EXHIBIT NO. 2.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
IN RE: ) CHAPTER 11
) CASE NOS. 00-13040-BKC-AJC
) THROUGH 00-13042-BKC-AJC
TAMBORIL CIGAR COMPANY, ET AL., ) (JOINTLY ADMINISTERED)
) --------------------------
)
)
DEBTORS. )
------------------------------------)
AMENDED PLAN OF REORGANIZATION FOR DEBTORS
UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
-----------------------------------------------------
BERGER DAVIS & SINGERMAN, P.A.
200 South Biscayne Boulevard
Suite 2950
Miami, Florida 33131-5308
Attorneys for Tamboril Cigar Company, et al.
Debtors-in-Possession
Dated: Miami, Florida
August 9, 2000
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INTERPRETATION
1.1. Definitions....................................................... 1
1.2. Interpretation.................................................... 8
1.3. Application of Definitions and Rules of
Construction Contained in the Bankruptcy Code.................... 8
1.4. Other Terms........................................................ 8
1.5. Appendices and Plan Documents...................................... 9
ARTICLE II.
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
2.1. Claims and Equity Interests Classified............................. 9
2.2. Administrative Expense Claims and Priority Tax Claims.............. 9
2.3. Claims and Equity Interests........................................ 9
2.4. Separate Classification of Secured Claims.......................... 10
ARTICLE III.
IDENTIFICATION OF IMPAIRED
CLASSES OF CLAIMS AND EQUITY INTERESTS
3.1. Unimpaired Classes of Claims and Equity Interests.................. 10
3.2. Impaired Classes of Claims and Equity Interests.................... 10
3.3. Impairment Controversies........................................... 10
ARTICLE IV.
PROVISIONS FOR TREATMENT OF CLAIMS
AND EQUITY INTERESTS UNDER THE PLAN
4.1. Treatment of Claims and Equity Interests........................... 10
ARTICLE V.
PROVISIONS FOR TREATMENT
OF UNCLASSIFIED CLAIMS UNDER THE PLAN
5.1. Treatment of Infinity DIP Claim.................................... 12
5.2. Treatment of Administrative Expense Claims......................... 12
5.3. Treatment of Priority Tax Claims................................... 13
ARTICLE VI.
ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE
CLASSES OF CLAIMS OR EQUITY INTERESTS
6.1. Classes Entitled to Vote.......................................... 13
6.2. Class Acceptance Requirement...................................... 13
ARTICLE VII.
MEANS FOR IMPLEMENTATION OF THE PLAN
7.1. Continued Corporate Existence..................................... 14
7.2. Transfer of Valpersa Common Stock................................. 14
7.3. Substantive Consolidation......................................... 14
7.4. Cancellation of Intercompany Affiliate Claims..................... 14
7.5. Vesting of Assets................................................. 14
7.6. Management........................................................ 14
7.7. Reconstitution of Tamboril Board of Directors..................... 15
7.8. Officers.......................................................... 15
7.9. The Tamboril Charter and Bylaws................................... 15
7.10. Cancellation of Instruments and Agreements....................... 15
7.11. Effectuating Documents........................................... 15
7.12. Retention of Causes of Action.................................... 15
7.13. Indemnification.................................................. 16
7.14. Appointment of the Disbursing Agent.............................. 16
7.15. Transactions on the Effective Date............................... 16
7.16. Accounts......................................................... 16
7.17. Sources of Cash for Plan Distributions........................... 16
ARTICLE VIII.
PROVISIONS GOVERNING DISTRIBUTIONS
8.1. Date of Distributions............................................. 16
8.2. Disbursing Agent.................................................. 17
8.3. Means of Cash Payment............................................. 17
8.4. Delivery of Distributions......................................... 17
8.5. Surrender of Notes, Instruments, and Securities................... 18
8.6. Expenses Incurred On or After the Effective Date
and Claims of the Disbursing Agent.............................. 18
8.7. Time Bar to Cash Payments......................................... 18
8.8. Initial and Interim Distributions................................. 19
ARTICLE IX.
PROCEDURES FOR RESOLVING AND TREATING
CONTESTED CLAIMS AND EQUITY INTERESTS
9.1. Objection Deadline................................................ 19
9.2. Prosecution of Objections......................................... 19
9.3. No Distributions Pending Allowance................................ 19
9.4. Distributions After Allowance..................................... 19
9.5. Estimation of Claims.............................................. 20
ARTICLE X.
POWERS AND DUTIES OF THE DISBURSING AGENT
10.1. Exculpation...................................................... 20
10.2. Powers and Duties of the Disbursing Agent........................ 21
ARTICLE XI.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
11.1. Rejected If Not Assumed.......................................... 21
11.2. Cure Payments.................................................... 21
11.3. Bar to Rejection Damages......................................... 21
ARTICLE XII.
CONDITIONS PRECEDENT TO CONFIRMATION
OF THE PLAN AND THE OCCURRENCE OF THE EFFECTIVE DATE
12.1. Conditions Precedent to Confirmation............................. 22
12.2. Conditions Precedent to the Occurrence of the Effective Date..... 22
12.3. Waiver of Conditions............................................. 22
ARTICLE XIII
RETENTION OF JURISDICTION
13.1. Scope of Jurisdiction............................................ 22
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
14.1. Notice of Entry of Confirmation Order and Relevant Dates......... 24
14.2. Payment of Statutory Fees........................................ 24
14.3. No Interest or Attorneys' Fees................................... 24
14.4. Modification of the Plan......................................... 24
14.5. Revocation of Plan............................................... 25
14.6. Exemption From Transfer Taxes.................................... 25
14.7. Setoff Rights.................................................... 25
14.8. Subordination Rights............................................. 25
14.9. Compliance with Tax Requirements................................. 26
14.10. Recognition of Guaranty Rights.................................. 26
14.11. Compliance With All Applicable Laws............................. 26
14.12. Discharge of Claims............................................. 26
14.13. Injunctions..................................................... 27
14.14. Discharge of the Debtors........................................ 28
14.15. Exculpation..................................................... 28
14.16. Other Release and Waiver........................................ 28
14.17. Binding Effect.................................................. 29
14.18. Notices......................................................... 29
14.19. Governing Law................................................... 30
14.20. Severability.................................................... 30
<PAGE>
Pursuant to section 1121(c) of the Bankruptcy Code, Tamboril Cigar Company,
Tamboril Cigar International, Inc. and Diversified Tobacco Company propose this
chapter 11 plan:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS.
The capitalized terms used herein shall have the respective meanings set
forth below:
(a) "Administrative Expense Claim" means a Claim incurred by the
Debtors (or their Estates) on or after the Petition Date and before the
Effective Date for a cost or expense of administration in the Chapter 11
Cases entitled to priority under sections 503(b) and 507(a)(1) of the
Bankruptcy Code, including the Infinity DIP Claim.
(b) "Affiliate" means, with respect to any Person, all Persons that
would fall within the definition assigned to such term in section 101(2) of
the Bankruptcy Code, if such Person was a debtor in a case under the
Bankruptcy Code.
(c) "Allowed," when used with respect to any Claim, except for a Claim
that is an Administrative Expense Claim, means such Claim (A) to the extent
it is not a Contested Claim as of the Effective Date; (B) to the extent it
may be set forth pursuant to any stipulation or agreement that has been
approved by Final Order of the Bankruptcy Court; (C) to the extent it is a
Contested Claim as of the Effective Date, proof of which was filed timely
with the Bankruptcy Court, and (I) as to which no objection was filed by
the Objection Deadline (as specified in Section 9.1 of the Plan), unless
such Claim is to be determined in a forum other than the Bankruptcy Court,
in which case such Claim shall not become Allowed until determined by Final
Order of such other forum and allowed by Final Order of the Bankruptcy
Court; or (II) as to which an objection was filed by the Objection
Deadline, to the extent allowed by a Final Order; or (D) which otherwise
becomes an Allowed Claim as provided in the Plan;
(i) with respect to an Administrative Expense Claim, means an
Administrative Expense Claim, that has become "Allowed" pursuant to
the procedures set forth in Article V of the Plan; or
(ii) with respect to any Equity Interest, means an Equity
Interest, proof of which was timely and properly filed or, if no proof
of interest was filed, which has been or hereafter is listed by the
Debtors on their Schedules as fixed in amount and not disputed or
contingent, and, in either case, as to which no objection to the
allowance thereof has been interposed on or before the Effective Date,
or as to which any objection has been determined by a Final Order to
the extent such objection is determined in favor of the holder of such
Equity Interest.
(d) "Ballot" means the form or forms that will be distributed along
with the Disclosure Statement to holders of Allowed Claims and Equity
Interests in classes that are Impaired under the Plan and entitled to vote,
which the holders of Impaired Claims and Equity Interests may use to vote
to accept or reject the Plan.
(e) "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended, and codified at title 11 of the United States Code and as
applicable to the Chapter 11 Cases.
(f) "Bankruptcy Court" means the Bankruptcy Court of the United States
District Court for the Southern District of Florida, or such other court
having jurisdiction over the Chapter 11 Cases.
(g) "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as prescribed by the United States Supreme Court pursuant to
Section 2075 of title 28 of the United States Code and as applicable to the
Chapter 11 Cases.
(h) "Bar Date" means June 15, 2000, the date set by the Bankruptcy
Court as the last day for the filing of proofs of claim against the Debtor.
(i) "Business Day" means any day on which commercial banks are open
for business in Miami, Florida.
(j) "Cash" means legal tender of the United States of America or cash
equivalents.
