ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST IN …

Court File No. CV-20-00647463-00CL

ONTARIO SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED

AND IN THE MATTER OF BBGI US, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BBGI INTERNATIONAL, LLC, BBGI RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BBGI CANADA LTD.

APPLICATION OF BBGI US, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED

APPLICANT

MOTION RECORD (Recognition of Plan Confirmation Order and

Termination of CCAA Proceedings) Vol. 3 of 3

March 23, 2021 OSLER, HOSKIN & HARCOURT LLP Box 50, 1 First Canadian Place Toronto ON M5X 1B8

Tracy Sandler (LSO# 32443N) Tel: 416.862.5890 Email: [email protected]

Shawn T. Irving (LSO# 500035U) Tel: 416.862.4733 Email: [email protected]

Martino Calvaruso (LSO# 57359Q) Tel: 416.862.6665 Email: [email protected]

Fax: 416.862.6666

Lawyers for the Applicant

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mailto:[email protected]



Tab 3

423

THIS IS EXHIBIT “L” REFERRED TO IN THE

SIXTH AFFIDAVIT OF STEPHEN MAROTTA,

SWORN BEFORE ME over videoconference in accordance with

the Administering Oath or Declaration Remotely Regulation,

O. Reg. 431/20, on March 23, 2021, while I was located in the City

of Toronto, in the Province of Ontario, and the affiant was located

in the City of Houston, in the State of Texas, in the United States

of America,

THIS 23rd DAY OF March, 2021.

____________________________________________

Mark Sheeley Commissioner for Taking Affidavits

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Court File No.: CV-20-00647463-00CL

ONTARIO SUPERIOR COURT OF JUSTICE

(COMMERCIAL LIST)

THE HONOURABLE MR.

JUSTICE HAINEY

)

)

)

TUESDAY, THE 16th

DAY OF FEBRUARY, 2021

e,OUAT 0 '?- ~ ,f~i c/v~, J . I~ HE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT

0 .. • .., ACT, R.S.C. 1985, c. C-36, AS AMENDED

~ .r--:,.~o ~ ~J'u~ ~ ) ~ ND IN THE M4TTER OF BBGI US, INC., BROOKS BROTHERS FAR

t.q,E'U"c. "(, EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BBGI INTERNATIONAL, LLC, BBGI RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING

GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF

PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BBGI CANADA LTD.

APPLICATION OF BBGI US, INC. UNDER SECTION 46 OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36,

AS AMENDED

RECOGNITION ORDER (Disclosure Statement Order)

THIS MOTION, made by BBGI US, Inc. (f/k/a Brooks Brothers Group Inc.) ("BBGI")

in its capacity as the foreign representative (the "Foreign Representative") of BBGI, Brooks

Brothers Far East Limited, BBD Holding 1, LLC, BBD Holding 2, LLC, BBDI, LLC, BBGI

International, LLC (f/k/a Brooks Brothers International, LLC), BBGI Restaurant, LLC (f/k/a

Brooks Brothers Restaurant, LLC), Deconic Group LLC, Golden Fleece Manufacturing Group,

LLC, RBA Wholesale, LLC, Retail Brand Alliance Gift Card Services, LLC, Retail Brand

Alliance of Puerto Rico, Inc., 696 White Plains Road, LLC, and BBGI Canada Ltd. (f/k/a Brooks

Brothers Canada Ltd.) (collectively, the "Chapter 11 Debtors"), pursuant to the Companies'

Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended (the "CCAA") for an Order, among

other things, recognizing and giving effect to the Disclosure Statement Order (as defined herein)

425

granted by the United States Bankruptcy Court for the District of Delaware ( the "U.S. Bankruptcy

Court"), made in the cases commenced by the Chapter 11 Debtors pursuant to Chapter 11 of the

United States Bankruptcy Code (the "Chapter 11 Cases"), was heard this day by judicial

videoconference via Zoom at Toronto, Ontario due to the COVID-19 crisis.

ON READING the Notice of Motion, the Fifth Affidavit of Stephen Marotta affirmed

February 5, 2021, and the Fourth Report of Alvarez & Marsal Canada Inc., in its capacity as

information officer (the "Information Officer"), dated February 12, 2021, filed.

AND UPON HEARING the submissions of counsel for the Foreign Representative, the

Information Officer and those other parties present, no one else appearing although duly served as

appears from the affidavit of service of Mark Sheeley, made February 12, 2021 and the affidavit

of service of Michael Noel, made February 12, 2021:

SERVICE

1. THIS COURT ORDERS that the time for service of the Notice of Motion and the Motion

Record is hereby abridged and validated so that this Motion is properly returnable today and hereby

dispenses with further service thereof.

DEFINITIONS

2. THIS COURT ORDERS that capitalized terms used and not otherwise defined herein

have the meaning given to them in the Supplemental Order (Foreign Main Proceeding) made in

these proceedings on September 14, 2020.

RECOGNITION OF FOREIGN ORDER

3. TIDS COURT ORDERS that the following order of the U.S. Bankruptcy Court made in

the Chapter 11 Cases is hereby recognized and given full force and effect in all provinces and

territories of Canada pursuant to section 49 of the CCAA:

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426

(a) Order (I) Approving Disclosure Statement and Form and Manner of Notice of

Disclosure Statement Hearing, (II) Establishing Solicitation, Voting and Related

Procedures, (Ill) Scheduling Confirmation Hearing, (IV) Establishing Notice and

Objection Procedures for Confirmation of Plan, and (V) Granting Related Relief

(the "Disclosure Statement Order", a copy of which is attached as Schedule "A"

hereto);

provided, however, that in the event of any conflict between the terms of the Disclosure Statement

Order and the Orders of this Court made in the within proceedings, the Orders of this Court shall

govern with respect to Property in Canada.

GENERAL

4. THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal,

regulatory or administrative body having jurisdiction in Canada or in the United States of America,

to give effect to this Order and to assist the Chapter 11 Debtors, the Foreign Representative, the

Information Officer, and their respective counsel and agents in carrying out the terms of this Order.

All courts, tribunals, regulatory and administrative bodies are hereby respectfully requested to

make such orders and to provide such assistance to the Chapter 11 Debtors, the Foreign

Representative and the Information Officer, the latter as an officer of this Court, as may be

necessary or desirable to give effect to this Order, or to assist the Chapter 11 Debtors, the Foreign

Representative, the Information Officer, and their respective counsel and agents in carrying out

the terms of this Order.

5. THIS COURT ORDERS that each of the Chapter 11 Debtors, the Foreign Representative

and the Information Officer be at liberty and is hereby authorized and empowered to apply to any

court, tribunal, regulatory or administrative body, wherever located, for the recognition of this

Order and for assistance in carrying out the terms of this Order.

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427

6. THIS COURT ORDERS that this Order shall be effective as of 12:01 a.m. Eastern

Standard Time on the date of this Order.

-4-

ENTERED AT / INSCRIT A TORONTO ON I BOOK NO: LE/ DANS LE REGISlRE NO:

FEB 1 6 2021

PER/PAR: az_

428

SCHEDULE "A"

DISCLOSURE STATEMENT ORDER

429

Case 20-11785-CSS Doc 954 Filed 01/27/21 Page 1 of 9

UNITED STATES BANKRUPTCY COURT DISTRICT OF DELA WARE

------------------x

In re Chapter 11

BBGI US, INC., et al., Case No. 20-11785 (CSS)

(Jointly Administered) Debtors.1

Re: D.I. 845, 866, 919 & 951 ------------------x

ORDER (I) APPROVING DISCLOSURE STATEMENT AND FORM AND MANNER OF NOTICE OF DISCLOSURE STATEMENT HEARING,

(II) ESTABLISlllNG SOLICITATION, VOTING, AND RELATED PROCEDURES, (III) SCHEDULING CONFIRMATION HEARING,

(IV) ESTABLISlllNG NOTICE AND OBJECTION PROCEDURES FOR CONFIRMATION OF PLAN, AND {Y) GRANTING RELATED RELIEF

Upon the motion (the "Motion")2 of BBGI US, Inc. and its debtor affiliates, as

debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the

"Debtors"), for entry of an order pursuant to sections 105, 502, 1125, 1126, and 1128 of title 11

of the Bankruptcy Code, Rules 2002, 3016, 3017, 3018, 3020, and 9006 of the Bankruptcy Rules

and Rules 2002-1, 3017-1, and 9006-1 of the Local Rules (a) approving the Disclosure Statement

as containing adequate information pursuant to section 1125 of the Bankruptcy Code;

(b) approving the form and manner of the Disclosure Statement Notice attached hereto as

Exhibit 1 and the hearing to consider the Disclosure Statement (the "Hearing"); (c) scheduling

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax identification number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A); BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (£1k/a Brooks Brothers Canada Ltd.) (4709) . The Debtors ' corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.

2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Motion.

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the Confirmation Hearing; ( d) approving the procedures with respect to confirmation of the Plan,

including the procedures for filing objections thereto, the form and manner of the Confirmation

Hearing Notice, substantially in the form attached hereto as Exhibit 2, and the form and manner

of the Notice of Non-Voting Status, substantially in the form attached hereto as Exhibit 4;

( e) approving the solicitation, voting, and tabulation procedures for the Plan, including, among

other things, the form of Ballots, substantially in the forms attached hereto as Exhibit 3; and

(f) approving related dates, deadlines, and procedures; all as more fully set forth in the Motion;

and the Court having jurisdiction to consider the Motion and the relief requested therein pursuant

to 28 U.S.C. §§ 157(a)-(b) and 1334(b), and the Amended Standing Order of Reference from the

United States District Court for the District of Delaware, dated February 29, 2012; and

consideration of the Motion and the requested relief being a core proceeding pursuant to 28 U.S.C.

§ 157(b); and venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409; and

due and proper notice of the Motion having been provided, and it appearing that no other or further

notice need be provided; and this Court having reviewed the Motion; and the Court having held

the Hearing to consider the reliefrequested in the Motion; and upon the record of the Hearing; and

this Court having determined that the legal and factual bases set forth in the Motion establish just

cause for the relief granted herein; and it appearing that the relief requested in the Motion is in the

best interests of the Debtors, their estates, creditors, and all parties in interest; and upon all of the

proceedings had before this Court and after due deliberation and sufficient cause appearing

therefor,

IT IS FOUND AND DETERMINED THAT

A. Notice of the Disclosure Statement Hearing and Disclosure Statement

Objection Deadline. The procedures proposed in the Motion providing notice to all parties of the

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time, date, and place of the Hearing and the deadline for filing objections to the Disclosure

Statement, including the Disclosure Statement Notice, a copy of which is attached hereto as

Exhibit 1 and was filed and served on December 24, 2020, provided due, proper, and adequate

notice, comport with due process, and comply with the applicable Bankruptcy Rules and Local

Rules. No other or further notice is required.

B. The Disclosure Statement. The Disclosure Statement contains adequate

information within the meaning of section 1125 of the Bankruptcy Code. No further information

1s necessary.

C. Notice of Confirmation Hearing and Plan Objection Deadline. The

procedures set forth in the Motion regarding notice to all parties of the time, date, and place of the

hearing to consider confirmation of the Plan (the "Confirmation Hearing"), including the

Confirmation Hearing Notice substantially in the form attached hereto as Exhibit 2, and for filing

objections or responses to the Plan, provide due, proper, and adequate notice, comport with due

process, and comply with Bankruptcy Rules 2002 and 3017 and Local Rule 9006-1. No further

notice is required.

D. Balloting and Voting Procedures. The procedures set forth in the Motion

for the solicitation and tabulation of votes to accept or reject the Plan provide for a fair and

equitable voting process and are consistent with section 1126 of the Bankruptcy Code.

E. Ballots. The ballots, substantially in the forms annexed hereto as Exhibit 3

(the "Ballots"), including all voting instructions provided therein, are consistent with Official

Bankruptcy Form No. B 314, address the particular needs of these chapter 11 cases, and provide

adequate information and instructions for each individual entitled to vote to accept or reject the

Plan. No further information or instructions are necessary.

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F. Parties Entitled to Vote. Pursuant to the Plan, holders of Claims in Class 3

and Class 4 are impaired under the Plan. Accordingly, holders of Allowed Claims in such class

are entitled to vote on account of such Claims.

G. Solicitation Packages. The proposed distribution and contents of the

Solicitation Packages comply with Bankruptcy Rules 2002 and 3017 and Local Rule 9006-1 and

constitute sufficient notice to all interested parties of the Record Date, Voting Deadline, Plan

Objection Deadline, Confirmation Hearing, and other related matters.

H. Solicitation Period. The period proposed by the Debtors in the Motion

during which the Debtors may solicit votes to accept or reject the Plan is a reasonable and sufficient

period of time for the Voting Classes to make an informed decision regarding whether to accept

or reject the Plan and timely return Ballots evidencing such decision.

I. Parties Not Entitled to Vote. Pursuant to the Plan, holders of Claims in

Classes 1 and 2 are unimpaired and, accordingly, pursuant to section 1126(f) of the Bankruptcy

Code, are conclusively presumed to accept the Plan and are not entitled to vote on account of such

Claims. Although holders of Claims in Class 5 are impaired, the holders of Claims in Class 5 are

proponents of the Plan, and therefore are presumed to accept the Plan and are not entitled to vote

on account of such claims. Further, holders of Claims in Classes 6 and 7 are impaired and are not

entitled to receive or retain property under the Plan. Accordingly, pursuant to section 1126(g) of

the Bankruptcy Code, such holders are deemed to reject the Plan and/or are otherwise not entitled

to vote on account of such claims.

J. Notice of Non-Voting Status. The Notice of Non-Voting Status,

substantially in the form attached hereto as Exhibit 4, complies with the Bankruptcy Code,

applicable Bankruptcy Rules, and applicable Local Rules and, together with the Confirmation

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Hearing Notice, provides adequate notice to creditors holding Claims or Interests not in the Voting

Classes of their non-voting status, and, with respect to holders of Claims or Interests in Class 6 or

Class 7, of their right to object to the releases set forth in the Plan and adequate information and

instructions for doing so.

K. Notice. All other notices to be provided pursuant to the procedures set forth

in the Motion constitute good and sufficient notice to all parties in interest of all matters pertinent

hereto and of all matters pertinent to the Confirmation Hearing. No further notice is required.

L. Relief is Warranted. The legal and factual bases set forth in the Motion

establish just and sufficient cause to grant the relief requested therein.

IT IS HEREBY ORDERED THAT

1. The Motion is granted as set forth herein.

2. The Disclosure Statement is approved as containing adequate information

pursuant to section 1125 of the Bankruptcy Code, and the Debtors are authorized to use the

Disclosure Statement in connection with the solicitation of votes in favor of the Plan.

3. The form and manner of the notice of the hearing on the Disclosure

Statement and related objection procedures constituted adequate and sufficient notice of the

Hearing and the deadline for filing objections to the Disclosure Statement, substantially complied

with the applicable Bankruptcy Rules and Local Rules, and comported with due process.

4. The Disclosure Statement (including all applicable exhibits thereto)

provides sufficient notice of the injunction, exculpation, and release provisions contained in

Section 10 of the Plan, in accordance with Bankruptcy Rule 3016(c).

5. The Confirmation Hearing shall be held on March 5, 2021 at 1:00 p.m.

(prevailing Eastern Time), as may be adjourned or continued from time to time by the Court or

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the Debtors without further notice other than adjournments announced in open court or as indicated

in any notice of agenda of matters scheduled for hearing filed by the Debtors with the Court. The

Confirmation Objection Deadline shall be February 26, 2021 at 4:00 p.m. (prevailing Eastern

Time).

6. Objections to the Plan, if any, must (a) be in writing, (b) comply with the

Bankruptcy Rules and the Local Rules, (c) set forth the name of the objector and the nature and

amount of any claim or interest asserted by the objector against or in the Debtors, (d) state with

particularity the legal and factual bases for the objection and the specific grounds therefor, and

provide proposed language that, if accepted and incorporated by the Debtors, would obviate such

objection, ( e) be filed with the Court, contemporaneously with a proof of service, by no later than

the Confirmation Objection Deadline; and (f) be served in accordance with the Local Rules on the

following parties (collectively, the "Plan Objection Notice Parties"): (i) BBGI US, Inc., et al. ,

100 Phoenix Avenue, Enfield, CT 06082 (Attn: Steven Goldaper); (ii) the Office of the United

States Trustee for the District of Delaware, 844 King Street, Suite 2207, Wilmington, Delaware

19801 (Attn: Richard L. Schepacarter); (iii) counsel for the Debtors, (A) Weil, Gotshal & Manges

LLP (Attn: Garrett A. Fail ([email protected]) and David J. Cohen

([email protected])); and (B) Richards, Layton & Finger, P.A., (Attn: Mark D. Collins

([email protected]) and Zachary I. Shapiro ([email protected])); and (iv) counsel to the Committee,

(A) Akin Gump Strauss Hauer & Feld LLP (Attn: Meredith A. Lahaie ([email protected]),

Abid Qureshi ([email protected]), and Kate Doorley ([email protected])); and

(B) Troutman Pepper Hamilton Sanders LLP, (Attn: David Stratton

([email protected]), David Fournier ([email protected]), and Evelyn

Meltzer ( [email protected]) ).

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7. Pursuant to Bankruptcy Rule 3020(b ), if no objection is timely filed, this

Court may determine that the Plan has been proposed in good faith and not by any means forbidden

by law without receiving evidence on such issues.

8. Objections to confirmation of the Plan that are not timely filed and served

in the manner set forth above shall not be considered and shall be deemed overruled.

9. The Debtors are authorized to file and serve replies or an omnibus reply to

any objections to confirmation of the Plan, along with their memoranda of law in support of

confirmation of the Plan and any affidavits or declarations in support of confirmation of the Plan,

by March 3, 2021 at 11:59 p.m. (prevailing Eastern Time) (or 11:59 p.m. two Business Days

prior to the date of any adjourned Confirmation Hearing) (the "Confirmation Reply Deadline").

In addition, any party in interest may file and serve a statement in support of confirmation of the

Plan and/or a reply to any objections to confirmation of the Plan by the Confirmation Reply

Deadline.

10. The Confirmation Hearing Notice and Notice of Non-Voting Status are

hereby approved.

11. In accordance with Bankruptcy Rule 2002, the Debtors shall serve the

Confirmation Hearing Notice by regular U.S. mail on all parties in interest.

12. The Publication Notice is hereby approved. At least twenty-one days prior

to the Confirmation Objection Deadline, or as soon as reasonably practicable thereafter, the

Debtors shall publish the Publication Notice in (a) the national editions of one of USA Today or

The New York Times, (b) the national edition of The Globe and Mail in Canada, and (c) other

national, local, or foreign newspapers, trade journals, or publications, if any, as the Debtors, after

consultation with the Committee, deem appropriate.

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13. The Voting Procedures are hereby approved.

14. The Record Date shall be January 19, 2021. In addition, with respect to

any transferred Claim in the Voting Classes, the transferee will be entitled to receive a Solicitation

Package and cast a Ballot on account of the transferred Claim only if all actions necessary to effect

the transfer of the Claim pursuant to Bankruptcy Rule 300 I ( e ), if any, have been completed on or

before the Record Date. In the event a Claim is transferred after the transferor has completed a

Ballot, the transferee of such Claim shall be bound by any vote made on the Ballot by the

transferor.

15. The Voting Deadline shall be February 26, 2021 at 5:00 p.m. (prevailing

Eastern Time).

16. The 3018 Motion Deadline shall be fourteen days following the date of

service of (i) the Confirmation Hearing Notice or (ii) a claim objection regarding the holder's

claim. 3018 Motions must be filed with the Court and served upon the Plan Objection Notice

Parties by no later than the 3018 Motion Deadline, as that date may be extended in accordance

with the above.

17. The Debtors shall serve the Solicitation Packages by regular U.S. mail only

on the holders of Claims in the Voting Classes.

18. The Solicitation Date shall be no later than four business days following the

date of entry of this Order.

19. The Solicitation Packages are approved.

20. The Ballots are hereby approved.

21. The Tabulation Procedures are approved.

22. The terms of this Order shall be effective immediately upon its entry.

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23. The Debtors are authorized to make non-substantive and ministerial

changes to any documents in the Solicitation Package without further approval of the Court prior

to its dissemination, including, without limitation, changes to correct typographical and

grammatical errors and to make conforming changes among the Plan and any of such materials

prior to their distribution.

24. All time periods set forth in this Order shall be calculated in accordance

with Bankruptcy Rule 9006(a).

25. The Debtors are authorized to take all actions necessary to effectuate the

relief granted pursuant to this Order in accordance with the Motion.

26. This Court shall retain jurisdiction to hear and determine all matters arising

from or related to the implementation, interpretation and/or enforcement of this Order.

Dated: January 27th, 2021 Wilmington, Delaware

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CHRISTOPHER 5. SONTCHI UNITED STATES BANKRUPTCY JUDGE

438

Case 20-11785-CSS Doc 954-1 Filed 01/27/21 Page 1 of 4

EXHIBIT 1

Disclosure Statement Hearing Notice

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------------------ X

In re Chapter 11


Debtors.1 (Jointly Administered)

Re: D.I. 845

Hearing Date: Jan. 26, 2021 at 2:00 p.m. (ET)

------------------ x Obj. Deadline: Jan. 21, 2021 at 4:00 p.m. (ET)

NOTICE OF HEARING TO CONSIDER APPROVAL OF DISCLOSURE STATEMENT FOR JOINT CHAPTER 11 PLAN OF

LIQUIDATION FOR BBGI US, INC. AND ITS AFFILIATED DEBTORS

TO ALL PARTIES IN INTEREST:

PLEASE TAKE NOTICE THAT on December 24, 2020, BBGI US, Inc. and its debtor affiliates, as debtors and debtors in possession in the above-captioned chapter 11 cases ( collectively, the "Debtors") filed the Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors [D.I. 844] (as may be amended, modified, or supplemented in accordance with the terms therein, the "Plan") and the proposed Disclosure Statement for Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors [D.I. 845] (as may be amended, modified, or supplemented, the "Disclosure Statement").2

PLEASE TAKE FURTHER NOTICE THAT:

1. A hearing (the "Hearing") will be held before the Honorable Christopher S. Sontchi, United States Bankruptcy Judge, in the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"), 824 North Market Street, 5th Floor, Courtroom 6, Wilmington, Delaware 19801, on January 26, 2021 at 2:00 p.m. (prevailing Eastern Time), to consider entry of an order determining, among other things, that the Disclosure Statement contains

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax identification number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/ A); BBD Holding 1, LLC (N/ A); BBD Holding 2, LLC (N/ A); BBDI, LLC (N/ A); BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors' corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.

2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Disclosure Statement or the Plan, as applicable, or as the context otherwise requires.

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"adequate information" within the meaning ascribed to such term m section 1125 of the Bankruptcy Code and approving the Disclosure Statement.

2. Any party in interest wishing to obtain a copy of the Disclosure Statement and the Plan should contact Prime Clerk, the Debtors' solicitation agent, in writing at BBGI US, Inc., c/o Prime Clerk LLC, One Grand Central Place, 60 East 42nd Street, Suite 1440, New York, NY 10165 or by email at [email protected]. Interested parties may also review the Disclosure Statement and the Plan free of charge at https ://cases.primeclerk.com/brooksbrothers. In addition, the Disclosure Statement and Plan are on file with the Bankruptcy Court and may be reviewed by accessing the Bankruptcy Court's website: www.deb.uscourts.gov. Note that a PACER password and login are needed to access documents on the Bankruptcy Court's website. A PACER password can be obtained at: www.pacer.psc.uscourts.gov. Copies of the Disclosure Statement and Plan may also be examined by interested parties during normal business hours at the office of the Clerk of the Bankruptcy Court.

3. Objections, if any, to approval of the Disclosure Statement must: (a) be in writing, (b) comply with the Bankruptcy Rules and the Local Rules, ( c) set forth the name of the objector and the nature and amount of any claim or interest asserted by the objector against or in the Debtors, (d) state with particularity the legal and factual bases for the objection, and (e) be filed, contemporaneously with a proof of service, with the Bankruptcy Court no later than January 21, 2021 at 4:00 p.m. (prevailing Eastern Time), and served on: (i) the Debtors, c/o BBGI US, Inc., 100 Phoenix Ave., Enfield, CT 06082 (Attn: Steven Goldaper); (ii) counsel to the Debtors, (a) Weil, Gotshal & Manges LLP, Attn: Garrett A. Fail, Esq. and David J. Cohen, Esq. ([email protected] and [email protected]) and (b) Richards, Layton & Finger, P.A., Attn: Mark D. Collins, Esq. and Zachary I. Shapiro, Esq.([email protected] and [email protected]); (iii) the Office of the United States Trustee for the District of Delaware, 844 N. King Street, Room 2207, Wilmington, DE 19801 (Attn: Richard L. Schepacarter, Esq.); and (iv) counsel to the Official Committee of Unsecured Creditors, (a) Akin Gump Strauss Hauer & Feld LLP, Attn: Meredith A. Lahaie, Esq. and Abid Qureshi, Esq. ([email protected] and [email protected]) and (b) Troutman Pepper Hamilton Sanders LLP, Attn: David B. Stratton, Esq. and David M. Fournier, Esq. ([email protected] and [email protected]).

4. IF AN OBJECTION TO THE DISCLOSURE STATEMENT IS NOT FILED AND SERVED STRICTLY AS PRESCRIBED HEREIN, THE OBJECTING PARTY MAY BE BARRED FROM OBJECTING TO THE DISCLOSURE STATEMENT OR THE ADEQUACY THEREOF AND MAY NOT BE HEARD AT THE HEARING.

5. The Hearing may be adjourned from time to time without further notice to parties in interest other than by ari announcement in Bankruptcy Court of such adjournment on the date scheduled for the Hearing or as indicated in any notice of agenda of matters scheduled for hearing filed by the Debtors with the Bankruptcy Court. The Debtors may modify the Disclosure Statement, if necessary, prior to, during, or as a result of the Hearing without further notice.

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Dated: December 24, 2020 Wilmington, Delaware

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RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981) Zachary I. Shapiro (No. 5103) Brett M. Haywood (No. 6166) Christopher M. De Lillo (No. 6355) Sarah E. Silveira (No. 6580) One Rodney Square 920 N. King Street Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701 E-mail: [email protected]

- and-

[email protected] [email protected] [email protected] [email protected]

WEIL, GOTSHAL & MANGES LLP Garrett A. Fail (admitted pro hac vice) David J. Cohen (admitted pro hac vice 767 Fifth Avenue New York,New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 E-mail: [email protected]

[email protected]

Attorneys for Debtors and Debtors in Possession

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EXHIBIT2

Form of Confirmation Hearing Notice

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UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE

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In re

BBGI US, INC., et al.,

Debtors.1

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Chapter 11

Case No. 20-11785 (CSS)

(Jointly Administered)

Re: D.I. 918, 919 & [_]

NOTICE OF (I) APPROVAL OF DISCLOSURE STATEMENT, (II) ESTABLISHMENT OF RECORD

DATE, (III) HEARING ON CONFIRMATION OF THE PLAN, (IV) PROCEDURES FOR OBJECTING TO THE CONFIRMATION OF THE

PLAN, AND {Y) PROCEDURES AND DEADLINE FOR VOTING ON THE PLAN

TO ALL PARTIES IN INTEREST:

PLEASE TAKE NOTICE THAT:

1. Approval of Disclosure Statement. On January 26, 2021, the United States Bankruptcy Court for the District of Delaware (the "Court") held a hearing (the "Disclosure Statement Hearing") regarding approval of the Disclosure Statement for Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors, filed on January 22, 2021 [D.I. 919) (as may be amended, modified, or supplemented, the "Disclosure Statement") in the chapter 11 cases ofBBGI US, Inc. and its debtor affiliates, as debtors and debtors in possession in the above-captioned chapter 11 cases ( collectively, the "Debtors"). After the hearing, the Court entered an order [D.I. _] (the "Disclosure Statement Order") approving the Disclosure Statement. The Disclosure Statement Order also authorizes the Debtors to solicit votes to accept or reject the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors, filed on January 22, 2021 [D.I. 918) (as may be amended, modified, or supplemented in accordance with the terms therein, the "Plan").2

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor' s federal tax identification number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A); BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors ' corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.

