Peregrine Systems Inc. Contracts
Sample Business Contracts
Bankruptcy Order - Peregrine Systems Inc.
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
PEREGRINE SYSTEMS, INC., et al,(1) ) Case No. 02-12740 (JKF)
) (Jointly Administered)
Debtors. )
RE: DOCKET NOS. 1902,2163,2229 AND 7/8/03 AGENDA ITEM NO. 1
ORDER PURSUANT TO SECTION 1129
OF THE BANKRUPTCY CODE CONFIRMING DEBTORS'
FOURTH AMENDED PLAN OF REORGANIZATION, AS MODIFIED,
DATED JULY 14, 2003
Peregrine Systems, Inc. ("Peregrine") and its wholly-owned
subsidiary, Peregrine Remedy, Inc. ("Remedy"), debtors and debtors in possession
(collectively, the "Debtors"), having on September 22, 2002 (the "Petition
Date") filed voluntary petitions for relief under the provisions of Chapter 11
of Title 11 of the United States Code, 11 U.S.C. Sections 101 et seq., as
amended (the "Bankruptcy Code"); and having on May 27, 2003 filed the Debtors'
Fourth Amended Plan of Reorganization (as modified, the "Plan") and the
Disclosure Statement in support thereof (the "Disclosure Statement"); and the
Court having entered an order on May 30, 2003 (the "Disclosure Statement Order")
approving the Disclosure Statement, the Debtors' solicitation procedures with
respect to the Plan, finding that the Disclosure Statement contained "adequate
information" within the meaning of section 1125 of the Bankruptcy Code and that
the Disclosure Statement complied will all applicable laws, rules and
regulations concerning the
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(1) The Debtors are Peregrine Systems, Inc. and its direct wholly-owned
subsidiary, Peregrine Remedy, Inc.
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adequacy of disclosure; and the Court having found that due notice of the
hearing on the Disclosure Statement (the "Disclosure Statement Hearing") was
provided in accordance with the Disclosure Statement Order and all applicable
provisions of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure
(the "Bankruptcy Rules"); and the Court having further scheduled a hearing
pursuant to Sections 1128 and 1129 of the Bankruptcy Code and Bankruptcy Rule
3017(c) to consider confirmation of the Plan (the "Confirmation Hearing"); and
notice of filing of the Plan and Disclosure Statement having been distributed by
the Debtors on or about June 2, 2003 to all holders of claims against and equity
interests in the Debtors together with, in the case of Holders of Impaired
Claims and/or Interests, full copies of the Plan and Disclosure Statement and
forms of ballots in connection with the solicitation of votes to accept or
reject the Plan, provided, however, ballots were distributed to Holders of Class
7 Claims after the Valuation Hearing together with the Supplemental Notice
(defined below); and the Debtors having distributed on or about June 16, 2003 to
all creditors, holders of record of the Notes and Old PSI Common Stock, and
other parties-in-interest a supplemental notice prepared by the Debtors and a
statement of the Committee relating to the results of the Valuation Hearing and
the potential allocation of New PSI Common Stock under the Plan (the
"Supplemental Notice"); and a Ballot Analysis having been filed with this Court
on July 7, 2003; and the Court having considered the objections, including
limited objections, to confirmation (the "Objections") filed by (i) the
Committee, (ii) the Indenture Trustee, (iii) Microsoft Corporation and MSLI, GP,
(iv) Heywood Waga, (v) BRE/East Golf Road LLC, (vi) Quaker Sales and
Distribution, Inc., (vii) Missouri Department of Revenue, (viii) Longacre Master
Fund, Ltd., (ix) Charles Noell, III, (x)
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John J. Moores, and (xi) Al O'Rourke; and upon the record of the Confirmation
Hearing and all of the affidavits and declarations filed, evidence adduced and
arguments of counsel made at the Confirmation Hearing; and capitalized terms
used and not defined herein having the respective meanings ascribed to them in
the Plan; and after due deliberation and sufficient cause appearing therefor,
this Court hereby FINDS THAT:
1. The Disclosure Statement, Plan, ballots, and notice
of the Confirmation Hearing were transmitted and served in compliance with the
Disclosure Statement Order and the Bankruptcy Rules, and such transmittal and
service constituted adequate and sufficient notice of the Confirmation Hearing.
Publication of the notice of the Confirmation Hearing occurred in accordance
with the Disclosure Statement Order. No other or further notice shall be
required.
2. The Plan complies with all applicable provisions of
the Bankruptcy Code, as required by section 1129(a)(1) of the Bankruptcy Code.
3. The Plan has been duly accepted by the classes of
creditors whose acceptance is required by law for confirmation of the Plan in
accordance with the provisions of Sections 1126 and 1129 of the Bankruptcy Code.
4. The Debtors, as the proponents of the Plan, have
complied with all applicable provisions of the Bankruptcy Code, as required by
section 1129(a)(2) of the Bankruptcy Code.
5. The Plan has been proposed in good faith and not by
any means forbidden by law, as required by section 1129(a)(3) of the Bankruptcy
Code.
6. As required by section 1129(a)(4) of the Bankruptcy
Code, any payment
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made or to be made by the Debtors, or by a person issuing securities or
acquiring property under the Plan, to professionals retained by the Debtors for
services or for costs and expenses in or in connection with the Chapter 11
Cases, or in connection with the Plan and incident to the Chapter 11 Cases, have
been approved by, or are subject to the approval of this Court as reasonable.
7. As required by section 1129(a)(5) of the Bankruptcy
Code, the Debtors, as the proponents of the Plan, have disclosed the identity
and affiliations of all individuals proposed to serve, after Confirmation of the
Plan, as an officer of the Reorganized Debtors under the Plan. Further, the
Debtors shall file an amended Supplemental Plan Exhibit J prior to or on the
Effective Date identifying the name and affiliations of all individuals proposed
to serve as a director of the Reorganized Debtors as of the Effective Date in
accordance with Section VII.F.2 of the Plan. Subject to paragraph 40 below, the
appointment to, or continuance in, office of such individuals is consistent with
the interests of creditors and equity security holders and with public policy.
The Debtors, as the proponents of the Plan, have disclosed the identity of all
insiders that will be employed or retained by the Reorganized Debtors under the
Plan and the nature of any compensation of such insiders.
8. No governmental regulatory commission has
jurisdiction, after Confirmation of the Plan, over the rates of the Reorganized
Debtors, and the Plan complies with section 1129(a)(6) of the Bankruptcy Code.