(k) "Causes of Action" means all claims, rights, actions, causes of
action, liabilities, obligations, suits, debts, remedies, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses,
damages or judgments, whether known or unknown and whether asserted or
unasserted.
(l) "Chapter 11 Cases" means the cases under chapter 11 of the
Bankruptcy Code pending before the Bankruptcy Court and styled In re
Tamboril Cigar Company, et al., Case Nos. 00-13040 through
00-13042 (AJC).
(m) "Claim" means (i) any right to payment from any of the Debtors,
whether or not such right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured; (ii) any right to an equitable remedy for
breach of performance if such breach gives rise to a right of payment from
any of the Debtors, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured or (iii) any right under section 502(h)
of the Bankruptcy Code.
(n) "Collateral" means any Estate Asset subject to a Lien.
(o) "Common Equity Interest" means any share or other instrument
(including, without limitation, the Tamboril Common Stock, TCI Common Stock
or DTC Common Stock) evidencing a common stock ownership interest in the
Debtors, whether or not transferable or denominated "stock", or similar
security, and any warrant or right, other than a right to convert, to
purchase, sell, or subscribe to a common stock ownership interest in the
Debtors.
(p) "Confirmation Date" means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on the docket with respect
to the Chapter 11 Cases.
(q) "Confirmation Hearing" means the hearing held by the Bankruptcy
Court, as it may be continued from time to time, on confirmation of the
Plan.
(r) "Confirmation Order" means the order of the Bankruptcy Court
confirming the Plan.
(s) "Consolidated Note" means that certain promissory note dated
December 21, 1999, made payable by Tamboril to Infinity in the original
principal amount of $400,000, the payment of which is (i) secured by a lien
in and to assets of each of the Debtors, Tabacalera and Valpersa and (ii)
guaranteed by each of the Debtors, Tabacalera and Valpersa.
(t) "Contested," when used with respect to a Claim means a Claim (A)
that is listed in the Schedules as disputed, contingent, or unliquidated,
in whole or in part; (B) that is listed in the Schedules as undisputed,
liquidated, and not contingent and as to which a proof of claim has been
filed with the Bankruptcy Court, to the extent the proof of claim amount
exceeds the scheduled amount; (C) that is not listed in the Schedules, but
as to which a proof of claim has been filed with the Bankruptcy Court; or
(D) as to which an objection has been filed before the Effective Date,
provided, that a Claim that is Allowed by Final Order or pursuant to the
Plan on or before the Effective Date shall not be a Contested Claim.
(u) "Debentures" means, collectively, Tamboril's eight percent (8%)
convertible debentures in the aggregate principal amount of $200,000 that
matured on September 22, 1999 with all amendments thereto, and all
documents, instruments, and agreements executed and delivered in connection
therewith.
(v) "Debenture Claim" means a Claim arising under or relating in any
way to the Debentures, including any Claim for accrued and unpaid interest.
(w) "Debtors" means each of Tamboril Cigar Company, Tamboril Cigar
International, Inc., and Diversified Tobacco Company, each a Delaware
corporation and debtor and debtor in possession in these Chapter 11 Cases.
(x) "Deficiency Amount" means, with respect to a Secured Claim, the
amount by which the Claim exceeds the sum of (i) any set-off rights of the
holder of such Claim against a Debtor under Bankruptcy Code sections 506
and 553, plus (ii) the net proceeds realized by the holder of such Claim
from the disposition of the Collateral securing such Claim or, if such
Collateral is not liquidated to Cash, the value of the interest of the
holder of the Claim in a Debtor's interest in such Collateral, as
determined by the Bankruptcy Court under Bankruptcy Code section 506;
provided, that if the holder of a Claim that is secured by a Lien on
Collateral makes the election provided in Bankruptcy Code section 1111(b),
there shall be no Deficiency Amount in respect of such Claim.
(y) "Disallowed," when used with respect to a Claim, means a Claim
that has been disallowed by a Final Order of the Bankruptcy Court.
(z) "Disbursing Agent" means any Person designated by the Proponent to
make distributions required under the Plan which may include, without
limitation, Tamboril, any financial institution of recognized standing, or
such other disbursing agent as may be designated by the Proponent and
approved by the Court.
(aa) "Disbursing Agreement" means, with respect to any Disbursing
Agent, the agreement referenced in Article X of the Plan which shall govern
the rights and obligations of the Disbursing Agent. The Disbursing
Agreement will be in substantially the form thereof filed as a Plan
Document, unless Tamboril serves as the Disbursing Agent, in which case,
the Plan shall be the Disbursing Agreement.
(bb) "Disclosure Statement" means the disclosure statement respecting
the Plan, as approved by the Bankruptcy Court as containing adequate
information in accordance with Section 1125 of the Bankruptcy Code, all
exhibits and annexes thereto and any amendments or modifications thereof.
(cc) "Distribution Date" means, (i) for any Claim that is an Allowed
Claim on the Effective Date, as soon as practicable after the occurrence of
the Effective Date; (ii) for any Claim that is neither a Disallowed Claim
nor an Allowed Claim on the Effective Date, the first Business Day after
such Claim becomes an Allowed Claim, or as soon as practicable thereafter.
(dd) "Distribution Record Date" means the record date fixed for voting
on the Plan which is June 15, 2000.
(ee) "DTC" means Diversified Tobacco Company.
(ff) "DTC Stock" means all the issued and outstanding shares of common
stock of DCC.
(gg) "Effective Date" means a Business Day selected by the Debtors
after the first Business Day which is ten (10) days after the Confirmation
Date on which (y) the Confirmation Order is not stayed and (z) all
conditions to the entry of the Confirmation Order and the occurrence of the
Effective Date have been satisfied or waived as provided in Article XII of
the Plan.
(hh) "Equity Interest" means (a) the legal, equitable, contractual and
other rights of any Person with respect to Tamboril Preferred Stock,
Tamboril Common Stock, TCI Common Stock, DTC Common Stock, Warrants,
options or any other equity security of the Debtors and (b) the legal,
equitable, contractual or other rights of any Person to acquire or receive
any of the foregoing.
(ii) "Estate" means the estate of each of the Debtors created by
section 541 of the Bankruptcy Code upon the commencement of the Chapter 11
Cases.
(jj) "Estate Asset" means any property, right, or interest in property
that is included in the Estate of each Debtor.
(kk) "Estimated Claims Order" means any order of the Bankruptcy Court
estimating any Claim or the aggregate amount of all Claims in any class
created under the Plan to aid in the confirmation of the Plan, or the
calculation of distributions under the Plan.
(ll) "Fee Application" means an application of a Professional Person
under section 330 or 503 of the Bankruptcy Code for allowance of
compensation and reimbursement of expenses in the Chapter 11 Cases.
(mm) "Fee Claim" means a Claim under section 330 or 503 of the
Bankruptcy Code for allowance of compensation and reimbursement of expenses
in the Chapter 11 Cases.
(nn) "Final Order" means (i) an order or judgment of the Bankruptcy
Court or any other court or adjudicative body as to which the time to
appeal, petition for certiorari, or move for reargument or rehearing has
expired and as to which no appeal, petition for certiorari, or other
proceedings for reargument or rehearing shall then be pending or, (ii) in
the event that an appeal, writ of certiorari, reargument, or rehearing
thereof has been sought, such order of the Bankruptcy Court or any other
court or adjudicative body shall have been affirmed by the highest court to
which such order was appealed, or certiorari has been denied, or from which
reargument or rehearing was sought, and the time to take any further
appeal, petition for certiorari or move for reargument or rehearing shall
have expired; provided, that no order shall fail to be a Final Order solely
because of the possibility that a motion pursuant to Rule 60 of the Federal
Rules of Civil Procedure or Rule 7024 of the Bankruptcy Rules may be filed
with respect to such order.
(oo) "General Unsecured Claim" means any Claim that is not an
Administrative Expense Claim, a Priority Tax Claim, a Priority Non-Tax
Claim, the Infinity Secured Claim, a Secured Claim or a Debenture Claim.
(pp) "General Unsecured Claims Account" means the segregated,
interest-bearing account in which Cash in the amount of $50,000 from the
Plan Funding Account shall be deposited and maintained pending distribution
thereof.
(qq) "Glacier" means Glacier Capital Limited, a Nevis, West Indies
corporation.
(rr) "Infinity" means Infinity Emerging Holdings Subsidiary Limited, a
Nevis, West Indies corporation.
(ss) "Infinity DIP Claim" means the Allowed Secured Administration
Expense Claim of Infinity against the Debtors in Possession and their
respective Estates for postpetition loans to Tamboril during the Chapter 11
Cases under the Post-Petition Credit Agreement among Tamboril and Infinity
and authorized by the Bankruptcy Court.
(tt) "Infinity Party" means Infinity, Glacier, and Summit, and each of
their respective Affiliates, officers, directors, managers, stockholders,
investors, agents, attorneys and representatives.
(uu) "Infinity Secured Claim" means the Secured Claims of Infinity
under the Consolidated Note (and all related security agreements,
instruments and documents).
(vv) "Infinity Tamboril" means Emerging Tamboril Subsidiary Limited, a
Nevis, West Indies corporation and a wholly owned subsidiary of Infinity.
(ww) "Intercompany Affiliate" means any of the Debtors and Tabacalera
Tamboril, S.A.
(xx) "Intercompany Affiliate Claims" means any General Unsecured Claim
held by any Intercompany Affiliate against any Debtor.