2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Disclosure Statement or the Plan, as applicable.

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2. Confirmation Hearing. A hearing to consider confirmation of the Plan (the "Confirmation Hearing") has been scheduled before the Honorable Christopher S. Sontchi, United States Bankruptcy Judge, at the Court, 824 North Market Street, 5th Floor, Courtroom 6, Wilmington, Delaware 19801, on March 5, 2021 at 1:00 p.m. (prevailing Eastern Time). The Confirmation Hearing may be held virtually or adjourned or continued from time to time by the Court or the Debtors without further notice other than as announced in open court or as indicated in any notice of agenda of matters scheduled for hearing filed by the Debtors with the Court. The Plan may be modified, if necessary, prior to, during, or as a result of the Confirmation Hearing.

3. Record Date. The holders of Claims against the Debtors as of January 19, 2021 (the "Record Date") in Class 3 (PBGC Claims) and Class 4 (General Unsecured Claims) of the Plan are entitled to vote on the Plan:

4. Voting Deadline. All votes to accept or reject the Plan must be actually received by the Debtors' voting and tabulation agent, Prime Clerk LLC ("Prime Clerk"), by no later than 5:00 p.m. (prevailing Eastern Time) on February 26, 2021 (the "Voting Deadline"). Any failure to follow the voting instructions included with your Ballot may disqualify your Ballot and your vote.

5. Parties in Interest Not Entitled to Vote. Holders of Unimpaired Claims in classes presumed to accept the Plan are not entitled to vote and will not receive a Ballot. In addition, holders of Impaired Claims in classes deemed to reject the Plan are not entitled to vote and will not receive a Ballot.

6. If you (i) disagree with the amount set forth by the Debtors for your Claim in the Schedules or (ii) if you have filed a proof of claim and disagree with either (a) the Debtors' objection to your Claim and believe that you should be entitled to vote on the Plan or (b) the Debtors' classification or request for estimation of your Claim and believe that you should be entitled to vote on the Plan in a different amount, then you must file with the Court, and serve on the parties identified in paragraph 8 below, a motion ( a "Rule 3018 Motion") for an order pursuant to Rule 3018(a) of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") temporarily allowing your Claim in a different amount for purposes of voting to accept or reject the Plan. All Rule 3018 Motions must be filed on or before 4:00 p.m. (prevailing Eastern Time) on February 12, 2021, or fourteen days after the service of an objection to your Claim (the "Rule 3018 Motion Deadline"). Rule 3018 Motions that are not timely filed and served in the manner set forth above on or before the Rule 3018 Motion Deadline shall not be considered. As to any creditor that timely files a Rule 3018 Motion, that creditor's Ballot will be counted as provided in the Order except as may be otherwise ordered by the Court. Creditors may contact Prime Clerk in writing at (i) BBGI US, Inc. Ballot Processing, c/o Prime Clerk LLC, One Grand Central Place, 60 East 42nd Street, Suite 1440, New York, NY 10165, (ii) by telephone at 877-930-4317 (Domestic) or 347-899-4592 (International), or (iii) by email to [email protected] (referencing "BBGI US, Inc. Ballots" in the subject line) to receive an appropriate Ballot for any Claim for which a Proof of Claim and Rule 3018 Motion have been timely filed.

7. Objections to Confirmation. The deadline to object or respond to confirmation of the Plan is 4:00 p.m. (prevailing Eastern Time) on February 26, 2021 (the "Plan Objection Deadline").

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8. Objections and responses, if any, to confirmation of the Plan, must: (a) be in writing, (b) comply with the Bankruptcy Rules and the Local Rules, ( c) set forth the name of the objector and the nature and amount of any claim or interest asserted by the objector against or in the Debtors, ( d) state with particularity the legal and factual bases for the objection and the specific grounds therefor, and provide proposed language that, if accepted and incorporated by the Debtors, would obviate such objection, (e) be filed with the Court, contemporaneously with a proof of service, by no later than the Plan Objection Deadline, and (f) be served in accordance with the Local Rules upon the following parties:

Debtors BBGI US, Inc., et al. 100 Phoenix A venue Enfield, CT 06082 Attn: Steven Goldaper

Counsel to the Debtors Weil, Gotshal & Manges LLP Attn: Garrett A. Fail ( [email protected])

David J. Cohen ([email protected])

Counsel to the Committee Akin Gump Strauss Hauer & Feld LLP Attn: Meredith A. Lahaie

( [email protected]) Abid Qureshi ([email protected]) Kate Doorley ([email protected])

Office of the U.S. Trustee 844 King Street Suite 2207 Wilmington, DE 19801 Attn: Richard L. Schepacarter

Co-Counsel to the Debtors Richards, Layton & Finger, P.A. Attn: Mark D. Collins ([email protected])

Zachary I. Shapiro ([email protected])

Co-Counsel to the Committee Troutman Pepper Hamilton Sanders LLP Attn: David B. Stratton

( david. [email protected]) David M Fournier ( [email protected]) Evelyn J. Meltzer ( [email protected])

9. IF ANY OBJECTION TO CONFIRMATION OF THE PLAN IS NOT FILED AND SERVED STRICTLY AS PRESCRIBED HEREIN, THE OBJECTING PARTY SHALL BE BARRED FROM OBJECTING TO CONFIRMATION OF THE PLAN AND MAY NOT BE HEARD AT THE CONFIRMATION HEARING.

10. Additional Information. Any party in interest wishing to obtain information about the solicitation procedures or copies of the Disclosure Statement or the Plan should contact the Debtors' voting and tabulation agent, Prime Clerk, in writing: BBGI US, Inc. Ballot Processing, c/o Prime Clerk LLC, One Grand Central Place, 60 East 42nd Street, Suite 1440, New York, NY 10165, or by email at [email protected]. Interested parties may also review the Disclosure Statement and the Plan at https://cases.primeclerk.com/brooksbrothers. In addition, the Disclosure Statement, the Plan, the Disclosure Statement Order are on file with the Court and may be reviewed for a fee by accessing the Court's website: www.deb.uscourts.gov. Note that a PACER password and login are needed to access documents on the Court's website. A PACER password can be obtained at: www.pacer.psc.uscourts.gov. Copies of the Disclosure Statement and the Plan may also be examined by interested parties during normal business hours at the office of the Clerk of the Court.

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NOTICE REGARDING CERTAIN RELEASE, EXCULPATION AND INJUNCTION PROVISIONS IN THE PLAN

The Plan includes certain injunction, release, and exculpation provisions.

Select Defined Terms in the Plan

Exculpated Parties means collectively: (i) the Debtors; (ii) the Estates; (iii) the Creditors' Committee and the members of the Creditors' Committee; and (iv) with respect to each of the foregoing entities in clauses (i) through (iv), such entities' predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons' respective heirs, executors, Estates, servants and nominees, in each case in their capacity as such; provided, however, that Exculpated Parties shall not include any Former D&Os.

Released Parties means collectively: (i) the Debtors; (ii) the Creditors' Committee and the members of the Creditors' Committee solely in their capacities as such, and not individually; (iii) the DIP Lender; (iv) the DIP Agent; (v) the ABL Agent; (vi) the ABL Lenders; (vii) the Information Officer; (viii) with respect to any Person or Entity in the foregoing clauses (i) through (vii), such Person or Entity's predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons' respective heirs, executors, estates, servants and nominees each solely in its capacity as such; provided, however, that the (i) DV Entities, and (ii) Former D&Os and Shareholders shall not be Released Parties; provided, further that any holder of a Claim that opts out of the releases set forth in Section 10.5 of the Plan or files with the Bankruptcy Court an objection to the releases set forth Section 10.5 of the Plan by the deadline established to file objections to the Plan shall not be a Released Party.

Releasing Parties means collectively, and in each case, in their respective capacities as such: (i) the Released Parties; (ii) all holders of Claims and Interests that are deemed to accept the Plan; (iii) all holders of Claims who vote to accept the Plan; (iv) all holders of Claims that are entitled to vote on the Plan who abstain from voting on the Plan or who vote to reject the Plan, but in either case, do not opt out of granting the releases set forth in Section 10.5 of the Plan; (v) holders of Claims or Interests that are deemed to reject the Plan and do not timely file with the Bankruptcy Court an objection to the releases set forth in Section 10.5 of the Plan by the deadline established to file objections to the Plan; (vi) holders of Administrative Expense Claims and Priority Tax Claims that do not hold Claims or Interests in any Class and do not timely file with the Bankruptcy Court an objection to the releases set forth in Section 10.5 of the Plan by the deadline established to file objections to the Plan, and (vii) with respect to any Person or entity in the foregoing clauses (i) through (vi), such Person or Entities' predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons' respective heirs, executors, estates, servants and nominees, in their respective capacities as such.

Select Provisions of the Plan

Section 10.4 of the Plan: Releases by the Debtors

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As of the Effective Date, except (i) for the rights that remain in effect from and after the Effective Date to enforce the Plan; and (ii) as otherwise provided in the Plan or in the Confirmation Order, for good and valuable consideration, including their cooperation and contributions to the Chapter 11 Cases, the Released Parties will be deemed conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged, to the maximum extent permitted by law, by the Debtors and the Estates, in each case, on behalf of themselves and their respective successors (including the Liquidation Trust and the Litigation Trust), assigns, and representatives, and any and all other persons that may purport to assert any Cause of Action derivatively, by, through or on behalf of the foregoing Persons and Entities, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise that the Debtors or the Estates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre- and post-petition marketing and sale process, the Sale Transaction, the AP A, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including the Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or the Sale Transaction; provided, further, that nothing in Section 10.4 of the Plan shall constitute a release of any of the DV Claims or the Former D&O and Shareholder Causes of Action.

Section 10.5 of the Plan: Releases by Holders of Claims and Interests (the "Third Party Release")

As of the Effective Date, except (i) for the right to enforce the Plan; and (ii) as otherwise expressly provided in the Plan or in the Confirmation Order, in exchange for good and valuable consideration, including the obligations of the Debtors under the Plan, to the fullest extent permissible under applicable law, as such law may be extended or integrated after the Effective Date, the Released Parties shall be deemed conclusively, absolutely, unconditionally, irrevocably and forever, released, and discharged by the Releasing Parties in each case, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, asserted or unasserted, accrued or unaccrued, existing or hereinafter arising, in law or equity, whether arising under federal or state statutory or common law, or any other applicable international, foreign, or domestic law, rule, statute, regulation, treaty, right, duty, requirement or otherwise, that such entity would have been legally entitled to assert in their own right (whether individually, derivatively, or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, or in any manner arising prior to the Effective Date, from, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre-and post-petition marketing and sale process, the Sale Transaction, the AP A, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition

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Proceedings, the Disclosure Statement, the Plan (including any Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or Sale Transaction. The Releasing Parties shall be permanently enjoined from prosecuting any of the foregoing Claims or Causes of Action released under Section 10.5 of the Plan against each of the Released Parties.

Section 10.6 of the Plan: Exculpation

To the maximum extent permitted by applicable law, no Exculpated Party will have or incur, and each of the Exculpated Parties are hereby released and exculpated from, any claim, obligation, suit, judgment, damage, demand, debt, right, cause of action, remedy, loss, and liability for any claim arising on or after the Petition Date in connection with or arising out of the filing or administration of the Chapter 11 Cases, the administration of the Recognition Proceedings, the postpetition marketing and sale process, the postpetition purchase, sale, or rescission of the purchase or sale of any security or asset of the Debtors; the negotiation and pursuit of the Disclosure Statement, the AP A, the Sale Transaction, the Plan, or the solicitation of votes for, or confirmation of, the Plan; the funding or consummation of the Plan; the occurrence of the Effective Date; the DIP Credit Agreement; the post-Effective Date administration of the Plan or the property to be distributed under the Plan; or the transactions in furtherance of any of the foregoing; except for fraud, gross negligence, or willful misconduct, as determined by a Final Order. This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities, exculpations and any other applicable law or rules protecting such Exculpated Parties from liability. Notwithstanding anything to the contrary in the foregoing, the exculpation set forth herein does not release any post-Effective Date obligation or liability of any Entity under the Plan, the Sale Transaction, or any document, instrument, or agreement (including those set forth in the Plan Supplement) executed to implement the Plan or the Sale Transaction.

Section 10.7 of the Plan: Injunction

(a) Upon entry of the Confirmation Order, all holders of Claims and Interests and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates, shall be enjoined from taking any actions to interfere with the implementation or Consummation of the Plan in relation to any Claim extinguished, discharged, or released pursuant to the Plan.

(b) Except as expressly provided in the Plan, the Confirmation Order, or a separate order of the Bankruptcy Court or as agreed to by the Debtors and a holder of a Claim against or Interest in the Debtors, all Entities who have held, hold, or may hold Claims against or Interests in the Debtors (whether or not proof of such Claims or Interests has been filed and whether or not such Entities vote in favor of, against or abstain from voting on the Plan or are presumed to have accepted or deemed to have rejected the Plan) and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates are permanently enjoined, on and after the Effective Date, solely with respect to any Claims, Interests, and Causes of Action that will be or are extinguished, discharged, or released pursuant to the Plan from (i) commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral, administrative or other forum) against or affecting the Debtors, the Liquidation Trust, and the Litigation Trust, or the property of any of the Debtors, the Liquidation Trust, the Litigation Trust; (ii) enforcing, levying, attaching (including, without limitation, any prejudgment attachment),

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collecting, or otherwise recovering by any manner or means, whether directly or indirectly, any judgment, award, decree, or order against the Debtors, and the Liquidation Trust; or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any encumbrance of any kind against the Debtors, the Liquidation Trust, and the Litigation Trust or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iv) asserting any right of setoff, directly or indirectly, against any obligation due from the Debtors, the Liquidation Trust, and the Litigation Trust, or against property or interests in property of any of the Debtors, the Liquidation Trust, and the Litigation Trust except as contemplated or allowed by the Plan; and (v) acting or proceeding in any manner, in any place whatsoever, that does not conform to or comply with the provisions of the Plan.

(c) By accepting distributions pursuant to the Plan, each holder of an Allowed Claim or Interest extinguished, discharged, or released pursuant to the Plan shall be deemed to have affirmatively and specifically consented to be bound by the Plan, including, without limitation, the injunctions set forth in Section 10.7 of the Plan.

(d) The injunctions in Section 10.7 of the Plan shall extend to any successors of the Debtors, the Liquidation Trust, and the Litigation Trust and their respective property and interests in property.

Section 10.8 of the Plan: Waiver of Statutory Limitation on Releases

EACH RELEASING PARTY IN EACH OF THE RELEASES CONTAINED IN THE PLAN (INCLUDING UNDER SECTION 10 OF THE PLAN) EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE PARTY RELEASED, IT HAS CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT IN DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE OF SUCH UNKNOWN LOSSES OR CLAIMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES THAT A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MAY HA VE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE RELEASED PARTY, INCLUDING THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542. THE RELEASES CONTAINED IN SECTION 10 OF THE PLAN ARE EFFECTIVE REGARDLESS OF WHETHER THOSE RELEASED MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEN OR UNFORESEEN.

Section 10.10 of the Plan: PBGC Release

As of the Effective Date, to the maximum extent permitted by applicable law, other than the Debtors with respect to the Allowed PBGC Claims, the Released Parties, for good and valuable consideration, shall be deemed to be released and discharged by the PBGC and the Pension Plans from any Causes of Action based on or relating to the Pension Plans; provided, however, that nothing in the Plan, the Confirmation Order, or any other document filed in the Debtors' Chapter 11 Cases without notice to the PBGC shall be construed to release (i) non-Debtor members of the controlled group of the Pension Plans' sponsors (within the meaning of Section 4001 of ERISA or Section 414 of the Internal Revenue Code of 1986, as amended) as of the Pension Plan Termination Date from Causes of Action or any other obligations based on or relating to the Pension Plans, or (ii)

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any fiduciary breaches or prohibited transactions (in each case within the meaning of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended) relating to the Pension Plans. The Debtors shall use commercially reasonable efforts to provide notice to the PBGC of any pleading filed in the Debtors' Chapter 11 Cases seeking relief that is contradictory to Section 10.10 of the Plan.

PLEASE BE ADVISED THAT IF:

A. YOU VOTE TO ACCEPT THE PLAN;

B. YOUR CLAIM IS UNIMPAIRED UNDER THE PLAN;

C. YOU ARE ENTITLED TO VOTE UNDER THE PLAN BUT DO NOT VOTE TO ACCEPT OR TO REJECT THE PLAN AND DO NOT OPT OUT OF GRANTING THE RELEASES IN SECTION 10.4 OF THE PLAN;

D. YOU VOTE TO REJECT THE PLAN AND DO NOT OPT OUT OF GRANTING THE RELEASES IN SECTION 10.4 OF THE PLAN; OR

E. YOU ARE A RELEASED PARTY

IN EACH CASE, YOU WILL BE DEEMED TO HA VE GRANTED THE RELEASES CONTAINED IN SECTION 10.5 OF THE PLAN.

11 . The Plan also contains other related provisions that may affect your rights against the Debtors.

YOU ARE ADVISED TO CAREFULLY REVIEW AND CONSIDER THE PLAN, INCLUDING THE DISCHARGE, INJUNCTION, RELEASE, AND EXCULPATION PROVISIONS, AS YOUR RIGHTS MAY BE AFFECTED.

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Dated: _____ , 2021 Wilmington, Delaware

RLFI 24700090v. l

RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981) Zachary I. Shapiro (No. 5103) One Rodney Square 920 N. King Street Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701 E-mail: [email protected]

[email protected] - and-

WEIL, GOTSHAL & MANGES LLP Garrett A. Fail (admitted pro hac vice) David J. Cohen ( admitted pro hac vice 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 E-mail: [email protected]

[email protected]


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EXHIBIT 3-A

Form of Class 3 Ballot

453



------------------ X

In re


Debtors.1

------------------x

Chapter 11

Case No. 20-11785 (CSS)


BALLOT FOR ACCEPTING OR REJECTING THE AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION FOR BBGI US, INC. AND ITS AFFILIATED DEBTORS

CLASS 3 - PBGC Claims

PLEASE READ AND FOLLOW THE ENCLOSED INSTRUCTIONS FOR COMPLETING BALLOTS CAREFULLY BEFORE COMPLETING THE BALLOT

TIDS BALLOT MUST BE ACTUALLY RECEIVED BY FEBRUARY 26, 2021, BY 5:00 P.M. (PREVAILING EASTERN TIME) (THE "VOTING DEADLINE")

The above-captioned debtors and debtors in possession ( collectively, the "Debtors") have sent this Ballot to you because our records indicate that you are a Holder of a Class 3 Claim and accordingly, you have a right to vote to accept or reject the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors [D.I. _] (as may be amended, modified, or supplemented in accordance with the terms therein, the "Plan").2

Your rights are described in the Debtors' Disclosure Statement for Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors, and all exhibits related thereto [D.I. _] (as may be amended, modified, or supplemented, the "Disclosure Statement") and the Disclosure Statement Order. The Disclosure Statement provides information to assist Holders of Claims in deciding whether or not to accept or reject the Plan. The Confirmation Hearing Notice, a pre-addressed stamped return envelope, and a flash drive containing electronic copies of the Disclosure Statement Order, Plan, and Disclosure Statement are included in the packet you are

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax identification number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (NIA) ; BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A); BBGI International, LLC (flk/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (flk/a Brooks Brothers Canada Ltd.) (4709) . The Debtors ' corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.

2 Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Plan, Disclosure Statement (as defined herein), or the order approving the Disclosure Statement [D.I. l_]] (the "Disclosure Statement Order"), as applicable, or as the context otherwise requires.

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receiving with this Ballot. If you need to obtain additional solicitation materials, you may contact Prime Clerk LLC, the voting agent retained by the Debtors in these chapter 11 cases ("Prime Clerk"), by: (a) accessing Prime Clerk's chapter 11 case website at https://cases.primeclerk.com/brooksbrothers; (b) writing to BBGI US, Inc. Ballot Processing, c/o Prime Clerk LLC, One Grand Central Place, 60 East 42nd Street, Suite 1440, New York, NY 10165; (c) calling Prime Clerk at 877-930-4317 (Domestic) or 347-899-4592 (International); or ( d) emailing Prime Clerk at [email protected], referencing "BBGI US, Inc. Ballots" in the subject line. You may also obtain copies of any pleadings filed in these chapter 11 cases for a fee via PACER at: http://www.deb.uscourts.gov.

The Court has approved the Disclosure Statement as containing adequate information, as required under section 1125 of the Bankruptcy Code. Court approval of the Disclosure Statement does not indicate approval of the Plan by the Court. This Ballot may not be used for any purpose other than to vote to accept or reject the Plan. If you believe you have received this Ballot in error, please contact Prime Clerk at the address or telephone number set forth above.

You should review the Disclosure Statement and the Plan before you vote. You may wish to seek legal advice concerning the Plan and the Plan's classification and treatment of your Claim. Your Claim has been placed in Class 3 (PBGC Claims) under the Plan.

If Prime Clerk does not receive your Ballot on or before the Voting Deadline, which is February 26, 2021, at 5:00 p.m. (prevailing Eastern Time), and if the Voting Deadline is not extended, your vote will not count. If the Court confirms the Plan, it will bind you regardless of whether you vote. You may submit your Ballot through Prime Clerk's online electronic balloting portal (the "E-Portal") or by returning this paper Ballot to BBGI US, Inc. Ballot Processing, c/o Prime Clerk LLC, 60 East 42nd Street, Suite 1440, New York, NY 10165.

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If Submitting Your Vote through the E-Portal

Prime Clerk will accept Ballots if properly completed through the E-Portal. To submit your Ballot via the E-Portal, visit https://cases.primeclerk.com/brooksbrothers, click on the "E-Ballot" section of the Debtors' website and follow the instructions to submit your Ballot.

IMPORTANT NOTE: You will need the following information to retrieve and submit your customized electronic Ballot:

Unique E-Ballot ID#:

Prime Clerk's E-Portal is the sole manner in which Ballots will be accepted via electronic or online transmission. Ballots submitted by facsimile, email, or other means of electronic transmission will not be counted.

Each E-Ballot ID# is to be used solely for voting only those Claims described in Item 2 of your electronic Ballot. Please complete and submit an electronic Ballot for each E-Ballot ID# you receive, as applicable. Creditors who cast a Ballot using the E-Portal should NOT also submit a paper Ballot.

If your Ballot is not received by Prime Clerk on or before the Voting Deadline, and such Voting Deadline is not extended by the Debtors as noted above, your vote will not be counted.

If by First Class Maill Overnight Courierl or Hand Delivery:

BBGI US, Inc. Ballot Processing c/o Prime Clerk LLC

60 East 42nd Street, Suite 1440 New York, NY 10165

Item 1. Treatment of Your Class 3 Claim (PBGC Claims).

Subject to the terms and conditions of the Plan, you will receive the following treatment on account of your Class 3 Claim (PBGC Claims) if it is Allowed and the Plan is consummated:

The PBGC Claims shall be Allowed as a prepetition general unsecured claim in the amount of $62,000,000. In full and final satisfaction of the PBGC Claims, holders of the Allowed PBGC Claims shall receive (i) a Pro Rata Share of the Liquidation Trust Beneficial Interests and (ii) a Pro Rata Share of the Litigation Trust Beneficial Interests. With respect to any Distribution of Liquidation Trust Assets or Litigation Trust Assets to be made by the Liquidation Trustee or the Litigation Trustee ( as

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applicable), holders of the Allowed PBGC Claims shall receive the PBGC Claims Distribution Amount.

For additional discussion of your treatment and rights under the Plan, including the meaning of the capitalized terms above which are not defined herein, please read the Disclosure Statement and the Plan.

Item 2. Amount of Claim.

Pursuant to the Plan, the PBGC Claims are Allowed in the following principal amount for voting:

Amount of Claim: $62,000,000

Item 3. Vote on Plan

The Holder of a Class 3 Claim (PBGC Claims) against the Debtors votes to (please check one):

ACCEPT THE PLAN REJECT THE PLAN

• • Any Ballot that is executed by the Holder of a Claim, but that indicates both an acceptance

and a rejection of the Plan or does not indicate either an acceptance or rejection of the Plan, will not be counted.

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Item 4. The Plan includes certain injunction, release, and exculpation provisions.



Released Parties means collectively: (i) the Debtors; (ii) the Creditors' Committee and the members of the Creditors' Committee solely in their capacities as such, and not individually; (iii) the DIP Lender; (iv) the DIP Agent; (v) the ABL Agent; (vi) the ABL Lenders; (vii) the Information Officer; (viii) with respect to any Person or Entity in the foregoing clauses (i) through (vii), such Person or Entity's predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons' respective heirs, executors, estates, servants and nominees each solely in its capacity as such; provided, however, that the (i) DV Entities, and (ii) Former D&Os and Shareholders shall not be Released Parties; provided, further that any holder of a Claim that opts out of the releases set forth in Section 10.5 of the Plan or files with the Bankruptcy Court an objection to the releases set forth Section 10.5 of the Plan by the deadline established to file objections to the Plan shall not be a Released Party.




As of the Effective Date, except (i) for the rights that remain in effect from and after the Effective Date to enforce the Plan; and (ii) as otherwise provided in the Plan or in the Confirmation Order, for good and valuable consideration, including their cooperation and contributions to the Chapter 11 Cases, the Released Parties will be deemed conclusively, absolutely,

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unconditionally, irrevocably, and forever released and discharged, to the maximum extent permitted by law, by the Debtors and the Estates, in each case, on behalf of themselves and their respective successors (including the Liquidation Trust and the Litigation Trust), assigns, and representatives, and any and all other persons that may purport to assert any Cause of Action derivatively, by, through or on behalf of the foregoing Persons and Entities, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise that the Debtors or the Estates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre- and post-petition marketing and sale process, the Sale Transaction, the AP A, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including the Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or the Sale Transaction; provided, further, that nothing in Section 10.4 of the Plan shall constitute a release of any of the DV Claims or the Former D&O and Shareholder Causes of Action.


As of the Effective Date, except (i) for the right to enforce the Plan; and (ii) as otherwise expressly provided in the Plan or in the Confirmation Order, in exchange for good and valuable consideration, including the obligations of the Debtors under the Plan, to the fullest extent permissible under applicable law, as such law may be extended or integrated after the Effective Date, the Released Parties shall be deemed conclusively, absolutely, unconditionally, irrevocably and forever, released, and discharged by the Releasing Parties in each case, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, asserted or unasserted, accrued or unaccrued, existing or hereinafter arising, in law or equity, whether arising under federal or state statutory or common law, or any other applicable international, foreign, or domestic law, rule, statute, regulation, treaty, right, duty, requirement or otherwise, that such entity would have been legally entitled to assert in their own right (whether individually, derivatively, or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, or in any manner arising prior to the Effective Date, from, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre-and post-petition marketing and sale process, the Sale Transaction, the AP A, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including any Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under

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the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or Sale Transaction. The Releasing Parties shall be permanently enjoined from prosecuting any of the foregoing Claims or Causes of Action released under Section 10.5 of the Plan against each of the Released Parties.





