EXHIBIT 2.2
RON BENDER (SBN 143364)
MONICA Y. KIM (SBN 180139)
JACQUELINE L. RODRIGUEZ (SBN 198838)
LEVENE, NEALE, BENDER, RANKIN & BRILL L.L.P.
1801 Avenue of the Stars, Suite 1120
Los Angeles, California 90067
Telephone: (310) 229-1234
Facsimile: (310) 229-1244
Attorneys for Chapter 11 Debtors
and Plan Proponents
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SAN FERNANDO VALLEY DIVISION
In re )CASE)NO.SV 03-15880-GM
)
THE WALKING COMPANY, a )Jointly Administered With Case
California corporation, No. SV 03-15932-GM
and
ALAN'S SHOES, INC., an Arizona )Chapter 11
corporation,
)ORDER CONFIRMING DEBTORS'
Debtors. )SECOND AMENDED PLAN OF
)REORGANIZATION
_ Affects The Walking Company Only )Plan Confirmation Hearing:
--------------------------
- Affects Alan's Shoes, Inc. Only )Date: March 1, 2004
)Time: 9:00 a.m.
X_ Affects Both Debtors )Place: Courtroom "303"
21041 Burbank Blvd.
Woodland Hills, CA
- ----------------------------------------------------------
A hearing was held on March 1, 2004, at 9:00 a.m., for the Bankruptcy
Court to consider the confirmation of the Second Amended Plan of
Reorganization (the "Plan") proposed by The Walking Company and Alan's Shoes,
Inc.(collectively, the "Debtors"). Appearances were made as set forth on the
record of the Bankruptcy Court.The Bankruptcy Court, having considered the
Plan, the voting on the Plan, the complete record in these cases,
the statements, arguments and representations of the parties made at the
Plan confirmation hearing, and the Bankruptcy Court having determined that
proper notice of the Plan and the Plan confirmation hearing was given and
that all objections to Plan confirmation were either withdrawn or
overruled, and good cause appearing therefore,
THE BANKRUPTCY COURT HEREBY FINDS AS FOLLOWS:
1. Each and every requirement of Sections 1122(a) and
1123(a) of the Bankruptcy Code has been satisfied.
2. Each and every requirement of Sections 1125 and 1126 of the
Bankruptcy Code has been satisfied.
3. The Plan, as modified, complies with Section 1127(a) and
Bankruptcy Rule 3019.
4. Each and every requirement of Section 1129(a) of the
Bankruptcy Code necessary for Plan confirmation has been
satisfied except for Section 1129(a)(8) of the Bankruptcy Code with
respect to class 20 (general unsecured creditors) in the event that
class 20 is deemed to reject the Plan and with respect to class
21 (interest holders).
5. Even if Shoes.Com, Inc. ("SCI") is provided a class 20
allowed claim in an amount that would cause class 20 to be deemed,
as a class, to have voted to reject the Plan if SCI voted its class
20 allowed claim to reject the Plan, each and every requirement of
Section 1129(b) of the Bankruptcy Code necessary for Plan
confirmation over the dissenting vote of class 20 has been satisfied
because the Plan does not discriminate unfairly against, and is
fair and equitable with respect to, class 20 and because no
holder of any claim or interest that is junior to class 20 claims will
receive or retain any property under the Plan on account of such
junior claim or interest.
6. Each and every requirement of Section 1129(b) of the
Bankruptcy Code necessary for Plan confirmation over the dissenting
vote of class 21 (Interest holders) has been satisfied because the
Plan does not discriminate unfairly against, and is fair and equitable
with respect to, class 21 (interest holders).
7. The Debtors and the Reorganized Debtor have demonstrated,
either through evidence satisfactory to the Bankruptcy Court or
through separate agreements with affected landlords, adequate
assurance of future performance of all Assumed Contracts and Leases.
BASED UPON ALL OF THE FOREGOING, IT IS HEREBY ORDERED AS FOLLOWS:
1. The Plan, a copy of which is attached hereto as Exhibit
"A", is confirmed pursuant to Sections 1129(a) and 1129(b) of the
Bankruptcy Code.
2. All of the modifications to the Plan are approved.
3. All terms which are not defined in this Order shall have the
definitions assigned to such terms in the Plan unless such terms are
defined in the Disclosure Statement and not in the Plan in which
case such terms shall have the definitions assigned to such terms in
the Disclosure Statement.