(yy) "Lien" shall have the meaning assigned to it in section 101(37)
of the Bankruptcy Code.
(zz) "Penalty Claims" means Claims and Causes of Action for
noncompensatory, statutory, exemplary, or punitive damages, or penalties.
(aaa) "Person" means an individual, corporation, partnership, joint
venture, trust, estate, unincorporated association, unincorporated
organization, governmental entity, or political subdivision thereof, or any
other entity.
(bbb) "Petition Date" means April 11, 2000.
(ccc) "Plan" means this chapter 11 plan, as it may be modified from
time to time in compliance with the Bankruptcy Code and the Bankruptcy
Rules.
(ddd) "Plan Documents" means the documents that aid in effectuating
the Plan as specifically identified as such herein.
(eee) "Plan Funding Account" means a segregated Cash account into
which Tamboril shall deposit monies funded from (y) proceeds of the sale of
Estate Assets or assets of Tabacalera Tamboril, S.A., one of Tamboril's
Affiliates and/or (z) proceeds of the Infinity postpetition loan, at the
election of Infinity up to $50,000.00 to fund the Plan on the Effective
Date.
(fff) "Preferred Equity Interest" means any (1) shares or other
instruments (including, without limitation, the Tamboril Preferred Stock)
evidencing a preferred stock ownership interest in Tamboril, whether or not
transferable or denominated "stock,"; or (2) unpaid dividends with respect
to a share or shares of Tamboril Preferred Stock.
(ggg) "Post-Confirmation Interest" means simple interest at the rate
of 6.00% per annum or such other rate as the Bankruptcy Court may determine
at the Confirmation Hearing is appropriate; such interest to accrue from
the date of the entry of an order allowing a Claim until such Claim is
paid.
(hhh) "Priority Non-Tax Claim" means any Claim accorded priority in
right of payment under section 507(a)(3), (4), (5), (6), or (7) of the
Bankruptcy Code.
(iii) "Priority Tax Claim" means a Claim of a governmental unit of the
kind specified in section 507(a)(8) of the Bankruptcy Code.
(jjj) "Professional Person" means a Person retained or to be
compensated pursuant to section 327, 328, 330, 503(b), or 1103 of the
Bankruptcy Code.
(kkk) "Proponent" means each Debtor.
(lll) "Pro Rata Share" means the proportion that the amount of an
Allowed Claim or Equity Interest in a particular class of Claims or Equity
Interests bears to the aggregate amount of all Claims or Equity Interests
in such class, including Contested Claims and Equity Interests, but not
including Disallowed Claims and Equity Interests, (i) as calculated by the
Disbursing Agent on or before any Distribution Date; or (ii) as determined
by the Bankruptcy Court in an Estimated Claims Order, if such an order is
sought and obtained.
(mmm) "Schedules" means the schedules of assets and liabilities and
the statements of financial affairs filed by the Debtors as required by
section 521 of the Bankruptcy Code and Bankruptcy Rule 1007, as such
schedules and statements have been or may be supplemented or amended.
(nnn) "Secured Claim" means (i) a Claim secured by a Lien on any
Estate Asset, which Lien is valid, perfected, and enforceable under
applicable law and is not subject to avoidance under the Bankruptcy Code or
other applicable non-bankruptcy law, and which is duly established in the
Chapter 11 Cases, but only to the extent of the value of the Collateral
that secures payment of the Claim; (ii) a Claim that is subject to a valid
right of setoff under section 553 of the Bankruptcy Code; and (iii) a Claim
allowed under the Plan as a Secured Claim.
(ooo) "Summit" means Summit Capital Limited, a Nevis, West Indies
corporation.
(ppp) "Tamboril" means Tamboril Cigar Company.
(qqq) "Tamboril Bylaws" means the Bylaws of Tamboril Cigar Company, as
may be amended pursuant to the Plan. The Tamboril Bylaws shall be in
substantially the form thereof filed as a Plan Document.
(rrr) "Tamboril Charter" means the Certificate of Incorporation for
Tamboril Cigar Company, as may be amended pursuant to the Plan. The
Tamboril Charter shall be in substantially the form thereof filed as a Plan
Document.
(sss) "Tamboril Common Stock" means the issued and outstanding shares
of common stock of Tamboril immediately before the occurrence of the
Effective Date; to wit 13,356,632 shares.
(ttt) "Tamboril Preferred Stock" means the issued and outstanding
shares of preferred stock of Tamboril immediately before the occurrence of
the Effective Date; to wit 36,108 shares of Class B Preferred Stock of
Tamboril.
(uuu) "TCI" means Tamboril Cigar International, Inc.
(vvv) "TCI Common Stock" means the issued and outstanding shares of
common stock of TCI.
(www) "Valpersa" means Valpersa, S.A., a sociedad anonima organized
and existing under the laws of the Dominican Republic, and a subsidiary of
Infinity Tamboril.
(xxx) "Valpersa Collateral Account" means the segregated,
interest-bearing account in which Cash from the sale of all the assets of
Valpersa (which constitute raw tobacco and finished cigars) shall be
deposited and maintained pending distribution thereof.
(yyy) "Valpersa Common Stock" means the issued and outstanding shares
of common stock of Valpersa; to wit 100 shares, 99.6 % owned by Infinity
Tamboril and the remaining 0.6% owned by Dominican citizens as required by
the laws of that country.
(zzz) "Warrants" means Tamboril's warrants to purchase Tamboril Common
Stock.
1.2. INTERPRETATION.
Unless otherwise specified, all section, article, and exhibit references in
the Plan are to the respective section in, article of, or exhibit to, the Plan,
as the same may be amended, waived, or modified from time to time. The headings
in the Plan are for convenience of reference only and shall not limit or
otherwise affect the provisions of the Plan. Words denoting the singular number
shall include the plural number and vice versa, and words denoting one gender
shall include the other gender. The Disclosure Statement may be referred to for
purposes of interpretation to the extent any term or provision of the Plan is
determined by the Bankruptcy Court to be ambiguous.
1.3. APPLICATION OF DEFINITIONS AND RULES OF
CONSTRUCTION CONTAINED IN THE BANKRUPTCY CODE.
Words and terms defined in section 101 of the Bankruptcy Code shall have
the same meaning when used in the Plan, unless a different definition is given
in the Plan. The rules of construction contained in section 102 of the
Bankruptcy Code shall apply to the construction of the Plan.
1.4. OTHER TERMS.
The words "herein," "hereof," "hereto," "hereunder," and others of similar
import refer to the Plan as a whole and not to any particular section,
subsection, or clause contained in the Plan. A term used herein that is not
defined herein shall have the meaning ascribed to that term, if any, in the
Bankruptcy Code.
1.5. APPENDICES AND PLAN DOCUMENTS.
All Appendices to the Plan and the Plan Documents are incorporated into the
Plan by this reference and are a part of the Plan as if set forth in full
herein.
ARTICLE II.
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
2.1. CLAIMS AND EQUITY INTERESTS CLASSIFIED.
For purposes of organization, voting, and all confirmation matters, except
as otherwise provided herein, all Claims (except for Administrative Expense
Claims, and Priority Tax Claims) and all Equity Interests shall be classified as
set forth in this Article II of the Plan.
2.2. ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY TAX CLAIMS.
As provided in section 1123(a)(1) of the Bankruptcy Code, Administrative
Expense Claims and Priority Tax Claims shall not be classified for purposes of
voting or receiving distributions under the Plan. Rather, all such Claims shall
be treated separately as unclassified Claims on the terms set forth in Article V
of the Plan.
2.3. CLAIMS AND EQUITY INTERESTS.
The Plan classifies the Claims against and Equity Interests in each Debtor
as follows:
(a) Class 1: Priority Non-Tax Claims
(b) Class 2: Infinity Secured Claim
(c) Class 3: Secured Claims (other than the Infinity Secured Claim)
(d) Class 4: General Unsecured Claims
(e) Class 5: Debenture Claims
(f) Class 6: Preferred Equity Interests
(g) Class 7: Tamboril Common Equity Interests
(h) Class 8: TCI Common Equity Interests
(i) Class 9: DTC Common Equity Interests
(j) Class 10: Warrants
2.4. SEPARATE CLASSIFICATION OF SECURED CLAIMS.
Although placed in one category for purposes of convenience, each Claim
that is determined to be a Secured Claim shall be treated as though in a
separate class (to be designated as Class 3A, Class 3B, Class 3C, etc.) for
purposes of voting and receiving distributions under the Plan.
ARTICLE III.
IDENTIFICATION OF IMPAIRED
CLASSES OF CLAIMS AND EQUITY INTERESTS
3.1. UNIMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS.
Class 1 -- Priority Non-Tax Claims (if any), Class 3 -- Secured Claims (if
any), and Class 7 - Tamboril Common Equity Interests are not impaired under the
Plan.
3.2. IMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS.
With the exception of the unimpaired classes specified in Section 3.1 of
the Plan, all classes of Claims and Equity Interests are impaired under the
Plan. Class 8 - TCI Common Equity Interests, Class 9 - DTC Common Equity
Interests and Class 10 - Warrants shall receive no distribution under the Plan
and are deemed to have voted to reject the Plan.
3.3. IMPAIRMENT CONTROVERSIES.
If a controversy arises as to whether any Claim or Equity Interest, or any
class of Claims or class of Equity Interests, is impaired under the Plan, the
Bankruptcy Court shall, after notice and a hearing, determine such controversy.
ARTICLE IV.