(b) Except as expressly provided in the Plan, the Confirmation Order, or a separate order of the Bankruptcy Court or as agreed to by the Debtors and a holder of a Claim against or Interest in the Debtors, all Entities who have held, hold, or may hold Claims against or Interests in the Debtors (whether or not proof of such Claims or Interests has been filed and whether or not such Entities vote in favor of, against or abstain from voting on the Plan or are presumed to have accepted or deemed to have rejected the Plan) and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates are permanently enjoined, on and after the Effective Date, solely with respect to any Claims, Interests, and Causes of Action that will be or are extinguished, discharged, or released pursuant to the Plan from (i) commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral, administrative or other forum) against or affecting the Debtors, the Liquidation Trust, and the Litigation Trust, or the property of any of the Debtors, the Liquidation Trust, the Litigation Trust; (ii) enforcing, levying, attaching (including, without limitation, any prejudgment attachment), collecting, or otherwise recovering by any manner or means, whether directly or indirectly, any judgment, award, decree, or order against the Debtors, and the Liquidation Trust; or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any encumbrance of any kind against the

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Debtors, the Liquidation Trust, and the Litigation Trust or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iv) asserting any right of setoff, directly or indirectly, against any obligation due from the Debtors, the Liquidation Trust, and the Litigation Trust, or against property or interests in property of any of the Debtors, the Liquidation Trust, and the Litigation Trust except as contemplated or allowed by the Plan; and (v) acting or proceeding in any manner, in any place whatsoever, that does not conform to or comply with the provisions of the Plan.




EACH RELEASING PARTY IN EACH OF THE RELEASES CONTAINED IN THE PLAN (INCLUDING UNDER SECTION 10 OF THE PLAN) EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE PARTY RELEASED, IT HAS CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT IN DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE OF SUCH UNKNOWN LOSSES OR CLAIMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES THAT A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MAY HA VE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE RELEASED PARTY, INCLUDING THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542. THE RELEASES CONTAINED IN SECTION 10 OF THE PLAN ARE EFFECTIVE REGARDLESS OF WHETHER THOSE RELEASED MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEN OR UNFORESEEN.


As of the Effective Date, to the maximum extent permitted by applicable law, other than the Debtors with respect to the Allowed PBGC Claims, the Released Parties, for good and valuable consideration, shall be deemed to be released and discharged by the PBGC and the Pension Plans from any Causes of Action based on or relating to the Pension Plans; provided, however, that nothing in the Plan, the Confirmation Order, or any other document filed in the Debtors' Chapter 11 Cases without notice to the PBGC shall be construed to release (i) non-Debtor members of the controlled group of the Pension Plans' sponsors (within the meaning of Section 4001 of ERISA or Section 414 of the Internal Revenue Code of 1986, as amended) as of the Pension Plan Termination Date from Causes of Action or any other obligations based on or relating to the Pension Plans, or (ii) any fiduciary breaches or prohibited transactions (in each case within the meaning of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended) relating to the Pension Plans. The Debtors shall use commercially reasonable efforts to provide notice to the PBGC of any pleading filed in the Debtors' Chapter 11 Cases seeking relief that is contradictory to Section 10.10 of the Plan.

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IMPORTANT INFORMATION REGARDING THE THIRD PARTY RELEASE IN SECTION 10.5 OF THE PLAN:

IF YOU VOTE TO ACCEPT THE PLAN, YOU SHALL BE DEEMED TO HA VE CONSENTED TO THE RELEASE PROVISIONS SET FORTH IN SECTION 10.5 OF THE PLAN, SUBJECT TO SECTION 10.10 OF THE PLAN. IF YOU (A)(I) DO NOT VOTE EITHER TO ACCEPT OR REJECT THE PLAN OR (II) VOTE TO REJECT THE PLAN AND (B) DO NOT CHECK THE BOX BELOW, YOU SHALL BE DEEMED TO HA VE CONSENTED TO THE THIRD PARTY RELEASE IN SECTION 10.5 OF THE PLAN, SUBJECT TO SECTION IO.IO OF THE PLAN.

ACCORDINGLY, IF YOU VOTED TO REJECT THE PLAN IN ITEM 3 ABOVE OR YOU ARE ABSTAINING FROM VOTING TO ACCEPT OR REJECT THE PLAN, CHECK THISBOXIFYOUELECTNOTTOGRANTTHERELEASESSETFORTHINSECTIONI0.5 OF THE PLAN.

THE HOLDER OF A CLASS 3 CLAIM (PBGC CLAIMS) ELECTS TO:

• OPT OUT OF THE THIRD PARTY RELEASE IN SECTION 10.5 OF THE PLAN.

Item 5. Certifications

By signing this Ballot, the undersigned certifies to the Court and the Debtors:

1. that as of the Record Date, the undersigned is either: (a) the Holder of the Class 3 Claims (PBGC Claims) being voted or (b) an authorized signatory for the Holder of the Class 3 Claims (PBGC Claims) being voted;

2. that it has received the Solicitation Package and acknowledges that the solicitation is being made pursuant to the terms and conditions set forth therein;

3. that it has cast the same vote with respect to all Class 3 Claims (PBGC Claims) held by it or the Holder on whose behalf it is submitting this Ballot, as applicable;

4. that no other Ballots with respect to the amount of the Class 3 (PBGC Claims) Claims identified in Item 2 have been cast or, if any other Ballots have been cast with respect to such Claims, then any such Ballots dated earlier are hereby revoked;

5. it acknowledges that a vote to accept the Plan constitutes an acceptance of the treatment of the Class 3 Claims (PBGC Claims) held by it or the Holder on whose behalf it is submitting this Ballot, as applicable;

6. that it understands and, if accepting the Plan, agrees with the treatment provided under the Plan for the Claims held by it or the Holder on whose behalf it is submitting this Ballot, as applicable;

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7. that it acknowledges and understands that (a) if no Holders of Claims eligible to vote in a particular Class vote to accept or reject the Plan, the Plan shall be deemed accepted by the Holders of such Claims in such Class and (b) any Class of Claims that does not have a Holder of an Allowed Claim or a Claim temporarily allowed by the Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of determining acceptance or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code; and

8. that it acknowledges and agrees that the Debtors may make conforming changes to the Plan to the extent provided by Bankruptcy Rule 3019 as may be reasonably necessary and that the Debtors will not re-solicit acceptances or rejections of the Plan in the event of such conforming changes.

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Name of Holder: (Please print or type)

Signature:

Name of Signatory: (If other than Holder)1

Title:

Address:

Telephone No.:

E-Mail Address:

Date Completed:

PLEASE COMPLETE, SIGN, AND DATE THE BALLOT AND RETURN IT PROMPTLY IN ACCORDANCE WITH ONE OF THE APPROVED SUBMISSION

METHODS DESCRIBED ABOVE. YOUR BALLOT MUST BE ACTUALLY RECEIVED BY THE VOTING DEADLINE, WHICH IS 5:00 P.M. PREVAILING

EASTERN TIME ON FEBRUARY 26, 2021.

5 If you are completing this Ballot on behalf of another person or entity, indicate your relationship with such person or entity and the capacity in which you are signing. You may be required to provide additional information or documentation with respect to such relationship.

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INSTRUCTIONS FOR COMPLETING BALLOTS

1. The Debtors are soliciting the votes of Holders of Claims with respect to the Plan attached as Exhibit A to the Disclosure Statement. Capitalized terms used in the Ballot or in these instructions (the "Ballot Instructions") but not otherwise defined therein or herein shall have the meaning set forth in the Plan, the Disclosure Statement, or the Disclosure Statement Order, as applicable.

2. The Court may confirm the Plan and thereby bind you by the terms of the Plan. Please review the Disclosure Statement for more information.

3. Prime Clerk's "E-Ballot" platform is the sole manner in which Ballots will be accepted via electronic or online transmission. Ballots submitted by facsimile, email, or other means of electronic transmission will not be counted. To have your vote counted, you must electronically complete, sign, and return a customized electronic Ballot by utilizing the EPortal on Prime Clerk's website, https://cases.primeclerk.com/brooksbrothers/. Your Ballot must be received by Prime Clerk no later than the Voting Deadline, unless such time is extended by the Debtors.

HOLDERS ARE STRONGLY ENCOURAGED TO SUBMIT THEIR BALLOTS VIA THEE-PORTAL.

4. If you prefer to return a hard copy of your Ballot, you may return it in the enclosed preaddressed, postage prepaid envelope or via first class mail, overnight courier, or hand delivery to:



5. To ensure that your vote is counted, you must: (a) complete the Ballot; (b) indicate your decision either to accept or reject the Plan in the boxes provided in Item 3 of the Ballot; and ( c) sign and return the Ballot to the address set forth on the enclosed pre-addressed envelope or by a method provided herein. The Voting Deadline for the receipt of Ballots by Prime Clerk is 5:00 p.m. (prevailing Eastern Time) on February 26, 2021. Your completed Ballot must be actually received by Prime Clerk on or before the Voting Deadline.

6. Except as otherwise provided herein or unless waived by the Debtors or permitted by order of the Bankruptcy Court, unless the Ballot being furnished is timely submitted on or prior to the Voting Deadline, the Debtors shall reject such Ballot as invalid and, therefore, decline to count it in connection with confirmation of the Plan.

7. If you cast more than one Ballot voting the same Claim(s) before the Voting Deadline, the last valid Ballot received on or before the Voting Deadline shall be deemed to reflect your intent and, thus, shall be deemed supersede any prior Ballot. If you simultaneously cast inconsistent Ballots, such Ballots will not be counted.

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8. If you cast a Ballot that is properly completed, executed and timely returned to Prime Clerk but that does not indicate either an acceptance or rejection of the Plan, the Ballot will not be counted.

9. If you cast a Ballot that is properly completed, executed, and timely returned to Prime Clerk but that indicates both an acceptance and a rejection of the Plan, the Ballot will not be counted.

10. You shall be deemed to have voted the full amount of your Claim and shall not be entitled to split your vote within a particular Class. Any Ballot that partially accepts and partially rejects the Plan will not be counted.

11. The following Ballots shall not be counted:

(i) Any Ballot received after the Voting Deadline, unless the Debtors shall have granted an extension of the Voting Deadline in writing with respect to such Ballot;

(ii) Any Ballot that is illegible or contains insufficient information to permit the identification of the Claim holder;

(iii) Any Ballot cast by a person or entity that does not hold a Claim in the Voting Classes;

(iv) Any Ballot cast by a person who is not entitled to vote, even if such individual holds a Claim in the Voting Classes;

(v) Any unsigned Ballot;

(vi) Any Ballot containing a vote that the Court determines, after notice and a hearing, was not solicited or procured in good faith or in accordance with the provisions of the Bankruptcy Code; or

(vii) Any Ballot transmitted to Prime Clerk by means not specifically approved herein.

12. If you are signing a Ballot in your capacity as a trustee, executor, administrator, guardian, attorney in fact, officer of a corporation, or otherwise acting in a fiduciary or representative capacity, you should indicate such capacity when signing and, if requested by Prime Clerk, the Debtors, or the Court, you must submit proper evidence to the requesting party to so act on behalf of such Holder. In addition, you should provide their name and mailing address if it is different from that set forth on the attached mailing label or if no such mailing label is attached to the Ballot.

13. The Debtors, after consultation with the Committee, subject to contrary order of the Bankruptcy Court, may waive any defect or irregularity as to any particular Ballot at any time, either before or after the close of voting, and any such waiver shall be documented in the Voting Declaration.

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Case 20-11785-CSS Doc 954-3 Filed 01/27 /21 Page 15 of 15

14. Neither the Debtors, Prime Clerk, nor any other Entity will be under any duty to provide notification of defects or irregularities with respect to delivered Ballots other than as provided in the Voting Declaration, nor will any of them incur any liability for failure to provide such notification.

15. Unless waived by the Debtors, after consultation with the Committee, subject to contrary order of the Bankruptcy Court, any defects or irregularities in connection with deliveries of Ballots must be cured prior to the Voting Deadline or such Ballots will not be counted.

16. The Ballot is not a letter of transmittal and may not be used for any purpose other than to vote to accept or reject the Plan. Accordingly, at this time, Holders of Claims should not surrender certificates or instruments representing or evidencing their Claim, and neither the Debtors nor Prime Clerk will accept delivery of any such certificates or instruments surrendered together with a Ballot.

17. This Ballot does not constitute, and shall not be deemed to be: (i) a Proof of Claim or (ii) an assertion or admission of a Claim.

18. If you believe you have received the wrong Ballot, you should contact Prime Clerk immediately at 877-930-4317 (Domestic) or 347-899-4592 (International) or by email to [email protected], referencing "BBGI US, Inc. Ballots" in the subject line.

PLEASE SUBMIT YOUR BALLOT PROMPTLY

IF YOU HA VE ANY QUESTIONS REGARDING TIDS BALLOT OR THE VOTING PROCEDURES, PLEASE CONTACT PRIME CLERK AT 877-930-4317 (DOMESTIC)

OR 347-899-4592 (INTERNATIONAL)

*****

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RLFI 24700090v.l

EXHIBIT3-B

Form of Class 4 Ballot

468



-------------------x

In re


Debtors.1

-------------------x

Chapter 11

Case No. 20-11785 (CSS)


BALLOT FOR ACCEPTING OR REJECTING THE AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION FOR BBGI US, INC. AND ITS AFFILIATED DEBTORS

CLASS 4-General Unsecured Claims

PLEASE READ AND FOLLOW THE ENCLOSED INSTRUCTIONS FOR COMPLETING BALLOTS CAREFULLY BEFORE COMPLETING THE BALLOT

TIDS BALLOT MUST BE ACTUALLY RECEIVED BY FEBRUARY 26, 2021, BY 5:00 P.M. (PREVAILING EASTERN TIME) (THE "VOTING DEADLINE")

The above-captioned debtors and debtors in possession ( collectively, the "Debtors") have sent this Ballot to you because our records indicate that you are a Holder of a Class 4 Claim and accordingly, you have a right to vote to accept or reject the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors [D.I. _] (as may be amended, modified, or supplemented in accordance with the terms therein, the "Plan").2

Your rights are described in the Debtors' Disclosure Statement for Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors, and all exhibits related thereto [D.I. _] (as may be amended, modified, or supplemented, the "Disclosure Statement") and the Disclosure Statement Order. The Disclosure Statement provides information to assist Holders of Claims in deciding whether or not to accept or reject the Plan. The Confirmation Hearing Notice, a pre-addressed stamped return envelope, and a flash drive containing electronic copies of the Disclosure Statement Order, Plan, and Disclosure Statement are included in the packet you are

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax identification number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (NIA); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A); BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors ' corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.

2 Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Plan, Disclosure Statement (as defined herein), or the order approving the Disclosure Statement [D.l. L_]] (the "Disclosure Statement Order"), as applicable, or as the context otherwise requires.

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receiving with this Ballot. If you need to obtain additional solicitation materials, you may contact Prime Clerk LLC, the voting agent retained by the Debtors in these chapter 11 cases ("Prime Clerk"), by: (a) accessing Prime Clerk's chapter 11 case website at https://cases.primeclerk.com/brooksbrothers; (b) writing to BBGI US, Inc. Ballot Processing, c/o Prime Clerk LLC, One Grand Central Place, 60 East 42nd Street, Suite 1440, New York, NY 10165; (c) calling Prime Clerk at 877-930-4317 (Domestic) or 347-899-4592 (International); or ( d) emailing Prime Clerk at [email protected], referencing "BBGI US, Inc. Ballots" in the subject line. You may also obtain copies of any pleadings filed in these chapter 11 cases for a fee via PACER at: http://www.deb.uscourts.gov.

The Court has approved the Disclosure Statement as containing adequate information, as required under section 1125 of the Bankruptcy Code. Court approval of the Disclosure Statement does not indicate approval of the Plan by the Court. This Ballot may not be used for any purpose other than to vote to accept or reject the Plan. If you believe you have received this Ballot in error, please contact Prime Clerk at the address or telephone number set forth above.

You should review the Disclosure Statement and the Plan before you vote. You may wish to seek legal advice concerning the Plan and the Plan's classification and treatment of your Claim. Your Claim has been placed in Class 4 (General Unsecured Claims) under the Plan.

If Prime Clerk does not receive your Ballot on or before the Voting Deadline, which is February 26, 2021, at 5:00 p.m. (prevailing Eastern Time), and if the Voting Deadline is not extended, your vote will not count. If the Court confirms the Plan, it will bind you regardless of whether you vote. You may submit your Ballot through Prime Clerk's online electronic balloting portal (the "E-Portal") or by returning this paper Ballot to BBGI US, Inc. Ballot Processing, c/o Prime Clerk LLC, 60 East 42nd Street, Suite 1440, New York, NY 10165.

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If Submitting Your Vote through the E-Portal

Prime Clerk will accept Ballots if properly completed through the E-Portal. To submit your Ballot via the E-Portal, visit https://cases.primeclerk.com/brooksbrothers, click on the "E-Ballot" section of the Debtors' website and follow the instructions to submit your Ballot.

IMPORTANT NOTE: You will need the following information to retrieve and submit your customized electronic Ballot:

Unique E-Ballot ID#:

Prime Clerk's E-Portal is the sole manner in which Ballots will be accepted via electronic or online transmission. Ballots submitted by facsimile, email, or other means of electronic transmission will not be counted.

Each E-Ballot ID# is to be used solely for voting only those Claims described in Item 2 of your electronic Ballot. Please complete and submit an electronic Ballot for each E-Ballot ID# you receive, as applicable. Creditors who cast a Ballot using the E-Portal should NOT also submit a paper Ballot.

If your Ballot is not received by Prime Clerk on or before the Voting Deadline, and such Voting Deadline is not extended by the Debtors as noted above, your vote will not be counted.

If by First Class Mai12 Overnight Courier2 or Hand Delivery:



Item 1. Treatment of Your Class 4 Claim (General Unsecured Claims).

Subject to the terms and conditions of the Plan, you will receive the following treatment on account of your Class 4 Claim (General Unsecured Claims) if it is Allowed and the Plan is consummated:

Except to the extent that a holder of an Allowed General Unsecured Claim against the Debtors has agreed to less favorable treatment of such Claim, and except as provided in section 5 .11 of the AP A with respect to the Claims of Farmer NonDebtor Subsidiaries, each such holder shall receive, in full and final satisfaction of such Claim, (i) a Pro Rata Share of the Liquidation Trust Beneficial Interests and (ii) a Pro Rata Share of the Litigation Trust Beneficial Interests. With respect to any Distribution of Liquidation Trust Assets or proceeds of the Litigation Trust Assets to be made by the Liquidation Trustee or the Litigation Trustee (as

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applicable), holders of Allowed General Unsecured Claims shall receive their Pro Rata share of the Allowed General Unsecured Claims Distribution Amount.

For additional discussion of your treatment and rights under the Plan, including the meaning of the capitalized terms above which are not defined herein, please read the Disclosure Statement and the Plan.

Item 2. Amount of Claim.

The undersigned hereby certifies that as of the Record Date, January 19, 2021, the undersigned was the Holder ( or an authorized signatory for a Holder) of a Class 4 Claim (General Unsecured Claims) in the following principal amount(s) (insert amount in box below) for voting:

Amount ofClaim3: $ ---------

Item 3. Vote on Plan

The Holder of a Class 4 Claim (General Unsecured Claims) against the Debtors votes to (please check one):

ACCEPT THE PLAN REJECT THE PLAN

• • Any Ballot that is executed by the Holder of a Claim, but that indicates both an acceptance

and a rejection of the Plan or does not indicate either an acceptance or rejection of the Plan, will not be counted.

3 For voting purposes only. Subject to tabulation rules.

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•


Item 4. The Plan includes certain injunction, release, and exculpation provisions.


Exculpated Parties means collectively: (i) the Debtors; (ii) the Estates; (iii) the Creditors ' Committee and the members of the Creditors' Committee; and (iv) with respect to each of the foregoing entities in clauses (i) through (iv), such entities' predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons' respective heirs, executors, Estates, servants and nominees, in each case in their capacity as such; provided, however, that Exculpated Parties shall not include any Former D&Os.

Released Parties means collectively: (i) the Debtors; (ii) the Creditors' Committee and the members of the Creditors ' Committee solely in their capacities as such, and not individually; (iii) the DIP Lender; (iv) the DIP Agent; (v) the ABL Agent; (vi) the ABL Lenders; (vii) the Information Officer; (viii) with respect to any Person or Entity in the foregoing clauses (i) through (vii), such Person or Entity's predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons' respective heirs, executors, estates, servants and nominees each solely in its capacity as such; provided, however, that the (i) DV Entities, and (ii) Former D&Os and Shareholders shall not be Released Parties; provided, farther that any holder of a Claim that opts out of the releases set forth in Section 10.5 of the Plan or files with the Bankruptcy Court an objection to the releases set forth Section 10.5 of the Plan by the deadline established to file objections to the Plan shall not be a Released Party.




As of the Effective Date, except (i) for the rights that remain in effect from and after the Effective Date to enforce the Plan; and (ii) as otherwise provided in the Plan or in the Confirmation Order, for good and valuable consideration, including their cooperation and contributions to the Chapter 11 Cases, the Released Parties will be deemed conclusively, absolutely,

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unconditionally, irrevocably, and forever released and discharged, to the maximum extent permitted by law, by the Debtors and the Estates, in each case, on behalf of themselves and their respective successors (including the Liquidation Trust and the Litigation Trust), assigns, and representatives, and any and all other persons that may purport to assert any Cause of Action derivatively, by, through or on behalf of the foregoing Persons and Entities, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise that the Debtors or the Estates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre- and post-petition marketing and sale process, the Sale Transaction, the AP A, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including the Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or the Sale Transaction; provided, further, that nothing in Section 10.4 of the Plan shall constitute a release of any of the DV Claims or the Former D&O and Shareholder Causes of Action.


As of the Effective Date, except (i) for the right to enforce the Plan; and (ii) as otherwise expressly provided in the Plan or in the Confirmation Order, in exchange for good and valuable consideration, including the obligations of the Debtors under the Plan, to the fullest extent permissible under applicable law, as such law may be extended or integrated after the Effective Date, the Released Parties shall be deemed conclusively, absolutely, unconditionally, irrevocably and forever, released, and discharged by the Releasing Parties in each case, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, asserted or unasserted, accrued or unaccrued, existing or hereinafter arising, in law or equity, whether arising under federal or state statutory or common law, or any other applicable international, foreign, or domestic law, rule, statute, regulation, treaty, right, duty, requirement or otherwise, that such entity would have been legally entitled to assert in their own right (whether individually, derivatively, or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, or in any manner arising prior to the Effective Date, from, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre-and post-petition marketing and sale process, the Sale Transaction, the AP A, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including any Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under

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the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or Sale Transaction. The Releasing Parties shall be permanently enjoined from prosecuting any of the foregoing Claims or Causes of Action released under Section 10.5 of the Plan against each of the Released Parties.


To the maximum extent permitted by applicable law, no Exculpated Party will have or incur, and each of the Exculpated Parties are hereby released and exculpated from, any claim, obligation, suit,judgment, damage, demand, debt, right, cause of action, remedy, loss, and liability for any claim arising on or after the Petition Date in connection with or arising out of the filing or administration of the Chapter 11 Cases, the administration of the Recognition Proceedings, the postpetition marketing and sale process, the postpetition purchase, sale, or rescission of the purchase or sale of any security or asset of the Debtors; the negotiation and pursuit of the Disclosure Statement, the AP A, the Sale Transaction, the Plan, or the solicitation of votes for, or confirmation of, the Plan; the funding or consummation of the Plan; the occurrence of the Effective Date; the DIP Credit Agreement; the post-Effective Date administration of the Plan or the property to be distributed under the Plan; or the transactions in furtherance of any of the foregoing; except for fraud, gross negligence, or willful misconduct, as determined by a Final Order. This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities, exculpations and any other applicable law or rules protecting such Exculpated Parties from liability. Notwithstanding anything to the contrary in the foregoing, the exculpation set forth herein does not release any post-Effective Date obligation or liability of any Entity under the Plan, the Sale Transaction, or any document, instrument, or agreement (including those set forth in the Plan Supplement) executed to implement the Plan or the Sale Transaction.



(b) Except as expressly provided in the Plan, the Confirmation Order, or a separate order of the Bankruptcy Court or as agreed to by the Debtors and a holder of a Claim against or Interest in the Debtors, all Entities who have held, hold, or may hold Claims against or Interests in the Debtors (whether or not proof of such Claims or Interests has been filed and whether or not such Entities vote in favor of, against or abstain from voting on the Plan or are presumed to have accepted or deemed to have rejected the Plan) and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates are permanently enjoined, on and after the Effective Date, solely with respect to any Claims, Interests, and Causes of Action that will be or are extinguished, discharged, or released pursuant to the Plan from (i) commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding of any kind (including, without limitation., any proceeding in a judicial, arbitral, administrative or other forum) against or affecting the Debtors, the Liquidation Trust, and the Litigation Trust, or the property of any of the Debtors, the Liquidation Trust, the Litigation Trust; (ii) enforcing, levying, attaching (including, without limitation, any prejudgment attachment), collecting, or otherwise recovering by any manner or means, whether directly or indirectly, any judgment, award, decree, or order against the Debtors, and the Liquidation Trust; or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any encumbrance of any kind against the

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Debtors, the Liquidation Trust, and the Litigation Trust or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iv) asserting any right of setoff, directly or indirectly, against any obligation due from the Debtors, the Liquidation Trust, and the Litigation Trust, or against property or interests in property of any of the Debtors, the Liquidation Trust, and the Litigation Trust except as contemplated or allowed by the Plan; and (v) acting or proceeding in any manner, in any place whatsoever, that does not conform to or comply with the provisions of the Plan.




EACH RELEASING PARTY IN EACH OF THE RELEASES CONTAINED IN THE PLAN (INCLUDING UNDER SECTION 10 OF THE PLAN} EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE PARTY RELEASED, IT HAS CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT IN DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE OF SUCH UNKNOWN LOSSES OR CLAIMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES THAT A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MAY HA VE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE RELEASED PARTY, INCLUDING THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542. THE RELEASES CONTAINED IN SECTION 10 OF THE PLAN ARE EFFECTIVE REGARDLESS OF WHETHER THOSE RELEASED MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEN OR UNFORESEEN.



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IMPORTANT INFORMATION REGARDING THE THIRD PARTY RELEASE IN SECTION 10.5 OF THE PLAN:

IF YOU VOTE TO ACCEPT THE PLAN, YOU SHALL BE DEEMED TO HA VE CONSENTED TO THE RELEASE PROVISIONS SET FORTH IN SECTION 10.5 OF THE PLAN. IF YOU (A)(I) DO NOT VOTE EITHER TO ACCEPT OR REJECT THE PLAN OR (II) VOTE TO REJECT THE PLAN AND (B) DO NOT CHECK THE BOX BELOW, YOU SHALL BE DEEMED TO HA VE CONSENTED TO THE THIRD PARTY RELEASE IN SECTION 10.5 OF THE PLAN.

ACCORDINGLY, IF YOU VOTED TO REJECT THE PLAN IN ITEM 3 ABOVE OR YOU ARE ABSTAINING FROM VOTING TO ACCEPT OR REJECT THE PLAN, CHECK THIS BOX IF YOU ELECT NOT TO GRANT THE RELEASES SET FORTH IN SECTION 10.5 OF THE PLAN.

THE HOLDER OF A CLASS 4 CLAIM (GENERAL UNSECURED CLAIMS) ELECTS TO:

• OPT OUT OF THE THIRD PARTY RELEASE IN SECTION 10.5 OF THE PLAN.