9. As required by section 1129(a)(7) of the Bankruptcy
Code, with respect to each Impaired Class of Claims or Interests under the Plan,
each holder of a Claim or Interest of each such Class has accepted the Plan, or
will receive or retain under the Plan on account of such
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Claim or Interest property of a value, as of the Effective Date, that is not
less than the amount that such holder would so receive or retain if the Debtors
were liquidated under Chapter 7 of the Bankruptcy Code on such date.
10. The Plan complies with section 1129(a)(9) of the
Bankruptcy Code in that:
a. With respect to any claim for an
administrative expense of the kind described in section 503(b) of the Bankruptcy
Code, the Plan provides that such Administrative Expense is not impaired and
further provides that the holder of such Administrative Expense will be paid by
the Reorganized Debtors, on account of such Administrative Expense, Cash equal
to the allowed amount of such Administrative Expense on the later of (i) the
Effective Date and (ii) the date such Administrative Expense becomes Allowed;
provided, however, that (1) such holder may be treated on such less favorable
terms as may be agreed to by such holder, and (2) any such Administrative
Expense representing liabilities incurred by the Debtors in the ordinary course
of their business during the Chapter 11 Cases shall be paid by the Reorganized
Debtors in accordance with the terms and conditions of the particular
transactions and agreements relating thereto; and
b. With respect to any Tax Claim, to the extent
that it is entitled to priority in payment under section 507(a)(8) of the
Bankruptcy Code, (1) each Holder of any such Claim will receive on the Effective
Date Cash equal to the portion of the Allowed Tax Claim due and payable on or
prior to the Effective Date according to applicable non-bankruptcy law; (2) any
Allowed Tax Claim (or portion thereof) not yet due and payable as of the
Effective Date will be paid by the Reorganized Debtors no later than when due
and payable under applicable non-
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bankruptcy law without regard to the commencement of the Chapter 11 Cases;
provided that (3) any default prior to the Effective Date with respect to Tax
Claims shall be deemed cured and (4) upon further request by the Debtors, the
Court shall determine the amount of any Disputed Claim for, or issues pertaining
to, Tax Claims.
11. The Plan has been accepted by at least one Class of
Impaired Claims, excluding votes cast by insiders, as required by section
1129(a)(10) of the Bankruptcy Code.
12. Confirmation of the Plan is not likely to be followed
by the liquidation, or the need for further financial reorganization, of the
Reorganized Debtors or any successor to the Debtors under the Plan, as required
by section 1129(a)(l1) of the Bankruptcy Code.
13. All fees payable under 28 U.S.C. Section 1930 have
been paid or the Plan provides for the payment of all such fees on the Effective
Date, as required by section 1129(a)(12) of the Bankruptcy Code.
14. As required by section 1129(a)(13) of the Bankruptcy
Code, any Claims against the Debtors for payment of any retiree benefits, as
that term is defined in section 1114 of the Bankruptcy Code, are not impaired
under the Plan.
15. Claims in Classes 2A, 2B, 2C, 3, 4, 6, 7, 8, and
Interests and Claims in Class 9 are Impaired under the Plan.
16. Holders of Claims in Classes 2A, 2B, 2C, 3, 4, 6, and
8, and Interests and Claims in Class 9 have voted to accept the Plan. Holders of
Claims in Classes 1, 5 and 8A and Interests in Class 10 are Unimpaired and are
conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code
section 1126(g).
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17. With respect to the holders of Claims in Class 7, the
Plan does not discriminate unfairly and is fair and equitable within the meaning
of section 1129(b)(2)(B)(i) because such holders shall receive property of a
value as of the Effective Date equal to the Allowed amounts of such Claims under
the Plan.
18. The Plan provides adequate means for its
implementation, as required by section 1123(a)(5) of the Bankruptcy Code.
19. The Plan provides for the inclusion in the Debtors'
certificate of incorporation all provisions required by section 1123(a)(6) of
the Bankruptcy Code.
20. All settlements and compromises of Claims set forth
in the Plan reflect an appropriate exercise of Debtors' business judgment and
are fair, reasonable, and in the best interest of the Estates for purposes of
all applicable provisions of the Bankruptcy Code and the Federal Rules of
Bankruptcy Procedure, including, without limitation, Bankruptcy Rule 9019(a).
21. The Debtors will have, immediately upon the Effective
Date, sufficient Cash to make all payments required to be made on the Effective
Date pursuant to the terms of the Plan.
22. It is not the principal purpose of the Plan to avoid
taxes or the application of any federal or state securities laws.
23. The Plan has been proposed in good faith and in
compliance with applicable provisions of the Bankruptcy Code; and the
solicitation of acceptances or rejections of the Plan by all Persons and the
offer, issuance, sale, or purchase, of a security offered or sold under the Plan
has been in good faith and in compliance with applicable provisions of the
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Bankruptcy Code.
24. The Court finds that the claim of BRE/East Golf Road,
LLC ("BRE") is a Remedy Rejection Claim as defined in the Plan. Based on the
foregoing finding, and the modifications to the Plan filed on July 3, 2003, the
BRE objection to confirmation of the Plan is resolved.
25. Subject to Section V.B.9 of the Plan, substantive
consolidation of the Chapter 11 Cases as contemplated under the Plan is in the
best interests of the Debtors, the Estates and their creditors.
Accordingly, it is hereby ORDERED, DETERMINED AND DECREED
THAT:
CONFIRMATION OF THE PLAN, AS MODIFIED
26. Any and all modifications made by the Debtors to the
Plan subsequent to the filing and distribution of the Disclosure Statement to
parties-in-interest, as reflected in the Plan filed on July 14, 2003, and any
and all modifications set forth herein are non-material and are deemed accepted
by all interested parties who have timely voted to accept the Plan. Under
Bankruptcy Rule 3019, these modifications do not require additional disclosure
under Section 1125 of the Bankruptcy Code or resolicitation of acceptances or
rejections of the Plan under Section 1126 of the Bankruptcy Code.
27. Pursuant to section 1129 of the Bankruptcy Code, the
Plan is hereby confirmed and the Debtors are authorized and directed, without
need for action by any directors and/or shareholders to implement the Plan in
accordance with the terms thereof and to take any
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and all actions contemplated to be taken by the Debtors under the Plan
including, but not limited to, executing, delivering, acknowledging, sealing,
filing, submitting or authenticating any documents the Debtors deem necessary to
implement the transactions provided for in the Plan.
28. The Objections to confirmation of the Plan that have
not been withdrawn or consensually resolved are overruled.
29. The record of the Confirmation Hearing is hereby
closed.