4. The effective date of the Plan (the "Effective Date")
shall be the first business day following the date of entry of this
Order. On the Effective Date, TWC Acquisition Corp. (the
"Reorganized Debtor"), a subsidiary Delaware corporation formed by
Big Dogs Holdings, Inc. ("BDH"), will acquire all of the assets of
the Debtors (excluding the Lease Sale Proceeds, the Class Action
Recovery Funds, the Class Action Suit, and the $610,000 SCI Stock
Proceeds) free and clear of all rights, claims, liens,
encumbrances and interests of the Debtors, their bankruptcy
estates, all creditors and interest holders, except as otherwise
provided for in the Plan. From and after the Effective Date, the
Reorganized Debtor shall own and operate such assets without
further supervision by or jurisdiction of the Bankruptcy Court.
5. On or as soon as practicable after the Effective Date:
a. LNBRB shall turn over the $610,000 of SCI Stock
Proceeds to the Reorganized Debtor which shall distribute this
sum to the $2.5 Million Junior Secured Creditors on a pro rata
basis based on the allowed amount of their respective secured claims
against the Debtors as set forth in Exhibit "1" to the Plan.
b. The Reorganized Debtor shall issue the Junior
Secured Creditors Stock to the Junior Secured Creditors on a pro
rata basis based on the allowed amount of their respective secured
claims against the Debtors as set forth in Exhibit "1" to the Plan.
c. The Reorganized Debtor shall issue the
Intercompany Note to BDH in form attached as Exhibit "2' to the Plan.
d. The Reorganized Debtor shall distribute the
Junior Secured Creditors New Money Contribution to all of the
Junior Secured Creditors in accordance with Exhibit "1" to the Plan.
e. The Reorganized Debtor shall distribute the Junior
Secured Creditors Promissory Notes in the form attached as Exhibit
"10" to the Plan and in accordance with Exhibit "1" to the Plan.
f. The Reorganized Debtor shall issue the First
Unsecured Creditors Promissory Note in the form attached as
Exhibit "6" to the Plan and the Second Unsecured Creditors
Promissory Note in the form attached as Exhibit "8" to the Plan to
the Post-Confirmation Creditors Committee.
g. The Reorganized Debtor shall pay $510,000 to
FocalPoint in full, complete and final satisfaction of all claims of
FocalPoint.
h. The Reorganized Debtor shall pay $60,000 to Jim
Argyropoulos in full, complete and final satisfaction of his claim
for actual out-of-pocket expenses incurred in connection with the
Original Plan as provided by the Bankruptcy Court.
i. LNBRB shall turn over to the Reorganized Debtor
the $41,985 of Lease Sale Proceeds and any Class Action Recovery Funds
currently being held by LNBRB, which the Reorganized Debtor shall
maintain in a segregated account for the benefit of holders of class
20 allowed claims until the Reorganized Debtor distributes such funds
to the holders of class 20 allowed claims.
6. On the Effective Date, the Reorganized Debtor shall pay
the Unsecured Creditors New Money Contribution into a segregated
account maintained by LNBRB (the "Walking Company Trust Account").
7. On the Effective Date, the Reorganized Debtor shall pay
$600,000 of the New Money Contribution into the Professional Fee
Account maintained by LNBRB.
8. The Reorganized Debtor shall pay all undisputed amounts
needed to cure any delinquencies in connection with the assumption
and assignment of any unexpired leases or executory contracts set
forth in Exhibit "B" to this Order within five (5) days of the
Effective Date and will deposit all disputed amounts into a
segregated account for the benefit of such other parties to such
leases and executory contracts free and clear of any liens of Wells
or the Junior Secured Creditors Lien pending an agreement between
the Reorganized Debtor and such other parties to such leases and
executory contracts or the entry of a Bankruptcy Court order
resolving such disputed amounts.
9. Within five business days following the Effective Date, the
Reorganized Debtor shall cause the release and expungement of all
undisputed mechanics liens relating to the Assumed Contracts and
Leases by way of satisfaction or otherwise. If the Reorganized
Debt or disputes the amount of any mechanics lien, the Reorganized
Debtor shall record a mechanics lien release bond or provide other
security sufficient to obtain the release of the landlord's real
property and the leasehold interest from the lien under applicable
state law within seven business days following the Effective Date.