Item 5. Certifications

By signing this Ballot, the undersigned certifies to the Court and the Debtors:

1. that as of the Record Date, the undersigned is either: (a) the Holder of the Class 4 Claim(s) (General Unsecured Claims) being voted or (b) an authorized signatory for the Holder of the Class 4 Claim(s) (General Unsecured Claims) being voted;

2. that it has received the Solicitation Package and acknowledges that the solicitation is being made pursuant to the terms and conditions set forth therein;

3. that it has ca:st the same vote with respect to all Class 4 Claims (General Unsecured Claims) held by it or the Holder on whose behalf it is submitting this Ballot, as applicable;

4. that no other Ballots with respect to the amount of the Class 4 (General Unsecured Claims) Claim(s) identified in Item 2 have been cast or, if any other Ballots have been cast with respect to such Claim(s), then any such Ballots dated earlier are hereby revoked;

5. it acknowledges that a vote to accept the Plan constitutes an acceptance of the treatment of the Class 4 Claim(s) (General Unsecured Claims) held by it or the Holder on whose behalf it is submitting this Ballot, as applicable;

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6. that it understands and, if accepting the Plan, agrees with the treatment provided under the Plan for the Claim(s) held by it or the Holder on whose behalf it is submitting this Ballot, as applicable;

7. that it acknowledges and understands that (a) if no Holders of Claims eligible to vote in a particular Class vote to accept or reject the Plan, the Plan shall be deemed accepted by the Holders of such Claims in such Class and (b) any Class of Claims that does not have a Holder of an Allowed Claim or a Claim temporarily allowed by the Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of determining acceptance or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code; and

8. that it acknowledges and agrees that the Debtors may make conforming changes to the Plan to the extent provided by Bankruptcy Rule 3019 as may be reasonably necessary and that the Debtors will not re-solicit acceptances or rejections of the Plan in the event of such conforming changes.

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Name of Holder: (Please print or type)

Signature:

Name of Signatory: (If other than Holder)1

Title:

Address:

Telephone No.:

E-Mail Address:

Date Completed:

PLEASE COMPLETE, SIGN, AND DATE THE BALLOT AND RETURN IT PROMPTLY IN ACCORDANCE WITH ONE OF THE APPROVED SUBMISSION

METHODS DESCRIBED ABOVE. YOUR BALLOT MUST BE ACTUALLY RECEIVED BY THE VOTING DEADLINE, WHICH IS 5:00 P.M. PREY AILING

EASTERN TIME ON FEBRUARY 26, 2021.

5 If you are completing this Ballot on behalf of another person or entity, indicate your relationship with such person or entity and the capacity in which you are signing. You may be required to provide additional information or documentation with respect to such relationship.

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INSTRUCTIONS FOR COMPLETING BALLOTS

1. The Debtors are soliciting the votes of Holders of Claims with respect to the Plan attached as Exhibit A to the Disclosure Statement. Capitalized terms used in the Ballot or in these instructions (the "Ballot Instructions") but not otherwise defined therein or herein shall have the meaning set forth in the Plan, the Disclosure Statement, or the Disclosure Statement Order, as applicable.

2. The Court may confirm the Plan and thereby bind you by the terms of the Plan. Please review the Disclosure Statement for more information.

3. Prime Clerk's "E-Ballot" platform is the sole manner in which Ballots will be accepted via electronic or online transmission. Ballots submitted by facsimile, email, or other means of electronic transmission will not be counted. To have your vote counted, you must electronically complete, sign, and return a customized electronic Ballot by utilizing the EPortal on Prime Clerk's website, https://cases.primeclerk.com/brooksbrothers/. Your Ballot must be received by Prime Clerk no later than the Voting Deadline, unless such time is extended by the Debtors.

HOLDERS ARE STRONGLY ENCOURAGED TO SUBMIT THEIR BALLOTS VIA THEE-PORTAL.

4. If you prefer to return a hard copy of your Ballot, you may return it in the enclosed preaddressed, postage prepaid envelope or via first class mail, overnight courier, or hand delivery to:



5. To ensure that your vote is counted, you must: (a) complete the Ballot; (b) indicate your decision either to accept or reject the Plan in the boxes provided in Item 3 of the Ballot; and ( c) sign and return the Ballot to the address set forth on the enclosed pre-addressed envelope or by a method provided herein. The Voting Deadline for the receipt of Ballots by Prime Clerk is 5:00 p.m. (prevailing Eastern Time) on February 26, 2021. Your completed Ballot must be actually received by Prime Clerk on or before the Voting Deadline.

6. Except as otherwise provided herein or unless waived by the Debtors or permitted by order of the Bankruptcy Court, unless the Ballot being furnished is timely submitted on or prior to the Voting Deadline, the Debtors shall reject such Ballot as invalid and, therefore, decline to count it in connection with confirmation of the Plan.

7. If you cast more than one Ballot voting the same Claim(s) before the Voting Deadline, the last valid Ballot received on or before the Voting Deadline shall be deemed to reflect your intent and, thus, shall be deemed supersede any prior Ballot. If you simultaneously cast inconsistent Ballots, such Ballots will not be counted.

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8. If you cast a Ballot that is properly completed, executed and timely returned to Prime Clerk but that does not indicate either an acceptance or rejection of the Plan, the Ballot will not be counted.

9. If you cast a Ballot that is properly completed, executed, and timely returned to Prime Clerk but that indicates both an acceptance and a rejection of the Plan, the Ballot will not be counted.

10. You shall be deemed to have voted the full amount of your Claim and shall not be entitled to split your vote within a particular Class. Any Ballot that partially accepts and partially rejects the Plan will not be counted.

11. The following Ballots shall not be counted:

(viii) Any Ballot received after the Voting Deadline, unless the Debtors shall have granted an extension of the Voting Deadline in writing with respect to such Ballot;

(ix) Any Ballot that is illegible or contains insufficient information to permit the identification of the Claim holder;

(x) Any Ballot cast by a person or entity that does not hold a Claim in the Voting Classes;

(xi) Any Ballot cast by a person who is not entitled to vote, even if such individual holds a Claim in the Voting Classes;

(xii) Any unsigned Ballot;

(xiii) Any Ballot containing a vote that the Court determines, after notice and a hearing, was not solicited or procured in good faith or in accordance with the provisions of the Bankruptcy Code; or

(xiv) Any Ballot transmitted to Prime Clerk by means not specifically approved herein.

12. If you are signing a Ballot in your capacity as a trustee, executor, administrator, guardian, attorney in fact, officer of a corporation, or otherwise acting in a fiduciary or representative capacity, you should indicate such capacity when signing and, if requested by Prime Clerk, the Debtors, or the Court, you must submit proper evidence to the requesting party to so act on behalf of such Holder. In addition, you should provide their name and mailing address if it is different from that set forth on the attached mailing label or if no such mailing label is attached to the Ballot.

13. The Debtors, after consultation with the Committee, subject to contrary order of the Bankruptcy Court, may waive any defect or irregularity as to any particular Ballot at any time, either before or after the close of voting, and any such waiver shall be documented in the Voting Declaration.

2

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14.

15.

16.

17.

18.


Neither the Debtors, Prime Clerk, nor any other Entity will be under any duty to provide notification of defects or irregularities with respect to delivered Ballots other than as provided in the Voting Declaration, nor will any of them incur any liability for failure to provide such notification.

Unless waived by the Debtors, after consultation with the Committee, subject to contrary order of the Bankruptcy Court, any defects or irregularities in connection with deliveries of Ballots must be cured prior to the Voting Deadline or such Ballots will not be counted.

The Ballot is not a letter of transmittal and may not be used for any purpose other than to vote to accept or reject the Plan. Accordingly, at this time, Holders of Claims should not surrender certificates or instruments representing or evidencing their Claim, and neither the Debtors nor Prime Clerk will accept delivery of any such certificates or instruments surrendered together with a Ballot.

This Ballot does not constitute, and shall not be deemed to be: (i) a Proof of Claim or (ii) an assertion or admission of a Claim.

If you believe you have received the wrong Ballot, you should contact Prime Clerk immediately at 877-930-4317 (Domestic) or 347-899-4592 (International) or by email to [email protected], referencing "BBGI US, Inc. Ballots" in the subject line.

PLEASE SUBMIT YOUR BALLOT PROMPTLY

IF YOU HA VE ANY QUESTIONS REGARDING TIDS BALLOT OR THE VOTING PROCEDURES, PLEASE CONTACT PRIME CLERK AT 877-930-4317 (DOMESTIC)

OR 347-899-4592 (INTERNATIONAL)

*****

3

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EXHIBIT4

Notice of Non-Voting Status

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------------------ X

In re Chapter 11



Re: D.I. 918, 919 & [_]

Debtors.1

------------------ X

NOTICE OF NON-VOTING STATUS

PLEASE TAKE NOTICE THAT:

1. Approval of Disclosure Statement. On January 26, 2021, the United States Bankruptcy Court for the District of Delaware (the "Court") held a hearing (the "Disclosure Statement Hearing") regarding approval of the Disclosure Statement for Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors, filed on January 22, 2021 [D.I. 919] (as may be amended, modified, or supplemented, the "Disclosure Statement") in the chapter 11 cases of BBGI US, Inc. and its debtor affiliates, as debtors and debtors in possession in the above-captioned chapter 11 cases ( collectively, the "Debtors"). After the hearing, the Court entered an order [D.I. __J (the "Disclosure Statement Order") approving the Disclosure Statement. The Disclosure Statement Order also authorizes the Debtors to solicit votes to accept or reject the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors, filed on January 22, 2021 [D.I. 918] (as may be amended, modified, or supplemented in accordance with the terms therein, the "Plan").2

2. Confirmation Hearing. A hearing to consider confirmation of the Plan (the "Confirmation Hearing") has been scheduled before the Honorable Christopher S. Sontchi, United States Bankruptcy Judge, at the Court, 824 North Market Street, 5th Floor, Courtroom 6, Wilmington, Delaware 19801, on March 5, 2021 at 1:00 p.m. (prevailing Eastern Time). The Confirmation Hearing may be held virtually or adjourned or continued from time to time by the Court or the Debtors without further notice other than as announced in open court or as indicated

The Debtors in these chapter 11 cases, along with the last four digits of each Debtor' s federal tax identification number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (NIA); BBDI, LLC (N/A); BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors ' corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.

2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Disclosure Statement or the Plan, as applicable.

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in any notice of agenda of matters scheduled for hearing filed by the Debtors with the Court. The Plan may be modified, if necessary, prior to, during, or as a result of the Confirmation Hearing.

3. Unimpaired Claims. Under the Plan, Claims in Class 1 (Other Priority Claims) and Class 2 (Secured Claims) are Unimpaired and not entitled to vote.

4. Impaired Claims. Under the Plan, Claims or Interests in Class 5 (lntercompany Claims), Class 6 (Debtor Interests), and Class 7 (Subordinated Claims) are Impaired and not entitled to vote.

UNDER THE TERMS OF THE PLAN, YOUR CLAIM(S) AGAINST OR INTEREST(S) IN THE DEBTORS IS/ARE EITHER (A) UNIMPAIRED, AND THEREFORE, PURSUANT TO SECTION 1126(f) OF TITLE 11 OF THE UNITED STATES CODE, YOU ARE (I) CONCLUSIVELY PRESUMED TO HAVE ACCEPTED THE PLAN AND (II) NOT ENTITLED TO VOTE ON THE PLAN OR (B) IMP AIRED AND NOT ENTITLED TO RECEIVE OR RETAIN ANY PROPERTY UNDER THE PLAN AND THEREFORE, PURSUANT TO SECTION 1126(g) OF TITLE 11 OF THE UNITED STATES CODE, YOU ARE (I) DEEMED TO HA VE REJECTED THE PLAN AND (II) NOT ENTITLED TO VOTE ON THE PLAN. IF YOU HA VE ANY QUESTIONS ABOUT THE STATUS OF YOUR CLAIM(S) OR INTEREST(S), OR IF YOU WANT TO REQUEST A COPY OF THE ORDER, THE PLAN, OR THE DISCLOSURE STATEMENT, YOU SHOULD CONTACT THE DEBTORS' VOTING AGENT, PRIME CLERKLLC ("PRIME CLERK"), IN WRITING AT BBGI US, INC., C/O PRIME CLERK LLC, ONE GRAND CENTRAL PLACE, 60 EAST 42ND STREET, SUITE 1440, NEW YORK, NEW YORK 10165, BY TELEPHONE AT 877-930-4317 (DOMESTIC) OR 347-899-4592 (INTERNATIONAL), OR BY E-MAIL AT [email protected]. COPIES OF THE PLAN, THE DISCLOSURE STATEMENT, AND THE ORDER CAN BE ACCESSED FREE OF CHARGE AT HTTPS://CASES.PRIMECLERK.COM/BROOKSBROTHERS/. PLEASE BE ADVISED THAT PRIME CLERK CANNOT PROVIDE LEGAL ADVICE.

5. Holders of Claims or Interests that are deemed to reject the Plan (i.e., Class 6 (Debtor Interests) and Class 7 (Subordinated Claims)) will be deemed to grant the releases set forth in Section 10.5 of the Plan, and described herein, unless they timely file with the Court an objection to those releases by no later than 4:00 p.m. (prevailing Eastern Time) on February 26, 2021 (the "Plan Objection Deadline").

6. Objections to confirmation of the Plan must: (a) be in writing, (b) comply with the Bankruptcy Rules and the Local Rules, (c) set forth the name of the objector and the nature and amount of any claim or interest asserted by the objector against or in the Debtors, (d) state with particularity the legal and factual bases for the objection and the specific grounds therefor, and provide proposed language that, if accepted and incorporated by the Debtors, would obviate such objection, ( e) be filed with the Court, contemporaneously with a proof of service, by no later than the Plan Objection Deadline, and (f) be served in accordance with the Local Rules upon the following parties:

2

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Debtors BBGI US, Inc., et al. 100 Phoenix A venue Enfield, CT 06082 Attn: Steven Goldaper

Counsel to the Debtors Weil, Gotshal & Manges LLP Attn: Garrett A. Fail ( [email protected])

David J.Cohen([email protected])

Counsel to the Committee Akin Gump Strauss Hauer & Feld LLP Attn: Meredith A. Lahaie

([email protected]) Abid Qureshi ([email protected]) Kate Doorley ([email protected])


Office of the U.S. Trustee 844 King Street Suite 2207 Wilmington, DE 19801 Attn: Richard L. Schepacarter

Co-Counsel to the Debtors Richards, Layton & Finger, P.A. Attn: Mark D. Collins ([email protected])

Zachary I. Shapiro ([email protected])

Co-Counsel to the Committee Troutman Pepper Hamilton Sanders LLP Attn: David B. Stratton

([email protected]) David M Fournier ( [email protected]) Evelyn J. Meltzer ( [email protected])


Released Parties means collectively: (i) the Debtors; (ii) the Creditors' Committee and the members of the Creditors' Committee solely in their capacities as such, and not individually; (iii) the DIP Lender; (iv) the DIP Agent; (v) the ABL Agent; (vi) the ABL Lenders; (vii) the Information Officer; (viii) with respect to any Person or Entity in the foregoing clauses (i) through (vii), such Person or Entity's predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons ' respective heirs, executors, estates, servants and nominees each solely in its capacity as such; provided, however, that the (i) DV Entities, and (ii) Former D&Os and Shareholders shall not be Released Parties; provided, further that any holder of a Claim that opts out of the releases set forth in Section 10.5 of the Plan or files with the Bankruptcy Court an objection to the releases set forth Section 10.5 of the Plan by the deadline established to file objections to the Plan shall not be a Released Party.

Releasing Parties means collectively, and in each case, in their respective capacities as such: (i) the Released Parties; (ii) all holders of Claims and Interests that are deemed to accept the Plan; (iii) all holders of Claims who vote to accept the Plan; (iv) all holders of Claims that are entitled to vote on the Plan who abstain from voting on the Plan or who vote to reject the Plan, but in either case, do not opt out of granting the releases set forth in Section 10.5 of the Plan; (v) holders of Claims or Interests that are deemed to reject

3

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the Plan and do not timely file with the Bankruptcy Court an objection to the releases set forth in Section 10.5 of the Plan by the deadline established to file objections to the Plan; (vi) holders of Administrative Expense Claims and Priority Tax Claims that do not hold Claims or Interests in any Class and do not timely file with the Bankruptcy Court an objection to the releases set forth in Section 10.5 of the Plan by the deadline established to file objections to the Plan, and (vii) with respect to any Person or entity in the foregoing clauses (i) through (vi), such Person or Entities' predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons' respective heirs, executors, estates, servants and nominees, in their respective capacities as such.



As of the Effective Date, except (i) for the rights that remain in effect from and after the Effective Date to enforce the Plan; and (ii) as otherwise provided in the Plan or in the Confirmation Order, for good and valuable consideration, including their cooperation and contributions to the Chapter 11 Cases, the Released Parties will be deemed conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged, to the maximum extent permitted by law, by the Debtors and the Estates, in each case, on behalf of themselves and their respective successors (including the Liquidation Trust and the Litigation Trust), assigns, and representatives, and any and all other persons that may purport to assert any Cause of Action derivatively, by, through or on behalf of the foregoing Persons and Entities, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise that the Debtors or the Estates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre- and post-petition marketing and sale process, the Sale Transaction, the AP A, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including the Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or the Sale Transaction; provided, further, that nothing in Section 10.4 of the Plan shall constitute a release of any of the DV Claims or the Former D&O and Shareholder Causes of Action.


As of the Effective Date, except (i) for the right to enforce the Plan; and (ii) as otherwise expressly provided in the Plan or in the Confirmation Order, in exchange for good and valuable consideration, including the obligations of the Debtors under the Plan, to the fullest extent permissible under applicable law, as such law may be extended or integrated after the Effective Date, the Released Parties shall be deemed conclusively, absolutely, unconditionally, irrevocably and

4

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forever, released, and discharged by the Releasing Parties in each case, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, asserted or unasserted, accrued or unaccrued, existing or hereinafter arising, in law or equity, whether arising under federal or state statutory or common law, or any other applicable international, foreign, or domestic law, rule, statute, regulation, treaty, right, duty, requirement or otherwise, that such entity would have been legally entitled to assert in their own right (whether individually, derivatively, or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, or in any manner arising prior to the Effective Date, from, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre-and post-petition marketing and sale process, the Sale Transaction, the AP A, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including any Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or Sale Transaction. The Releasing Parties shall be permanently enjoined from prosecuting any of the foregoing Claims or Causes of Action released under Section 10.5 of the Plan against each of the Released Parties.





5

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(b) Except as expressly provided in the Plan, the Confirmation Order, or a separate order of the Bankruptcy Court or as agreed to by the Debtors and a holder of a Claim against or Interest in the Debtors, all Entities who have held, hold, or may hold Claims against or Interests in the Debtors (whether or not proof of such Claims or Interests has been filed and whether or not such Entities vote in favor of, against or abstain from voting on the Plan or are presumed to have accepted or deemed to have rejected the Plan) and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates are permanently enjoined, on and after the Effective Date, solely with respect to any Claims, Interests, and Causes of Action that will be or are extinguished, discharged, or released pursuant to the Plan from (i) commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral, administrative or other forum) against or affecting the Debtors, the Liquidation Trust, and the Litigation Trust, or the property of any of the Debtors, the Liquidation Trust, the Litigation Trust; (ii) enforcing, levying, attaching (including, without limitation, any prejudgment attachment), collecting, or otherwise recovering by any manner or means, whether directly or indirectly, any judgment, award, decree, or order against the Debtors, and the Liquidation Trust; or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any encumbrance of any kind against the Debtors, the Liquidation Trust, and the Litigation Trust or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iv) asserting any right of setoff, directly or indirectly, against any obligation due from the Debtors, the Liquidation Trust, and the Litigation Trust, or against property or interests in property of any of the Debtors, the Liquidation Trust, and the Litigation Trust except as contemplated or allowed by the Plan; and (v) acting or proceeding in any manner, in any place whatsoever, that does not conform to or comply with the provisions of the Plan.




EACH RELEASING PARTY IN EACH OF THE RELEASES CONTAINED IN THE PLAN (INCLUDING UNDER SECTION 10 OF THE PLAN) EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE PARTY RELEASED, IT HAS CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT IN DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE OF SUCH UNKNOWN LOSSES OR CLAIMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES THAT A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MAY HA VE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE RELEASED PARTY, INCLUDING THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542. THE RELEASES CONTAINED IN SECTION 10 OF THE PLAN ARE EFFECTIVE REGARDLESS OF

6

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. Case 20-11785-CSS Doc 954-5 Filed 01/27/21 Page 8 of 8

WHETHER THOSE RELEASED MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEN OR UNFORESEEN.



Dated: _____ , 2021 Wilmington, Delaware

RLFI 24700090v.l

RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981) Zachary I. Shapiro (No. 5103) One Rodney Square 920 N. King Street Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701 E-mail: [email protected]

[email protected] - and-

WEIL, GOTSHAL & MANGES LLP Garrett A. Fail (admitted pro hac vice) David J. Cohen (admitted pro hac vice 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 E-mail: [email protected]

[email protected]


7

490

IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT A CT, R.S.C. 1985, c. C-36, AS AMENDED Court File No: CV-20-00647463-00CL


APPLICATION OF BBGI US, INC. UNDER SECTION 46 OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED

A licant

Ontario SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST Proceeding commenced at Toronto

RECOGNITION ORDER (Disclosure Statement Order)

OSLER, HOSKIN & HARCOURT, LLP P.O. Box 50, 1 First Canadian Place Toronto, ON M5X 1B8

Tracy Sandler (LSO# 32443N) Tel: 416.862.5890 [email protected]

Shawn Irving (LSO# 50035U) Tel: 416.862.4733 [email protected]

Martino Calvarnso (LSO# 57359Q) Tel: 416.862.6665 [email protected]

Fax: 416.862.6666


491

THIS IS EXHIBIT “M” REFERRED TO IN THE







of America,


____________________________________________


492

RLF1 24703901v.1


------------------------------------------------------------ x : In re : Chapter 11 : BBGI US, INC., et al., : Case No. 20–11785 (CSS) : Debtors.1 : (Jointly Administered) : ------------------------------------------------------------ x

AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION FOR

BBGI US, INC. AND ITS AFFILIATED DEBTORS

WEIL, GOTSHAL & MANGES LLP Garrett A. Fail (admitted pro hac vice) David J. Cohen (admitted pro hac vice) 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007

RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981) Zachary I. Shapiro (No. 5103) Christopher M. De Lillo (No. 6355) One Rodney Square 910 N. King Street Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701


Dated: January 27, 2021 Wilmington, Delaware

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification

number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A); BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors’ corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.


i RLF1 24703901v.1

TABLE OF CONTENTS

SECTION 1. DEFINITIONS AND INTERPRETATION. .................................................... 1

SECTION 2. ADMINISTRATIVE EXPENSE AND PRIORITY CLAIMS. ...................... 16

2.1 Administrative Expense Claims. .......................................................................... 16 2.2 Fee Claims. .......................................................................................................... 16 2.3 Priority Tax Claims.............................................................................................. 17

SECTION 3. CLASSIFICATION OF CLAIMS AND INTERESTS. ................................. 18

3.1 Classification in General. .................................................................................... 18 3.2 Formation of Debtor Groups for Convenience Only. .......................................... 18 3.3 Summary of Classification. .................................................................................. 18 3.4 Special Provision Governing Unimpaired Claims. ............................................. 19 3.5 Elimination of Vacant Classes. ............................................................................ 19 3.6 Voting Classes; Presumed Acceptance by Non-Voting Classes. ......................... 19 3.7 Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the

Bankruptcy Code. ................................................................................................. 19

SECTION 4. TREATMENT OF CLAIMS AND INTERESTS. ......................................... 20

4.1 Other Priority Claims (Class 1). .......................................................................... 20 4.2 Secured Claims (Class 2). .................................................................................... 20 4.3 PBGC Claims (Class 3). ...................................................................................... 21 4.4 General Unsecured Claims (Class 4). ................................................................. 21 4.5 Intercompany Claims (Class 5). .......................................................................... 21 4.6 Debtor Interests (Class 6). ................................................................................... 22 4.7 Subordinated Claims (Class 7). ........................................................................... 22

SECTION 5. MEANS FOR IMPLEMENTATION. ............................................................ 22

5.1 Joint Chapter 11 Plan. ......................................................................................... 22 5.2 Limited Substantive Consolidation. ..................................................................... 22 5.3 PBGC Settlement. ................................................................................................ 24 5.4 Liquidation Trust. ................................................................................................ 24 5.5 Litigation Trust. ................................................................................................... 31 5.6 Plan Trusts Tax Matters....................................................................................... 37 5.7 Merger of Debtors................................................................................................ 39 5.8 Elimination of Duplicate Claims. ........................................................................ 40 5.9 Dissolution of BB Parent. .................................................................................... 40 5.10 Corporate Action. ................................................................................................ 40 5.11 Directors, Officers, Managers, Members and Authorized Persons of the

Debtor. ................................................................................................................. 40 5.12 Withholding and Reporting Requirements. .......................................................... 40 5.13 Exemption From Certain Transfer Taxes. ........................................................... 41 5.14 Effectuating Documents; Further Transactions. ................................................. 41 5.15 Preservation of Rights of Action. ......................................................................... 41 5.16 Stock Restrictions. ................................................................................................ 42 5.17 Closing of the Chapter 11 Cases. ........................................................................ 42


TABLE OF CONTENTS (continued)

ii RLF1 24703901v.1

SECTION 6. DISTRIBUTIONS. ......................................................................................... 42

6.1 Distributions Generally. ...................................................................................... 42 6.2 Distribution Record Date. .................................................................................... 43 6.3 Delivery of Distributions...................................................................................... 43 6.4 Disputed Administrative Claims Holdback. ......................................................... 43 6.5 Manner of Payment Under Plan. ......................................................................... 44 6.6 Minimum Cash Distributions. .............................................................................. 44 6.7 Setoffs. .................................................................................................................. 44 6.8 Distributions After Effective Date. ....................................................................... 44 6.9 Allocation of Distributions Between Principal and Interest. ............................... 45 6.10 No Postpetition Interest on Claims. ..................................................................... 45 6.11 No Distribution in Excess of Amount of Allowed Claim. ..................................... 45 6.12 Securities Registration Exemption. ...................................................................... 45

SECTION 7. PROCEDURES FOR DISPUTED CLAIMS. ................................................ 45

7.1 Objections to Claims. ........................................................................................... 45 7.2 Allowance of Claims. ........................................................................................... 45 7.3 Estimation of Claims. ........................................................................................... 46 7.4 No Distributions Pending Allowance................................................................... 46 7.5 Reserve on Account of Disputed Claims. ............................................................. 46 7.6 Resolution of Claims. ........................................................................................... 47 7.7 Late Filed Claims. ................................................................................................ 48 7.8 Amendments to Claims. ........................................................................................ 48 7.9 Insured Claims. .................................................................................................... 48

SECTION 8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES. ...................... 48

8.1 Assumption and Assignment of Executory Contracts and Unexpired Leases. .................................................................................................................. 48

8.2 Indemnification Obligations. ............................................................................... 48 8.3 Claims Based on Rejection of Executory Contracts and Unexpired Leases. ...... 49 8.4 Cure of Defaults for Assumed Executory Contracts and Unexpired Leases. ...... 49 8.5 Modifications, Amendments, Supplements, Restatements, or Other

Agreements. .......................................................................................................... 50 8.6 Reservation of Rights. .......................................................................................... 50

SECTION 9. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. ...................... 50

9.1 Conditions Precedent to the Effective Date. ........................................................ 50 9.2 Waiver of Conditions Precedent. ......................................................................... 51 9.3 Substantial Consummation. ................................................................................. 51 9.4 Effect of Vacatur of Confirmation Order. ............................................................ 51

SECTION 10. SETTLEMENT, RELEASES, INJUNCTIONS, AND RELATED PROVISIONS. ................................................................................................ 51

10.1 Release of Liens. .................................................................................................. 51 10.2 Binding Effect....................................................................................................... 51 10.3 Term of Injunctions or Stays. ............................................................................... 52



iii RLF1 24703901v.1

10.4 Releases by the Debtors. ...................................................................................... 52 10.5 Releases By Holders of Claims and Interests. ..................................................... 53 10.6 Exculpation. ......................................................................................................... 54 10.7 Injunction. ............................................................................................................ 54 10.8 Waiver of Statutory Limitation on Releases. ........................................................ 55 10.9 Solicitation of the Plan......................................................................................... 55 10.10 PBGC Release. ..................................................................................................... 56

SECTION 11. RETENTION OF JURISDICTION. ............................................................... 56

SECTION 12. MISCELLANEOUS PROVISIONS. .............................................................. 58

12.1 No Revesting of Assets. ........................................................................................ 58 12.2 Subordinated Claims. ........................................................................................... 58 12.3 Payment of Statutory Fees. .................................................................................. 58 12.4 Dissolution of Creditors’ Committee. .................................................................. 59 12.5 Amendments. ........................................................................................................ 59 12.6 Revocation or Withdrawal of the Plan................................................................. 59 12.7 Severability of Plan Provisions upon Confirmation. ........................................... 59 12.8 Governing Law..................................................................................................... 60 12.9 Time...................................................................................................................... 60 12.10 Additional Documents. ......................................................................................... 60 12.11 Immediate Binding Effect. .................................................................................... 60 12.12 Successor and Assigns. ........................................................................................ 61 12.13 Entire Agreement. ................................................................................................ 61 12.14 Notices.................................................................................................................. 61


RLF1 24703901v.1

Each of the Debtors proposes the following joint chapter 11 plan of liquidation pursuant to section 1121(a) of the Bankruptcy Code. Capitalized terms used herein shall have the meanings set forth in Section 1.A.