30. In accordance with section 1141 of the Bankruptcy
Code, the provisions of the Plan shall be binding upon the Debtors, the
Reorganized Debtors, any Person acquiring or receiving property under the Plan,
any party to a contract with the Debtors, any lessor or lessee of property to or
from the Debtors and any holder of a Claim against or an Interest in the
Debtors, whether or not such Claim or Interest is Impaired under the Plan and
whether or not such holder has filed a proof of claim or has accepted the Plan.
31. Except as provided in the Plan or this Order, the
rights afforded under the Plan and the treatment of Claims, Administrative
Expenses and Interests thereunder will be in exchange for and in complete
satisfaction, discharge and release of all Claims and Administrative Expenses
and termination of all Interests, including any interest accrued on Claims from
the Petition Date. Except as provided in the Plan or this Order, Confirmation
will: (i) discharge the Debtors and Reorganized Debtors from all Claims,
Administrative Expenses or other debts that arose before the Confirmation Date
and all debts of the kind specified in sections 502(g), 502(h) or 502(i) of the
Bankruptcy Code, whether or not (a) a proof of Claim based on such debt is filed
or deemed filed pursuant to section 501 of the Bankruptcy Code, (b) a
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Claim based on such debt is allowed pursuant to section 502 of the Bankruptcy
Code or (c) the Holder of a Claim or Administrative Expense based on such debt
has accepted the Plan; and (ii) terminate all Interests and other rights of
Interest Holders in the Debtors. As of the Confirmation Date, except as provided
in the Plan or this Order, all Entities shall be precluded from asserting
against the Debtors, the Reorganized Debtors, their successors or their
property, any other or further claims, debts, rights, causes of action,
liabilities or equity interests based upon any act, omission, transaction or
other activity of any nature that occurred prior to the Confirmation Date.
32. Except as provided in the Plan (including Section
XI.A.2) or herein, as of the Confirmation Date, all Entities that have held,
currently hold or may hold a Claim, Administrative Expense, Interest or other
debt or liability that is discharged, Impaired or terminated pursuant to the
terms of the Plan are permanently enjoined from taking any of the following
actions either (x) against the Companies or their property on account of all or
such portion of any such Claims, Administrative Expenses, Interests, debts or
liabilities that are discharged or terminated or (y) against any Person with
respect to any Right of Action or any objection to a Claim, Administrative
Expense or Interest, which Right of Action or objection, under the Plan, is
waived, released or exclusively retained by either of the Companies: (a)
commencing or continuing, in any manner or in any place, any action or other
proceeding; (b) enforcing, attaching, collecting or recovering in any manner any
judgment, award, decree or order, (c) creating, perfecting or enforcing any lien
or encumbrance, (d) asserting a setoff, right of subrogation or recoupment of
any kind against any debt, liability or obligation due, and (e)
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commencing or continuing, in any manner or in any place, any action that does
not comply with or is inconsistent with the provisions of the Plan.
33. Except as otherwise provided in the Plan (such as in
respect to the Current D&O Policies as set forth in Section VII.A.) or herein,
on and after the Effective Date, all property of the Estates of the Companies,
including all Rights of Action (but excluding the Litigation Claims, and any
Rights of Action expressly released pursuant to the Plan), and any property
acquired by the Companies under or in connection with the Plan will vest in the
Reorganized Debtors free and clear of all Claims, Liens, charges, other
encumbrances and Interests, On and after the Effective Date, the Debtors may
operate their businesses and may use, acquire and dispose of property and
compromise or settle any Claims or Interests without supervision or approval by
the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or
Bankruptcy Rules, other than restrictions expressly imposed by the Plan or this
Order.
34. On the Effective Date, all actions contemplated by
the Plan shall be deemed authorized and approved in all respects (subject to the
provisions of the Plan), including, without limitation, the following: (a) the
adoption and the filing with the appropriate Secretary of State of the Amended
and Restated Charters, substantially in the form to be filed with the Court
prior to or on the Effective Date, with the consent of the Committee and Equity
Committee; (b) the adoption of the Amended and Restated By-Laws, substantially
in the form to be filed with the Court prior to or on the Effective Date, with
the consent of the Committee and Equity Committee; (c) the issuance of the New
PSI Common Stock and the Reorganization Notes; (d) the cancellation of the Notes
or Interests of Holders for which the Claims or Interests
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are Disallowed; (e) the creation and establishment of the Litigation Trust; (f)
the execution and the delivery of, and the performance under, each of the Plan
Documents and all documents and agreements contemplated by or relating to any of
the foregoing; and (g) the adoption of the 2003 Equity Incentive Plan and any
other Employee Stock Plan.
PLAN EFFECTIVENESS
35. Except as set forth below, the Plan shall not become
effective (i.e., the Effective Date shall not occur) until and unless the
Debtors file with the Court and serve on parties-in-interest the substantially
final forms of (i) the Amended and Restated Charter(s), (ii) the Amended and
Restated By-Laws, (iii) the Indenture, (iv) the Debtors' Mutual Release
Agreement and Collection/Repurchase Agreement with the Purchaser Banks, (v)
amendment to Supplemental Plan Exhibit J identifying the proposed directors as
of the Effective Date, (vi) the Litigation Trust Agreement, (vii) the Litigation
Trustee Compensation Disclosure, and/or (viii) any other ancillary documents
related to the implementation of the Plan, which forms described in the
preceding clauses (i) through (viii) shall have been agreed to by the Debtors,
Committee and Equity Committee (the "Condition Precedent"); provided further
that the Debtors shall use their best efforts to facilitate the occurrence of
the Effective Date as soon as possible after the first Business Day that is at
least ten (10) days after the Confirmation Date and the Condition Precedent for
Plan effectiveness may be waived in whole or in part by the Debtors subject to
the consent of both the Committee and Equity Committee, in which case the Plan
shall immediately become effective without further Court order upon the Debtors
filing a notice with the Court that the Condition Precedent has been so waived;
provided further, however, that if the Condition
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Precedent has not occurred or been waived and the Effective Date has not
occurred by September 2, 2003, then the Effective Date shall automatically
occur, and the Plan shall be deemed to become effective without further Court
order or notice, on September 2, 2003.
AUTHORITY TO IMPLEMENT PLAN
36. The Reorganized Debtors are hereby authorized and
directed to enter into all agreements and other instruments contemplated by or
to be entered into pursuant to the Plan and its provisions.
37. In accordance with section 1142 of the Bankruptcy
Code, the Debtors, the Reorganized Debtors and any other person designated
pursuant to the Plan is authorized, empowered and directed, without need for the
consent, approval or other action by any directors or shareholders, to execute,
deliver, acknowledge, adopt, ratify, certify, file and record any document, and
to take any other action necessary or appropriate to implement, consummate and
otherwise effect the Plan in accordance with its terms in all material respects,
and all such persons shall be bound by the terms and provisions of all documents
executed and delivered by them in connection with the Plan.