10. The Reorganized Debtor shall not be required to pay more
than $600,000 on account of the allowed fees and expenses of the
professionals which have been employed in these cases, exclusive of
any fees and expenses to be paid to FocalPoint. To the extent the
allowed fees and expenses of the professionals who have been
employed in these cases exclusive of FocalPoint exceed $600,000
(after taking into account pre-petition retainers paid and the
$750,000 which has been disbursed to such professionals from
the Professional Fee Account), the difference will be paid out of
the Unsecured Creditors New Money Contribution. LNBRB will cause
all allowed professional fees and expenses to be paid out of the
$1,035,000 (comprised of the $600,000 designated for allowed
professional fees and expenses plus the $435,000 Unsecured
Creditors New Money Contribution) to be paid into the Professional
Fee Account and the Walking Company Trust Account by the Reorganized
Debtor on the Effective Date. After LNBRB has caused all allowed
professional fees and expenses to be paid out of the $1,035,000 to
be paid into the Professional Fee Account and the Walking Company
Trust Account by the Reorganized Debtor on the Effective Date, LNBRB
will turn over the remaining balance to the Reorganized Debtor who
will hold such funds in a segregated interest bearing account for
the benefit of the holders of class 20 allowed claims until the
Reorganized Debtor distributes such funds to the holders of class
20 allowed claims.
11. All allowed administrative claims (i.e.,
post-bankruptcy claims including outstanding professional fees
and expenses and any fees and expenses owing to the Bankruptcy
Court and the Office of the United States Trustee) which were
incurred by the Debtors or allowed by Bankruptcy Court order will
either be assumed by the Reorganized Debtor and paid in the ordinary
course of the Reorganized Debtor's business or paid by the Reorganized
Debtor when allowed by Bankruptcy Court order, except allowed fees
and expenses of professionals which have been employed in the Debtors'
Chapter 11 cases, exclusive of any fees and expenses of FocalPoint,
which will be paid first out of the Professonal Fee Account and
then, to the extent of any shortfall in the Professional Fee
Account, out of the Walking Company Trust Account in the amounts
allowed by the Bankruptcy Court. As set forth in paragraph 5g. above,
by agreement between BDH and FocalPoint, the Reorganized Debtor will
pay the total sum of $510,000 to FocalPoint in full, complete
and final satisfaction of all claims of FocalPoint. The
Reorganized Debtor reserves all of its rights to object to any
other administrative claim asserted against the Debtors.
12. The Reorganized Debtor will pay all allowed Section 507(a)
(8) priority tax claims in full with interest at the rate of six (6)
percent (6%) per annum over a period of six years from the date of
assessment of such tax claims, with such payments to be made on an
annual basis. The first payment on account of such priority tax
claims shall be made within thirty days following the Effective Date.
13. The Reorganized Debtor will pay all allowed priority
claims that are referred to in Bankruptcy Code Sections 507(a)(3),
(4), (5), (6), and (7) in cash in full on the later of the Effective
Date and the date the Bankruptcy Court enters an order allowing such
priority claims.
14. On the Effective Date, all class 21 interests in the
Debtors will be deemed cancelled, terminated, rejected and of no
further force and effect and will no longer constitute an equity
interest in the Debtors or the Reorganized Debtor without the need
for either the Debtors or the class 21 interest holders to take any
further action. Interest holders will not receive any distribution
or retain any property under the Plan on account of their equity
interests in the Debtors.
15. On or immediately after the Effective Date, the Reorganized
Debtor will change its name to "The Walking Company" (or any other
name selected by the Reorganized Debtor).
16. All other payments required to be made under the Plan
(other than as set forth above with respect to exchange rights
granted to the holders of the Junior Secured Creditors Stock,
the Junior Secured Creditors Promissory Notes, the First Unsecured
Creditors Promissory Note, and the Second Unsecured Creditors
Promissory Note) will be funded through the business operations and
working capital of the Reorganized Debtor, subject to the specific
provisions of Paragraph 48.
17. On the Effective Date, the officers and directors of the
Reorganized Debtor are authorized to execute and deliver all
documents and agreements required for implementation of the Plan,
including, without limitation, in connection with the Wells
Post-Confirmation Financing agreements.