PROVISIONS FOR TREATMENT OF CLAIMS
AND EQUITY INTERESTS UNDER THE PLAN
4.1. TREATMENT OF CLAIMS AND EQUITY INTERESTS.
The classes of Claims against and Equity Interests in the Debtors shall be
treated under the Plan as follows:
(a) Class 1 -- Priority Non-Tax Claims. Each holder of an Allowed
Priority Non-Tax Claim shall be unimpaired under the Plan and, pursuant to
section 1124 of the Bankruptcy Code, all of the legal, equitable and
contractual rights of each holder of an Allowed Priority Non-Tax Claim in
respect of such Claim shall be fully reinstated and retained as though the
Chapter 11 Cases had not been filed.
(b) Class 2 -- Infinity Secured Claim. The Infinity Secured Claim
shall be Allowed pursuant to the Plan and on the Effective Date, or such
later date as agreed to by Infinity, the holder of the Infinity Secured
Claim shall receive the balance of the available Cash, including any Cash
in the Valpersa Collateral Account remaining after payment of the Infinity
DIP Claim, in an amount equal up to the amount of the Infinity Secured
Claim.
(c) Class 3 -- Secured Claims (Other than the Infinity DIP Claim and
the Infinity Secured Claim). Each holder of an Allowed Secured Claim shall
be unimpaired under the Plan and, pursuant to section 1124 of the
Bankruptcy Code, all of the legal, equitable, and contractual rights of
each holder of a Secured Claim in respect of such Claim shall be fully
reinstated and retained as though the Chapter 11 Cases had not been filed.
Notwithstanding the foregoing, the Debtors and any holder of an Allowed
Secured Claim may agree to any alternate treatment of such Secured Claim
which treatment may include preservation of such holder's Lien; provided,
that such treatment shall not provide a return to such holder having a
present value as of the Effective Date in excess of the amount of such
holder's Allowed Secured Claim.
(d) Class 4 -- General Unsecured Claims. Each holder of an Allowed
General Unsecured Claim shall be impaired under the Plan. Each holder of an
Allowed General Unsecured Claim may elect to be paid its pro rata share of
Cash from either (i) the General Unsecured Claims Account, which shall be
paid on the Effective Date, or (ii) the balance of the remaining Cash, if
any, in the Valpersa Collateral Account after the payment of the Infinity
DIP Claim under Section 5.1 of the Plan and the Infinity Secured Claim
under Section 4.1(b) of the Plan, which shall be paid as soon as
practicable after all of the assets of Valpersa have been converted into
Cash.
(e) Class 5 -- Debenture Claims. Each holder of an Allowed Debenture
Claim shall be entitled to convert its Debentures into Tamboril Common
Stock under the terms of the Debentures.
(f) Class 6 -- Preferred Equity Interests. Each holder of an Allowed
Preferred Equity Interest shall be entitled to convert its Preferred Common
Stock into Tamboril Common Stock under the terms of the Certificate of
Designation of Series B Preferred Stock of Tamboril Cigar Company.
(g) Class 7 - Tamboril Common Equity Interests. The holders of Allowed
Tamboril Common Stock Interests
shall retain such interests pursuant to the Plan.
(h) Class 8 - TCI Common Equity Interests. On the Effective Date, all
Allowed TCI Common Equity Interests shall be deemed extinguished and the
certificates representing such Equity Interests shall be canceled and of no
further force and effect.
(i) Class 9 - DTC Common Equity Interests. On the Effective Date, all
Allowed DTC Common Equity Interests shall be deemed extinguished and the
certificates representing such Equity Interests shall be canceled and of no
further force and effect.
(j) Class 10 - Warrants. On the Effective Date, all Warrants shall be
deemed extinguished and the certificates representing such Warrants shall
be canceled and of no further force and effect.
ARTICLE V.
PROVISIONS FOR TREATMENT
OF UNCLASSIFIED CLAIMS UNDER THE PLAN
5.1. TREATMENT OF INFINITY DIP CLAIM.
The Infinity DIP Claim shall be an Allowed Administrative Expense Claim
pursuant to the Plan and on the Effective Date or such later date as agreed to
by Infinity, the holder of the Infinity DIP Claim shall receive payment in Cash,
including Cash from the Valpersa Collateral Account, in an amount equal up to
the amount of the Infinity DIP Claim.
5.2. TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS.
All Administrative Expense Claims other than the Infinity DIP Claim shall
be treated as follows:
(a) Time for Filing Administrative Expense Claims. The holder of an
Administrative Expense Claim, other than (i) the Infinity DIP Claim, (ii) a
Fee Claim, (iii) a liability incurred and paid in the ordinary course of
business by the Debtors, or (iv) an Administrative Expense Claim that has
been allowed on or before the Effective Date, must file with the Bankruptcy
Court and serve on the Debtors and their counsel, notice of such
Administrative Expense Claim within twenty (20) days after service of
notice of entry of the Confirmation Order. Such notice must include at a
minimum (1) the name of the holder of the Claim, (2) the amount of the
Claim, and (3) the basis of the Claim. Failure to file this notice timely
and properly shall result in the Administrative Expense Claim being forever
barred and discharged.
(b) Time for Filing Fee Claims. The time for filing an Administrative
Expense that is a Fee Claim is set forth in the Order Approving the
Disclosure Statement.
(c) Allowance of Administrative Expense Claims. An Administrative
Expense Claim with respect to which notice has been properly filed pursuant
to Section 5.2(a) of the Plan shall become an Allowed Administrative
Expense Claim if no objection is filed within sixty (60) days after the
deadline for filing and serving a notice of such Administrative Expense
Claim specified in Section 5.2(a) hereof, or such later date as may be
approved by the Bankruptcy Court on motion of the Debtor, without notice or
a hearing. If an objection is filed within such sixty-day period (or any
extension thereof), the Administrative Expense Claim shall become an
Allowed Administrative Expense Claim only to the extent allowed by Final
Order. An Administrative Expense Claim that is a Fee Claim, and with
respect to which a Fee Application has been properly filed pursuant to
Section 5.2(b) of the Plan, shall become an Allowed Administrative Expense
Claim only to the extent allowed by Final Order.
(d) Payment of Allowed Administrative Expense Claims. Each holder of
an Allowed Administrative Expense Claim shall receive (i) the amount of
such holder's Allowed Claim in one Cash payment on the Distribution Date,
or (ii) such other treatment as may be agreed upon in writing by the
Debtors and such holder; provided, that an Administrative Expense Claim
representing a liability incurred in the ordinary course of business of the
Debtors may be paid at the Debtors' election in the ordinary course of
business by the Debtors. All Allowed Administrative Expense Claims shall be
paid by, and shall be the sole responsibility of, the Debtors.
5.3. TREATMENT OF PRIORITY TAX CLAIMS.
Each holder of an Allowed Priority Tax Claim shall receive from the Debtors
in full satisfaction of such holder's Allowed Priority Tax Claim, (i) the amount
of such holder's Allowed Claim, with Post-Confirmation Interest thereon, in
equal annual Cash payments on each anniversary of the Distribution Date, until
the sixth anniversary of the date of assessment of such Claim (provided that the
Debtor may prepay the balance of any such Allowed Priority Tax Claim at any time
without penalty); (ii) a lesser amount in one Cash payment as may be agreed upon
in writing by such holder; or (iii) such other treatment as may be agreed upon
in writing by such holder. The Confirmation Order shall constitute and provide
for an injunction by the Bankruptcy Court as of the Effective Date against any
holder of a Priority Tax Claim from commencing or continuing any action or
proceeding against any responsible person or officer or director of any of the
Debtors that otherwise would be liable to such holder for payment of a Priority
Tax Claim so long as the Debtors are not in default of their obligations with
respect to such Claim under this Section 5.3 of the Plan.
ARTICLE VI.
ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE
CLASSES OF CLAIMS OR EQUITY INTERESTS
6.1. CLASSES ENTITLED TO VOTE.
Each impaired class of Claims shall be entitled to vote separately to
accept or reject the Plan, except Class 8 - Common Equity Interests, Class 9 -
DTC Common Equity Interests and Class 10 - Warrants, all of which are deemed to
have voted to reject the Plan. All unimpaired classes of Claims shall be deemed
to have accepted the Plan.
6.2. CLASS ACCEPTANCE REQUIREMENT.
A class of Claims shall have accepted the Plan if it is accepted by at
least two-thirds (2/3) in amount and more than one-half (1/2) in number of the
Allowed Claims in such class that have voted on the Plan. A class of Equity
Interests shall have accepted the Plan if it is accepted by holders of at least
two-thirds (2/3) of the Allowed Equity Interests in such class that have voted
on the Plan.
ARTICLE VII.
MEANS FOR IMPLEMENTATION OF THE PLAN
7.1. CONTINUED CORPORATE EXISTENCE.
Tamboril shall continue to exist after the Effective Date as a separate
corporate entity, with all corporate powers, in accordance with the laws of the
State of Delaware and pursuant to the Tamboril Charter and the Tamboril Bylaws.
On the Effective Date, TCI and DTC shall be dissolved in accordance with
applicable Delaware state law.
7.2. TRANSFER OF VALPERSA COMMON STOCK.
No later than the Effective Date, for the benefit of the Debtors and their
Estates, Infinity shall cause the transfer to Tamboril of all of the Valpersa
Common Stock owned by Infinity Tamboril.
