorandum Opinion (PharmAthene, Inc. v. SIGA Techs., Inc., 2014 WL 3974167, Case No. 2627-VCP (Del. Ch. Aug. 8, 2014)) and Order regarding, inter alia, the method for calculating damages in the PharmAthene Action, (iii) the January 7, 2015, Letter Opinion issued by the Delaware Court of Chancery in the PharmAthene Action, and (iv) the January 15, 2015, Final Order and Judgment, determining, inter alia the amount of damages awarded to PharmAthene in the PharmAthene Action.
1.31 Disbursing Agent means the Reorganized Debtor (or such other Entity designated by the Debtor or the Reorganized Debtor in its sole discretion and without the need for any further order of the Bankruptcy Court) in its capacity as a disbursing agent pursuant to Section 5.3 hereof.
1.32 Disclosure Statement means the disclosure statement relating to the Plan, including, without limitation, all exhibits thereto, as approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code.
1.33 Disputed means a Claim or Administrative Expense (as applicable) to the extent the allowance of such Claim or Administrative Expense is the subject of a timely objection or request for estimation in accordance with the Plan, the Bankruptcy Code, the Bankruptcy Rules, or the Confirmation Order, or is otherwise disputed by the Debtor in accordance with applicable law, and which objection, request for estimation, or dispute has not been withdrawn, with prejudice, or determined by a Final Order. For the avoidance of doubt, if no proof of Claim or Administrative Expense has been filed by the applicable deadline and the Claim or Administrative Expense is not listed on the Schedules or has been or hereafter is listed on the Schedules as $0, disputed, contingent, or unliquidated, such Claim or Administrative Expense, as applicable, shall be disallowed and not Disputed, and shall be disregarded for all purposes.
1.34 Distribution Record Date means, except with respect to public securities, the Effective Date.
1.35 District Court means the United States District Court for the Southern District of New York having subject matter jurisdiction over the Chapter 11 Case.
1.36 Effective Date means a Business Day selected by the Debtor and the Creditors' Committee that is on or after the later of (a) the Confirmation Date, and (b) the date on which the conditions to the effectiveness of the Plan specified in Section 9.2 have been satisfied or waived.
1.37 Entity means an individual, corporation, partnership, limited liability company, association, joint stock company, joint venture, estate, trust, unincorporated organization, government or any political subdivision thereof, or other Person or entity.
1.38 Equity Interest means the interest (or any proxy related thereto) in the Debtor, represented by any issued and outstanding shares of common or preferred stock, including the Existing Common Stock (and including Existing Common Stock after giving effect to the Reverse Stock Split), stock appreciation rights or any other instrument evidencing a present ownership interest, inchoate or otherwise, in the Debtor, whether or not transferable, or any option, warrant, or right, contractual or otherwise, to acquire any such interest (including, without limitation, any right to receive any such shares issued or issuable under any plans for the benefit of employees or directors of the Debtor in effect on the Commencement Date, and unvested restricted stock), whether in existence prior or subsequent to the Effective Date; provided, however, for the avoidance of doubt, the term "Equity Interest" shall not include or pertain to any New Common Stock in the event New Common Stock is issued to PharmAthene pursuant to the Plan.
1.39 Escrow Account means the escrow account opened by the Debtor or the Reorganized Debtor, as applicable, which shall be governed by the terms and conditions of the Escrow Agreement and the Plan.
1.40 Escrow Agent means the escrow agent identified in the Escrow Agreement.
1.41 Escrow Agreement means that certain Escrow Agreement setting forth the terms and conditions of the Escrow Account, which shall be substantially in the form filed in the Plan Supplement and which shall be in form and substance reasonably acceptable to the Debtor and the Creditors' Committee.
1.42 Estimated Damages means "Estimated Damages" as defined in Section 6.4(b) of the Plan.
1.43 Exculpated Parties means the Debtor, the Debtor's officers and directors who served at any time on or after the Commencement Date, the Creditors' Committee, each of its current or former members in their capacity as members of the Creditors' Committee, and each of the respective retained professionals of any of the foregoing.
1.44 Existing Common Stock means the issued and outstanding shares of common stock of the Debtor, with a par value of $0.0001, as the same is reduced pursuant to the terms of Section 6.10 hereof.