38. In accordance with Article VII, Q.2. of the Plan, if
on or before ninety (90) days after the Effective Date, any one or more of the
initial directors selected by the Committee shall resign or otherwise be
unwilling or unable to serve as a director, his or her successor shall be
selected by the remaining initial directors selected by the Committee, or their
successors.
39. In accordance with Article VII. Q.2. of the Plan, if
on or before ninety (90) days after the Effective Date, any one or more of the
initial directors selected by the Equity
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Committee shall resign or otherwise be unwilling or unable to serve as a
director, his or her successor shall be selected by the remaining initial
directors selected by the Equity Committee, or their successors.
40. Notwithstanding any provision herein or in the Plan,
any party-in-interest may object to the inclusion of any Person identified on
Supplemental Plan Exhibit J (to be filed prior to or on the Effective Date) on
the basis that the Debtors are not in compliance with 11 U.S.C. Section
1129(a)(5). Any such objection must be filed within ten (10) days of the filing
and service of Supplemental Plan Exhibit J, and any unresolved objections shall
be determined by the Court.
41. Further, in the event that any successor directors
are selected within ninety (90) days after the Effective Date pursuant to the
preceding paragraphs 38 and 39, the Reorganized Debtors shall file with the
Court and serve on parties-in-interest relevant disclosures in respect to any
such successor directors. Parties-in-interest may object to the selection of any
Person(s) identified in said disclosures on the basis that the requirements of
11 U.S.C. Section 1129(a)(5) are not satisfied. Any objections must be filed
within ten (10) days of the filing and service of the applicable disclosure, and
any unresolved objections shall be determined by the Court. If no objections are
timely received, the Reorganized Debtors shall be authorized to appoint the
proposed successor director(s) and shall be deemed to be in compliance with 11
U.S.C. Section 1129(a)(5) without need of any further order or notice.
42. With respect to Fleet, Trade Bank and SVB, the
Debtors, the Reorganized Debtors and each Peregrine Party who are signatories
thereto each are authorized, empowered
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and directed, without need for the consent, approval or other action by any
directors or shareholders, to execute, deliver and perform all obligations
arising under the Mutual Release Agreement and Agreement Regarding Purchaser
Bank Arrangements substantially in the forms to be filed with the Court on or
prior to the Effective Date.
CONSOLIDATION
43. In accordance with and pursuant to Section VII.B of
the Plan, subject to Section V.B.9. of the Plan (relating to Remedy Rejection
Claims), the Chapter 11 Cases shall be substantively consolidated for purposes
of the Plan.
44. Upon substantial consummation of the Plan in respect
to Remedy, the Debtors shall file with the Court and serve upon the United
States Trustee and Post-Emergence Equity Committee a notice of intent of
Reorganized Remedy to request the closing of the Chapter 11 Case of Remedy
pursuant to 11 U.S.C. Section 350(a). If no objections are received within
twenty (20) days of service of such notice, Reorganized Remedy shall submit to
the Court a certificate of counsel and form of order providing for the closing
of Remedy's Chapter 11 Case.
45. Notwithstanding any of the foregoing, the obligation
of each and every debtor to pay quarterly fees pursuant to 28 U.S.C. Section
1930(a)(6) shall continue until such time as a particular case is closed,
dismissed or converted.
DISTRIBUTIONS
46. The record date and time for purposes of determining
which Holders of Allowed Class 7 Claims and Allowed Class 9 Interests are
entitled to receive any and all distributions on account thereof, irrespective
of the date or number of distributions, shall be the
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Effective Date.
47. The provisions in Article IX of the Plan governing
Disputed Claims, Unclaimed Property, distributions and related matters are
hereby approved and found to be fair and reasonable.
48. Notwithstanding any provision in the Plan and/or any
prior election that may have been set forth by the Creditor on a ballot on the
Plan, Holders of Class 8 Claims can elect to receive the Class 8.B. Treatment on
account of their Claims upon written notice to the Debtors by no later than the
60th day after the Effective Date ("Election Deadline"). In the event that a
Class 8 Creditor who elected or is deemed to have elected the Class 8.A.
Treatment and who receives an initial Cash distribution pursuant to the Plan
subsequently determines to elect the Class 8.B. Treatment prior to the Election
Deadline, such Creditor shall be entitled to Class 8.B. Treatment in respect to
its Allowed Claim; provided, however, the initial Cash distribution shall be
credited against subsequent distributions.
49. On the Effective Date, the transfers of assets by the
Debtors contemplated by the Plan (a) shall be legal, valid and effective
transfers of property, (b) vest or will vest in the transferee good title to
such property free and clear of all Claims, Interests and Liens, except those
provided for in the Plan or this Order, (c) do not or will not constitute
fraudulent conveyances under any applicable law and (d) do not and will not
subject the Debtors, Reorganized Debtors or property so transferred to any
liability by reason of such transfer under applicable law or any theory of law
including, without limitation, any theory of successor or transferee liability.
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50. For the purpose of distributions under the Plan the
Indenture Trustee shall be deemed to be the sole holder of all Note Claims.
Accordingly, all distributions on account of Allowed Class 7 Claims (including
New PSI Common Stock, Reorganization Notes and Cash) shall be distributed to the
Indenture Trustee, for further distribution in accordance with the terms of the
Indenture and/or Plan. Except as otherwise expressly provided in the Plan, the
provisions of the Indenture shall govern the method of delivery by the Indenture
Trustee of distributions and the treatment of undeliverable distributions.
51. The rights and obligations of the Debtors under the
Indenture will be deemed canceled pursuant to section 1123(a)(5) of the
Bankruptcy Code on the Effective Date, except to the extent that any provisions
of the Indenture or obligations of the Indenture Trustee are included in, or are
incorporated by reference into the Plan or this Order. Notwithstanding the
foregoing, the Indenture will continue in effect to the extent necessary to
allow the distributions on account of the Notes in accordance with the Plan and
to otherwise implement the Plan, and will continue to govern the relationship
between the Noteholders and the Indenture Trustee; provided, however, that after
the performance of the duties of the Indenture Trustee required under the
provisions of the Plan and this Order, the Indenture Trustee, and its respective
successors and assigns will be relieved of all obligations associated with the
Indenture, and provided, further that nothing herein shall affect the charging
lien of the Indenture Trustee or any of the provisions of the Indenture
regarding the application of monies collected or method of payment of
distributions to Noteholders.