18. On the Effective Date, TWC and Alan's will be
substantively consolidated. There will be no distinction between the
treatment of TWC's creditors and Alan's creditors under the Plan.
From and after the Effective Date, TWC and Alan's will cease to exist
as a separate legal entities.
19. The management of the Reorganized Debtor and the members of
the Reorganized Debtor's Board of Directors shall consist of Andrew
Feshbach. The initial management of the Reorganized Debtor shall
consist of Andrew Feshbach, CEO; Roberta Morris, CFO and Assistant
Secretary; and Anthony Wall, Executive Vice President, General
Counsel and Secretary.
20. The Reorganized Debtor shall serve as the disbursing
agent for the purpose of making all distributions to the class 20
claim holders. The Reorganized Debtor shall only make distributions
to or for the benefit of the class 20 claim holders upon receipt of a
final, entered order of the Bankruptcy Court authorizing such
distributions. LNBRB shall cause all allowed fees and expenses of the
professionals employed in these cases (excluding FocalPoint) to be
paid first out of the Professional Fee Account and then, to the
extent of any shortfall in the Professional Fee Account, out of the
Walking Company Trust Account.
21. On the Effective Date, all of the Debtors' executory
contracts and unexpired leases attached as Exhibit "11" to the Plan
(the "Assumed Contracts and Leases") shall be deemed assumed by the
Debtors and assigned to the Reorganized Debtor effective as of the
Effective Date. With respect to all of the Assumed Contracts and
Leases, the Reorganized Debtor has (a) demonstrated that it will
cure and has provided adequate assurance that the Reorganized
Debtor will promptly cure any default existing under all such Assumed
Contracts and Leases in the amounts set forth in Exhibit "B" hereto,
(b) demonstrated that it will compensate or has provided adequate
assurance that the Reorganized Debtor will promptly compensate
any other party to such Assumed Contracts and Leases for any actual
pecuniary loss to such parties resulting from any default existing
under any such Assumed Contracts and Leases, and (c) provided adequate
assurance of future performance under such Assumed Contracts and
Leases. A supplemental schedule identifying those amounts payable
to landlords on account of attorneys' fees under Bankruptcy Code
Section 365(b)(1)(B) shall be filed separately.
22. All Assumed Contracts and Leases are subject to all
applicable provisions thereof, unless modified or amended by written
agreement between a particular landlord and the Reorganized Debtor.
Specifically, but without limitation, the Reorganized Debtor agrees
to maintain "The Walking Company" trade name and comply with all
applicable use provisions of the Assumed Contracts and Leases.
23. The collateral provided to Wells in connection with any
post-confirmation financing and the collateral provided to Junior
Secured Creditors or other parties in interest shall not include
any lien, pledge or leasehold mortgage against the Reorganized
Debtor's interest in any of the real property leasehold interests
included in the list of Assumed Contracts or Leases.
24. A status and scheduling hearing shall be held before the
Bankruptcy Court on March 30, 2004 at 10:00 a.m. with respect to
all unresolved disputed cure amounts.
25. A status and scheduling hearing shall be held before the
Bankruptcy Court on March 30, 2004 at 10:00 a.m. with respect to all
unresolved disputed mechanics liens which must be cured by the
Reorganized Debtor.
26. All of the Debtors' remaining executory contracts and
unexpired leases which are not included among the list of Assumed
Contracts and Leases attached as Exhibit "11" to the Plan shall
be deemed rejected effective as of 11:59 PST on the Effective
Date. THE BAR DATE FOR FILING A PROOF OF CLAIM BASED ON A CLAIM
ARISING FROM THE REJECTION OF AN UNEXPIRED LEASE OR EXECUTORY
CONTRACT WHICH IS REJECTED ON THE EFFECTIVE DATE WILL BE THIRTY
(30) DAYS AFTER THE EFFECTIVE DATE. Any claim based on the
rejection of an unexpired lease or executory contract will be
barred if the proof of claim is not timely filed, unless the
Bankruptcy Court orders otherwise. In the event that any allowed
class 20 claims arise as a result of the rejection of any of the
Debtors' executory contracts and unexpired leases due to their not
being included in the list of Assumed Contracts and Leases, the
Reorganized Debtor will increase the principal amount of the First
Unsecured Creditors Promissory Note on a proportional basis so
that there is no dilutive effect to the holders of class 20
allowed claims resulting from the rejection of such executory
contracts and unexpired leases.