1.45 Final Order means an order or judgment of the Bankruptcy Court (or any other court of competent jurisdiction) entered by the Clerk of the Bankruptcy Court (or such other court) on the docket in the Chapter 11 Case (or the docket of such other court) which has not been reversed, vacated, or stayed and as to which (i) the time to appeal, petition for certiorari, or move for a new trial, reargument, or rehearing has expired and as to which no appeal, petition for certiorari, or other proceeding for a new trial, reargument, or rehearing shall then be pending or (ii) if an appeal, writ of certiorari, new trial, reargument, or rehearing thereof has been sought, such order or judgment of the Bankruptcy Court (or other court of competent jurisdiction) shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, reargument, or rehearing shall have been denied or resulted in no modification of such order, and the time to take any further appeal, petition for certiorari, or move for a new trial, reargument, or rehearing shall have expired; provided, however, that no order or judgment shall fail to be a Final Order solely because of the possibility that a motion under Rules 59 or 60 of the Federal Rules of Civil Procedure has been or may be filed with respect to such order or judgment. The susceptibility of a Claim to a challenge under section 502(j) of the Bankruptcy Code shall not render a Final Order not a Final Order.
1.46 General Unsecured Claim means any Claim against the Debtor's estate that is not an Administrative Expense, Priority Tax Claim, Secured Claim, or Priority Non-Tax Claim. For the avoidance of doubt, the PharmAthene Claim is a General Unsecured Claim under the Plan.
1.47 Insurance Plans means the Debtor's insurance policies and any agreements, documents, or instruments relating thereto.
1.48 Lien means "Lien" as defined in section 101(37) of the Bankruptcy Code.
1.50 Monitor means a person designated by PharmAthene as provided in Section 6.6(c) of the Plan.
1.51 New Common Stock means the common stock of the Reorganized Debtor that will be issued by the Reorganized Debtor to PharmAthene, simultaneously with the cancellation of the then existing Equity Interests in the Debtor, in the circumstances set forth in Section 4.3(b)(i)(C) or 4.3(b)(ii) of the Plan, if the treatment set forth in either such section of the Plan becomes applicable.
1.52 Notification Date means ten (10) calendar days prior to the date that is 120 days after the PharmAthene Final Order Date.
1.53 Person means "person" as defined in section 101(41) of the Bankruptcy Code.
1.54 Petition for Certiorari means a petition for writ of certiorari to the United States Supreme Court.
1.55 PharmAthene means PharmAthene, Inc., a Delaware corporation.
1.56 PharmAthene Action means the action commenced in the Delaware Court of Chancery styled PharmAthene, Inc. v. SIGA Technologies, Inc., Civ. Action No. 2627-VCP, including, without limitation, all appeals and remands.
1.57 PharmAthene Allowed Claim means the judgment and/or other award or relief, if any, granted in favor of PharmAthene with respect to the PharmAthene Claim as determined by the PharmAthene Final Order, including, without limitation, any attorneys' fees and expenses, and interest that may be granted and/or payable as provided in such order; provided, however, that notwithstanding anything to the contrary contained in the Plan, the PharmAthene Allowed Claim shall not in any circumstance be subject to any right of setoff, recoupment, subordination, avoidance, objection, reduction, or any other challenge.
1.58 PharmAthene Allowed Claim Treatment Date means the date that is one hundred twenty (120) days after the PharmAthene Final Order Date (such date, the "120th Day"); provided, however, that such date shall be automatically extended, one time only, for ninety (90) days to and including the date that is two hundred ten (210) days after the PharmAthene Final Order Date (such date, the "210th Day" and such 90 day extension period, if in effect, the "Extension Period"), if, and only, if (i) the Debtor or Reorganized Debtor, as applicable, has notified PharmAthene of its intention to satisfy the PharmAthene Allowed Claim pursuant to Option 1 as provided in Section 4.3(b)(i)(A) hereof, and (ii) on or before the Notification Date, the Debtor or Reorganized Debtor, as applicable, has paid to PharmAthene Twenty Million Dollars ($20,000,000), with such payment to be treated as provided in Section 4.3(b)(iv)(C) hereof.