52. The table set forth in Section V.A. of the Plan, in
respect to the portion
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thereof relating to Class 9, is hereby corrected to provide as follows
(strike-through deletions,
*
and additional language bracketed and in bold):
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9 Class 9 - On the Effective Date, each Holder of An Allowed Impaired Entitled to
Subordinated Subordinated Claim/Interest shall receive its Vote; Vote
Claims/Interests Pro Rata share of the Initial Class 9 Securities Solicited
in accordance with Section V.B.10. hereof. In
accordance with Section V.B. 10. hereof, said Holder
shall receive, as applicable, Interim Stock
Adjustment Distribution(s). On the Final Stock
Distribution Date, each Holder shall receive its Pro
Rata share of the remaining Reserved New PSI Common
Stock in accordance with Section V.B.10. of the
Plan; provided, however, in the event that (i)
Reorganized PSI determines (including, without
limitation, because Holders of Claims in Class 7 may
be entitled to further distributions of New PSI
Common Stock under the Plan) to extend the Final
Stock Adjustment Distribution Date one or more times
for up to one additional year, and (ii) Reorganized
PSI, the Stock Disbursing Agent and/or the
Post-Emergence Equity Committee cannot agree as to
the final allocation and distribution of any
remaining Reserved New PSI Common Stock, any such
disputes shall be resolved by the Court. Further,
each Holder shall be entitled to receive its Pro
Rata share of the Litigation Proceeds in accordance
with Section VII.I. of the Plan. On the Effective
Date, the Old PSI Common Stock shall be cancelled.
With the exception of the Designated Stock Options,
all Old PSI Common stock rights must be exercised in
accordance with the notice to be sent by Peregrine
to the relevant holders after entry of the Order
Approving Disclosure Statement but in all events no
later than the Ballot Deadline or be deemed
cancelled and of no further force and effect.
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53. Section V.B. 10.a. of the Plan is hereby modified to
provide in its entirety as follows:
"a. Initial Distributions. On the Initial Stock
Distribution Date, each Holder of an Allowed Subordinated
Claim/Interest as of the Effective Date will receive its Pro Rata share
of the Initial Class 9 Securities, provided that, notwithstanding any
other provision in the Plan, in the event that the calculation and
determination of the applicable Pro Rata shares of the Initial Class 9
Securities to be distributed to Holders of Allowed Subordinated
Claims/Interests cannot be practically done as of the Initial Stock
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Distribution Date because certain Securities Claims remain unliquidated
or Disputed or for other reasons, any and all of the Initial Class 9
Securities may be held by the Stock Disbursing Agent until said
calculation and determination can be done and such stock shall
distributed to Holders of Allowed Subordinated Claims/Interests as soon
as practicable thereafter on the immediately following Interim Stock
Adjustment Distribution Date(s) or earlier if practicable as determined
by the Stock Disbursing Agent and Post-Emergence Equity Committee. Any
and all Initial Class 9 Securities held by the Stock Disbursing Agent
pursuant to this provision, pending distribution, as set forth in
Section VII.D.1. shall remain subject to a proxy, voting agreement,
voting trust or other similar arrangement by which all voting rights
therein shall be exercised by the Post-Emergence Equity Committee."
RIGHTS OF ACTION
54. Unless a Right of Action against any Person was
expressly waived, relinquished, released, compromised or settled as provided or
identified in the Plan or any Final Order, the Debtors on behalf of themselves,
the Reorganized Debtors, and the Litigation Trustee have retained and reserved
all Rights of Action, as applicable, for later adjudication and, therefore, no
preclusion doctrine, including, without limitation, the doctrines of res
judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel
(judicial, equitable or otherwise) or laches shall apply to such Rights of
Action upon or after the Confirmation or Consummation of the Plan. Further, the
failure to identify in the Plan or Disclosure Statement any potential or
existing Right of Action generally or specifically does not limit the rights of
the Debtors, Reorganized Debtors, and Litigation Trustee, as applicable, to
pursue such actions.
RELEASES AND EXCULPATIONS
55. Each of the directors, officers, employees, members
and professionals (acting in such capacity) of the Companies and the respective
members and professionals of the Committee and Equity Committee, and the
Companies, Committee and Equity Committee themselves (collectively, the "Plan
Participants") will neither have nor incur any liability to any
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Person for any act taken or omitted to be taken in connection with or related to
the formulation, preparation, dissemination, implementation, Confirmation or
consummation of the Plan, the Disclosure Statement, the Confirmation Order or
any contract, instrument, release or other agreement or document created or
entered into, or any other act taken or omitted to be taken in connection with
the Plan, the Disclosure Statement, or the Confirmation Order, including
solicitation of acceptances of the Plan; provided, however, that this
exculpation shall not preclude liability for any Plan Participant as to acts or
omission determined in a Final Order to have constituted gross negligence or
willful misconduct.
56. Notwithstanding any provisions of the Plan,
Disclosure Statement, or this Confirmation Order to the contrary, the Plan
(including without limitation the discharge, rejection, and injunctive
provisions of the Plan) shall not in any way preclude, modify, impair, or
otherwise affect any rights that John J. Moores, Charles E. Noell, III, and/or
any other present or former director or officer of either or both of the Debtors
(collectively the "Officers and Directors"), or any of them, have or may have
under applicable Delaware or other law, Peregrine's by-laws, certificate or
articles of incorporation, or other charter documents, and/or any written
indemnification agreements with one or both of the Debtors which rights the
Officers and Directors, or any of them, could otherwise assert in connection
with any Litigation Claims and/or Rights of Action that have been, or may in the
future be, filed, prosecuted, threatened, or otherwise asserted against any of
the Officers and Directors by the Debtors, the Reorganized Debtors, the
Litigation Trust, any other assignee of the Debtors or the Reorganized Debtors,
or any of them, or any other person at any time (including without limitation by
way of right of
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offset and/or recoupment (whether through an affirmative defense, counterclaim,
other applicable procedure), request for payment of litigation expenses
(including attorneys' fees) in defense of any such action, suit, proceeding, or
other matters pursuant to Section 145(c) of the Delaware General Corporation
Law, or otherwise).
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
57. Pursuant to section 365(b) of the Bankruptcy Code and
Article VIII of the Plan, as of the Effective Date, the Debtors' unexpired
leases and executory contracts identified on Plan Exhibit A and all Customer and
Reseller Contracts other than those specifically identified on Plan Exhibit B
are assumed by the Debtors. The Debtors shall pay the non-debtor parties to such
unexpired leases and executory contracts the amounts as set forth on Plan
Exhibit A in full and final satisfaction of the Debtors' obligation to cure any
defaults and pay any pecuniary loss arising under such unexpired leases and
executory contracts which are required to be paid as a condition of assumption
of the unexpired lease or executory contract pursuant to Section 365(b) of the
Bankruptcy Code.