27. With respect to any real property leases of the Debtors
that the Reorganized Debtor elects not to take an assignment of
(a "Rejected Property"), the Reorganized Debtor shall be
entitled to continue in possession of the Rejected Property and
operate therefrom for up to 30 days after the Effective Date
(the "Exit Period") in order to close and exit the Rejected Property
in an orderly fashion, to give advance notice to the store
employees, and to remove store inventory, equipment and trade
fixtures. The Reorganized Debtor shall have the right to remove
all inventory, equipment and trade fixtures from a Rejected
Property during the Exit Period free of any claim or lien of the
landlord or other party. During the Exit Period, the Reorganized
Debtor shall comply with all provisions of the applicable lease,
including, without limitation, the payment of rent and expenses,
the maintenance of insurance coverage, and provisions regarding
use. At the end of such occupancy the Reorganized Debtor shall turn
over possession of the Rejected Property to the landlord in
broom-clean condition and repair any damage caused by the removal of
equipment and trade fixtures all in accordance with the terms of the
respective lease. The Bankruptcy Court shall retain jurisdiction
to order the return of possession at the end of the Exit Period.
28. With respect to any executory contract or unexpired
capital lease of the Debtors that the Reorganized Debtor elects not
to take an assignment of (a "Rejected Contract"), the Reorganized
Debtor shall have the same 30-day Exit Period to redeliver such
equipment to the lessor, and during such Exit Period, the
Reorganized Debtor shall pay all of the contractual rent due the
respective lessor under the Rejected Contract until the redelivery
of such equipment to the lessor, all in accordance with the terms of
the respective Rejected Contract.
29. On the Effective Date, the Debtors shall deliver to the
Reorganized Debtor (a) an executed Certificate of Amendment to its
Articles of Incorporation changing its name to "Shoes
Liquidation Co." in a form acceptable to the California Secretary of
State and (b) an executed Certificate of Withdrawal from the State of
Delaware surrendering its authority to transact business in
Delaware in a form acceptable to the Delaware Secretary of State.
Each of such documents shall be prepared by BDH, at BDH's expense,
and delivered to the Debtors for signature at least one business day
prior to the Effective Date.
30. As soon as practicable after the Effective Date,
each of the Debtors shall deliver to the Reorganized Debtor the
documents necessary to surrender its authority to transact business
in each state in which it is currently qualified to do business.
Each of such documents shall be prepared by BDH, at BDH's expenses,
and delivered to the Debtors for signature prior to the Effective Date.
31. Pursuant to the Plan, the Plan Confirmation Order, and
Section 1400 of the California Corporations Code, as applicable,
the Debtors shall cease to exist as corporate entities and shall
be deemed, as a matter of law, dissolved, as of the entry of the
Final Decree. Notwithstanding the dissolution of the Debtors and
consistent with Section 2010 of the California Corporations Code,
the Debtors shall continue to exist for the purpose of winding up
their affairs, and the officers of the Debtors in office on the
Effective Date shall execute and deliver to the Reorganized Debtor
such reasonable instruments and other documents which are prepared
by BDH, at BDH's expense, and delivered to the Debtors prior to the
Effective Date for the purpose of carrying out or evidencing any of
the transactions contemplated by the Plan.
32. Confirmation of the Plan shall effect a tax-free
reorganization under Internal Revenue Code SS 368(a)(1)(G).
33. Pursuant to section 1146(c) of the Bankruptcy Code, the
transfer of property shall not be subject to any stamp tax,
transfer tax or similar tax.
34. The various promissory notes, stock certificates, and
other documents to be provided to holders of allowed claims under the
Plan shall be in the place and stead of any certificated security or
promissory note presently held by such creditors as evidence of
such allowed claims and all such documents presently held by such
creditors shall be deemed null and void as of the Effective Date.
35. After confirmation of the Plan and occurrence of the
Effective Date, in addition to any jurisdiction which is
provided to the Bankruptcy Court by the Bankruptcy Code,
including, without limitation, Sections 105(a) and 1127 of the
Bankruptcy Code, the Bankruptcy Court will retain such jurisdiction
as is legally permissible including for those purposes set forth in the
Plan.