Notwithstanding the immediately preceding sentence if (i) the Debtor or Reorganized Debtor, as applicable, has notified PharmAthene of its intention to satisfy the PharmAthene Allowed Claim pursuant to Option 1 as provided in Section 4.3(b)(i)(A) hereof, and (ii) solely if the PharmAthene Final Order provides that the Lump Sum Payment Award (as defined in Section 4.3(b)(i)(A) hereof) granted to PharmAthene pursuant to such order is due on a date that is later than the 120th Day (such later due date, the "Order Payment Date") then:
(X) solely in the circumstance where the Order Payment Date is a date that is on or before the 210th Day, and the Debtor or Reorganized Debtor, as applicable, on or before the Notification Date, has not paid to PharmAthene Twenty Million Dollars ($20,000,000) (and therefore the Extension Period is not effective), the PharmAthene Allowed Claim Treatment Date shall instead mean the Order Payment Date;
(Y) solely in the circumstance where the Order Payment Date is a date that is on or before the 210th Day, and the Debtor or Reorganized Debtor, as applicable, on or before the Notification Date, has paid to PharmAthene Twenty Million Dollars ($20,000,000) (and therefore the Extension Period is effective), the PharmAthene Allowed Claim Treatment Date shall instead mean the 210th Day; or
(Z) solely in the circumstance where the Order Payment Date is a date that is after the 210th Day, the PharmAthene Allowed Claim Treatment Date shall instead mean the Order Payment Date.
1.59 PharmAthene Claim means all Claims of PharmAthene asserted in and/or arising with respect to the PharmAthene Action, including all Claims asserted in the proof of claim filed by PharmAthene, Claim No. 17 on the official claims docket maintained in the Chapter 11 Case (as such claims docket may be amended or modified).
1.60 PharmAthene Final Order means an order or judgment entered in the PharmAthene Action which finally resolves the PharmAthene Action, and which has not been reversed, vacated, or stayed, except by this Plan after the Effective Date and by section 362(a) of the Bankruptcy Code prior to the Effective Date, and as to which (i) the time to appeal, petition for certiorari, or move for a new trial, reargument, reconsideration or rehearing has expired and as to which no appeal, petition for certiorari, or other proceeding for a new trial, reargument, reconsideration, or rehearing shall then be pending or (ii) if an appeal, writ of certiorari, new trial, reargument, reconsideration, or rehearing thereof has been sought, such order or judgment shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, reargument, or rehearing shall have been denied or resulted in no modification of such order, and the time to take any further appeal, petition for certiorari, or move for a new trial, reargument, reconsideration, or rehearing shall have expired; provided, however, that no order or judgment shall fail to be a PharmAthene Final Order solely because of the possibility that a motion under Rules 59 or 60 of the Rules of the Court of Chancery of the State of Delaware or equivalent provision has been or may be filed.
1.61 PharmAthene Final Order Date means the date on which the order or judgment entered in the PharmAthene Action becomes the PharmAthene Final Order.
1.62 Plan means this chapter 11 plan, including the schedules and exhibits hereto and the Plan Supplement, as the same may be amended, supplemented, or modified from time to time in accordance with the provisions of the Bankruptcy Code and the terms hereof.
1.63 Plan Covenants means the covenants set forth in the Schedule of Plan Covenants, as the same may be amended solely as provided therein, and which shall become effective on the Effective Date and remain in full force and effect through the Plan Covenant Termination Date.
1.64 Plan Covenant Event of Default means, subject to Section 6.5 hereof:
(X) a breach by the Reorganized Debtor of -
(1) one or more of the following Plan Covenants: (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xiv) (except for those subclauses specified in Section 1.64(Y) below), (xv), (xvi); (xvii), (xxi), (xxii), (xxiii), (xxiv) a, (xxiv) c, (xxiv) d, (xxv), (xxvii), (xxviii), (xxix), (xxx), (xxxi), (xxxii) or (xxxiii); or
(2) any other Plan Covenant that by its terms is expressly modified by a materiality qualifier or otherwise tied to the occurrence of a Material Adverse Effect (as such term is defined in the Plan Covenants); or
(3) any other Plan Covenant not otherwise included in clauses (1) or (2) above that specifies a dollar or percentage cap; provided, however, that notwithstanding the foregoing, to the extent the Reorganized Debtor exceeds the specified dollar or percentage cap for any Plan Covenant (inclusive of any Plan Covenants that contain a specified dollar or percentage cap referred to in this clause (3) and in the immediately preceding clauses (1) and (2) (hereinafter, a "Specified Basket" and any excess above the Specified Basket, an "Overage"), the Reorganized Debtor shall have available, in any fiscal year, an additional general basket of Five Hundred Thousand ($500,000) (a "Supplemental Basket") which shall be automatically utilized to increase the cap contained in such Specified Basket by an amount equal to the lesser of the Overage and the remaining balance available in the Supplemental Basket (with all amounts so utilized automatically reducing the amount of the Supplemental Basket dollar for dollar); provided, further, however, that (i) the Supplemental Basket cannot be used to increase the amount of any Specified Basket by more than one hundred percent (100%); (ii) any unused portion of the Supplemental Basket in one fiscal year may not be carried forward or backward to any other fiscal year; and (iii) once the Supplemental Basket has been fully utilized in any fiscal year, any subsequent Overage in any Specified Basket in such fiscal year shall constitute a breach of the Plan Covenant in which such Specified Basket is contained (which breach, for the avoidance of doubt, shall be subject to Section 6.5 hereof); or
(Y) a material breach of one or more of clauses (xiv) b, (xiv) c, (xiv) f, (xiv) h, (xiv) i, (xiv) m, (xiv) n, (xiv) o, (xiv) p, or (xiv) q of the Plan Covenants, or of any other Plan Covenant not included in clause (X) above.