58. All other executory contracts and unexpired leases of
the Debtors shall be deemed rejected by the Debtors immediately prior to the
Effective Date, including but not limited to those contracts and unexpired
leases set forth on Plan Exhibit B, unless such contracts or leases (a) are
listed on Plan Exhibit A; (b) are Customer and Reseller Contracts not
specifically identified on Plan Exhibit B; (c) are expressly assumed prior to
the Effective Date; (d) are the subject of a stipulation to extend time to
assume or reject; or (e) are the subject of a pending motion by the Debtors to
assume as of the Effective Date even if such motion is heard
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following the Effective Date.
59. Notwithstanding the provisions of paragraph 57 of
this Order, if any party objects to the assumption of any executory contract or
unexpired lease based on any ground, said party must file and serve on the
Debtors, the Committee, the Equity Committee and the U.S. Trustee a written
objection setting forth the basis of its objection by no later than [September
8], 2003, 4:00 Eastern time, and the Court shall hold a hearing on any
unresolved disputes at a hearing to be held on [September 18], 2003 at [1:30]
p.m., and only after the Court resolves such disputes shall the relevant
contract or lease be deemed assumed or rejected, as applicable, as of the
Effective Date unless expressly provided otherwise in the related order
resolving the dispute. If this Court ultimately determines that the Debtors
cannot assume the executory contract or unexpired lease, then said lease or
contract shall automatically thereupon be deemed to have been excluded from Plan
Exhibit A and shall be rejected pursuant to Section VIII.D. of the Plan.
Notwithstanding the foregoing, if the Debtors in their discretion determine that
the amount asserted to be the necessary "cure" amount would, if ordered by the
Bankruptcy Court, make the assumption of the contract or lease imprudent, then
the Debtors may, prior to the entry of any such order, elect to reject the
contract or lease pursuant to the Plan. Notwithstanding any contrary provision
in the Plan or this Order, any Claim arising from the rejection of any lease or
contract pursuant to this Paragraph 59 shall be filed no later than: thirty (30)
days after entry of an order rejecting such lease or contract, or any deadline
that may be expressly set forth in such order.
60. An Allowed Claim under an executory contract or an
unexpired lease that
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has been rejected, if any, shall constitute a Class 6 Claim, Class 8 Claim or
Class 8 A Claim, as applicable. All such Claims shall be filed thirty (30) days
from the date this Order is entered on the Court's docket. Any Claim based upon
the rejection of a contract or lease other than those Claims which have
previously been Allowed will be barred if a proof of Claim is not timely filed.
61. All of the Debtors' right, title and interest in any
contracts, leases or agreements entered into by the Debtors after the Petition
Date, and/or not subject to assumption or rejection under Bankruptcy Code
section 365, shall revest in the Reorganized Debtors without further action.
POST-EFFECTIVE-DATE ENTITIES
62. In accordance with Plan Section VII.I and the
Litigation Trust Agreement, the form of which shall be filed by the Debtors
prior to or on the Effective Date, as of the Effective Date, the Litigation
Trustee shall be authorized to exercise its powers, rights and duties as set
forth in the Plan and the Litigation Trust Agreement. Further, the Litigation
Trustee shall be the successor to PSI's attorney-client privilege in respect to
the investigation and prosecution of the Litigation Claims; nothing in the Plan
or herein shall act as or constitute a waiver of PSI's attorney-client and/or
other applicable privileges.
63. In accordance with Plan Section VII.J, as of the
Effective Date, the Post-Emergence Equity Committee shall be authorized to
exercise its powers, rights and duties as set forth in the Plan. The
Post-Emergence Equity Committee may employ such professionals and agents as it
deems necessary for carrying out its duties and responsibilities, and the
reasonable
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and actual fees and expenses of any such professionals and agents shall be paid
by the Reorganized Debtors up to a maximum aggregate amount of $200,000 without
any further application, notice or Court order. The applicable professionals
and/or Post-Emergence Equity Committee shall be entitled to submit applications
for payment of any such fees and expenses in excess of $200,000. The Reorganized
Debtors shall be entitled to object thereto on any grounds and shall pay such
fees and expenses only as may be ordered by the Bankruptcy Court.
SECURITIES AND EQUITY RELATED MATTERS
64. The offer and sale of New PSI Common Stock under the
Plan in exchange for Allowed Class 7 Claims or Allowed Class 9 Claims/Interests,
whether in connection with issuance of the Initial Class 7 Securities or the
Initial Class 9 Securities or issued pursuant to any Interim Stock Adjustment
Distribution or the Final Stock Adjustment Distribution, is exempt from all
federal and state securities registration and licensing requirements under 11
U.S.C. Section 1145(a)(1).
65. For purposes of 11 U.S.C.Section 1145 and not
necessarily for any other purpose, the Stock Disbursing Agent is acting as an
agent or instrumentality of the Debtors under the Plan in connection with its
holding and distribution of the Reserved New PSI Common Stock. Accordingly, the
delivery by the Stock Disbursing Agent of such securities in accordance with the
Plan, whether in connection with any Interim Stock Adjustment Distribution or
the Final Stock Adjustment Distribution, shall not cause the Stock Disbursing
Agent to be deemed an "underwriter" within the meaning of 11 U.S.C. Section
1145(b) with respect to such securities.
66. The offer and sale of Designated Stock Options, as
modified under the
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Plan and any Employee Stock Plan, is deemed, for purposes of 11 U.S.C. Section
1145 and not necessarily for any other purpose, to be in exchange for an
interest in the Debtors, The offer and sale of such Designated Stock Options,
and any New PSI Common Stock issued or issuable upon exercise thereof, is exempt
from all federal and state securities registration and licensing requirements
under 11 U.S.C. Section 1145(a)(2).
67. The offer and sale of Reorganization Notes under the
Plan is exempt from all federal and state securities registration and licensing
requirements under 11 U.S.C. Section 1145(a)(1).
68. The Litigation Trust shall be deemed a "successor to
the debtor" for purposes of 11 U.S.C. Section 1145 and not necessarily for any
other purposes. Beneficial interests in any such Litigation Trust either (a) are
not "securities" within the meaning of the federal and state securities laws or
(b) may be issued without securities registration or licensing in reliance upon
the exemption afforded by 11 U.S.C. Section 1145(a)(1). Without limitation to
the foregoing, beneficial interests in any such Litigation Trust do not
constitute a "class of equity securities" within the meaning of the Securities
Exchange Act of 1934, as amended, and such Litigation Trust shall not be subject
to registration under such act. Without limitation to the foregoing, beneficial
interests in the Litigation Trust are not "evidences of indebtedness" within the
meaning of the Trust Indenture Act of 1939, as amended, and may be issued
without qualification of an indenture such act.