SECTION 1. DEFINITIONS AND INTERPRETATION.

A. Definitions.

1.1. Administration Charge means the charge granted by the Canadian Court in the Recognition Proceedings on the Canadian Assets to secure certain professional fees and disbursements incurred in respect of the Recognition Proceedings.

1.2. Administrative Expense Claim means any Claim for costs and expenses of administration during the Chapter 11 Cases pursuant to sections 328, 330, 363, 364(c)(1), 365, 503(b) or 507(a)(2) of the Bankruptcy Code, including, (i) the actual and necessary costs and expenses incurred after the Petition Date and through the Effective Date of preserving the Estates and operating the businesses of the Debtors; (ii) Fee Claims; and (iii) all fees and charges assessed against the Estates pursuant to section 1911 through 1930 of chapter 123 of title 28 of the United States Code, 28 U.S.C. §§ 1911-1930.

1.3. Administrative Expense Claims Bar Date means (i) December 18, 2020 at 5:00 p.m. (Eastern Time) for Administrative Expense Claims arising on or prior to August 31, 2020; and (ii) such date that is thirty (30) days following the Confirmation Date for Administrative Expense Claims arising on and after September 1, 2020 and prior to the Effective Date.

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

1.5. Allowed means, with reference to any Claim or Interest, a Claim or Interest (i) arising on or before the Effective Date as to which (A) no objection to allowance or priority, and no request for estimation or other challenge, including, without limitation, pursuant to section 502(d) of the Bankruptcy Code or otherwise, has been interposed and not withdrawn within the applicable period fixed by the Plan or applicable law, or (B) any objection has been determined in favor of the holder of the Claim or Interest by a Final Order; (ii) that is compromised, settled, or otherwise resolved pursuant to the authority of the Debtors (if prior to the Effective Date, with the consent of the Creditors’ Committee) or the Liquidation Trustee, as applicable; (iii) as to which the liability of the Debtors or the Liquidation Trust, as applicable, and the amount thereof are determined by a Final Order of a court of competent jurisdiction; (iv) that is listed in the Schedules as liquidated, non-contingent, and undisputed, and is not superseded by a Proof of Claim; or (v) expressly allowed hereunder; provided, notwithstanding the foregoing, (x) unless expressly waived by the Plan, the Allowed amount of Claims or Interests shall be subject to, and shall not exceed the limitations or maximum amounts permitted by the Bankruptcy Code, including sections 502 or 503 of the Bankruptcy Code, to the extent applicable, and (y) the Liquidation Trustee shall retain all claims and defenses with respect to Allowed Claims that are Unimpaired pursuant to the Plan.


2 RLF1 24703901v.1

1.6. Allowed General Unsecured Claims Distribution Amount means, for the purpose of calculating Distributions of Liquidation Trust Assets or proceeds of the Litigation Trust Assets, as applicable, to be received by holders of Allowed General Unsecured Claims on account of such holders’ Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, the amount determined based on the following formula:

(a - b) x y z

a = The amount of the Distribution to be made by the Liquidation Trustee or the Litigation Trustee, as applicable, to holders of the Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, respectively.

b = The PBGC Claims Distribution Amount. y = The aggregate amount of Allowed amount of General Unsecured Claims. z = The aggregate amount of Allowed and Disputed General Unsecured Claims

against the Debtors.

1.7. APA means that certain Asset Purchase Agreement entered into by and among certain of the Debtors and SPARC, dated July 23, 2020, as amended by that certain First Amendment to the Asset Purchase Agreement dated as of August 11, 2020, as further amended by that certain Second Amendment to the Asset Purchase Agreement dated as of August 31, 2020, as may be amended, modified, or supplemented from time to time in accordance with the Sale Order.

1.8. Assumption Schedule means the schedule of Executory Contracts and Unexpired Leases to be assumed or assumed and assigned by the Debtors pursuant to the Plan, which will be (i) in form and substance reasonably acceptable to the Creditors’ Committee, and (ii) included in the Plan Supplement, as may be amended, modified, or supplemented from time to time in accordance with the Confirmation Order.

1.9. Avoidance Action means any action commenced, or that may be commenced, before or after the Effective Date pursuant to the Bankruptcy Code, CCAA, BIA or applicable non-bankruptcy law, including actions or remedies under sections 544, 545, 547, 548, 549, 550, or 551 of the Bankruptcy Code.

1.10. Ballot means each of the ballots distributed to the holders of Claims in Class 3 and Class 4.

1.11. Bankruptcy Code means title 11 of the United States Code, 11 U.S.C. §§ 101, et seq., as amended from time to time, as applicable to the Chapter 11 Cases.

1.12. Bankruptcy Court means the United States Bankruptcy Court for the District of Delaware having jurisdiction over the Chapter 11 Cases and, to the extent of any reference made under section 157 of title 28 of the United States Code, the unit of such District Court having jurisdiction over the Chapter 11 Cases under section 151 of title 28 of the United States Code.

1.13. Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States


3 RLF1 24703901v.1

Code, as amended from time to time, applicable to the Chapter 11 Cases, and any Local Rules of the Bankruptcy Court.

1.14. Bar Date means the dates fixed by order(s) of the Bankruptcy Court (including the Bar Date Orders, the Administrative Expense Claims Bar Date, or otherwise in this Plan or the Confirmation Order) by which any Persons, asserting a Claim against any Debtor must have filed a Proof of Claim or application for allowance of such Claim (as applicable) with the Bankruptcy Court against any such Debtor or be forever barred from asserting such Claim.

1.15. Bar Date Orders means that certain (i) Order (I) Establishing a General Bar Date to File Proofs of Claim, (II) Establishing a Bar Date to file Proofs of Claim by Governmental Units, (III) Establishing an Amended Schedules Bar Date, (IV) Establishing A Rejection Damages Bar Date, (V) Approving the Form and Manner for Filing, (VI) Approving the Proposed Notice of Bar Date, and (VII) Granting Related Relief, entered by the Bankruptcy Court in the Chapter 11 Cases on August 11, 2020 [D.I. 366]; and (ii) Order (I) Establishing Bar Dates for (A) Filing Proofs of Claim Against BBGI Canada Ltd., (B) Assertion of Certain Administrative Expense Claims, and (C) Filing Proofs of Claim for Alexis Bittar Customer Programs, (II) Approving the Form and Manner for Filing Proofs of Claim, (III) Approving the Proposed Notice Thereof, and (IV) Granting Related Relief entered by the Bankruptcy Court in these Chapter 11 Cases on November 16, 2020 [D.I. 727].

1.16. BB Canada means BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.).

1.17. BB Parent means BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.).

1.18. BIA means the Bankruptcy and Insolvency Act R.S.C., 1985, c. B-3, as amended.

1.19. Business Day means any day, other than a Saturday, Sunday or “legal holiday” (as defined in Bankruptcy Rule 9006(a)).

1.20. Canadian Assets means the assets, undertakings and properties of BB Canada at the applicable time, excluding any Canadian Collateral Proceeds.

1.21. Canadian Collateral Proceeds means the BB Canada asset sale proceeds as defined in the Debtors’ Stipulation and Agreement with Wells Fargo N.A. Regarding Sale Order and Release of Liens and Claims dated August 30, 2020, paid or to be paid to BB Parent in accordance with the terms thereof and the Canadian Sale Order.

1.22. Canadian Court means the Ontario Superior Court of Justice (Commercial List).

1.23. Canadian Sale Order means the recognition, approval and vesting order issued by the Canadian Court dated September 25, 2020 in the Recognition Proceedings.

1.24. Cash means legal tender of the United States of America.


4 RLF1 24703901v.1

1.25. Causes of Action means any action, Claim, cause of action, controversy, demand, right, lien, indemnity, guaranty, suit, obligation, liability, damage, judgment, account, defense, offset, power, privilege, license and franchise of any kind or character whatsoever, known, unknown, contingent or non-contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively, whether arising before, on, or after the Petition Date, in contract or in tort, in law or in equity or pursuant to any other theory of law; provided that, for the avoidance of doubt, Causes of Action shall not include the Purchased Actions. Cause of Action also includes: (i) any right of setoff, counterclaim or recoupment and any claim for breach of contract or for breach of duties imposed by law or in equity; (ii) the right to object to Claims or Interests; and (iii) any claim or defense including fraud, mistake, duress and usury and any other defenses set forth in section 558 of the Bankruptcy Code.

1.26. CCAA means Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended.

1.27. Chapter 11 Cases means the jointly administered cases of the Debtors under chapter 11 of the Bankruptcy Code styled In re Brooks Brothers, Inc., et al., Case No. 20-11785 (CSS).

1.28. Claim has the meaning set forth in section 101(5) of the Bankruptcy Code.

1.29. Claims Objection Bar Date means the first Business Day that is 180 days after the Effective Date or such later date as may be permitted pursuant to an order of the Bankruptcy Court.

1.30. Class means any group of Claims or Interests classified pursuant to Section 3.1 of the Plan.

1.31. Confirmation means the entry on the docket of the Chapter 11 Cases of the Confirmation Order.

1.32. Confirmation Date means the date on which the Clerk of the Bankruptcy Court enters the Confirmation Order.

1.33. Confirmation Hearing means the hearing held by the Bankruptcy Court regarding Confirmation of the Plan, as such hearing may be adjourned or continued from time to time.

1.34. Confirmation Recognition Order means the order granted by the Canadian Court recognizing the Confirmation Order in the Recognition Proceedings.

1.35. Confirmation Order means an order of the Bankruptcy Court in form and substance acceptable to the Debtors and reasonably acceptable to the Creditors’ Committee confirming the Plan.

1.36. Consummation means the occurrence of the Effective Date of the Plan.


5 RLF1 24703901v.1

1.37. Creditors’ Committee means the statutory committee of unsecured creditors appointed by the U.S. Trustee in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code, as the same may be constituted from time to time.

1.38. Creditors’ Committee Counsel means Akin Gump Strauss Hauer & Feld LLP and Troutman Pepper Hamilton Sanders LLP in their respective capacities as counsel to the Creditors’ Committee.

1.39. Cure Obligation means all (a) amounts required to cure any monetary defaults, and (b) other obligations required to cure any non-monetary defaults, in each case under any Executory Contract or Unexpired Lease that is to be assumed by the Debtors pursuant to the Plan and sections 365 and 1123 of the Bankruptcy Code.

1.40. D&O Policy means any insurance policy for, among others, directors, members, trustees, and officers liability (or any equivalents) maintained by the Debtors’ Estates, and all agreements, documents or instruments relating thereto, including any runoff policies or tail coverage.

1.41. Debtor Affiliates means the Debtors other than BB Parent.

1.42. Debtors means BB Parent; Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; 696 White Plains Road, LLC; and BB Canada.

1.43. DIP Agent means ABG-BB, LLC, solely in its capacity as agent under the DIP Credit Agreement.

1.44. DIP Credit Agreement means that certain Debtor-in-Possession Term Loan Agreement dated as of July 10, 2020 among BB Parent, as the lead borrower, and the lenders party thereto.

1.45. DIP Lender shall have the meaning ascribed to the term “Lender” in the DIP Credit Agreement.

1.46. Directors’ Charge means the charge granted by the Canadian Court in the Recognition Proceedings on the Canadian Assets to indemnify the Debtors’ directors and officers against obligations and liabilities that they may incur as directors and officers in connection with the business in Canada, in each case incurred in respect of the Recognition Proceedings.


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1.47. Disallowed means a Claim against a Debtor, or any portion thereof, (i) that has been disallowed by a Final Order of the Bankruptcy Court, a settlement, or the Plan, (ii) that is listed in the Schedules at zero or as contingent, disputed, or unliquidated and as to which a Bar Date has been established but no Proof of Claim has been timely filed or deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or applicable law, or (iii) that is not listed in the Debtors’ Schedules and as to which a Bar Date has been established but no Proof of Claim has been timely filed or deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or under applicable law.

1.48. Disclosure Statement means the Disclosure Statement for the Plan, which is prepared and distributed in accordance with sections 1125, 1126(b) and/or 1145 of the Bankruptcy Code, Bankruptcy Rule 3018 and/or other applicable law.

1.49. Disputed means, with respect to a Claim, a Claim against a Debtor (i) neither Allowed nor Disallowed, or (ii) held by a Person or Entity against whom or which any of the Debtors, the Liquidation Trust or the Liquidation Trustee has commenced a proceeding, including an objection to such Claim or an Avoidance Action.

1.50. Disputed Claims Reserve means Liquidation Trust Assets or Litigation Trust Assets allocable to Disputed Claims.

1.51. Distribution means payment or distribution of consideration to holders of Allowed Claims, or Liquidation Trust Beneficiaries or Litigation Trust Beneficiaries pursuant to this Plan.

1.52. Distribution Date means a date or dates, including the Initial Distribution Date, as determined by the Debtors or the Liquidation Trustee, as applicable, in accordance with the terms of the Plan, on which the Debtors or the Liquidation Trustee makes a Distribution to holders of the Liquidation Trust Beneficial Interests or the Litigation Trust Interests, as applicable, on account of Allowed Claims.

1.53. Distribution Record Date means the Effective Date of the Plan.

1.54. DV Claims means any of the Debtors’ or the Estates’ Causes of Action against the DV Entities, including, but not limited to, Avoidance Actions or recharacterization, contractual subordination or equitable subordination of any Claims of any of the DV Entities, and all rights to object to Claims of any DV Entities.


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1.55. DV Entities means (i) Claudio Del Vecchio; (ii) Matteo Del Vecchio; (iii) any present or former member of Claudio Del Vecchio or Matteo Del Vecchio’s immediate families; (iv) the CDV Trust; (v) the CDV 2010 Annuity Trust; (vi) the Del Vecchio Family Trust; (vii) Delfin S.Á R.L.2; (viii) DV Family LLC; (ix) the CDV 2015 Annuity Trust; (x) the CDV 2015 Annuity Trust U/A/D 9-16-2015; (xi) the CDV 2015 Annuity Trust U/A/D 2-9-2006; (xii) 346 Madison Avenue, LLC; (xiii) 11 East 44th Street, LLC; (xiv) CDV Holdings LLC; (xv) 2015 Omega Trust U/A/D 9-16-2015; (xvi) DV Family, LLC; and (xvii) with respect to each of the foregoing entities in clauses (i) through (xvi), such entities’ respective trustees, beneficiaries, heirs, executors, estates, devisees, members, managers, transferees and assigns that are not Debtors.

1.56. Effective Date means the date on which all conditions to the effectiveness of the Plan set forth in Section 9 hereof have been satisfied or waived in accordance with the terms of the Plan.

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

1.58. Estate or Estates means individually or collectively, the estate or estates of the Debtors created under section 541 of the Bankruptcy Code.

1.59. Exculpated Parties means collectively: (i) the Debtors; (ii) the Estates; (iii) the Creditors’ Committee and the members of the Creditors’ Committee; and (iv) with respect to each of the foregoing entities in clauses (i) through (iv), such entities’ predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons’ respective heirs, executors, Estates, servants and nominees, in each case in their capacity as such; provided, however, that Exculpated Parties shall not include any Former D&Os.

1.60. Executory Contract means a contract or lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.

1.61. Fee Claim means a Claim for professional services rendered or costs incurred on or after the Petition Date through the Effective Date by professional persons retained by the Debtors, the Creditors’ Committee, or any other official committee appointed in these Chapter 11 Cases pursuant to sections 327, 328, 329, 330, 331, 503(b) or 1103 of the Bankruptcy Code; provided that the foregoing excludes Claims for compensation for services rendered by professionals retained under that certain Order (I) Authorizing Debtors to Employ Professionals Utilized in the Ordinary Course of Business and (II) Granting Related Relief, entered by the Bankruptcy Court in the Chapter 11 Cases on August 7, 2020 [D.I. 333].

1.62. Final DIP Order means that certain Final Order (I) Authorizing the Debtors to Obtain Postpetition Financing, (II) Authorizing the Debtors to Use Cash Collateral, (III) Granting Liens and Providing Superpriority Administrative Expense Status, (IV) Granting Adequate Protection to the Prepetition Secured Parties, (V) Modifying Automatic Stay, and (VI) 2 Inclusive of any alternative spellings, including Delfin SARL, Delfin S.À R.L., and Delfin S.a.r.l.


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Granting Related Relief, entered by the Bankruptcy Court in the Chapter 11 Cases on August 14, 2020 [D.I. 443].

1.63. Final Order means an order or judgment of a court of competent jurisdiction that has been entered on the docket maintained by the clerk of such court, which has not been reversed, vacated or stayed and as to which (i) the time to appeal, petition for certiorari, or move for a new trial, reargument or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for a new trial, reargument or rehearing shall then be pending, or (ii) if an appeal, writ of certiorari, new trial, reargument or rehearing thereof has been sought, such order or judgment shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, reargument or rehearing shall have been denied or resulted in no modification of such order, and the time to take any further appeal, petition for certiorari or move for a new trial, reargument or rehearing shall have expired; provided, however, that no order or judgment shall fail to be a “Final Order” solely because of the possibility that a motion pursuant to section 502(j) or 1144 of the Bankruptcy Code or under Rule 60 of the Federal Rules of Civil Procedure or Bankruptcy Rule 9024 has been or may be filed with respect to such order or judgment.

1.64. Former D&Os means each former director or former officer of any Debtor who was not a director or officer of a Debtor as of the Petition Date.

1.65. Former D&O and Shareholder Causes of Action means any and all of the Debtors’ or the Estates’ Causes of Action against any Former D&O or Shareholder.

1.66. Former Non-Debtor Subsidiaries means (i) Brooks Brothers Europe S.r.l.; (ii) Brooks Brothers Spain Srl; (iii) Brooks Brothers France SARL; (iv) Brooks Brothers Germany GmbH; and (v) Brooks Brothers Switzerland SAGL.

1.67. General Unsecured Claim means any unsecured Claim against any Debtor that is not an Administrative Expense Claim, Intercompany Claim, Fee Claim, Priority Tax Claim, Other Priority Claim, Secured Claim, Subordinated Claim, or PBGC Claim.

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

1.69. Impaired means, with respect to a Claim, Interest or Class of Claims or Interests, “impaired” within the meaning of section 1124 of the Bankruptcy Code.

1.70. Indemnification Obligations means each of the Debtors’ indemnification obligations in place immediately prior to the Effective Date, whether in the bylaws, certificates of incorporation or formation, limited liability company agreements, other organizational or formation documents, board resolutions, management or indemnification agreements, or employment or other contracts, or otherwise, for the directors and officers that are currently employed by, or serving on the board of directors of, any of the Debtors, as of the date immediately prior to the Effective Date, and the attorneys, accountants, investment bankers, and other Professionals that are retained by any of the Debtors as of the date immediately prior to the


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Effective Date; provided, that the foregoing shall not include the Debtors’ indemnification obligations, if any, to (i) the DV Entities, or (ii) any Former D&Os.

1.71. Information Officer means the information officer appointed by the Canadian Court in the Recognition Proceedings.

1.72. Initial Distribution means the first Distribution that either the Debtors or the Liquidation Trustee, as applicable, makes to holders of Allowed Claims.

1.73. Initial Distribution Date means the date selected by the Debtors or the Liquidation Trustee, as applicable, on or as soon as reasonably practicable after the Effective Date, on which the Debtors or the Liquidation Trustee, as applicable, will make the Initial Distribution.

1.74. Insured Claim means any Claim or portion of a Claim that is, or may be, insured under any of the Debtors’ insurance policies.

1.75. Intercompany Claim means a Claim against any Debtor by another Debtor.

1.76. Interest means any equity security (as defined in section 101(16) of the Bankruptcy Code) of a Debtor, including all shares, common stock, preferred stock, or other instrument evidencing any fixed or contingent ownership interest in any Debtor, whether or not transferable, and any option, warrant, or other right, contractual or otherwise, to acquire any such interest in the Debtors, whether fully vested or vesting in the future, including, without limitation, equity or equity-based incentives, grants, or other instruments issued, granted or promised to be granted to current or former employees, directors, officers, or contractors of the Debtors, to acquire any such interests in the Debtors that existed immediately before the Effective Date.

1.77. Interim Compensation Order means that certain Order (I) Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals and (II) Granting Related Relief entered by the Bankruptcy Court in the Chapter 11 Cases on August 11, 2020 [D.I. 367].

1.78. Lien has the meaning set forth in section 101(37) of the Bankruptcy Code.

1.79. Liquidation Trust means that certain trust established pursuant to Section 5.4 hereof to, among other things, hold the Liquidation Trust Assets and make Distributions to holders of Allowed Claims pursuant to this Plan.

1.80. Liquidation Trust Agreement means the trust agreement governing the Liquidation Trust, which shall be in form and substance reasonably acceptable to the Debtors and the Creditors’ Committee and shall be filed with the Plan Supplement.

1.81. Liquidation Trust Assets means all of the assets of the Estates (excluding the Professional Fees Account, any Canadian Collateral Proceeds in the possession of BB Canada pursuant to the Canadian Sale Order to support the Administration Charge and the Directors’ Charge, the Canadian Assets and the Litigation Funding Amount) that are not Litigation Trust Assets.


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1.82. Liquidation Trust Beneficial Interests means the beneficial interests in the Liquidation Trust.

1.83. Liquidation Trust Beneficiaries shall mean all holders of Allowed Class 3 PBGC Claims and Allowed Class 4 General Unsecured Claims.

1.84. Liquidation Trust Expenses means any and all reasonable fees, costs and expenses incurred by the Liquidation Trust or the Liquidation Trustee (or any professional or other Person retained by the Liquidation Trustee) on or after the Effective Date in connection with any of their duties under the Plan and the Liquidation Trust Agreement, including any administrative fees, attorneys’ fees and expenses, insurance fees, taxes and escrow expenses.

1.85. Liquidation Trustee means Adrian Frankum of Ankura Consulting Group, LLC, who is to serve as trustee of the Liquidation Trust, as contemplated by Section 5.4(c) of this Plan and the Liquidation Trust Agreement.

1.86. Litigation Fees Amount means the Cash remaining in that certain segregated bank account funded by the Debtors for the benefit of the Litigation Trust in the amount of $1,930,000, less any fees and expenses actually incurred by Creditors’ Committee Counsel between September 4, 2020 and the Effective Date (which amounts shall be funded into the Professional Fees Account), and subject to adjustment by the Debtor or the Liquidation Trustee, as applicable, as set forth in Section 5.5(c).

1.87. Litigation Trust means the trust that is created pursuant to Section 5.5 of the Plan and pursuant to the Litigation Trust Agreement, for the benefit of the Litigation Trust Beneficiaries.

1.88. Litigation Trust Agreement means the trust agreement governing the Litigation Trust, which shall be in form and substance reasonably acceptable to the Debtors and the Creditors’ Committee and filed with the Plan Supplement.

1.89. Litigation Trust Assets means (i) the DV Claims; (ii) the Litigation Trust Funding; (iii) Former D&O and Shareholder Causes of Action and all rights to object to Claims of any of the Former D&Os or Shareholders; and (iv) any additional Causes of Action as explicitly agreed upon by the Liquidation Trustee and the Litigation Trustee.

1.90. Litigation Trust Beneficial Interests means the beneficial interests in the Litigation Trust.

1.91. Litigation Trust Beneficiaries shall mean all holders of Allowed Class 3 PBGC Claims and Allowed Class 4 General Unsecured Claims.

1.92. Litigation Trust Expenses means the reasonable fees, costs and expenses incurred by the Litigation Trust or the Litigation Trustee (or any professional or other Person retained by the Litigation Trustee) on or after the Effective Date in connection with any of their duties under the Plan and the Litigation Trust Agreement, including but not limited to any administrative fees, attorneys’ fees and expenses, expert witness fees, financial advisor fees, insurance fees, taxes and escrow expenses.


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1.93. Litigation Trust Funding means, (i) the Litigation Trust Minimum Funding, plus (ii) the Litigation Fees Amount, plus (iii) any other amounts funded to the Litigation Trust by express written agreement of the Liquidation Trustee and the Litigation Trustee.

1.94. Litigation Trust Minimum Funding means $500,000 in Cash funded by the Debtors from the Professional Fees Account into the Litigation Trust on the Effective Date of the Plan.

1.95. Litigation Trust Oversight Board means a board comprised of all the members of the Creditors’ Committee, whose responsibilities and duties are as set forth in the Litigation Trust Agreement and this Plan.

1.96. Litigation Trustee means William T. Reid, IV, who is to administer the Litigation Trust in accordance with the provisions of Section 5.5(f) of the Plan and pursuant to the Litigation Trust Agreement.

1.97. Non-Debtor Subsidiaries means (i) Brooks Brothers (Japan) Ltd; (ii) Brooks Brothers Greater China Limited; (iii) Brooks Brothers (Shanghai) Commercial Co. Ltd.; (iv) Brooks Brothers Hong Kong Limited; (v) Brooks Brothers Macau Limited; (vi) Brooks Brothers India Private Limited; (vii) Q.C Service Limited; (viii) Brooks Brothers Singapore Pte. Ltd; (ix) Brooks Brothers Malaysia SDN. BHD.; (x) Brooks Brothers UK Limited; (xi) Brooks Brothers Korea Ltd; (xii) Brooks Brothers Ireland Limited; (xiii) Brooks Brothers Australia Pty Limited; and (xiv) Brooks Brothers Austria GmbH.

1.98. Non-Debtor Subsidiary Claims means the Claims of the Non-Debtor Subsidiaries and the Former Non-Debtor Subsidiaries, which shall be Allowed in the amounts and priority set forth in the Plan Supplement.

1.99. Other Priority Claim means any Claim against any of the Debtors entitled to priority in payment as specified in section 507(a)(3), (4), (5), (6), (7) or (9) of the Bankruptcy Code, other than an Administrative Expense Claim or a Priority Tax Claim.