36. Substantial consummation of the Plan, within the meaning
of Section 1127 of the Bankruptcy Code, shall be deemed to have
occurred after (i) all payments required to be made by the
Reorganized Debtor on the Effective Date have been paid, (ii) all
payments required to be made by the Reorganized Debtor as set forth
in paragraph 5 above have been paid, and (iii) all documents and
instruments required to be delivered under paragraph 5 above have
been delivered.
37. The provisions of Bankruptcy Rule 7062 and Rule 62(a) of
the Federal Rules of Civil Procedure shall not apply to this Order
and the Debtors are authorized to consummate the Plan upon the entry
of this Order.
38. The Post-Confirmation Committee shall be comprised of those
members of the Creditors Committee who wish to serve on the
Post-Confirmation Committee. The Post-Confirmation Committee shall
have the right to retain such professionals that they deem
necessary to effectuate the purposes and intent of the Plan and to pay
or cause the Reorganized Debtor to pay the fees and expenses of such
professionals out of the funds designated to be paid to the class 20
claim holders without any further order of the Bankruptcy Court.
39. The Post-Confirmation Committee shall remain in
existence until such time as the final distribution is made to
holders of class 20 allowed claims. The Post-Confirmation
Committee shall have the powers and responsibilities, and the
duties of the Post-Confirmation Committee shall be restricted to
the matters, described in the Plan.
40. The Debtors will not receive a discharge under the Plan
pursuant to and in accordance with the provisions of Section 1141 of
the Bankruptcy Code because there has been a liquidation of all or
substantially all of the property of the Debtors' estates and
because the Debtors will not engage in business after the
consummation of the Plan.
41. The Debtors may seek to modify the Plan at any time after
confirmation of the Plan so long as (1) the Plan has not been
substantially consummated and (2) the Bankruptcy Court authorizes
the proposed modifications after notice and a hearing.
42. Until a final decree closing the Debtors' Chapter 11 cases
is entered, the Post-Confirmation Committee shall file a quarterly
status report with the Bankruptcy Court explaining what progress has
been made toward consummation of the confirmed Plan and shall
serve such status reports upon the Office of the United States
Trustee, Debtors' counsel LNBRB, attn: Ron Bender, Esq., the
Reorganized Debtors' counsel, Wolf, Rifkin, Shapiro & Schulman, LLP,
11400 W. Olympic Boulevard, 9th Floor, Los Angeles, California
90064, Attn. Simon Aron, Esq., and those parties who have requested
special notice.
43. Once these estates have been fully administered as
referred to in Bankruptcy Rule 3022, the Post-Confirmation
Committee shall file a motion with the Bankruptcy Court to obtain a
final decree to close these cases. The Reorganized Debtor shall be
responsible for the timely payment of all fees incurred pursuant to
28 U.S.C. Section 1930(a)(6) until the entry of a final decree
closing these cases.
44. The obligations to and the lien securing the Junior Secured
Creditor Promissory Notes will at all times be junior and
subordinate to the obligations to and lien of Wells or any other
future replacement senior lender on terms acceptable to Wells or
such future replacement senior lender, but will not be junior to
any other liens.
45. In complete settlement, satisfaction and resolution of
any and all claims or causes of action, subordination of claims,
recharacterization of debt, or otherwise arising between the Creditors
Committee and the Junior Secured Creditors, the Creditors
Committee and the Junior Secured Creditors have agreed to allocate
the additional consideration realized over the original stalking
horse bid contained in the Original Plan as follows:
seven percent (7%) to the general unsecured creditors and
ninety-three percent (93%) to the Junior Secured Creditors.
This allocation is binding upon all classes of creditors under
this Plan and such allocation has already been taken into account
with respect to the various treatment of creditors as described in the
Plan.
46. Any conflict between the terms of this Order and the
Plan shall be resolved in favor of this Order.
47. The bar date for creditors to assert an administrative
claim against the Debtors or their estates is April 15, 2004.