69. By virtue of 11 U.S.C. Section 1145(c), the offer or
sale under the Plan of (a) New PSI Common Stock in exchange for Allowed Class 7
Claims or Allowed Class 9
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Claims/Interests, whether in connection with the issuance of the Initial Class 7
Securities or the Initial Class 9 Securities or pursuant to any Interim Stock
Adjustment Distribution or the Final Stock Adjustment Distribution, (b) the
Designated Stock Options, (c) any New PSI Common Stock issuable upon the
exercise of the Designated Stock Options, or (d) the Reorganization Notes is
deemed to be a public offering. Accordingly, no such securities shall be deemed
to be "restricted securities" within the meaning the Securities Act and all such
securities may be resold without registration under such act by any holder
thereof, provided that such holder is not deemed under 11 U.S.C. Section 1145(b)
to be an underwriter with respect to such securities.
70. Neither the offering of any Initial Class 7
Securities, nor the offering of any Initial Class 9 Securities, nor the offering
of any of the Reserved New PSI Common Stock (whether delivered pursuant to any
Interim Stock Adjustment Distribution or the Final Stock Adjustment
Distribution), nor the offering of any Employee Stock Plan Securities, nor the
offering of any Reorganization Notes shall be deemed to be "integrated" one with
another in any manner that would cause the loss of any applicable federal or
state securities law exemption.
71. All New PSI Common Stock to be issued pursuant to the
Plan, including any to be issued pursuant to the 2003 Equity Incentive Plan or
other Employee Stock Plan, shall be, upon such issuance, validly issued, fully
paid and non-assessable.
72. Pending the completion of the distribution of the
Initial Class 9 Securities and Reserved New PSI Common Stock by the Stock
Disbursing Agent pursuant to the Plan, the Post-Emergence Equity Committee shall
exercise all voting rights of said stock pursuant to a proxy, voting trust,
voting agreement or other similar mechanism, the form of which shall be
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filed with the Bankruptcy Court and served on the Debtors or Reorganized
Debtors, as applicable, the Committee, and the U.S. Trustee, by the
Post-Emergence Equity Committee as soon as practicable after the Confirmation
Date but no later than the Initial Stock Distribution Date.
73. Notwithstanding any provision in the Plan,
Reorganized PSI shall be permitted to declare and pay dividends in respect of
the New PSI Common Stock (whether in cash or in kind) as authorized and to the
extent permitted in the Plan Documents.
74. The 2003 Equity Incentive Plan shall become effective
as of the Effective Date and is deemed to have been approved and adopted as of
the Effective Date by the Companies and the shareholders and directors thereof
in accordance with all applicable non-bankruptcy laws, including, without
limitation, federal and state tax, securities and corporation laws, and having
the same effect of such approvals under such laws, without any requirement of
further action by said entities or Persons.
75. All votes of Holders of Old PSI Common Stock in favor
of the Plan, as recorded by the Balloting Agent, shall be deemed to be a consent
to and approval of the 2003 Equity Incentive Plan by said Holder with respect to
all of his, her or its shares.
ADMINISTRATIVE EXPENSE BAR DATE(S) AND RELATED MATTERS
76. Requests for payment of all Administrative Expenses,
other than for those for which a request and/or proof of claim has previously
been or is otherwise timely Filed, must be filed and served on the Companies and
the United States Trustee no later than sixty (60) days after the Effective
Date; provided, however, the Texas Comptroller of Public Accounts ("Texas
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Comptroller") must file and serve its Administrative Expenses, if any, relating
to its sales-use tax audit of the Debtors no later than sixty (60) days after
the Debtors or Reorganized Debtors, as applicable, have provided the Comptroller
with requested information necessary for said sales-use tax audit. Further in
respect to the Tax Claims, if any, of the Texas Comptroller, notwithstanding any
provision in the Plan, to avoid any doubt, the Texas Comptroller shall receive
post-Effective-Date interest on its Tax Claims, if and once Allowed, at a rate
to be agreed to by the parties so as to comply with 11 U.S.C. sec.
1129(a)(9)(C). In the event that the parties cannot consensually agree as to the
post-Effective-Date interest rate, any disputes shall be resolved by the
Bankruptcy Court.
77. The Reorganized Companies shall have until one
hundred eighty (180) days after the Effective Date to bring an objection to a
timely filed request for payment of an Administrative Expense. Nothing in the
Plan nor in this Order shall be construed to bar the United States Trustee from
objecting to requests for payment of Administrative Expenses filed after the
Confirmation Date. All Administrative Expenses for which a request for payment
is not timely and properly made in accordance with the foregoing shall be deemed
discharged, released and waived. Notwithstanding the foregoing, Professional
Persons or other entities requesting compensation or reimbursement of expenses
pursuant to Bankruptcy Code sections 327, 328, 330, 331, 503(b) and 1103 for
services rendered prior to the Effective Date must file and serve on all parties
entitled to notice thereof, an application for final allowance of compensation
and reimbursement of expenses no later than forty-five (45) days after the
Effective Date in accordance with the various orders of the Bankruptcy Court
establishing procedures for
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submission and review of such applications.
78. Notwithstanding the foregoing or any provision to the
contrary in the Plan, the bar date for Administrative Expenses shall be extended
with respect to the Internal Revenue Service ("IRS") for any post-petition tax
liabilities arising from tax returns which have not yet been filed as of the
Effective Date of the Plan. The extended bar date(s) for the IRS shall be ninety
(90) days from the later of: (i) the date that the Debtors file each such tax
return and provide written notice to Robert Murphy, Special Procedures Function,
IRS, Baltimore, Maryland, or (ii) the respective due date (as set by statute or
as properly extended) for the unfiled tax return.
79. Notwithstanding the foregoing or any other provision
of this Confirmation Order, the fees and expenses of the Indenture Trustee shall
be paid as set forth in Section XV.B.2. of the Plan.