1.100. Original Debtors means BB Parent; Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; and 696 White Plains Road, LLC.

1.101. PBGC means the Pension Benefit Guaranty Corporation.

1.102. PBGC Claims means the Claims of the PBGC, which shall be Allowed as a prepetition unsecured claim in the amount of $62,000,000 in accordance with Section 5.3(a) herein.


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1.103. PBGC Claims Distribution Amount means, for the purpose of calculating any Distribution of Liquidation Trust Assets or proceeds of the Litigation Trust Assets, as applicable, to be received by the PBGC as holder of an Allowed Class 3 PBGC Claim on account Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, the amount determined based on the following formula:

[ a

x 2.25 x c ] – d b a = The Allowed amount of the PBGC Claims. b = The sum of (i) the aggregate amount of Allowed and Disputed General

Unsecured Claims against the Debtors and (ii) the Allowed amount of the PBGC Claims.

c = The sum of (i) the amount of the Distribution to be made by the Liquidation Trustee and the Litigation Trustee, as applicable, to holders of the Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, respectively, and (ii) the aggregate amount of all prior Distributions made by the Liquidation Trustee and the Litigation Trustee, as applicable, to holders of the Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, respectively.

d = The aggregate amount of all prior Distributions made to the PBGC.

1.104. PBGC Settlement means the settlement between the Debtors and the PBGC, to which the Creditors’ Committee has concurred, the agreed terms of which are incorporated in this Plan (including Section 5.3 hereof) and described in the Disclosure Statement.

1.105. Pension Plans means The Brooks Brothers Pension Plan (originally effective as of April 29, 1988) and the Retail Brand Alliance, Inc. Pension Plan (originally effective as of October 1, 1995), each as amended, restated, supplemented, or otherwise modified from time to time.

1.106. Person means an individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, limited liability partnership, trust, estate, unincorporated organization, Governmental Unit or other entity.

1.107. Petition Date means (i) July 8, 2020 with respect to the Original Debtors; and (ii) September 10, 2020 with respect to BB Canada.

1.108. Plan means this joint chapter 11 plan, including the exhibits hereto, as the same may be amended or modified from time to time in accordance with Section 8.5 herein.

1.109. Plan Supplement means the compilation of documents containing (i) information required to be disclosed in accordance with section 1129(a)(5) of the Bankruptcy Code; (ii) the Liquidation Trust Agreement; (iii) the Litigation Trust Agreement; (iv) the Schedule of Alternative Plan Debtors; (v) the Schedule of Retained Causes of Action; (vi) the identities of the members of the Litigation Trust Oversight Board; and (vii) the Schedule of Allowed Non-Debtor Subsidiary Claims, as each document may be amended from time to time.

1.110. Plan Trusts means the Liquidation Trust and the Litigation Trust.


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1.111. Plan Trustees means the Liquidation Trustee and the Litigation Trustee.

1.112. Prepetition ABL Agent shall have the meaning ascribed to such term in the Final DIP Order.

1.113. Prepetition ABL Lenders shall have the meaning ascribed to such term in the Final DIP Order.

1.114. Priority Tax Claim means any secured or unsecured Claim of a Governmental Unit of the kind entitled to priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.

1.115. Pro Rata means the proportion that an Allowed Claim in a particular Class bears to the aggregate amount of Allowed Claims and Disputed Claims within such Class, or the proportion that Allowed Claims in a particular Class bears to the aggregate amount of Allowed Claims in multiple Classes, as applicable.

1.116. Proof of Claim means a proof of Claim filed against any of the Debtors in the Chapter 11 Cases.

1.117. Professional means an Entity retained in the Chapter 11 Cases pursuant to and in accordance with sections 327, 363, or 1103 of the Bankruptcy Code and to be compensated for services rendered and expenses incurred pursuant to sections 327, 328, 329, 330, 331, or 363 of the Bankruptcy Code.

1.118. Professional Fee Escrow means an interest-bearing escrow account to be funded by the Debtors on the Effective Date in an amount equal to an estimate of all unpaid Fee Claims.

1.119. Professional Fees Account shall have the meaning ascribed to such term in the Final DIP Order.

1.120. Purchased Actions shall have the meaning ascribed to such term in the Sale Order.

1.121. Recognition Proceedings means the proceedings commenced by the Debtors under Part IV of the CCAA in the Canadian Court to recognize the Chapter 11 Cases as “foreign main proceedings” in Canada.

1.122. Released Parties means collectively: (i) the Debtors; (ii) the Creditors’ Committee and the members of the Creditors’ Committee solely in their capacities as such, and not individually; (iii) the DIP Lender; (iv) the DIP Agent; (v) the ABL Agent; (vi) the ABL Lenders; (vii) the Information Officer; (viii) with respect to any Person or Entity in the foregoing clauses (i) through (vii), such Person or Entity’s predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons’ respective heirs, executors, estates, servants and nominees each solely in its


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capacity as such; provided, however, that the (i) DV Entities, and (ii) Former D&Os and Shareholders shall not be Released Parties; provided, further that any holder of a Claim that opts out of the releases set forth in Section 10.5 of the Plan or files with the Bankruptcy Court an objection to the releases set forth Section 10.5 of this Plan by the deadline established to file objections to this Plan shall not be a Released Party.

1.123. Releasing Parties means collectively, and in each case, in their respective capacities as such: (i) the Released Parties; (ii) all holders of Claims and Interests that are deemed to accept this Plan; (iii) all holders of Claims who vote to accept the Plan; (iv) all holders of Claims that are entitled to vote on the Plan who abstain from voting on the Plan or who vote to reject the Plan, but in either case, do not opt out of granting the releases set forth in Section 10.5 of the Plan; (v) holders of Claims or Interests that are deemed to reject this Plan and do not timely file with the Bankruptcy Court an objection to the releases set forth in Section 10.5 of this Plan by the deadline established to file objections to this Plan; (vi) holders of Administrative Expense Claims and Priority Tax Claims that do not hold Claims or Interests in any Class and do not timely file with the Bankruptcy Court an objection to the releases set forth in Section 10.5 of this Plan by the deadline established to file objections to this Plan, and (vii) with respect to any Person or entity in the foregoing clauses (i) through (vi), such Person or Entities’ predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons’ respective heirs, executors, estates, servants and nominees, in their respective capacities as such.

1.124. Sale Order means the Order (I) Approving Asset Purchase Agreement, (II) Authorizing Sale to the Stalking Horse Bidder of the Acquired Assets Free and Clear of Liens, Claims, Encumbrances and Other Interests, (III) Authorizing Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection Therewith, and (IV) Granting Related Relief entered by the Bankruptcy Court in the Chapter 11 Cases on August 14, 2020 [D.I. 444].

1.125. Sale Transaction means the sale of substantially all of the Debtors’ assets pursuant to the Sale Order and the Canadian Sale Order.

1.126. Schedule of Allowed Non-Debtor Subsidiary Claims means the schedule of Allowed Non-Debtor Subsidiary Claims, which shall be included in the Plan Supplement and which shall be reasonably acceptable to the Creditors’ Committee.

1.127. Schedule of Alternative Plan Debtors means the list of Debtors, if any, who will be decoupled from this Plan in accordance with Section 5.2(c), which list which shall be filed with the Plan Supplement.

1.128. Schedule of Retained Causes of Action means the list of any Causes of Action to be retained by the Debtors, including the DV Claims, which list shall be filed with the Plan Supplement and shall be reasonably acceptable to the Creditors’ Committee.


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1.129. Schedules means the schedules of assets and liabilities and the statement of financial affairs filed by the Debtors under section 521 of the Bankruptcy Code, Bankruptcy Rule 1007, and the Official Bankruptcy Forms of the Bankruptcy Rules, as such schedules and statements have been or may be supplemented or amended from time to time.

1.130. Secured Claim means a Claim to the extent, under applicable non-bankruptcy law, it is (i) secured by property of the Estate, the amount of which is equal to or less than the value of such property (A) as agreed to by the holder of such Claim and the Debtors, or (B) as determined by a Final Order in accordance with section 506(a) of the Bankruptcy Code, or (ii) secured by the amount of any rights of setoff of the holder thereof under section 553 of the Bankruptcy Code, and includes any Claim against the Canadian Assets secured by (x) the Administration Charge, or (y) the Directors’ Charge.

1.131. Shareholders means the direct shareholders of BB Parent.

1.132. SPARC means SPARC GROUP LLC.

1.133. Subordinated Claim means a Claim that is subject to subordination in accordance with sections 510 of the Bankruptcy Code or otherwise.

1.134. Tax Code means the Internal Revenue Code of 1986, as amended from time to time.

1.135. Unexpired Lease means a lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.

1.136. Unimpaired means, with respect to a Claim, Interest or Class of Claims or Interests, not “impaired” within the meaning of section 1123(a)(4) and 1124 of the Bankruptcy Code.

1.137. Unsecured Claims means General Unsecured Claims and PBGC Claims.

1.138. Wind-Down Reserve means a cash reserve sufficient to fund the Liquidation Trust’s activities, including the Liquidation Trust Expenses, pursuant to a budget reasonably acceptable to the Debtors and the Creditors’ Committee, as may be amended from time to time by the Liquidation Trustee.

B. Interpretation; Application of Definitions and Rules of Construction.

Unless otherwise specified, all section or exhibit references in the Plan are to the respective section in, or exhibit to, the Plan, as the same may be amended, waived or modified from time to time. The words “herein,” “hereof,” “hereto,” “hereunder,” and other words of similar import refer to the Plan as a whole and not to any particular section, subsection or clause contained therein. The headings in the Plan are for convenience of reference only and shall not limit or otherwise affect the provisions hereof. For purposes herein: (i) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (ii) any reference herein to a contract, lease, instrument, release, indenture, or other


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agreement or document being in a particular form or on particular terms and conditions means that the referenced document shall be substantially in that form or substantially on those terms and conditions; (iii) unless otherwise specified, all references herein to “Sections” are references to Sections hereof or hereto; (iv) the rules of construction set forth in section 102 of the Bankruptcy Code shall apply; and (v) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be.

C. Controlling Document.

In the event of an inconsistency between the Plan and any other document, the terms of the Plan shall control (unless stated otherwise in such other document). The provisions of the Plan and of the Confirmation Order shall be construed in a manner consistent with each other so as to effect the purposes of each; provided that, if there is determined to be any inconsistency between any Plan provision and any provision of the Confirmation Order that cannot be so reconciled, then, solely to the extent of such inconsistency, the provisions of the Confirmation Order shall govern and any such provision of the Confirmation Order shall be deemed a modification of the Plan and shall control and take precedence.

SECTION 2. ADMINISTRATIVE EXPENSE AND PRIORITY CLAIMS.

2.1 Administrative Expense Claims.

Except to the extent that a holder of an Allowed Administrative Expense Claim and the Debtors or the Liquidation Trustee agree to different treatment, the Debtors (or the Liquidation Trustee, as the case may be) shall pay to each holder of an Allowed Administrative Expense Claim Cash in an amount equal to such Claim on, or as soon thereafter as is reasonably practicable, the later of (i) forty five (45) calendar days after the Effective Date (or as soon as reasonably practicable thereafter) and (ii) the first Business Day after the date that is thirty (30) calendar days after the date such Administrative Expense Claim is Allowed.

Holders of Administrative Expense Claims that were required to file and serve a request for payment of such Administrative Expense Claims and that did not file and serve such a request by the Administrative Expense Claims Bar Date shall be forever barred, estopped, and enjoined from asserting such Administrative Expense Claims against the Debtors or their property, or the Liquidation Trust or the Liquidation Trust Assets, or the Litigation Trust or the Litigation Trust Assets, and such Administrative Expense Claims shall be deemed compromised, settled, and released as of the Effective Date. The Debtors or the Liquidation Trustee, as applicable, may file and serve objections to Administrative Expense Claims on or before the Claims Objection Bar Date.

2.2 Fee Claims.

(a) Professional Fee Escrow. No later than five (5) days after the Effective Date, the Debtors or the Liquidation Trustee shall establish and fund the Professional Fee Escrow, and the Debtors shall be authorized to transfer custody of the Professional Fees Account to the Liquidation Trust for this purpose. Fee Claims shall be paid in Cash from funds held in the Professional Fee Escrow when such Claims are Allowed by a Final Order of the


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Bankruptcy Court. Neither the Debtors’ nor the Liquidation Trust’s obligations to pay Professional Fee Claims shall be limited nor be deemed limited to funds held in the Professional Fee Escrow.

(b) Estimation of Fee Claims. No later than five (5) days before the anticipated Effective Date, Professionals shall provide a good faith estimate of their Fee Claims projected to be outstanding as of the Effective Date and shall deliver such estimate to the Debtors. Such estimate shall not be considered an admission or limitation with respect to the fees and expenses of such Professional and such Professionals are not bound to any extent by the estimates. If a Professional does not provide an estimate, the Debtors may, after consulting with the Committee, estimate the unbilled fees and expenses of such Professional. The total amount so estimated shall be utilized by the Debtors to determine the amount to be funded to the Professional Fee Escrow. The Liquidation Trust shall use Cash on hand to increase the amount of the Professional Fee Escrow to the extent fee applications are filed after the Effective Date in excess of the amount held in the Professional Fee Escrow based on such estimates.

(c) Payment of Fee Claims. All entities seeking an award by the Bankruptcy Court of Fee Claims (i) shall file their respective final applications for allowance of compensation for services rendered and reimbursement of expenses incurred by the date that is thirty (30) days after the Effective Date, and (ii) shall be paid in full from the Professional Fees Account or the Professional Fee Escrow, as applicable, in such amounts as are Allowed by the Bankruptcy Court (A) in accordance with the Interim Compensation Order, (B) upon the later of the Effective Date and the date upon which the order relating to any such Allowed Fee Claim is entered or (C) upon such other terms as may be mutually agreed upon between the holder of such an Allowed Fee Claim and the Debtors or the Liquidation Trustee, as applicable. The Liquidation Trustee is authorized to pay compensation for services rendered or reimbursement of expenses incurred after the Effective Date in the ordinary course and without the need for Bankruptcy Court approval. When all Allowed Fee Claims have been paid in full, any remaining amount in the Professional Fee Escrow shall promptly be released from such escrow and revert to, and ownership thereof shall vest in, the Liquidation Trust without any further action or order of the Bankruptcy Court.

(d) Professional Fee Escrow Not Property of the Liquidation Trust. Funds held in the Professional Fee Escrow shall not be considered Liquidation Trust Assets or Litigation Trust Assets or otherwise property of the Liquidation Trust or the Litigation Trust, the Debtors, or their Estates. The Professional Fee Escrow shall be treated as a trust account for the benefit of holders of Fee Claims and for no other parties until all Allowed Fee Claims have been paid in full in Cash. No Liens, claims, or interests shall encumber the Professional Fee Escrow or Cash held in the Professional Fee Escrow in any way.

2.3 Priority Tax Claims.

Except to the extent that a holder of an Allowed Priority Tax Claim agrees to a different treatment, each holder of an Allowed Priority Tax Claim shall receive, at the sole option of the Debtors or the Liquidation Trustee, as applicable, (i) Cash in an amount equal to such Allowed Priority Tax Claim on the later of (a) forty five (45) calendar days after the Effective Date (or as soon as reasonably practicable thereafter), (b) the first Business Day after the date that is thirty


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(30) days after the date such Priority Tax Claim becomes an Allowed Priority Tax Claim, and (c) the date such Allowed Priority Tax Claim is due and payable in the ordinary course, or as soon thereafter as is reasonably practicable, or (b) equal annual Cash payments in an aggregate amount equal to the amount of such Allowed Priority Tax Claim, together with interest at the applicable rate under section 511 of the Bankruptcy Code, over a period not exceeding five (5) years from and after the Petition Date. The holders of Allowed Priority Tax Claims shall retain their tax liens on their collateral to the same validity, extent and priority as existed on the Petition Date until all validly determined taxes and related interest, penalties, and fees (if any) have been paid in full. To the extent a holder of an Allowed Priority Tax Claim is not paid in the ordinary course of business, payment of the Allowed Priority Tax Claim shall include interest through the date of payment at the applicable state statutory rate, as set forth in sections 506(b), 511, and 1129 of the Bankruptcy Code.

SECTION 3. CLASSIFICATION OF CLAIMS AND INTERESTS.

3.1 Classification in General.

A Claim or Interest is placed in a particular Class for all purposes, including voting, confirmation, and distribution under this Plan and under sections 1122 and 1123(a)(1) of the Bankruptcy Code; provided that a Claim or Interest is placed in a particular Class for the purpose of receiving distributions pursuant to this Plan only to the extent that such Claim or Interest is an Allowed Claim or Allowed Interest in that Class and such Claim or Interest has not been satisfied, released, or otherwise settled prior to the Effective Date.

3.2 Formation of Debtor Groups for Convenience Only.

This Plan (including, but not limited to, Section 2 and Section 3 of the Plan) groups the Debtors together solely for the purpose of describing treatment under this Plan, confirmation of this Plan, and Plan Distributions to be made in respect of Claims against and Interests in the Debtors under this Plan. Except as provided in Section 5 of the Plan, such groupings shall not affect each Debtor’s status as a separate legal entity, change the organizational structure of the Debtors’ business enterprise, constitute a change of control of any Debtor for any purpose, cause a merger of consolidation of any legal entities, or cause the transfer of any assets.

3.3 Summary of Classification.

The following table designates the Classes of Claims against and Interests in each of the Debtors and specifies which of those Classes are (i) Impaired or Unimpaired by the Plan, (ii) entitled to vote to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code and (iii) deemed to reject the Plan. In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Expense Claims and Priority Tax Claims have not been classified and, thus, are excluded from the Classes of Claims and Interests set forth in this Section 3. All of the potential Classes for the Debtors are set forth herein. Certain of the Debtors may not have holders of Claims or Interests in a particular Class or Classes, and such Classes shall be treated as set forth in Section 3.5.


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Class Designation Treatment Entitled to Vote 1 Other Priority Claims Unimpaired No (Presumed to accept) 2 Secured Claims Unimpaired No (Presumed to accept) 3 PBGC Claims Impaired Yes 4 General Unsecured Claims Impaired Yes 5 Intercompany Claims Impaired No (Presumed to accept) 6 Debtor Interests Impaired No (Deemed to reject) 7 Subordinated Claims Impaired No (Deemed to reject)

3.4 Special Provision Governing Unimpaired Claims.

Except as otherwise provided in the Plan, nothing under the Plan shall affect the rights of the Debtors or the Liquidation Trustee, as applicable, in respect of any Unimpaired Claims, including all rights in respect of legal and equitable defenses to, or setoffs or recoupments against, any such Unimpaired Claims.

3.5 Elimination of Vacant Classes.

Any Class of Claims or Interests that, as of the commencement of the Confirmation Hearing, does not have at least one holder of a Claim or Interest that is Allowed in an amount greater than zero for voting purposes shall be considered vacant, deemed eliminated from the Plan for purposes of voting to accept or reject the Plan, and disregarded for purposes of determining whether the Plan satisfies section 1129(a)(8) of the Bankruptcy Code with respect to that Class.

3.6 Voting Classes; Presumed Acceptance by Non-Voting Classes.

If a Class contains Claims or Interests eligible to vote and no holders of Claims or Interests eligible to vote in such Class vote to accept or reject the Plan, the Debtors shall request the Bankruptcy Court at the Confirmation Hearing to deem the Plan accepted by the holders of such Claims or Interests in such Class.

3.7 Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code.

The Debtors shall seek Confirmation of the Plan pursuant to section 1129(b) of the Bankruptcy Code with respect to any rejecting Class of Claims or Interests. The Debtors reserve the right to modify the Plan in accordance with Section 12.5 hereof to the extent, if any, that Confirmation pursuant to section 1129(b) of the Bankruptcy Code requires modification, including by modifying the treatment applicable to a Class of Claims or Interests to render such Class of Claims or Interests Unimpaired to the extent permitted by the Bankruptcy Code and the Bankruptcy Rules.


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SECTION 4. TREATMENT OF CLAIMS AND INTERESTS.

4.1 Other Priority Claims (Class 1).

(a) Classification: Class 1 consists of Allowed Other Priority Claims against the Debtors.

(b) Treatment: Except to the extent that a holder of an Allowed Other Priority Claim against any of the Debtors has agreed to less favorable treatment of such Claim, each such holder shall receive, in full and final satisfaction of such Claim, Cash in an amount equal to such Claim, payable on the later of the (i) forty five (45) calendar days after the Effective Date (or as soon as reasonably practicable thereafter) and (ii) the first Business Day after thirty (30) days from the date on which such Other Priority Claim becomes and Allowed Priority Claim, or as soon as reasonably practical thereafter.

(c) Voting: Class 1 is Unimpaired, and the holders of Other Priority Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Other Priority Claims are not entitled to vote to accept or reject the Plan, and the votes of such holders will not be solicited with respect to Other Priority Claims.

4.2 Secured Claims (Class 2).

(a) Classification: Class 2 consists of the Secured Claims.

(b) Treatment: Except to the extent that a holder of an Allowed Secured Claim against any of the Debtors has agreed to less favorable treatment of such Claim, each such holder shall receive, at the option of the Debtors (after consultation with the Creditors’ Committee if prior to the Effective Date) or the Liquidation Trustee, (i) payment in full in Cash in full and final satisfaction of such Claim, payable on the later of (A) forty five (45) calendar days after the Effective Date (or as soon as reasonably practicable thereafter) and (B) the first Business Day after thirty (30) days from the date on which such Secured Claim becomes an Allowed Secured Claim, or as soon as reasonably practical thereafter, (ii) delivery of the collateral securing such Allowed Secured Claim and payment of any interest required under section 506(b) of the Bankruptcy Code, or (iii) such other treatment necessary to satisfy section 1129 of the Bankruptcy Code.

(c) Voting: Class 2 is Unimpaired, and the holders of Secured Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Secured Claims are not entitled to vote to accept or reject the Plan, and the votes of such holders will not be solicited with respect to Secured Claims.


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4.3 PBGC Claims (Class 3).

(a) Classification: Class 3 consists of the PBGC Claims.

(b) Treatment: The PBGC Claims shall be Allowed as a prepetition general unsecured claim in the amount of $62,000,000. In full and final satisfaction of the PBGC Claims, holders of the Allowed PBGC Claims shall receive (i) a Pro Rata Share of the Liquidation Trust Beneficial Interests and (ii) a Pro Rata Share of the Litigation Trust Beneficial Interests. With respect to any Distribution of Liquidation Trust Assets or Litigation Trust Assets to be made by the Liquidation Trustee or the Litigation Trustee (as applicable), holders of the Allowed PBGC Claims shall receive the PBGC Claims Distribution Amount. For the avoidance of doubt, the PBGC Claims shall be the only Claims on which the PBGC shall be entitled to any Distribution in connection with the Debtors or this Plan.

(c) Voting: Class 3 is Impaired and the PBGC, as holder of the PBGC Claims in Class 3, is entitled to vote to accept or reject the Plan.

4.4 General Unsecured Claims (Class 4).

(a) Classification: Class 4 consists of General Unsecured Claims against the Debtors.

(b) Treatment: Except to the extent that a holder of an Allowed General Unsecured Claim against the Debtors has agreed to less favorable treatment of such Claim, and except as provided in section 5.11 of the APA with respect to the Claims of Former Non-Debtor Subsidiaries, each such holder shall receive, in full and final satisfaction of such Claim, (i) a Pro Rata Share of the Liquidation Trust Beneficial Interests and (ii) a Pro Rata Share of the Litigation Trust Beneficial Interests. With respect to any Distribution of Liquidation Trust Assets or proceeds of the Litigation Trust Assets to be made by the Liquidation Trustee or the Litigation Trustee (as applicable), holders of Allowed General Unsecured Claims shall receive their Pro Rata share of the Allowed General Unsecured Claims Distribution Amount.

(c) Voting: Class 4 is Impaired, and the holders of General Unsecured Claims are entitled to vote to accept or reject the Plan.

4.5 Intercompany Claims (Class 5).

(a) Classification: Class 5 consists of Intercompany Claims against the Debtors.

(b) Treatment: On or after the Effective Date, all Allowed Intercompany Claims shall be adjusted, continued, settled, reinstated, discharged, or eliminated, in each case to the extent determined to be appropriate by the Debtors or the Liquidation Trustee (as applicable).

(c) Voting: Class 5 is Impaired. The holders of Intercompany Claims are plan proponents and are conclusively presumed to accept the Plan. Therefore, holders


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of Intercompany Claims are not entitled to vote to accept or reject this Plan, and the votes of such holders will not be solicited with respect to Intercompany Claims.

4.6 Debtor Interests (Class 6).

(a) Classification: Class 6 consists of all Interests in the Debtors.

(b) Treatment: The Debtor Interests shall be cancelled when merged or dissolved pursuant to the terms of the Plan. Each holder of a Debtor Interest shall neither receive nor retain any property of the Debtors’ estates or direct interest in property of the Debtors’ estates.

(c) Voting: Class 6 is Impaired, and the holders of Debtor Interests are conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, the holders of Debtor Interests are not entitled to vote to accept or reject the Plan, and the votes of such holders will not be solicited with respect to such Interests.

4.7 Subordinated Claims (Class 7).

(a) Classification: Class 7 consists of all Subordinated Claims.

(b) Treatment: All Subordinated Claims, if any, shall be discharged, cancelled, released, and extinguished as of the Effective Date, and will be of no further force or effect. Each holder of Allowed Subordinated Claims shall neither receive nor retain any property of the Debtors’ estates or any interest in property of the Debtors’ estates.

(c) Voting: Class 7 is Impaired, and the holders of Subordinated Claims are conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, the holders of Subordinated Claims are not entitled to vote to accept or reject the Plan, and the votes of such holders will not be solicited with respect to such Subordinated Claims.

SECTION 5. MEANS FOR IMPLEMENTATION.

5.1 Joint Chapter 11 Plan.

The Plan is a joint chapter 11 plan for each of the Debtors, with the Plan for each Debtor being non-severable and mutually dependent on the Plan for each other Debtor.

5.2 Limited Substantive Consolidation.

(a) Limited Substantive Consolidation. The Plan shall serve as a motion by the Debtors seeking entry of a Bankruptcy Court order deeming the substantive consolidation of the Debtors’ Estates into a single Estate for certain limited purposes related to the Plan, including voting, confirmation, and distribution and the Bankruptcy Court’s findings that the substantive consolidation of the Estates to the extent set forth herein is (i) in exchange for good and valuable consideration provided by each of the Estates (including, without limitation, performance of the terms of the Plan), and a good-faith settlement and compromise of the released


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claims, (ii) in the best interests of the Debtors, the Estates and all holders of Claims, (iii) fair, equitable, and reasonable, and (iv) effected after due notice and opportunity for hearing. As a result of the limited substantive consolidation of the Estates, each Class of Claims and Interests shall be treated as against a single consolidated Estate without regard to the separate legal existence of the Debtors. The Plan shall not result in the merger or otherwise affect the separate legal existence of each Debtor, other than with respect to voting and distribution rights under the Plan, and otherwise in satisfying the applicable requirements of section 1129 of the Bankruptcy Code. The limited substantive consolidation of the Debtors under the Plan shall not (other than for purposes related to funding Distributions under the Plan) affect (u) the legal and organizational structure of the Debtors, (v) executory contracts or unexpired leases that were entered into during the Chapter 11 Cases or that have been or will be assumed or rejected, (w) any agreements entered into by the Liquidation Trust on or after the Effective Date, (x) the Debtors’ or the Liquidation Trust’s ability to subordinate or otherwise challenge Claims on an entity-by-entity basis, (y) any causes of action or Avoidance Actions or defenses thereto, which in each case shall survive entry of the Confirmation Order and the Confirmation Recognition Order as if there had been no substantive consolidation of the Estates of the Debtors, and (z) distributions to the Debtors or the Liquidation Trust from any insurance policies or the proceeds thereof.