In addition to the foregoing, to the extent it is asserted that a breach of a Plan Covenant has occurred based on an alleged action being outside the Ordinary Course of Business (as defined in the Plan Covenants), any such alleged breach must be material, provided, however, that in any litigation relating to such alleged breach, the Reorganized Debtor shall have the burden of proof with respect to both Ordinary Course of Business and materiality.
1.65 Plan Covenant Termination Date means the date on which the Plan Covenants terminate in accordance with Section 6.4 hereof.
1.66 Plan Supplement means a supplemental appendix to the Plan, which shall contain, among other things, substantially final forms of the Amended and Restated By-Laws, Amended and Restated Certificate of Incorporation (and the amendment to same described in clause (ii) in the last sentence of Section 4.4 hereof), Escrow Agreement, Transition Plan, Arbitration Agreement, confidentiality agreements contemplated pursuant to Section 6.7(c) hereof, Schedule of Assumed Contracts and Leases, Schedule of Rejected Contracts and Leases, and to the extent known, with respect to members of the Board of Directors, information required to be disclosed in accordance with section 1129(a)(5) of the Bankruptcy Code. All documents, schedules and other information contained in the Plan Supplement shall only be effective if they are in form and substance reasonably acceptable to the Debtor and the Creditors' Committee and, where applicable, PharmAthene; provided, however, that through the Effective Date, the Debtor, with the consent of the Creditors' Committee (and, with respect to those documents requiring PharmAthene's consent, PharmAthene), shall have the right to amend documents contained in, and exhibits to, the Plan Supplement. The Plan Supplement shall be filed with the Bankruptcy Court no later than the Plan Supplement Filing Date.
1.67 Plan Supplement Filing Date means five (5) Business Days before the Voting Deadline.
1.68 Postpetition Interest Rate means with respect to all General Unsecured Claims other than the PharmAthene Claim, the interest rate prescribed by any contract, lease, or judgment applicable thereto, or in the absence of any such contract, lease, or judgment, or if no rate is prescribed therein, the federal judgment rate pursuant to 28 U.S.C. 1961.
1.69 Prior Appeal Bond means the appeal bond posted in favor of PharmAthene in connection with the PharmAthene Action by Westchester Fire Insurance Company, dated June 25, 2012, in the amount of $2,695,912.41.
1.70 Priority Non-Tax Claim means any Claim, other than an Administrative Expense or a Priority Tax Claim, entitled to priority in payment as specified in section 507(a)(4), (5), or (7) of the Bankruptcy Code.
1.71 Priority Tax Claim means any Claim of a governmental unit of the kind entitled to priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.72 Reconsideration Motion means a motion for reconsideration filed with the Delaware Supreme Court in connection with the appeal before such Court of the Delaware Chancery Court Decision.
1.73 Released Parties means (i) all present and former directors and officers of the Debtor who were directors and/or officers at any time on or after the Commencement Date, and any other Persons who serve or served as members of management of the Debtor at any time on or after the Commencement Date, (ii) MacAndrews & Forbes Incorporated and all present and former directors and officers of MacAndrews & Forbes Incorporated who were directors and/or officers at any time after the Commencement Date, and any other Persons who serve or served as members of management of MacAndrews & Forbes Incorporated any time after the Commencement Date; (iii) all post-Commencement Date advisors, consultants, agents, counsel, or other professionals of or to the Debtor or the Creditors' Committee, and (iv) all current and former members (solely in their capacity as members) of the Creditors' Committee, and their respective officers, directors, agents, and employees (including, without limitation, attorneys, advisors, consultants and other professionals engaged by individual members of the Creditors' Committee).