7.3. SUBSTANTIVE CONSOLIDATION.
The Plan constitutes a motion for substantive consolidation. On the
Effective Date, the Chapter 11 Cases shall be substantively consolidated
pursuant to the Confirmation Order. For purposes of the Plan, the assets and
liabilities of the Debtors shall be pooled and all Claims shall be satisfied
from the assets of a single consolidated Estate. Any Claims against one or more
of the Debtors based upon a guaranty, indemnity, co-signature, surety or
otherwise of Claims against another Debtor shall be treated as a single Claim
against the consolidated estate of the Debtors and shall be entitled to
distribution under the Plan only with respect to such single Claim.
7.4. CANCELLATION OF INTERCOMPANY AFFILIATE CLAIMS.
On the Effective Date, all Intercompany Affiliate Claims shall be
extinguished.
7.5. VESTING OF ASSETS.
Upon the occurrence of the Effective Date, title to the Estate Assets shall
vest in the Debtors, free and clear of all Liens, Claims, Causes of Action, and
interests, except as expressly provided in the Plan. On and after the occurrence
of the Effective Date, the Debtors may operate their businesses and may use,
acquire and dispose of their assets free of any restrictions of the Bankruptcy
Code.
7.6. MANAGEMENT.
Upon the occurrence of the Effective Date, the management, control, and
operation of Tamboril shall become the general responsibility of the board of
directors of Tamboril, as reconstituted pursuant to the Plan. Entry of the
Confirmation Order shall ratify and approve all actions taken by the board of
directors of Tamboril from the Petition Date through and until the Confirmation
Date.
7.7. RECONSTITUTION OF TAMBORIL BOARD OF DIRECTORS.
The initial board of directors of Tamboril shall be composed of the
individuals identified in the Disclosure Statement or as otherwise identified
prior to or at the Confirmation Hearing, to hold such positions.
7.8. OFFICERS.
The officers and directors of Tamboril immediately following the Effective
Date, shall be those parties identified in the Disclosure Statement or otherwise
identified prior to or at the conclusion of the Confirmation Hearing.
7.9. THE TAMBORIL CHARTER AND BYLAWS.
Upon the occurrence of the Effective Date, Tamboril's charter and bylaws
shall be amended and restated as specified herein. In addition to containing
provisions that are currently contained in Tamboril's charter and bylaws, the
Tamboril Charter and the Tamboril Bylaws shall provide for, among other things,
a prohibition against the issuance of nonvoting equity securities as required by
section 1123(a)(6) of the Bankruptcy Code.
7.10. CANCELLATION OF INSTRUMENTS AND AGREEMENTS.
Upon the occurrence of the Effective Date, except as otherwise provided
herein, all promissory notes, share certificates, instruments, indentures, or
agreements evidencing, giving rise to, or governing any Claim or Equity Interest
shall be deemed canceled and annulled without further act or action under any
applicable agreement, law, regulation, order, or rule, and the obligations of
the Debtors under such promissory notes, share certificates, instruments,
indentures, or agreements shall be discharged.
7.11. EFFECTUATING DOCUMENTS.
On or before ten (10) business days prior to the deadline for parties to
vote to accept or reject the Plan, the Proponents shall file with the Bankruptcy
Court substantially final forms of the agreements and other documents that have
been identified herein as Plan Documents, which documents and agreements shall
implement and be controlled by the Plan. Entry of the Confirmation Order shall
authorize the officers of Tamboril to execute, enter into, and deliver all
documents, instruments and agreements, including, but not limited to, the Plan
Documents, and to take all actions necessary or appropriate to implement the
Plan. To the extent the terms of any of the Plan Documents materially conflict
with the terms of the Plan, the Plan shall control.
7.12. RETENTION OF CAUSES OF ACTION.
Except as otherwise provided in the Plan, all Causes of Action assertable
by any Debtor including, without limitation, those Causes of Action assertable
pursuant to sections 542, 543, 544, 545, 547, 548, 549, 550, or 553 of the
Bankruptcy Code, shall be retained by Tamboril and shall be vested in Tamboril
upon the occurrence of the Effective Date. Any net recovery realized by Tamboril
on account of such Causes of Action shall be property of Tamboril.
7.13. INDEMNIFICATION.
The entry of the Confirmation Order shall constitute a permanent injunction
against the prosecution of all claims and Causes of Action of any Person against
the current officers, directors, employees and attorneys of any Debtor as of the
Effective Date to the extent such claims or Causes of Action (a) are based in
whole or in part on events occurring on or before the Effective Date, and (b)
have been indemnified by any Debtor under its respective charter, its bylaws,
applicable state law or any other agreement between any Debtor and such other
parties, or any combination of the foregoing.
7.14. APPOINTMENT OF THE DISBURSING AGENT.
Unless prior to the conclusion of the Confirmation Hearing Tamboril
specifically identifies a Person to serve as the Disbursing Agent under the
Plan, Tamboril shall serve as the Disbursing Agent.
7.15. TRANSACTIONS ON THE EFFECTIVE DATE.
On the Effective Date, unless otherwise provided by the Confirmation Order
of the Bankruptcy Court, the following shall occur, shall be deemed to have
occurred simultaneously, and shall constitute substantial consummation of the
Plan:
(a) the Tamboril Charter and Bylaws shall become effective; and
(b) all payments and other distributions to be made on, or as soon as
practicable after, the Effective Date by Tamboril pursuant to Articles IV
and V of the Plan shall be made or duly provided for.
7.16. ACCOUNTS.
The Debtors shall establish the Plan Funding Account, the Valpersa
Collateral Account and the General Unsecured Claims Account as interest bearing
accounts.
7.17. SOURCES OF CASH FOR PLAN DISTRIBUTIONS.
All Cash necessary for the Debtors to make payments and distributions to
pursuant to the Plan shall be obtained from the Plan Funding Account, the
Valpersa Collateral Account, or the General Unsecured Claims Account, as
applicable.
ARTICLE VIII.
PROVISIONS GOVERNING DISTRIBUTIONS
8.1. DATE OF DISTRIBUTIONS.
Any distributions and deliveries to be made under the Plan on account of an
Allowed Claim shall be made on the Distribution Date with respect to such
Allowed Claim, except as otherwise provided for herein, or as may be ordered by
the Bankruptcy Court.
8.2. DISBURSING AGENT.
The Disbursing Agent shall make or direct all distributions required under
this Plan.
8.3. MEANS OF CASH PAYMENT.
Cash payments made pursuant to the Plan shall be in US funds, by check
drawn on a domestic bank, or by wire transfer from a domestic bank, except that
payments made to foreign trade creditors holding Allowed Claims or to foreign
governmental units holding Allowed Priority Tax Claims shall be in such funds
and by such means as are customary or as may be necessary in a particular
foreign jurisdiction.
8.4. DELIVERY OF DISTRIBUTIONS.
Subject to Bankruptcy Rule 9010, distributions and deliveries to holders of
Allowed Claims shall be made at the address of each such holder (a) as set forth
on the proofs of Claim filed by such holders or (b) at the last known address of
such holders if the Disbursing Agent has been notified of a change of address,
except as otherwise provided in this Article VIII of the Plan. If any holder's
distribution is returned as undeliverable, no further distributions to such
holder shall be made unless and until the Disbursing Agent receives notification
of such holder's then current address, at which time any missed distributions
shall be made to such holder without interest. Amounts in respect of
undeliverable distributions shall be returned to the Disbursing Agent until such
distributions are claimed. All claims for undeliverable distributions shall be
made on or before ninety (90) days after the Distribution Date. After such date
all unclaimed property shall revert to Tamboril; and, in any case, the Claim or
Equity Interest of any holder with respect to such property shall be discharged
and forever barred.
8.5. SURRENDER OF NOTES, INSTRUMENTS, AND SECURITIES.
As a condition to receiving distributions provided for by the Plan, each
holder of a promissory note, share certificate, or other instrument evidencing a
Claim or Equity Interest shall surrender such promissory note, share
certificate, or instrument to the Disbursing Agent within sixty (60) days of the
Effective Date. All promissory notes, share certificates, and other instruments
surrendered pursuant to the preceding sentence shall be marked "Compromised and
Settled only as provided in Debtors' Plan of Reorganization." Unless waived by
the Disbursing Agent any person seeking the benefits of being a holder of an
Allowed Claim or Equity Interest evidenced by a promissory note, share
certificate, or other instrument, who fails to surrender such promissory note,
share certificates, or other instrument must (a) establish the unavailability of
such promissory note, share certificate, or other instrument to the reasonable
satisfaction of the Disbursing Agent, and (b) provide an indemnity bond in form
and amount acceptable to the Disbursing Agent holding harmless the Debtors and
the Disbursing Agent from any damages, liabilities, or costs incurred a result
of treating such Person as a holder of an Allowed Claim or Equity Interest, as
applicable. Thereafter, such Person shall be treated as the holder of an Allowed
Claim or Equity Interest for all purpose under the Plan. Notwithstanding the
foregoing, any holder of a promissory note, share certificate, or other
instrument evidencing a Claim or Equity Interest that fails within ninety (90)
days of the Distribution Date to surrender to the Debtors such note or other
instrument, or alternatively, to satisfy the requirements of the second sentence
of this Section 9.5 shall be deemed to have forfeited all rights, Claims
against, and Equity Interests in, each Debtor and shall not be entitled to
receive any distribution under the Plan.
8.6. EXPENSES INCURRED ON OR AFTER THE EFFECTIVE DATE
AND CLAIMS OF THE DISBURSING AGENT.