(b) Effect on Distributions. On and after the Effective Date, solely for Distribution purposes (i) all assets and liabilities of the Debtors shall be treated as though they were pooled; (ii) each Claim filed or to be filed against any Debtor shall be deemed filed as a single Claim against, and a single obligation of, the Debtors; (iii) all Intercompany Claims shall be reinstated, settled, offset, cancelled, extinguished or eliminated in accordance with Section 4.5 herein; (iv) no Distributions shall be made under the Plan on account of any Intercompany Interest; (v) any Claims on account of a guarantee provided by a Debtor of the obligations of another Debtor shall be eliminated so that any Claim against any Debtor and any Claim based upon a guarantee thereof by any other Debtor shall be treated as one consolidated Claim against the substantively-consolidated Debtors, and (vi) any joint or several liability of any of the Debtors shall be one obligation of the substantively-consolidated Debtors and any Claims based upon such joint or several liability shall be treated as one consolidated Claim against the substantively-consolidated Debtors.

(c) Alternative Plan Debtors. Notwithstanding the foregoing in this Section 5.2, the Debtors, after consulting with the Creditors’ Committee, reserve the right to examine the Claims asserted against the various Entities and to withdraw the Plan with respect to any particular Debtor Entity if the total dollar amount of the Administrative Expense Claims against such Entity would result in the Debtors not being able to satisfy all Allowed Administrative Expense Claims, Secured Claims, Priority Tax Claims and Other Priority Claims against such Debtor in full. In the event that the Debtors elect to withdraw the Plan with respect to any Entity, such Entity shall be listed on the Schedule of Alternative Plan Debtors included in the Plan Supplement and the Debtors, after consulting with the Creditors’ Committee, may proceed to seek confirmation of this Plan as to the remaining Debtors on a limited substantively consolidated basis in accordance with Section 5.2(a) above; provided, however, that to the extent the Creditors’ Committee does not agree with the withdrawal of the Plan with respect to any Debtor, the Creditors’ Committee reserves all rights to object to confirmation on the basis of such withdrawal.


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5.3 PBGC Settlement.

This Plan includes a settlement of the PBGC Claims pursuant to the PBGC Settlement, which provides for the following:

(a) Allowance and Treatment of the PBGC Claims. The PBGC Claims shall be Allowed as general unsecured claims against the Debtors in the Amount of $62,000,000, and classified in accordance with and entitled to the treatment provided for in Section 4.3 of this Plan. The PBGC Claims shall be treated as against a single consolidated estate without regard to the separate legal existence of the Debtors and the PBGC Claims shall be deemed as a single Claim against, and a single obligation of, the Debtors. For the avoidance of doubt, the PBGC Claims shall be the only Claims on which the PBGC shall be entitled to any distribution in connection with the Debtors or this Plan.

(b) Preservation of Pension Plan Records. If the PBGC is not the trustee of the Pension Plans (or has not completed the transition of the Pension Plans to the PBGC) by the Effective Date, the Debtors will transfer the documents and records necessary for the administration of the Pension Plans to the Liquidation Trustee on the Effective Date or as soon as reasonably practicable thereafter. With respect to any records transferred in accordance with this Section 5.3(b), the Liquidation Trustee shall (i) store and preserve such records for twelve (12) months after the Effective Date, and (ii) make such documents available to the PBGC for inspection and copying upon reasonable notice.

5.4 Liquidation Trust.

(a) Liquidation Trust Generally. On or prior to the Effective Date, the Liquidation Trust shall be established in accordance with the Liquidation Trust Agreement for the purpose of being vested with and liquidating the Liquidation Trust Assets, reconciling Claims and making Distributions to Holders of Allowed Claims in accordance with the terms of this Plan and the Liquidation Trust Agreement. Subject to and to the extent set forth in this Plan, the Confirmation Order, the Liquidation Trust Agreement or any other order of the Bankruptcy Court entered in connection therewith, the Liquidation Trust and the Liquidation Trustee shall be empowered, without the need for Bankruptcy Court Approval or Canadian Court approval, to:

(i) perform all actions and execute all agreements, instruments and other documents necessary to effectuate the purpose of the Liquidation Trust;

(ii) establish, maintain and administer trust accounts, which shall be segregated to the extent appropriate in accordance with this Plan;

(iii) accept, preserve, receive, collect, manage, invest, sell, liquidate, transfer, abandon, supervise, prosecute, settle and protect, as applicable, the Liquidation Trust Assets in accordance with this Plan;

(iv) except to the extent any other Claims have already been Allowed, control and effectuate the Claims reconciliation process with


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respect to all Claims that are not Claims of the DV Entities or of any of the Former D&Os or Shareholders, including to object to, seek to subordinate, recharacterize, compromise or settle any and all such Claims against the Debtors, including the Disputed Claims (except for the Claims of the DV Entities or of any of the Former D&Os or Shareholders), pursuant to the procedures prescribed in this Plan;

(v) pursue Causes of Action that are Liquidation Trust Assets, elect not to pursue any such Causes of Action, and determine whether and when to compromise, settle, abandon, dismiss, or otherwise dispose of any such Causes of Action, as is in the best interests of the Liquidation Trust Beneficiaries;

(vi) calculate and make Distributions of the proceeds of the Liquidation Trust Assets to holders of Allowed Claims;

(vii) prepare and file appropriate tax returns and other reports on behalf of the Liquidation Trust and pay taxes or other obligations owed by the Debtors or the Liquidation Trust;

(viii) retain, compensate and employ professionals to represent the Liquidation Trust;

(ix) direct and control the wind down, liquidation, sale or abandonment of the remaining assets of the Debtors under the Plan and in accordance with applicable law as necessary to maximize Distributions to holders of Allowed Claims;

(x) exercise such other powers as may be vested in the Liquidation Trust under the Liquidation Trust Agreement and this Plan, or as are deemed by the Debtors or the Liquidation Trustee to be necessary and proper to implement the provisions of the Liquidation Trust Agreement and effectuate the purpose of the Liquidation Trust; and

(xi) dissolve the Liquidation Trust in accordance with the terms of the Liquidation Trust Agreement;

(xii) wind up the affairs of the Debtors, if and to the extent necessary, including taking any steps to dissolve, liquidate, bankrupt or take other similar action with respect to each Debtor, including by terminating the corporate or organizational existence of each such Debtor; and

(xiii) perform all actions and execute all agreements, instruments and other documents necessary to effectuate the PBGC Settlement as provided in Section 5.3 of the Plan.

Notwithstanding anything to the contrary in this Section 5.4, the Liquidation Trust’s primary purpose is liquidating the Liquidation Trust Assets, with no objective to continue or


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engage in the conduct of a trade or business except to the extent reasonably necessary to, and consistent with, the Liquidation Trust’s liquidating purpose and reasonably necessary to conserve and protect the Liquidation Trust Assets and provide for the orderly liquidation thereof.

(b) Funding of and Transfer of Assets into the Liquidation Trust. Except as otherwise provided in this Plan, the Confirmation Order, or the Confirmation Recognition Order, on the Effective Date, the Debtors shall transfer the Liquidation Trust Assets to the Liquidation Trust, and all such assets shall vest in the Liquidation Trust on such date, to be administered by the Liquidation Trustee, in accordance with this Plan and the Liquidation Trust Agreement; provided, that until final dissolution of BB Canada (i) the shares of BB Canada shall be owned by the Liquidation Trust, (ii) any remaining Canadian Collateral Proceeds in the possession of BB Canada pursuant to the Canadian Sale Order to support the Administration Charge and the Directors’ Charge shall be retained by BB Canada until repaid to BB Parent (or paid as directed by BB Parent) in accordance with the Debtors’ Stipulation and Agreement with Wells Fargo, N.A. Regarding Sale Order and Release of Liens and Claims dated August 30, 2020, and (iii) any remaining Canadian Assets shall be continued to be owned by BB Canada until recovered by the Liquidation Trust and shall be distributed by BB Canada to the Liquidation Trust in respect of such shares as part of any dissolution of BB Canada, subject to any withholding requirements in accordance with Section 5.12 of the Plan. The Liquidation Trustee shall have the authority to create additional sub-accounts in trust accounts established pursuant to Section 5.4(f) and sub-trusts within the Liquidation Trust, which may have a separate legal existence, but which shall be considered sub-accounts or sub-trusts of the Liquidation Trust. The act of transferring the Liquidation Trust Assets, as authorized by this Plan, shall not be construed to destroy or limit any such assets or rights or be construed as a waiver of any right, and such rights may be asserted by the Liquidation Trust as if the asset or right was still held by the applicable Debtor.

(c) Liquidation Trustee. The Liquidation Trustee shall serve as the initial trustee of the Liquidation Trust. Except as otherwise provided in this Plan, the Liquidation Trustee (i) shall be the successor to and representative of the Estate of each of the Debtors within the meaning of section 1123(b)(3)(B) of the Bankruptcy Code and (ii) shall be the sole representative of, and shall act for, the Debtors, and shall assume any such outstanding responsibility of the Debtors under the Plan. The powers, rights and responsibilities of the Liquidation Trustee shall be as specified in the Liquidation Trust Agreement and Plan and shall include the authority and responsibility to fulfill the items identified in this Section 5.4 of the Plan. Other rights and duties of the Liquidation Trustee and the Liquidation Trust Beneficiaries shall be as set forth in the Liquidation Trust Agreement.

(d) Functions of the Liquidation Trustee. On and after the Effective Date, the Liquidation Trustee and/or the Liquidation Trust, as applicable, shall carry out the functions set forth in this Section 5.4 and may take such actions without supervision or approval by the Bankruptcy Court or the Canadian Court and free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules, CCAA or BIA, other than any restrictions expressly imposed by the Plan, the Confirmation Order or the Liquidation Trust Agreement. Such functions shall include any and all powers and authority to:


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(i) effectuate the Plan, including the prosecution and any other disposition of all litigation related to any appeals in respect to the approval and/or implementation of the Plan;

(ii) wind up the affairs of the Debtors, if and to the extent necessary, including taking any steps to dissolve, liquidate, bankrupt, or take other similar action with respect to each Debtor, including by terminating the corporate or organizational existence of each such Debtor;

(iii) serve as the initial director or manager, as applicable, and sole officer of each Debtor after the Effective Date until such time as such Debtor is merged into BB Parent or dissolved, as applicable, and take any actions necessary to effectuate the terms of the Plan and the Liquidation Trust Agreement in such capacities;

(iv) serve on the board of directors of any subsidiary of the Liquidation Trust, provided the subsidiary’s objective is consistent with that of the Liquidation Trust (i.e., to sell its assets and distribute the proceeds in liquidation);

(v) take any actions necessary to (A) resolve all matters related to the Liquidation Trust Assets and (B) vest such assets in the Liquidation Trust;

(vi) fund the Wind-Down Reserve;

(vii) pay all (A) Allowed Administrative Expense Claims (including payment of Professional Fee Claims as set forth in Section 2.2 of the Plan), (B) Allowed Priority Tax Claims, (C) Allowed Other Priority Claims, and (D) Allowed Secured Claims pursuant to the Plan;

(viii) prepare and file appropriate Tax returns and other reports on behalf of the Debtors and pay Taxes or other obligations owed by the Debtors (including, without limitation, any Allowed Administrative Expense Claims and Allowed Priority Tax Claims asserted by taxing authorities);

(ix) provide reporting to the Litigation Trust Oversight Board, as set forth in the Liquidation Trust Agreement and Litigation Trust Agreement;

(x) file, prosecute, settle or dispose of any and all objections to asserted (A) Administrative Expense Claims, (B) Priority Tax Claims, (C) Other Priority Claims, (D) Secured Claims, and (E) General Unsecured Claims;

(xi) enter into and consummate any transactions for the purpose of dissolving the Debtors;


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(xii) make Distributions of the Liquidation Trust Assets and any proceeds thereof, in excess of any amounts necessary to pay Liquidation Trust Expenses, to holders of Allowed Unsecured Claims;

(xiii) take such actions as are necessary or appropriate to close any of the Debtors’ Chapter 11 Cases; or the Recognition Proceedings ;

(xiv) retain, compensate and employ professionals to represent the Liquidation Trust or the Liquidation Trustee, as applicable;

(xv) pay the reasonable fees and disbursements of the Information Officer and its counsel upon the submission of invoices on a monthly basis to the Liquidation Trustee, subject to the approval of the Canadian Court in the Recognition Proceedings;

(xvi) maintain the books and records and accounts of the Debtors;

(xvii) transfer any additional Litigation Trust Assets to the Litigation Trust after the Effective Date;

(xviii) consult with the Information Officer in respect of any matters set forth in Section 5.4 as such matters also relate to Canada, including by responding to any reasonable information requests of the Information Officer; and

(xix) take any other actions not inconsistent with the provisions hereof that the Liquidation Trustee deems reasonably necessary or desirable in connection with the foregoing functions.

After the Effective Date, the Liquidation Trustee shall file with the Bankruptcy Court quarterly reports when they become due, in a form reasonably acceptable to the U.S. Trustee, which reports shall include a separate schedule of disbursements made by the Debtors or the Liquidation Trustee during the applicable period, attested to by the Liquidation Trustee. Quarterly reports, including a separate schedule of disbursements, shall also be provided to the Information Officer and the Litigation Trust Oversight Board as soon as practicable following their preparation and upon filing.

(e) Liquidation Trust Agreement. Prior to the Effective Date, the Debtors shall execute and deliver the Liquidation Trust Agreement. The Liquidation Trust Agreement may include reasonable and customary indemnification provisions for the benefit of the Liquidation Trustee. Any such indemnification shall be the sole responsibility of the Liquidation Trust and payable solely from the Liquidation Trust Assets.

(f) Fees and Expenses of the Liquidation Trust. From and after the Effective Date, Liquidation Trust Expenses shall be paid from the Liquidation Trust Assets in the ordinary course of business, in accordance with the Plan and the Liquidation Trust Agreement. Without any further notice to any party or action, order or approval of the Bankruptcy Court, the


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Liquidation Trustee, on behalf of the Liquidation Trust, may employ and pay in the ordinary course of business, the reasonable fees of any professional (including professionals previously employed by the Debtors) for services rendered or expenses incurred on and after the Effective Date that, in the discretion of the Liquidation Trustee, are necessary to assist the Liquidation Trustee in the performance of the Liquidation Trustee’s duties under the Plan and the Liquidation Trust Agreement, subject to any limitations and procedures established by the Liquidation Trust Agreement.

(g) Creation and Maintenance of Trust Accounts. On or prior to the Effective Date, appropriate trust accounts will be established and maintained in one or more federally insured domestic banks in the name of the Liquidation Trust. Cash deposited in the trust accounts will be invested, held and used solely as provided in the Liquidation Trust Agreement. The Liquidation Trustee is authorized to establish additional trust accounts after the Effective Date, consistent with the terms of the Liquidation Trust Agreement, as applicable. After the funding of the trust accounts on the Effective Date, the trust accounts will be funded, as applicable, by Cash proceeds obtained through litigation or the disposition of Liquidation Trust Assets or the proceeds of the Litigation Trust. Upon obtaining an order of the Bankruptcy Court authorizing final Distribution or closure of the Debtors’ Chapter 11 Cases, any funds remaining in the trust accounts shall be distributed in accordance with this Plan and the Liquidation Trust Agreement, and the trust accounts may be closed.

(h) Limitation of Liability. Neither the Liquidation Trustee, nor its firms, companies, affiliates, partners, officers, directors, members, employees, designees, professionals, advisors, attorneys, representatives, disbursing agents or agents, and any of such Person's successors and assigns, shall incur any liability by reason of any error of law or fact or of any matter or thing done or suffered or omitted to be done under or in connection with the Plan or Liquidation Trust Agreement, other than for specific actions or omissions resulting from its willful misconduct, gross negligence or fraud found by a Final Order (not subject to further appeal or review) of a court of competent jurisdiction to be the direct and primary cause of loss, liability, damage or expense suffered by the Liquidation Trust. The Liquidation Trustee shall enjoy all of the rights, powers, immunities and privileges applicable to a chapter 7 trustee or any other analogous trustee, except with respect to the DV Claims, Claims of the DV Entities or any of the Former D&Os or Shareholders, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are Litigation Trust Assets. The Liquidation Trustee may, in connection with the performance of his, her or its functions, in the Liquidation Trustee’s sole and absolute discretion, consult with his, her or its attorneys, accountants, advisors and agents, and shall not be liable for any act taken, or omitted to be taken, or suggested to be done in accordance with advice or opinions rendered by such persons, regardless of whether such advice or opinions are in writing. Notwithstanding such authority, the Liquidation Trustee shall be under no obligation to consult with any such attorneys, accountants, advisors or agents, and any determination not to do so shall not result in the imposition of liability on the Liquidation Trustee or its members unless such determination is based on willful misconduct, gross negligence or fraud. Persons dealing with the Liquidation Trustee shall look only to the Liquidation Trust Assets to satisfy any liability incurred by the Liquidation Trustee to such person in carrying out the terms of the Plan or the Liquidation Trust Agreement, and the Liquidation Trustee shall have no personal obligation to satisfy such liability.


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(i) Indemnification. The Liquidation Trust shall indemnify the Liquidation Trustee for, and shall hold them harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of their respective professionals) incurred without fraud, gross negligence or willful misconduct on the part of the Liquidation Trustee (which fraud, gross negligence or willful misconduct, if any, must be determined by a Final Order of a court of competent jurisdiction) for any action taken, suffered or omitted to be taken by the Liquidation Trustee in connection with the acceptance, administration, exercise and performance of their duties under the Plan or the Liquidation Trust Agreement, as applicable. An act or omission taken with the approval of the Bankruptcy Court or the Canadian Court, and not inconsistent therewith, will be conclusively deemed not to constitute fraud, gross negligence or willful misconduct. In addition, the Liquidation Trust shall, to the fullest extent permitted by law, indemnify and hold harmless the Liquidation Trustee, from and against and with respect to any and all liabilities, losses, damages, claims, costs and expenses, including attorneys’ fees arising out of or due to their actions or omissions, or consequences of such actions or omissions, with respect to the Liquidation Trust or the implementation or administration of the Plan if the Liquidation Trustee acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the Liquidation Trust. To the extent the Liquidation Trust indemnifies and holds the Liquidation Trustee harmless as provided above, the reasonable legal fees and related costs incurred by counsel to the Liquidation Trustee in monitoring or participating in the defense of such claims giving rise to the right of indemnification shall be paid as Liquidation Trust Expenses. The costs and expenses incurred in enforcing the right of indemnification in this Section 5.4(i) shall be paid by the Liquidation Trust. This provision shall survive the termination of the Liquidation Trust Agreement and the death, dissolution, liquidation, resignation, replacement or removal of the Liquidation Trustee.

(j) Insurance. The Liquidation Trustee shall be authorized, but not required, to obtain any reasonably necessary insurance coverage, at the Liquidation Trust’s sole expense, for itself and its respective agents, including coverage with respect to the liabilities, duties and obligations of the Liquidation Trustee, which insurance coverage may, at the sole option of the Liquidation Trustee, be extended for a reasonable period after the termination of the Liquidation Trust Agreement.

(k) Dissolution of the Liquidation Trust. In no event shall the Liquidation Trust be dissolved later than five (5) years from the Effective Date unless the Bankruptcy Court, upon motion made within the six month period before such fifth anniversary (and, in the event of further extension, by order of the Bankruptcy Court, upon motion made at least six months before the end of the preceding extension), determines that a fixed period extension (not to exceed three years, together with any prior extensions, without a favorable private letter ruling from the IRS or an opinion of counsel satisfactory to the Liquidation Trustee that any further extension would not adversely affect the status of the trust as a liquidating trust for U.S. federal income tax purposes) is necessary to facilitate or complete the recovery on, and liquidation of, the Liquidation Trust Assets.

(l) Records. The Liquidation Trustee shall be provided with originals or copies of or access to all documents and business records of the Debtors necessary for the disposition of Liquidation Trust Assets and objections to Disputed Claims.


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(m) Non-Transferability of Liquidation Trust Interests. The Liquidation Trust Beneficial Interests shall be non-transferable other than if transferred by will, intestate succession or otherwise by operation of law.

5.5 Litigation Trust.

(a) Litigation Trust Generally. The Litigation Trust shall be established on the Effective Date, in accordance with the terms of the Plan and the Litigation Trust Agreement and shall be governed by the terms of the Litigation Trust Agreement and shall liquidate the Litigation Trust Assets, including by, among other things, prosecuting, settling, compromising, abandoning, or otherwise assessing and, if possible, realizing the value of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action assigned to the Litigation Trust in accordance with the terms of the Plan, from time to time in accordance with the terms of the Plan for the benefit of the Litigation Trust Beneficiaries. At such time as the Litigation Trustee determines the Litigation Trust has, pursuant to Section 5.5 of the Plan and the Litigation Trust Agreement, (i) resolved, settled, compromised, or otherwise liquidated the DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust from time to time in accordance with the terms of the Plan and the Litigation Trust Agreement, and (ii) paid all Litigation Trust Expenses, the Litigation Trustee shall transfer any and all remaining Litigation Trust Assets to the Liquidation Trust; provided that, if the Liquidation Trust has been dissolved pursuant to the terms of the Plan and the Liquidation Trust Agreement before such time as the Litigation Trustee has acted in accordance with the foregoing clauses (i) and (ii), the Litigation Trustee shall make a Distribution of the remaining Litigation Trust Assets to the Litigation Trust Beneficiaries in accordance with the terms of the Plan. From time to time, and after paying or appropriately reserving for Litigation Trust Expenses, the Litigation Trust may distribute proceeds of the Litigation Trust Assets to the Liquidation Trust for Distribution to Litigation Trust Beneficiaries.

(b) Subject to and to the extent set forth in this Plan, the Confirmation Order, the Liquidation Trust Agreement or any other order of the Bankruptcy Court entered in connection therewith, the Litigation Trust and the Litigation Trustee shall be empowered to:

(i) conduct investigations of the DV Claims, the Former D&O and Shareholder Causes of Action and other Causes of Action that are Litigation Trust Assets pursuant to Bankruptcy Rule 2004;

(ii) perform all actions and execute all agreements, instruments and other documents necessary to effectuate the purpose of the Litigation Trust;

(iii) establish, maintain and administer trust accounts, which shall be segregated to the extent appropriate in accordance with this Plan;

(iv) manage, liquidate, supervise, prosecute, and protect, as applicable, the Litigation Trust Assets;


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(v) settle Claims that are Litigation Trust Assets, including the DV Claims, the Former D&O and Shareholder Causes of Action, and Claims of the Former D&Os and Shareholders, without further order of the Bankruptcy Court;

(vi) control and effectuate the Claims reconciliation process for Claims of any of the DV Entities or any of the Former D&Os or Shareholders, including to object to, seek to subordinate, recharacterize, compromise or settle any and all such Claims, pursuant to the procedures prescribed in this Plan;

(vii) pursue, prosecute, abandon or otherwise resolve the DV Claims, the Former D&O and Shareholder Causes of Action, and other Causes of Action that are Litigation Trust Assets;

(viii) retain, compensate and employ professionals to represent the Litigation Trust;

(ix) prepare and file appropriate tax returns and other reports on behalf of the Litigation Trust and pay taxes or other obligations owed by the Litigation Trust;

(x) exercise such other powers as may be vested in the Litigation Trust under the Litigation Trust Agreement and this Plan, or as are deemed by the Litigation Trustee to be necessary and proper to implement the provisions of the Litigation Trust Agreement and effectuate the purpose of the Litigation Trust; and

(xi) dissolve the Litigation Trust in accordance with the terms of the Litigation Trust Agreement.

Notwithstanding anything to the contrary in this Section 5, the Litigation Trust’s primary purpose is liquidating the Litigation Trust Assets, with no objective to continue or engage in the conduct of a trade or business except to the extent reasonably necessary to, and consistent with, the Litigation Trust’s liquidating purpose and reasonably necessary to conserve and protect the Litigation Trust Assets and provide for the orderly liquidation thereof.

(c) Litigation Trust Funding. The Litigation Trust shall be funded with the Litigation Trust Minimum Funding on the Effective Date of the Plan and as a condition to the Effective Date of the Plan (subject to waiver in accordance with Section 9.2). The Litigation Fees Amount will be funded after the Debtors or the Liquidation Trustee, as applicable, have paid or reserved for any amounts necessary to fund the Wind-Down Reserve and to pay all Administrative Expense Claims, Fee Claims, Secured Claims, Priority Tax Claims and Other Priority Claims after consulting with the Litigation Trustee as to any amounts to be reserved. The total amount of the Litigation Trust Funding shall be subject to the adjustments set forth in this Section 5.5(c) of the Plan, but in any event shall not be less than the Litigation Trust Minimum Funding (subject to waiver in accordance with Section 9.2). To the extent the Debtors or the Liquidation Trustee, as applicable, determine in a good faith exercise of their business judgment


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consistent with their fiduciary duties that not funding all or a portion of the Litigation Fees Amount is necessary to allow the Debtors to fund or administer their chapter 11 cases (including to fund the Wind-Down Reserve and satisfy Administrative Expense Claims (including Fee Claims), Secured Claims, Priority Tax Claims and Other Priority Claims), the Debtors or the Liquidation Trustee, as applicable, are authorized to make such adjustment after consultation with the Litigation Trustee; provided that (i) in no event shall the Debtors or the Liquidation Trustee fund the Litigation Trust with an amount less than the Litigation Trust Minimum Funding, and (ii)(A) to the extent that the Debtors or the Liquidation Trustee, as applicable, make any such adjustment to the amount of the Litigation Fees Amount, and (B) the Debtors or the Liquidation Trustee, as applicable, is satisfied at a later date that the Debtors, or the Liquidation Trust, as applicable, have sufficient funds to satisfy all Allowed Administrative Expense Claims (including Fee Claims), Secured Claims, and Priority Tax Claims and Other Priority Claims, and be able to transfer some or all of such withheld amounts to the Litigation Trust, the Debtors or the Liquidation Trustee, as applicable, shall do so in accordance with the terms of the Plan.

(d) Transfer of Assets Into the Litigation Trust. Upon the Effective Date, (i) the DV Claims; (ii) Former D&O and Shareholder Causes of Action and (iii) the Litigation Trust Minimum Funding, shall vest in and be transferred to the Litigation Trust. Upon the Debtors or the Liquidation Trustee, as applicable having paid or reserved for any amounts necessary to fund the Wind-Down Reserve and pay all Administrative Expense Claims, Fee Claims, Secured Claims, Priority Tax Claims and Other Priority Claims in accordance with Section 5.4(c), the Debtors or the Liquidation Trustee, as applicable, shall transfer the Litigation Fees Amount to the Litigation Trust, and such assets shall vest in the Litigation Trust on the date of such transfer and shall be administered by the Litigation Trustee in accordance with this Plan and the Litigation Trust Agreement. The act of transferring the Litigation Trust Assets, as authorized by this Plan, shall not be construed to destroy or limit any such assets or rights or be construed as a waiver of any right, and such rights may be asserted by the Litigation Trust as if the asset or right was still held by the applicable Debtor.

(e) Litigation Trustee. The Litigation Trustee will serve as the initial trustee of the Litigation Trust. Except as otherwise provided in this Plan, the powers, rights and responsibilities of the Litigation Trustee shall be specified in the Litigation Trust Agreement. Other rights and duties of the Litigation Trustee and the Litigation Trust Beneficiaries shall be as set forth in the Litigation Trust Agreement.