80. Notwithstanding the foregoing, in respect to the fees
and expenses incurred by the Purchaser Banks, their counsel, and/or other agents
(collectively, "Purchaser Bank Professionals") related to the Chapter 11 Cases
and/or the Companies and for which the Purchaser Banks seek reimbursement from
the Companies, the Purchaser Bank Professionals shall submit to and comply with
any fee review and approval process required by any fee examiner appointed in
the case. In the event that there is no fee examiner review process implemented,
the applicable Purchaser Bank Professionals shall each submit to the Debtors,
Committee and Equity Committee (collectively, "Notice Parties") one or more
invoices and itemized bills for payment of fees and costs ("Requests"). The
itemized bills must present
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reasonable detail as to the time and description of services, but need not
comply strictly with the Court's prior administrative orders and/or the Local
Rules as to categorization, formatting and other such details. The Notice
Parties shall have ten (10) business days from the date of receipt of a
particular Request to review and dispute any fees and expenses therein. In the
event that no Notice Party timely disputes the applicable Request, the Purchaser
Bank Professional may file a certificate of counsel with the Court, together
with a copy of the Request, certifying that no Notice Party objects thereto. A
Purchaser Bank Professional may submit more than one Request and/or certificate
of counsel. The Court may enter an order without further notice, hearing or
application, approving the fees and expenses on a final basis as set forth in
the Request(s) and directing prompt payment by the Companies of the approved
amount(s). The Court shall determine any unresolved disputes between the
parties.
NOTICE OF CONFIRMATION ORDER
81. Promptly after entry of this Order, the Debtors shall
cause a notice of this Order (i) to be mailed to all known creditors and
parties-in-interest and (ii) published once in the national edition of the Wall
Street Journal. The form of notice attached hereto as Exhibit A is hereby
approved. The notice described herein is adequate under the circumstances and no
other or further notice is required.
MISCELLANEOUS
82. Pursuant to section 1146(c) of the Bankruptcy Code,
any transfers from a Debtor to a Reorganized Debtor or any other Person pursuant
to the Plan including (a) the issuance, transfer, or exchange of New PSI Common
Stock, (b) the creation of any mortgage
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deed or trust, or other security interest, and (c) the making of any agreement
or instrument in furtherance of, or in connection with, this Plan, shall not be
subject to any document recording tax, stamp tax, conveyance fee, intangibles or
similar tax, mortgage tax, stamp act, real estate transfer tax, mortgage
recording tax or other similar Tax or governmental assessment.
83. This Order shall be deemed to constitute all
approvals and consents required, if any, by the laws, rules or regulations of
any state or any other governmental authority with respect to the implementation
or consummation of the Plan and any other documents, instruments or agreements
(and any amendments or modifications thereto) and any other acts referred to in,
or contemplated by, the Plan or the Disclosure Statement.
84. All settlements and compromises of Claims set forth
in and contemplated under the Plan, including, without limitation, the Debtors'
settlements with the Purchaser Banks and Motive, are approved as fair and
reasonable compromises pursuant to Bankruptcy Rule 9019(a), and all applicable
parties are authorized and directed to take any and all necessary actions to
effectuate such settlements and compromises and other applicable provisions of
the Plan.
85. All persons holding Claims against and Interests in
the Debtors that are dealt with under the Plan are hereby directed to execute,
deliver, file and record any document, and to take any action necessary or
appropriate to implement, consummate and otherwise effect the Plan in accordance
with its terms in all material respects, and all such persons shall be bound by
the terms and provisions of all documents executed and delivered by them in
connection with the Plan.
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86. The appropriate state and/or local governmental
officials are hereby directed, upon the presentation of a copy of this Order, to
terminate the filings evidencing any security interests against any property of
the Debtors deemed released pursuant to the Plan. In the event that a state or
local government official cannot readily determine whether it is appropriate to
release such security interest, the Debtors shall bring the matter before this
Court for determination and this Court hereby retains jurisdiction to resolve
any such question or dispute and to enforce the foregoing directions.
87. The last sentence in Section VII.F.2. of the Plan is
hereby corrected to provide as follows:
"Messrs. Greenfield and Sexton and Ms. Vizas shall continue to serve as
the Debtors' Chief Executive Officer, Chief Financial Officer and
General Counsel, respectively, in accordance with the terms and
conditions of their respective employment agreements and arrangements
previously approved by the Bankruptcy Court, subject to amendment or
modification by agreement between the Reorganized Debtors and the
respective executives."
88. On the Effective Date, the Debtors shall pay Messrs.
Greenfield (Peregrine's CEO) and Sexton (Peregrine's CFO) the full maximum
amount of their respective "Performance Bonuses" (less any previously paid
portions thereof) under the applicable employment agreements previously assumed
by the Debtors pursuant to Bankruptcy Code section 365 (collectively,
"Employment Agreements"), notwithstanding any provision therein; specifically, a
Performance Bonus of $2,500,000 in the case of Mr. Greenfield and $1,250,000 in
respect to Mr. Sexton. Further, notwithstanding any provision in the Employment
Agreements, on the Effective Date, the Debtors shall pay Messrs. Greenfield and
Sexton "Emergence
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Bonuses" of $300,000 and $150,000, respectively. Finally, the Debtors shall pay
to Ms. Kathy Vizas (Peregrine's General Counsel) $50,000, the balance of her
"Restructure Bonus" as previously approved by the Court.
89. The failure to reference or discuss any particular
provision of the Plan in this Order shall have no effect on the validity,
binding effect and enforceability of such provision and such provision shall
have the same validity, binding effect and enforceability as every other
provision of the Plan.
90. If any or all of the provisions of this Order are
hereafter modified, vacated or reversed by subsequent order of this or any other
court, such reversal, modification or vacation shall not affect the validity of
the acts or obligations incurred or undertaken under or in connection with the
Plan prior to the Debtors' receipt of written notice of any such order, nor
shall such reversal, modification or vacation of this Order affect the validity
or enforceability of such act or such obligations. Notwithstanding any reversal,
modification or vacation of this Order, any such act or obligation incurred or
undertaken pursuant to and in reliance on this Order prior to the Effective Date
of such reversal, modification or vacation shall be governed in all respects by
the provisions of this Order and the Plan and all documents, instruments and
agreements related thereto or any amendments or modifications thereto.
91. In the event of an inconsistency between the Plan and
any other agreement, instrument or document intended to implement the provisions
of the Plan, the provisions of the Plan shall govern unless otherwise expressly
provided for in such agreements, instruments or documents. In the event of any
inconsistency between the Plan and any
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agreement, instrument, or document intended to implement the Plan and this
Confirmation Order, the provisions of this Confirmation Order shall govern. This
Confirmation Order shall supersede any orders of the Court issued prior to the
Effective Date that may be inconsistent herewith.
92. The provisions of Rules 3020(e) and 7062 of the
Federal Rules of Bankruptcy Procedure shall not apply, and this Order shall take
effect immediately and shall not be stayed.
93. This Court hereby retains jurisdiction over the Case
to the full extent provided for in Article XV of the Plan.
Dated: July 18, 2003
/s/ Judith K. Fitzgerald
--------------------------------------------
Honorable Judith K. Fitzgerald
United States Bankruptcy Judge
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