Except as otherwise ordered by the Bankruptcy Court, the amount of any
expenses incurred by the Disbursing Agent on or after the Effective Date
(including, but not limited to, taxes) and any compensation and expenses
(including any post-confirmation fees, costs, expenses, or taxes) to be paid to
or by the Disbursing Agent shall be borne by Tamboril. Professional fees and
expenses incurred by the Disbursing Agent after the Effective Date in connection
with the effectuation of the Plan shall be paid by each in the ordinary course
of business.
8.7. TIME BAR TO CASH PAYMENTS.
Checks issued by the Disbursing Agent in respect of Allowed Claims shall be
null and void if not negotiated within ninety (90) days after the date of
issuance thereof. Requests for reissuance of any check shall be made directly to
the Disbursing Agent, by the holder of the Allowed Claim with respect to which
such check originally was issued. Any claim in respect of such a voided check
shall be made on or before ninety (90) days after the date of issuance of such
check. After such date, all Claims in respect of void checks shall be discharged
and forever barred.
8.8. INITIAL AND INTERIM DISTRIBUTIONS.
Initial distributions and interim distributions, if any, under the Plan to
the holders of Allowed General Unsecured Claims shall be made on the
Distribution Dates and be based on the Distributing Agent's calculation or
estimate of the amount of Allowed General Unsecured Claims, unless upon the
timely request of a party in interest, the Bankruptcy Court determines that a
different estimate is appropriate. Final distributions shall be based on the
actual amount of Allowed General Unsecured Claims.
ARTICLE IX.
PROCEDURES FOR RESOLVING AND TREATING
CONTESTED CLAIMS AND EQUITY INTERESTS
9.1. OBJECTION DEADLINE.
Objections to Claims shall be filed with the Bankruptcy Court and served
upon the holders of each of the Claims to which objections are made no later
than August 10, 2000. Simultaneously with the service and filing of this Plan,
the Debtors intend to file a motion to extend such deadline.
9.2. PROSECUTION OF OBJECTIONS.
After the date of entry of the Confirmation Order, only the Disbursing
Agent shall have authority to file, litigate, settle, or withdraw objections to
Claims.
9.3. NO DISTRIBUTIONS PENDING ALLOWANCE.
Notwithstanding any other provision of the Plan, no payment or distribution
shall be made with respect to any Claim or Equity Interest to the extent it is
Contested unless and until such Contested Claim becomes an Allowed Claim or
Equity Interest.
9.4. DISTRIBUTIONS AFTER ALLOWANCE.
Payments and distributions to each holder of a Contested Claim or Equity
Interest, to the extent that such Claim or Equity Interest ultimately becomes
Allowed, shall be made in accordance with the provision of the Plan governing
the class of Claims or Equity Interests to which the respective holder belongs.
9.5. ESTIMATION OF CLAIMS.
The Disbursing Agent may, at any time, request that the Bankruptcy Court
estimate any Contested Claim or Equity Interest pursuant to section 502(c) of
the Bankruptcy Code regardless of whether the Disbursing Agent has previously
objected to such Claim or Equity Interest or whether the Bankruptcy Court has
ruled on any such objection, and the Bankruptcy Court will retain jurisdiction
to estimate any Claim or Equity Interest at any time during litigation
concerning any objection to any Claim, including during the pendency of any
appeal relating to any such objection. In the event that the Bankruptcy Court
estimates any Contested Claim or Equity Interest, that estimated amount will
constitute either the allowed amount of such Claim or Equity Interest or a
maximum limitation on such Claim or Equity Interest, as determined by the
Bankruptcy Court. If the estimated amount constitutes a maximum limitation on
such Claim or Equity Interest, the Disbursing Agent may elect to pursue any
supplemental proceedings to object to any ultimate payment on such Claim or
Equity Interest. All of the objection, estimation, settlement, and resolution
procedures set forth in the Plan are cumulative and not necessarily exclusive of
one another. Claims or Equity Interests may be estimated and subsequently
compromised, settled, withdrawn or resolved by any mechanism approved by the
Bankruptcy Court.
ARTICLE X.
POWERS AND DUTIES OF THE DISBURSING AGENT
10.1. EXCULPATION.
Except as otherwise provided in this Section 10.1, the Disbursing Agent,
together with its officers, directors, employees, agents, and representatives,
are hereby exculpated by all Persons, holders of Claims and Equity Interests,
and parties in interest, from any and all Causes of Action, and other assertions
of liability (including breach of fiduciary duty) arising out of the discharge
of the powers and duties conferred upon the Disbursing Agent by the Disbursement
Agreement, the Plan, any Final Order of the Bankruptcy Court entered pursuant to
or in the furtherance of the Plan, or applicable law, except solely for actions
or omissions arising out of the Disbursing Agent's willful misconduct. No holder
of a Claim or an Equity Interest, or representative thereof, shall have or
pursue any claim or cause of action (i) against the Disbursing Agent or its
officers, directors, employees, agents, and representatives for making payments
in accordance with the Plan, or for liquidating assets to make payments under
the Plan, or (ii) against any holder of a Claim or an Equity Interest for
receiving or retaining payments or transfers of assets as provided for by the
Plan. Nothing contained in this Section 10.1 shall preclude or impair any holder
of an Allowed Claim or Equity Interest from bringing an action in the Bankruptcy
Court against any Debtor to compel the making of distributions contemplated by
the Plan on account of such Claim or Equity Interest.
10.2. POWERS AND DUTIES OF THE DISBURSING AGENT.
Pursuant to the terms and provisions of the Disbursement Agreement and the
Plan, the Disbursing Agent shall be empowered and directed to (a) take all steps
and execute all instruments and documents necessary to make distributions to
holders of Allowed Claims; (b) make distributions contemplated by the Plan; (c)
comply with the Plan and the obligations thereunder; (d) employ, retain, or
replace professionals to represent it with respect to its responsibilities; (e)
object to Claims as specified in Article IX hereof, and prosecute such
objections; (f) compromise and settle any issue or dispute regarding the amount,
validity, priority, treatment, or Allowance of any Claim without further notice
or hearing, and without the need for an order of the Bankruptcy Court approving
such compromise or settlement; (g) make annual and other periodic reports
regarding the status of distributions under the Plan to the holders of Allowed
Claims that are outstanding against any Debtor at this time; such reports to be
made available upon request to the holders of any Contested Claim; and (h)
exercise such other powers as may be vested in the Disbursing Agent pursuant to
the Disbursement Agreement, order of the Bankruptcy Court, or the Plan.
ARTICLE XI.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
11.1. REJECTED IF NOT ASSUMED.
The Plan constitutes and incorporates a motion to reject all prepetition
executory contracts, and all prepetition unexpired leases to which each Debtor
is a party, except for an executory contract or lease that (a) has been assumed
or rejected by Final Order of the Bankruptcy Court; (b) is the subject of a
motion to assume or reject that is pending before the Bankruptcy Court on the
Effective Date; or (c) is specifically designed on Appendix 1 hereto. The
Confirmation Order shall represent and reflect an order of the Bankruptcy Court
approving such rejections and assumptions of executory contracts and leases as
of the Effective Date.
11.2. CURE PAYMENTS.
Any monetary amounts by which the contracts and leases to be assumed under
the Plan are in default shall be satisfied (a) by delivery of one Cash payment
on the Distribution Date in the amount of such default, or (b) as otherwise
agreed by the parties or ordered by the Bankruptcy Court.
11.3. BAR TO REJECTION DAMAGES.
If the rejection of an executory contract or unexpired lease by each Debtor
results in damages to the other party or parties to such contract or lease, a
Claim for such damages, if not heretofore evidenced by a filed proof of Claim,
shall be forever barred and shall not be enforceable against each Debtor, or its
properties or agents, successors, or assigns, unless a proof of Claim is filed
with the Bankruptcy Court and served upon counsel for each Debtor on or before
thirty (30) days after service of notice of entry of the Confirmation Order.
ARTICLE XII.
CONDITIONS PRECEDENT TO CONFIRMATION
OF THE PLAN AND THE OCCURRENCE OF THE EFFECTIVE DATE
12.1. CONDITIONS PRECEDENT TO CONFIRMATION.
(a) It is a condition to confirmation of the Plan that the Clerk of
the Bankruptcy Court shall have entered an order or orders on the docket in
the Chapter 11 Cases, which may be the Confirmation Order, approving the
Plan Documents, authorizing the Debtors to execute, enter into, and deliver
the Plan Documents and to execute, implement, and give effect to, the
transactions contemplated thereby.
(b) It is a condition to confirmation of the Plan that the Clerk of
the Bankruptcy Court shall have entered an order or orders on the docket in
the Chapter 11 Cases, which may be the Confirmation Order, issuing the
injunctions described in Section 14.13 of the Plan and the release and
waivers in Section 14.16 of the Plan.
12.2. CONDITIONS PRECEDENT TO THE OCCURRENCE OF THE EFFECTIVE DATE.
(a) It is a condition to the occurrence of the Effective Date that the
Confirmation Order shall have been entered by the Clerk of the Bankruptcy
Court on the docket in the Chapter 11 Cases, be in full force and effect
and be in form and substance satisfactory to Infinity.
(b) It is a condition to the occurrence of the Effective Date that all
necessary and material consents, authorizations and approvals shall have
been given or waived for the implementation of the Plan.
12.3. WAIVER OF CONDITIONS.
The Proponent (with the consent of Infinity) may waive any of the
conditions set forth in Sections 12.1 and 12.2 of the Plan in a writing executed
by each of them.
ARTICLE XIII.