Any creditor who contends that it is entitled to an administrative
claim against the Debtor or their estates must file a motion with the
Bankruptcy Court asserting such administrative claim and set
the motion for hearing. All motions for allowance of an
administrative claim must be served upon the Office of the United
States Trustee, Debtors' counsel LNBRB, attn: Ron Bender, Esq.,
the Reorganized Debtors' counsel, and Wolf, Rifkin, Shapiro &
Schulman, LLP, 11400 W. Olympic Boulevard, 9th Floor, Los Angeles,
California 90064, Attn. Simon Aron, Esq. Any creditor who fails to
file a motion for allowance of an administrative claim by April 15,
2004 shall be permanently and forever barred from asserting any
administrative claim against the Debtors or their estates.
48. Any allowed administrative priority claim arising as a
result of the rejection of the executory contracts between TWC and
SCI shall be paid in full in cash by the Reorganized Debtor upon
allowance by the Bankruptcy Court of such administrative priority
claim. Payment of any such allowed administrative priority claim
shall be personally guaranteed up to the amount of $2.9 million
by Andrew Feshbach and Fred Kayne, principals of BDH, and shall be
subject to documentation reasonably acceptable to SCI and the
Reorganized Debtor.
49. The Reorganized Debtor shall be prohibited from issuing any
nonvoting equity securities, and, with respect to all classes of
securities of the Reorganized Debtor which have voting power,
there shall be an appropriate distribution of such power among such
classes.
50. Rick Hettlinger and/or Steve Adler are hereby
authorized and directed to execute the "State of Delaware Certificate
of Withdrawal from the State of Delaware", the "Certificate of
Amendment of Articles of Incorporation of The Walking Company" and
the "Bill of Sale" presented to the Debtors by BDH without any further
order of the Bankruptcy Court or any further approval of the Board
of Directors of the Debtors. In addition, Mike Grenley is
authorized and directed on behalf of the Debtors to execute any
further documents necessary to give effect to this Order, including
name change filings in each state in which the Debtors are qualified
to do business, without further order of the Bankruptcy Court or any
further approval of the Board of Directors of the Debtors.
51. The Post-Confirmation Committee shall not (a) be considered
an "underwriter" for any purpose, including, without limitation,
for purposes of Section 1145(b) of the Bankruptcy Code or (b)
engage in activities that would constitute it as an "underwriter"
under Section 1145(b) of the Bankruptcy Code, but instead the
Post-Confirmation Committee shall be the nominee holder of the
First Unsecured Creditors Note, and related Warrant and Put
Option and Second Unsecured Creditors Note, and related Warrant
and Put Option First Unsecured Creditors Note, and related Warrant
and Put Option until such securities are actually distributed
pursuant to the Plan to the Class 20 claim holders.
52. Andrew Feshbach and Fred Kayne, shareholders and
directors of BDH (collectively, the "Put Guarantors"), shall
jointly and severally guarantee the payment obligations of BDH
and the Reorganized Debtor under the Put Options relating to the
Junior Secured Creditors Promissory Notes, the First Unsecured
Creditors Promissory Note and the Second Unsecured Creditors
Promissory Note (the "Put Guaranty"). If the Put Guarantors make any
payments under the Put Guaranty, then the Put Guarantors shall
have the right to receive payment from BDH or the Reorganized
Debtor, as applicable, to the extent of such payment by the Put
Guarantors and the Put Guarantors shall be fully subrogated to, and
shall be vested with, all of the applicable holder's rights, powers
and remedies under its promissory note (to the extent of the put
principal), the related Put Option and the Plan.
53. In addition to the findings of fact and conclusions of law
contained herein, this Order is made and based upon and incorporates
the oral statements made on the record at the hearing on
confirmation of the Plan, including any clarification or
interpretation regarding the Plan provisions and implementation
thereof, including statements re finalization of Plan exhibits that
may need further revision after entry of this Order.
IT IS SO ORDERED:
-----------------
Dated: March __, 2004
/s/ Geraldine Mund
HONORABLE GERALDINE MUND
UNITED STATES BANKRUPTCY JUDGE
Presented By:
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LEVENE, NEALE, BENDER, RANKIN & BRILL L.L.P.
By: /s/ Monica Kim
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RON BENDER
MONICA Y. KIM
Attorneys for Chapter 11
Debtors and Plan Proponents
Approved And Agreed By:
----------------------
WOLF, RIFKIN, SHAPIRO & SCHULMAN, LLP
By:/s/ Simon Aron
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SIMON ARON
Attorneys for Big Dog Holdings, Inc.,
Andrew Feshbach and Fred Kayne