RETENTION OF JURISDICTION
13.1. SCOPE OF JURISDICTION.
Notwithstanding the entry of the Confirmation Order and the occurrence of
the Effective Date, the Bankruptcy Court shall retain such jurisdiction over the
Chapter 11 Cases after the Effective Date as legally permissible, including, but
not limited to, jurisdiction to:
(a) Allow, disallow, determine, liquidate, classify, estimate or
establish the priority or secured or unsecured status of any Claim,
including the resolution of any request for payment of any Administrative
Expense Claim and the resolution of any and all objections to the allowance
or priority of Claims;
(b) Grant or deny any applications for allowance and payment of any
Fee Claim for periods ending on or before the Effective Date;
(c) Resolve any matters related to the assumption, assumption and
assignment or rejection of any executory contract or unexpired lease to
which each Debtor is a party or with respect to which each Debtor may be
liable and to hear, determine and, if necessary, liquidate, any Claims
arising therefrom;
(d) Ensure that distributions to holders of Allowed Claims are
accomplished pursuant to the provisions of the Plan;
(e) Decide or resolve any motions, adversary proceedings, contested or
litigated matters and any other matters and grant or deny any applications
involving each Debtor that may be pending on or commenced after the
Effective Date;
(f) Enter such orders as may be necessary or appropriate to implement
or consummate the provisions of the Plan, and all contracts, instruments,
releases, indentures and other agreements or documents created in
connection with the Plan or the Disclosure Statement, including to correct
any defect, cure any omission or reconcile any inconsistency;
(g) Resolve any cases, controversies, suits, or disputes that may
arise in connection with the consummation, interpretation or enforcement of
the Plan or any entity's obligations incurred in connection with the Plan,
or any other agreements governing, instruments evidencing or documents
relating to any of the foregoing, including the interpretation or
enforcement of any rights, remedies or obligations under any of the
foregoing;
(h) Issue injunctions, enter and implement other orders or take such
other actions as may be necessary or appropriate to restrain interference
by any entity with Consummation or enforcement of the Plan, except as
otherwise provided herein;
(i) Enter and implement such orders as are necessary or appropriate if
the Confirmation Order is for any reason modified, stayed, reversed,
revoked or vacated;
(j) Determine any other matters that may arise in connection with or
relate to the Plan, the Disclosure Statement, the Confirmation Order or any
contract, instrument, release, indenture or other agreement or document
created in connection with the Plan or the Disclosure Statement, except as
provided in Section 13.1(g) or elsewhere herein; and
(k) Enter a Final Decree as contemplated by Bankruptcy Rule 3022.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
14.1. NOTICE OF ENTRY OF CONFIRMATION ORDER AND RELEVANT DATES.
Promptly upon entry of the Confirmation Order, Tamboril serve on all known
parties in interest, holders of Claims, and holders of Equity Interests, notice
of the entry of the Confirmation Order and all relevant deadlines and dates
under the Plan, including, but not limited to, the deadline for filing notice of
Administrative Expense Claims (Section 5.2 hereof), and the deadline for filing
rejection damage claims (Section 11.3 hereof).
14.2. PAYMENT OF STATUTORY FEES.
United States Trustee Fees. The Debtor shall pay the U.S. Trustee the
appropriate sum pursuant to 28 U.S.C. Section 1930(a)(6) on the Effective Date,
and, simultaneously provide to the U.S. Trustee an appropriate Affidavit
indicating cash disbursements for all relevant periods; notwithstanding anything
contained in the Plan to the contrary, the reorganized Debtor shall further pay
the U.S. Trustee the appropriate sum required pursuant to 28 U.S.C. Section 1930
(a)(6) for post-confirmation periods within the time periods set forth in 28
U.S.C. Section 1930(a)(6) until the earlier of the closing of the case by the
issuance of a final decree by the Court, or upon the entry of an order by the
Court dismissing the case, or converting this case to another chapter under the
United States Bankruptcy Code, and the party responsible for paying
post-confirmation U.S. Trustee fees shall provide to the U.S. trustee upon
payment of each post-confirmation payment an appropriate Affidavit indicating
disbursement for the relevant periods.
14.3. NO INTEREST OR ATTORNEYS' FEES.
Except as expressly stated in the Plan, or as allowed by the Bankruptcy
Court, no interest, penalty or late charge arising after the Petition Date, and
no award or reimbursement of attorneys fees or related expenses or
disbursements, shall be allowed on, or in connection with, any Claim.
14.4. MODIFICATION OF THE PLAN.
Modification of the Plan may be proposed in writing by the Proponent at any
time before confirmation, provided that the Plan, as modified, meets the
requirements of section 1122 and 1123 of the Bankruptcy Code, and the Debtor
shall have complied with section 1125 of the Bankruptcy Code. The Proponents may
modify the Plan (with the consent of Infinity) at any time after confirmation
and before substantial consummation, provided that the Plan, as modified, meets
the requirements of sections 1122 and 1123 of the Bankruptcy Code and the
Bankruptcy Court, after notice and a hearing, confirms the Plan as modified,
under section 1129 of the Bankruptcy Code, and the circumstances warrant such
modifications. A holder of a Claim that has accepted or rejected the Plan shall
be deemed to have accepted or rejected, as the case may be, such plan as
modified, unless, within the time fixed by the Bankruptcy Court, such holder
changes its previous acceptance or rejection.
14.5. REVOCATION OF PLAN.
The Proponents reserve the right to revoke and withdraw the Plan after the
Confirmation Date and prior to the occurrence of the Effective Date (with the
consent of Infinity). If the Proponents revoke or withdraw the Plan, or if the
Effective Date does not occur, then, the Plan shall be deemed null and void and
nothing contained herein shall be deemed to constitute a waiver or release of
any Claims by or against the Proponents or any other person or to prejudice in
any manner the rights of the Proponent or any person in any other further
proceedings involving each Debtor.
14.6. EXEMPTION FROM TRANSFER TAXES.
Pursuant to section 1146(c) of the Bankruptcy Code, the issuance, transfer,
or exchange of notes or equity securities under the Plan, the creation of any
mortgage, deed of trust, or other security interest, the making or assignment of
any lease or sublease, or the making or delivery of any deed or other instrument
of transfer under, in furtherance of, or in connection with, the Plan,
including, without limitation, any agreements of consolidation, deeds, bills of
sale, or assignments executed in connection with any of the transactions
contemplated under the Plan shall not be subject to any stamp, real estate,
transfer, mortgage recording, or other similar tax.
14.7. SETOFF RIGHTS.
In the event that a Debtor has a claim of any nature whatsoever against the
holder of a Claim, such Debtor may, but is not required to, setoff against the
Claim (and any payments or other distributions to be made in respect of such
Claim hereunder) the Debtor's claim against the holder, unless any such claim is
or will be released under the Plan, subject to the provisions of section 553 of
the Bankruptcy Code. Neither the failure to set off nor the allowance of any
Claim under the Plan shall constitute a waiver or release by a Debtor of any
claim that such Debtor has against the holder of a Claim.
14.8. SUBORDINATION RIGHTS.
All Claims against and Equity Interests in the Debtors, based upon any
claimed subordination rights against the Debtors or rights to avoid payments or
transfers of property by the Debtors pursuant to any provision of the Bankruptcy
Code or other applicable law, shall be deemed satisfied as to the Debtors by the
distributions under the Plan to holders of Allowed Claims and Allowed Equity
Interests having such subordination rights and any rights to avoid payments or
transfers of property. As proposed in the Plan, the distributions to the various
classes of Claims hereunder shall not be subject to levy, garnishment,
attachment, or like legal process by any holder of a Claim or Equity Interest by
reason of any claimed subordination rights or otherwise of the holder of a Claim
or Equity Interest against the holder of another Claim or Equity Interest,
except as otherwise provided herein. Distributions under the Plan shall be
subject to and modified by any order pursuant to which a party in interest
obtains a Final Order directing distributions other than as provided in the
Plan, which distributions take into account the subordination rights of holders
of Claims and Equity Interests between and among themselves.
14.9. COMPLIANCE WITH TAX REQUIREMENTS.
In connection with the Plan, each Debtor, and the Disbursing Agent, shall
comply with all withholding and reporting requirements imposed by federal,
state, local, and foreign taxing authorities and all distributions hereunder
shall be subject to such withholding and reporting requirements. Pursuant to
section 1146(c) of the Bankruptcy Code, the issuance, transfer, or exchange of
promissory notes, equity securities, or other instruments under the Plan, the
creation of any mortgage, deed of trust, or other security interest, the making
or assignment of any lease or sublease or the making or delivery of any deed or
other instrument of transfer under, in furtherance of, or in connection with the
Plan, including, without limitation, any merger agreements or agreements of
consolidation, deeds, bills of sale, or assignments executed in connection with
any of the transactions contemplated under the Plan shall not be subject to any
stamp, real estate transfer, mortgage recording, or other similar tax.
14.10. RECOGNITION OF GUARANTY RIGHTS.
The classification of and manner of satisfying all Claims under the Plan
take into consideration (a) the existence of guaranties by each Debtor of
obligations of other Persons, and (b) the fact that each Debtor may be a joint
obligor with other Persons with respect to an obligation. All Claims against the
Debtors based upon any such guaranties or joint obligations shall be discharged
in the manner provided in the Plan; provided, that no creditor shall be entitled
to receive more than one recovery with respect to any of its Allowed Claims.
14.11. COMPLIANCE WITH ALL APPLICABLE LAWS.
If notified by any governmental authority that it is in violation of any
applicable law, rule, regulation, or order of such governmental authority
relating to its businesses, each Debtor, shall take whatever action as may be
required to comply with such law, rule, regulation, or order; provided, that
nothing contained herein shall require such compliance if the legality or
applicability of any such requirement is being contested in good faith, and, if
appropriate, an adequate reserve for such requirement has been set aside.
14.12. DISCHARGE OF CLAIMS.
Except as otherwise provided herein or in the Confirmation Order, the
rights afforded in the Plan and the payments and distributions to be made
hereunder shall discharge all existing debts and Claims of any kind, nature, or
description whatsoever against each Debtor or the Estate Assets to the extent
permitted by section 1141 of the Bankruptcy Code; upon the Effective Date, all
existing Claims shall be, and shall be deemed to be discharged; and all holders
of Claims shall be precluded from asserting against the Debtors, or any of the
Estate Assets, any other or further Claim based upon any act or omission,
transaction, or other activity of any kind or nature that occurred prior to the
Effective Date, whether or not such holder filed a proof of Claim.
14.13. INJUNCTIONS.
(a) On the Effective Date, all Persons who have been, are, or may be
holders of Claims against or Equity Interests in the Debtors shall be
enjoined from taking any of the following actions against or affecting the
Debtors, their respective Estates, or its assets and property with respect
to such Claims or Equity Interests (other than actions brought to enforce
any rights or obligations under the Plan and appeals, if any, from the
Confirmation Order):
(i) commencing, conducting or continuing in any manner, directly
or indirectly, any suit, action or other proceeding of any kind
against each Debtor, its respective Estate, or its assets or property,
or any direct or indirect successor in interest to the Debtors, or any
assets or property of such transferee or successor (including, without
limitation, all suits, actions, and proceedings that are pending as of
the Effective Date, which must be withdrawn or dismissed with
prejudice);
(ii) enforcing, levying, attaching, collecting or otherwise
recovering by any manner or means whether directly or indirectly any
judgment, award, decree or order against each Debtor, its respective
Estate, or its assets or property, or any direct or indirect successor
in interest to the Debtors, or any assets or property of such
transferee or successor;
(iii) creating, perfecting or otherwise enforcing in any manner,
directly or indirectly, any Lien against each Debtor, its respective
Estate, or its respective assets or property, or any direct or
indirect successor in interest to any of the Debtors, or any assets or
property of such transferee or successor other than as contemplated by
the Plan;
(iv) asserting any setoff, right of subrogation or recoupment of
any kind, directly or indirectly against any obligation due each
Debtor, its respective Estate, or its respective assets or property,
or any direct or indirect successor in interest to any of the Debtors,
or any assets or property of such transferee or successor; and
(v) proceeding in any manner in any place whatsoever that does
not conform to or comply with the provisions of the Plan.
(b) Except as provided herein, as of the Effective Date, all Persons
are permanently enjoined from commencing or continuing in any manner, any
action or proceeding, whether directly, derivatively, on account of or
respecting any Claim, debt, right, Cause of Action or liability released or
to be released pursuant to the Plan.
14.14. DISCHARGE OF THE DEBTORS.
Any consideration distributed under the Plan shall be in exchange for and
in complete satisfaction, discharge, and release of all Claims of any nature
whatsoever against the Debtors and any of their assets or properties; and,
except as otherwise provided herein, upon the Effective Date, the Debtors shall
be deemed discharged and released to the extent permitted by section 1141 of the
Bankruptcy Code from any and all Claims, including but not limited to demands
and liabilities that arose before the Effective Date, and all debts of the kind
specified in section 502(g), 502(h), or 502(i) of the Bankruptcy Code, whether
or not (a) a proof of Claim based upon such debt is filed or deemed filed under
section 501 of the Bankruptcy Code; (b) a Claim based upon such debt is allowed
under section 502 of the Bankruptcy Code; or (c) the holder of a Claim based
upon such debt has accepted the Plan. Except as provided herein, the
Confirmation Order shall be a judicial determination of discharge of all
liabilities of the Debtors. As provided in section 524 of the Bankruptcy Code,
such discharge shall void any judgment against the Debtor at any time obtained
to the extent it relates to a Claim discharged, and operates as an injunction
against the prosecution of any action against the Debtors, or their properties,
to the extent it relates to a Claim discharged.
14.15. EXCULPATION.
Neither the Proponent, the Infinity Parties, any of their respective
Affiliates, nor any of their respective members, officers, directors, managers,
employees, agents, or professionals shall have or incur any liability to any
holder of a Claim or Equity Interest for any act, event, or omission in
connection with, or arising out of, the preparation and dissemination of the
Disclosure Statement, the solicitation of votes with respect to the Plan, the
Chapter 11 Cases, the confirmation of the Plan, the consummation of the Plan, or
the administration of the Plan or the property to be distributed under the Plan,
except for willful misconduct.
14.16. OTHER RELEASE AND WAIVER.
Without limiting the benefits of any release, waiver, discharge or
injunction contained in or effected by the Confirmation Order or elsewhere in
this Plan, by and upon accepting or receiving any distribution of Cash or Equity
Interests as contemplated by this Plan or otherwise benefitting from any
treatment contemplated for the holder of any Claim or Equity Interest by the
Plan, each such holder of any Claim or Equity Interest shall be deemed to, and
shall, release and forever discharge each of the Plan Proponents, the Infinity
Parties, and the Disbursing Agent, and all officers, owners, employees,
trustees, managers, successors, and any other representatives and agents thereof
(other than former officers and directors of the Debtors) of and from any and
all obligations, liabilities, causes of action, suits, debts, dues, warrants,
accountings, or any other claim incurred or arising at any time from the
beginning of the world through the Effective Date and thereafter arising from,
related to or otherwise concerning such Claim or Equity Interest, directly,
derivatively or otherwise, all of which shall be permanently waived by such
holders of Claims or Equity Interests; provided, however, that this paragraph
shall not constitute a release by any such holder of a Claim or Equity Interest
of any rights expressly assigned thereto under another provision of the Plan or
the Confirmation Order. The Confirmation Order shall contain the provisions of
the foregoing release, waiver and discharge, and shall permanently enjoin any
party from bringing any suit, cause of action, claim or other action, or
otherwise attempting in any way to enforce any alleged right or interest in
contravention of the foregoing release, waiver and discharge.
14.17. BINDING EFFECT.
The Plan shall be binding upon and inure to the benefit of the Debtors, the
Infinity Parties, the holders of all Claims and Equity Interests, and their
respective successors and assigns.
14.18. NOTICES.
Whenever service is required in the Plan, such service shall be made upon
the following parties so as to be received by 5:00 p.m. Eastern Daylight Time on
or before the date required:
The Debtors:
Attn: President
Tamboril Cigar Corporation
111 S.W. 3rd Street, Suite 701
Miami, Florida 33130
Facsimile: (305) 372-0188
with a copy to:
Paul Steven Singerman, Esquire
James H. Fierberg, Esquire
Berger, Davis & Singerman, P.A.
200 South Biscayne Boulevard
Suite 2950
Miami, Florida 33131
Facsimile: (305) 714-4340
Infinity:
Infinity Emerging Holdings Subsidiary Limited
Hunkins Waterfront Plaza
Main Street
P.O. Box 556
Charleston, Nevis, West Indies
with a copy to:
Stuart J. Chasanoff, Esquire
HW Finance LLC
1601 Elm Street, Suite 4000
Dallas, Texas 75201
Facsimile: (214) 720-1667
Thomas E Lauria, Esquire
Frank L. Eaton, Esquire
White & Case LLP
First Union Financial Center
200 South Biscayne Boulevard
Miami, FL 33131
Facsimile: (305) 358-5744
14.19. GOVERNING LAW.
Unless a rule of law or procedure is supplied by federal law (including the
Bankruptcy Code and Bankruptcy Rules) or the Delaware General Corporation Law,
the laws of the State of Florida shall govern the construction and
implementation of the Plan and any agreements, documents, and instruments
executed in connection with the Plan or the Chapter 11 Cases, including the Plan
Documents, except as may otherwise be provided in such agreements, documents,
instruments, and Plan Documents.
14.20. SEVERABILITY.
SHOULD THE BANKRUPTCY COURT DETERMINE THAT ANY PROVISION OF THE PLAN IS
UNENFORCEABLE EITHER ON ITS FACE OR AS APPLIED TO ANY CLAIM OR EQUITY INTEREST
OR TRANSACTION, THE PROPONENT (WITH THE CONSENT OF INFINITY) MAY MODIFY THE PLAN
IN ACCORDANCE WITH SECTION 14.5 OF THE PLAN SO THAT SUCH PROVISION SHALL NOT BE
APPLICABLE TO THE HOLDER OF ANY CLAIM OR EQUITY INTEREST. SUCH A DETERMINATION
OF UNENFORCEABILITY SHALL NOT (A) LIMIT OR AFFECT
<PAGE>
THE ENFORCEABILITY AND OPERATIVE EFFECT OF ANY OTHER PROVISION OF THE PLAN OR
(B) REQUIRE THE RESOLICITATION OF ANY ACCEPTANCE OR REJECTION OF THE PLAN.
Dated: August 9, 2000
Respectfully submitted,
TAMBORIL CIGAR COMPANY
By:
------------------------------
Its:
------------------------------
TAMBORIL CIGAR INTERNATIONAL, INC.
By:
-------------------------------
Its:
-------------------------------
DIVERSIFIED CIGAR COMPANY
By:
-------------------------------
Its:
-------------------------------
<PAGE>
APPENDIX ONE
NONE