(f) Functions of the Litigation Trustee. On and after the Effective Date, the Litigation Trustee and/or the Litigation Trust, as applicable, shall carry out the functions set forth in this Section 5.5(f) and may take such actions without supervision or approval by the Bankruptcy Court or the Canadian Court and free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules, CCAA or BIA, other than any restrictions expressly imposed by the Plan, the Confirmation Order or the Litigation Trust Agreement. Such functions shall include any and all powers and authority to:

(i) take any actions necessary to resolve all matters related to the Litigation Trust Assets;


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(ii) retain, compensate and employ professionals to represent the Litigation Trust or the Litigation Trustee, as applicable;

(iii) transfer all Cash proceeds of the DV Claims, the Former D&O and Shareholder Causes of Action, and of other Causes of Action assigned to the Litigation Trust, after payment of the Litigation Trust Expenses to the Liquidation Trust, unless the Liquidation Trust has been dissolved;

(iv) consult with the Information Officer in respect of any matters set forth in this Section 5.5 as such matters also relate to Canada; and

(v) take any other actions not inconsistent with the provisions hereof that the Litigation Trustee deems reasonably necessary or desirable in connection with the foregoing functions.

(g) Litigation Trust Agreement. On or prior to the Effective Date, the Debtors shall execute and deliver the Litigation Trust Agreement, which Litigation Trust Agreement shall be, in form and substance, reasonably acceptable to the Debtors and the Creditors’ Committee.

(h) Litigation Trust Oversight Board. On the Effective Date, the Litigation Trust Oversight Board shall be established. The initial Litigation Trust Oversight Board members shall consist of all the members of the Creditors’ Committee. Upon its formation, the duties of the Litigation Trust Oversight Board shall be set forth in the Litigation Trust Agreement, including but not limited to: (i) overseeing the Claims reconciliation and settlement process related to the Claims of the DV Entities, Former D&Os, and Shareholders conducted by or on behalf of the Litigation Trustee; (ii) overseeing the Litigation Trustee’s investigation into, and, if applicable, prosecution of, the DV Claims and Former D&O and Shareholder Causes of Action; (iii) formulating with the Litigation Trustee appropriate procedures for the settlement of DV Claims, Former D&O and Shareholder Causes of Action, and Claims of the DV Entities; (iv) overseeing the distributions to the Litigation Trust Beneficiaries as provided for under the Plan; (v) appearing before and being heard by the Bankruptcy Court and other courts of competent jurisdiction in connection with the above limited duties; and (vi) such other matters specified in the Plan or the Litigation Trust Agreement. For so long as the Claims reconciliation and investigation and/or prosecution of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets shall continue, the Litigation Trustee shall make regular reports to the Litigation Trust Oversight Board as and when the Litigation Trustee and the Litigation Trust Oversight Board may reasonably agree upon.

(i) Fees and Expenses of the Litigation Trust. From and after the Effective Date, Litigation Trust Expenses shall be paid from the Litigation Trust Assets in the ordinary course of business, in accordance with the Plan and the Litigation Trust Agreement. Without any further notice to any party or action, order or approval of the Bankruptcy Court, the Litigation Trustee, on behalf of the Litigation Trust, may employ and pay in the ordinary course of business, any professional for services rendered or expenses incurred on and after the Effective Date, in accordance with the terms of any agreement entered into between the Litigation Trust and such professional, in the discretion of the Litigation Trustee, that are necessary


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to assist the Litigation Trustee in the performance of the Litigation Trustee’s duties under the Plan and the Litigation Trust Agreement, subject to any limitations and procedures established by the Litigation Trust Agreement.

(j) Limitation of Liability. Neither the Litigation Trustee, nor its firms, companies, affiliates, partners, officers, directors, members, employees, designees, professionals, advisors, attorneys, representatives, disbursing agents or agents, and any of such Person's successors and assigns, shall incur any liability by reason of any error of law or fact or of any matter or thing done or suffered or omitted to be done under or in connection with the Litigation Trust Agreement, other than for specific actions or omissions resulting from its willful misconduct, gross negligence or fraud found by a Final Order (not subject to further appeal or review) of a court of competent jurisdiction to be the direct and primary cause of loss, liability, damage or expense suffered by the Litigation Trust. The Litigation Trustee shall enjoy all of the rights, powers, immunities and privileges applicable to a chapter 7 trustee or any other analogous trustee with respect to the DV Claims, Claims of the DV Entities, any of the Former D&Os or Shareholders, the Former D&O and Shareholder Causes of Action, and other Causes of Action that are Litigation Trust Assets. The Litigation Trustee may, in connection with the performance of his, her or its functions, in the Litigation Trustee’s sole and absolute discretion, consult with his, her or its attorneys, accountants, advisors and agents, and shall not be liable for any act taken, or omitted to be taken, or suggested to be done in accordance with advice or opinions rendered by such persons, regardless of whether such advice or opinions are in writing. Notwithstanding such authority, the Litigation Trustee shall be under no obligation to consult with any such attorneys, accountants, advisors or agents, and any determination not to do so shall not result in the imposition of liability on the Litigation Trustee or its members unless such determination is based on willful misconduct, gross negligence or fraud. Persons dealing with the Litigation Trustee shall look only to the Litigation Trust Assets to satisfy any liability incurred by the Litigation Trustee to such person in carrying out the terms of the Litigation Trust Agreement, and the Litigation Trustee shall have no personal obligation to satisfy such liability.

(k) Indemnification. The Litigation Trust shall indemnify the Litigation Trustee for, and shall hold them harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of their respective professionals) incurred without fraud, gross negligence or willful misconduct on the part of the Litigation Trustee (which fraud, gross negligence or willful misconduct, if any, must be determined by a Final Order of a court of competent jurisdiction) for any action taken, suffered or omitted to be taken by the Litigation Trustee in connection with the acceptance, administration, exercise and performance of their duties under the Plan or the Litigation Trust Agreement, as applicable. An act or omission taken with the approval of the Bankruptcy Court or the Canadian Court, and not inconsistent therewith, will be conclusively deemed not to constitute fraud, gross negligence or willful misconduct. In addition, the Litigation Trust shall, to the fullest extent permitted by law, indemnify and hold harmless the Litigation Trustee, from and against and with respect to any and all liabilities, losses, damages, claims, costs and expenses, including attorneys’ fees arising out of or due to their actions or omissions, or consequences of such actions or omissions, with respect to the Litigation Trust or the implementation or administration of the Plan if the Litigation Trustee acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the Litigation Trust. To the extent the Litigation Trust indemnifies and holds the Litigation Trustee harmless as


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provided above, the reasonable legal fees and related costs incurred by counsel to the Litigation Trustee in monitoring or participating in the defense of such claims giving rise to the right of indemnification shall be paid as Litigation Trust Expenses. The costs and expenses incurred in enforcing the right of indemnification in this Section 5.5(k) shall be paid by the Litigation Trust. This provision shall survive the termination of the Litigation Trust Agreement and the death, dissolution, liquidation, resignation, replacement or removal of the Litigation Trustee.

(l) Insurance. The Litigation Trustee shall be authorized, but not required, to obtain any reasonably necessary insurance coverage, at the Litigation Trust’s sole expense, for itself and its respective agents, including coverage with respect to the liabilities, duties and obligations of the Litigation Trustee, which insurance coverage may, at the sole option of the Litigation Trustee, be extended for a reasonable period after the termination of the Litigation Trust Agreement.

(m) Dissolution of the Litigation Trust. In no event shall the Litigation Trust be dissolved later than five (5) years from the Effective Date unless the Bankruptcy Court, upon motion made within the six month period before such fifth anniversary (and, in the event of further extension, by order of the Bankruptcy Court, upon motion made at least six months before the end of the preceding extension), determines that a fixed period extension (not to exceed three years, together with any prior extensions, without a favorable private letter ruling from the IRS or an opinion of counsel satisfactory to the Litigation Trustee that any further extension would not adversely affect the status of the trust as a liquidating trust for U.S. federal income tax purposes) is necessary to facilitate or complete the recovery on, and liquidation of, the Litigation Trust Assets. Upon the dissolution of the Litigation Trust, the Litigation Trustee shall transfer any remaining Litigation Trust Assets to the Liquidation Trust, provided that if the Liquidation Trust is dissolved before the dissolution of the Litigation Trust, the Litigation Trustee shall distribute the Litigation Trust Assets directly to Litigation Trust Beneficiaries pursuant to the terms of the Plan.

(n) Records. The Litigation Trustee shall be provided with originals or copies of or access to all documents and business records accessible to or retained by the Debtors or the Liquidation Trustee necessary for the disposition and liquidation of Litigation Trust Assets; provided that the Litigation Trustee or the Litigation Trust shall reimburse the Liquidation Trust and/or the Liquidation Trustee, as applicable, for any reasonable out-of-pocket fees or expenses incurred in assisting the Litigation Trustee in the procurement of records that were not retained by the Debtors after the Sale Transaction.

(o) Non-Transferability of Litigation Trust Interests. The Litigation Trust Beneficial Interests shall be non-transferable other than if transferred by will, intestate succession or otherwise by operation of law.


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5.6 Plan Trusts Tax Matters.

(a) Tax Treatment; No Successor in Interest. The Plan Trusts are intended to be treated for U.S. federal income tax purposes as liquidating trusts described in Treasury Regulation section 301.7701-4(d) and, to the extent applicable, as one or more Disputed Claims Reserves treated as disputed ownership funds described in Treasury Regulation section l.468B-9. For U.S. federal income tax purposes, the transfer of assets by the Debtors to the Plan Trusts will be treated (i) as the transfer of assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Liquidation Trust Assets or the Litigation Trust Assets, as applicable, subject to any liabilities of the Debtors or the Plan Trusts payable from the proceeds of such assets, followed by the transfer of such assets (subject to such liabilities) by such holders to the applicable Plan Trust in exchange for the beneficial interests in the Plan Trusts, and (ii) to the extent applicable, as the transfer of assets by the Debtors to one more Disputed Claims Reserves.

(b) Liquidation Purpose of the Plan Trusts. The Plan Trusts shall be established for the primary purpose of liquidating and distributing the assets transferred to it, in accordance with Treasury Regulation section 301.7701-4(d), with no objective to continue or engage in the conduct of a trade or business, except to the extent reasonably necessary to, and consistent with, the liquidating purpose of the Plan Trusts. Accordingly, the Plan Trustees shall, in an expeditious but orderly manner, liquidate and convert to Cash the Liquidation Trust Assets and the Litigation Trust Assets, as applicable, make timely distributions to the Liquidation Trust Beneficiaries and the Litigation Trust Beneficiaries, as applicable, and not unduly prolong their duration. The Plan Trusts shall not be deemed a successor-in-interest of the Debtors for any purpose other than as specifically set forth in this Plan, the Liquidation Trust Agreement or the Litigation Trust Agreement. The record holders of beneficial interests shall be recorded and set forth in a register maintained by the Plan Trustees expressly for such purpose.

(c) Cash Investments. The right and power of the Plan Trustees to invest the Liquidation Trust Assets and the Litigation Trust Assets, as applicable, the proceeds thereof or any income earned by the applicable Plan Trust, shall be limited to the right and power that a liquidating trust, within the meaning of section 301.7701-4(d) of the Treasury Regulations, is permitted to hold, pursuant to the Treasury Regulations, or any modification in the IRS guidelines, including Revenue Procedure 94-45, whether set forth in IRS rulings or other IRS pronouncements, and to the investment guidelines of section 345 of the Bankruptcy Code. The Plan Trustees may expend the Cash of the Plan Trusts (i) as reasonably necessary to meet contingent liabilities and to maintain the value of the respective assets of the Plan Trusts during liquidation, (ii) to pay the respective reasonable administrative expenses (including, but not limited to, any taxes imposed on the Plan Trusts) and (iii) to satisfy other respective liabilities incurred by the Plan Trusts in accordance with this Plan and the Liquidation Trust Agreement or the Litigation Trust Agreement, as applicable (including, without limitation, the payment of any taxes).

(d) Liquidation Trust as Grantor Trust. The Liquidation Trust is intended to qualify as a “grantor trust” for U.S. federal income tax purposes with the Liquidation Trust Beneficiaries treated as grantors and owners of the Liquidation Trust. For all U.S. federal income tax purposes, all parties (including the Debtors, the Liquidation Trustee and the Liquidation Trust Beneficiaries) shall treat the transfer of the Liquidation Trust Assets by the Debtors to the Liquidation Trust, as set forth in the Liquidation Trust Agreement, as a transfer of


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such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Liquidation Trust Assets, followed by a transfer by such holders to the Liquidation Trust. Thus, the Liquidation Trust Beneficiaries shall be treated as the grantors and owners of a grantor trust for U.S. federal income tax purposes.

(e) Litigation Trust as Grantor Trust. The Litigation Trust is intended to qualify as a “grantor trust” for U.S. federal income tax purposes with the Litigation Trust Beneficiaries treated as grantors and owners of the Litigation Trust. For all U.S. federal income tax purposes, all parties (including the Debtors, the Litigation Trustee and the Litigation Trust Beneficiaries) shall treat the transfer of the Litigation Trust Assets by the Debtors to the Litigation Trust, as set forth in the Litigation Trust Agreement, as a transfer of such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, followed by a transfer by such holders to the Litigation Trust. Thus, the Litigation Trust Beneficiaries shall be treated as the grantors and owners of a grantor trust for U.S. federal income tax purposes.

As soon as practicable after the Effective Date, the Plan Trustees shall make a good faith determination of the fair market value of the Liquidation Trust Assets and the Litigation Trust Assets, as applicable, as of the Effective Date. This valuation shall be used consistently by all parties for all U.S. federal income tax purposes. The Bankruptcy Court shall resolve any dispute regarding the valuation of the assets of the Plan Trusts.

(f) Tax Reporting and Tax Payments.

(i) The Plan Trustees shall file tax returns for the Plan Trusts treating the Plan Trusts as a grantor trusts pursuant to Treas. Reg. § 1.671-4(a) and in accordance with this Section 5.5(f). The Plan Trustees also shall annually send to each holder of a Liquidation Trust Beneficial Interest and Litigation Trust Beneficial Interest, as applicable, a separate statement regarding the receipts and expenditures of the applicable Plan Trust as relevant for U.S. federal income tax purposes and will instruct all such holders to use such information in preparing their U.S. federal income tax returns or to forward the appropriate information to such holders’ underlying beneficial holders with instructions to utilize such information in preparing their U.S. federal income tax returns.

(ii) As soon as practicable after the Effective Date, the Plan Trustees shall make a good faith determination of the fair market value of the Liquidation Trust Assets and the Litigation Trust Assets, as applicable, as of the Effective Date. This valuation shall be used consistently by all parties for all U.S. federal income tax purposes. The Bankruptcy Court shall resolve any dispute regarding the valuation of the assets of the Plan Trusts.

(iii) The Plan Trustees may elect to treat any such Disputed Claims Reserve as a “disputed ownership fund” governed by Treasury Regulation section 1.468B-9 (and make any appropriate elections consistent with such tax treatment). The Plan Trustees shall be the administrators of any


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such applicable Disputed Claims Reserves within the meaning of Treasury Regulation section 1.468B-9(b)(2) and shall be responsible for all tax reporting and withholding required by any such Disputed Claims Reserve.

(iv) The Plan Trusts shall be responsible for payment, out of Liquidation Trust Assets and the Litigation Trust Assets, of any taxes imposed on the Plan Trusts (including any Disputed Claims Reserve) or the Liquidation Trust Assets and the Litigation Trust Assets. More particularly, any taxes imposed on any Disputed Claims Reserve or its assets (including, for this purpose, any Liquidating Trust Assets allocable to Disputed Claims even if not held in the Disputed Claims Reserve) will be paid out of the assets of the Disputed Claims Reserve, and netted against any subsequent distributions in respect of the allowance or disallowance of such Claims. In the event, and to the extent, any Cash in any Disputed Claims Reserve is insufficient to pay the portion of any taxes attributable to taxable income arising from assets of the Disputed Claims Reserve (including any income that may arise upon an actual or constructive distribution of the assets of the reserve in respect of the resolution of Disputed Claims), assets of the Disputed Claims Reserve (including those otherwise distributable) may be sold to pay such taxes.

(v) Each Plan Trustee may request an expedited determination of taxes of its Plan Trust, including any Disputed Claims Reserve, and, in the case of the Liquidation Trustee, of the Debtors, under section 505(b) of the Bankruptcy Code for all tax returns filed for, or on behalf of, such Plan Trust or the Debtors for all taxable periods through the dissolution of such Plan Trust.

5.7 Merger of Debtors.

On or after the Effective Date, at the Liquidation Trustee’s direction: (i) any of the Debtor Affiliates may be merged into BB Parent and the Liquidation Trustee may complete the winding up of such Debtor Affiliates without the necessity for any other or further actions to be taken by or on behalf of such dissolving Debtor or its shareholders or any payments to be made in connection therewith, other than the filing of a certificate of dissolution and/or merger with the appropriate governmental authorities, and any such certificate of dissolution and/or merger may be filed by the Liquidation Trustee without need for any authorization, signature or other act of any Person or Entity, including without limitation any holder of any Claim or Interest; and (ii) all Claims filed or scheduled in the Affiliated Debtors’ cases shall be deemed to have been filed in the Chapter 11 Case of BB Parent. In the discretion of the Debtors or the Liquidation Trustee, as applicable, after the Effective Date, BB Parent and the Liquidation Trustee may engage in any other transaction in furtherance of the Plan. Any such transactions may be effective as of the Effective Date without any further action by the stockholders, members, general or limited partners, or directors of any of the Debtors. On or after the Effective Date, as determined by the Liquidation Trustee, BB Canada shall be dissolved in accordance with the Confirmation Recognition Order and applicable Canadian Law.


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5.8 Elimination of Duplicate Claims.

Any Proof of Claim filed against one or more of the Debtors shall be deemed to be a single Claim, and all duplicate Proofs of Claim for the same Claim filed against more than one Debtor shall be deemed disallowed and expunged.

5.9 Dissolution of BB Parent.

After the Effective Date, the Liquidation Trustee or his designee shall, subject to applicable non-bankruptcy law and consistent with the implementation of this Plan, dissolve, liquidate, or take such other similar action with respect BB Parent and complete the winding up of BB Parent as expeditiously as practicable without the necessity for any other or further actions to be taken by or on behalf of BB parent or its shareholders or members, as applicable, or any payments to be made in connection therewith, other than the filing of a certificate of dissolution with the appropriate governmental authorities.

5.10 Corporate Action.

Upon the Effective Date all actions contemplated by the Plan (including any action to be undertaken by the Liquidation Trustee or the Debtors) shall be deemed authorized, approved, and, to the extent taken prior to the Effective Date, ratified without any requirement for further action by holders of Claims or Interests, the Debtors, or any other Entity or Person. All matters provided for in the Plan involving the corporate structure of the Debtors, and any corporate action required by the Debtors in connection therewith, shall be deemed to have occurred and shall be in effect, without any requirement of further action by the Debtors or the Debtors’ Estates.

5.11 Directors, Officers, Managers, Members and Authorized Persons of the Debtor.

On the Effective Date, the authority, power and incumbency of the persons then acting as directors, officers, managers, members and other authorized persons of the Debtors shall be terminated and such persons shall be deemed to have resigned. The Liquidation Trustee (or his designee) shall serve as the initial director or manager, as applicable, and sole officer of each Debtor after the Effective Date until such time as such Debtor is merged into BB Parent or dissolved, as applicable.

5.12 Withholding and Reporting Requirements.

(a) Withholding Rights. In connection with the Plan, any party issuing any instrument or making any distribution described in the Plan shall comply with all applicable withholding and reporting requirements imposed by any federal, state, provincial or local taxing authority, and all distributions pursuant to the Plan and all related agreements shall be subject to any such withholding or reporting requirements. Notwithstanding the foregoing, each holder of an Allowed Claim or any other Person that receives a distribution pursuant to the Plan shall have responsibility for any taxes imposed by any Governmental Unit, including, without limitation, income, withholding, and other taxes, on account of such distribution. Any party issuing any instrument or making any distribution pursuant to the Plan has the right, but not the


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obligation, to not make a distribution until such holder has made arrangements satisfactory to such issuing or disbursing party for payment of any such tax obligations.

(b) Forms. Any party entitled to receive any property as an issuance or distribution under the Plan shall, upon request, deliver to, as applicable, the Liquidation Trustee, the Litigation Trustee, or such other Person designated by the Liquidation Trustee or the Litigation Trustee (which entity shall subsequently deliver to the applicable Trustee any applicable IRS Form W-8 or Form W-9 received) an appropriate Form W-9 or (if the payee is a foreign Person) Form W-8, unless such Person is exempt under the Tax Code and so notifies the Liquidation Trustee or the Litigation Trustee, as applicable. If such request is made by the Liquidation Trustee, the Litigation Trustee or such other Person designated by the applicable Trustee and the holder fails to comply before the date that is 150 days after the request is made, the amount of such distribution shall irrevocably revert to the Liquidation Trust or Litigation Trust, as applicable, and any Claim in respect of such Distribution shall be discharged and forever barred from assertion against any Debtor and its respective property.

5.13 Exemption From Certain Transfer Taxes.

To the maximum extent provided by section 1146(a) of the Bankruptcy Code, any post-Confirmation sale by any Debtor, or any transfer from any Entity pursuant to, in contemplation of, or in connection with the Plan or pursuant to: (i) the issuance, distribution, transfer, or exchange of any debt, equity security, or other interest in the Debtors; or (ii) the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including any deeds, bills of sale, assignments, or other instruments of transfer executed in connection with any transaction arising out of, contemplated by, or in any way related to the Plan, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, Uniform Commercial Code or similar filing or recording fee, or other similar tax or governmental assessment, in each case to the extent permitted by applicable bankruptcy law, and the appropriate federal, state, provincial or local government officials or agents shall forego collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment.

5.14 Effectuating Documents; Further Transactions.

On and after the Effective Date, the Liquidation Trustee and the Debtors are authorized to and may issue, execute, deliver, file or record such contracts, securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement and further evidence the terms and conditions of the Plan in the name of and on behalf of the Debtors, without the need for any approvals, authorization, or consents except for those expressly required pursuant to the Plan.

5.15 Preservation of Rights of Action.

Other than Causes of Action against an Entity that are waived, relinquished, exculpated, released, compromised, or settled in the Plan or by a Bankruptcy Court order, the Debtors reserve any and all Causes of Action. On and after the Effective Date, the Litigation Trustee, under the


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supervision of the Litigation Trust Oversight Board, shall have sole and exclusive discretion to pursue and dispose of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets, and the Liquidation Trustee shall have sole and exclusive discretion to pursue or dispose of any and all other Causes of Action. All Causes of Action that are or become Litigation Trust Assets shall vest in the Litigation Trust as provided for herein and the Litigation Trustee may pursue any Causes of Action that are or become Litigation Trust Assets in its sole discretion. No Entity may rely on the absence of a specific reference in the Plan or the Disclosure Statement to any Cause of Action against them as any indication that the Debtors, the Liquidation Trustee or the Litigation Trustee will not pursue any and all available Causes of Action against them. No preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion (judicial, equitable, or otherwise), or laches, shall apply to such Causes of Action upon, after, or as a consequence of the Confirmation or Consummation. Prior to the Effective Date, the Debtors (and on and after the Effective Date, the Liquidation Trustee or the Litigation Trustee under the supervision of the Litigation Trust Oversight Board, as applicable) shall retain and shall have, including through its authorized agents or representatives, the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action and to decline to do any of the foregoing without the consent or approval of any third party (except for, on and after the Effective Date, the Liquidation Trustee or the Litigation Trustee under the supervision of the Litigation Trust Oversight Board, as applicable) or further notice to or action, order, or approval of the Bankruptcy Court.

5.16 Stock Restrictions.

The restrictions imposed by the Final Order Establishing Notification Procedures and Approving Restrictions on Certain Transfers of Interests in the Debtors, Claims Against the Debtor, and Claiming a Worthless Stock Deduction, entered on August 7, 2020 [D.I. 331], as the same may be amended from time to time, shall remain effective and binding through the closing of all of the Chapter 11 Cases.

5.17 Closing of the Chapter 11 Cases.

The Liquidation Trustee shall seek authority from the Bankruptcy Court to close the applicable Chapter 11 Cases in accordance with the Bankruptcy Code and the Bankruptcy Rules.

SECTION 6. DISTRIBUTIONS.

6.1 Distributions Generally.

(a) Except as otherwise provided herein, the Debtors or the Liquidation Trustee, as applicable, shall direct the Initial Distribution (including the Distribution of the Liquidation Trust Beneficial Interests and Litigation Trust Beneficial Interests as set forth in Sections 4.3(b) and 4.4(b)) to holders of Allowed Claims no later than the Initial Distribution Date. After the Initial Distribution Date, the Liquidation Trustee or the Litigation Trustee, as applicable, shall, from time to time, determine the subsequent Distribution Dates.

(b) Upon any Distribution Date after the Initial Distribution Date, the Liquidation Trustee, or the Litigation Trustee, as applicable, shall pay, in Cash, (i) a Pro


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Rata portion of the Allowed General Unsecured Claims Distribution Amount to holders of Allowed General Unsecured Claims, and (ii) the PBGC Claims Distribution Amount to holders of the Allowed PBGC Claims.

6.2 Distribution Record Date.

The Debtors and the Liquidation Trustee shall have no obligation to recognize any transfer of the Claims or Interests (i) occurring on or after the Effective Date, or (ii) that does not comply with Bankruptcy Rule 3001(e) or otherwise does not comply with the Bankruptcy Code or Bankruptcy Rules.

6.3 Delivery of Distributions.

In the event that any Distribution to any holder is returned as undeliverable, no Distribution to such holder shall be made unless and until the Debtors or the Liquidation Trustee, as applicable, has determined the then current address of such holder, at which time such Distribution shall be made to such holder without interest; provided, however, such Distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of six months from the date such Distribution was made. After such date, all unclaimed property or interests in property shall revert (notwithstanding any applicable federal or state escheat, abandoned, or unclaimed property laws to the contrary) to the Liquidation Trust automatically and without need for a further order by the Bankruptcy Court for Distribution in accordance with the Plan and the Claim of any such holder to such property or interest in property shall be released, settled, compromised, and forever barred.

6.4 Disputed Administrative Claims Holdback.

From and after the Effective Date, and until such time as all Disputed Administrative Claims have been compromised and settled or determined by Final Order, the Debtors or the Liquidation Trustee, as applicable, shall, consistent with and subject to section 1123(a)(4) of the Bankruptcy Code, retain Cash in an aggregate amount equal to the Pro Rata share of the Distributions that would have been made to each holder of a Disputed Administrative Expense Claim if such Disputed Administrative Expense Claim were an Allowed Claim against such Debtor in an amount equal to the lesser of (i) the filed amount of such Disputed Administrative Expense Claim, (ii) the amount determined, to the extent permitted by the Bankruptcy Code and Bankruptcy Rules, by the Bankruptcy Court for purposes of fixing the amount to be retained for such Disputed Administrative Expense Claim, and (iii) such other amount as may be agreed upon by the holder of such Disputed Administrative Expense Claim and the Debtors or the Liquidation Trustee, as applicable; provided, that the Debtors (or the Liquidation Trustee, as the case may be) may, in their sole discretion, choose to not reserve amounts necessary to satisfy Administrative Expense Claims that SPARC is irrevocably liable or obligated to pay under the terms of the APA or the Sale Order; provided, further that, prior to the Effective Date, the Debtors shall consult with the Creditors’ Committee in establishing the initial amount of the Disputed Administrative Claims holdback. On the first Business Day after the date that is thirty (30) calendar days (or such fewer days as may be agreed between the Debtor or the Liquidation Trustee, as applicable, and the holder of the applicable Disputed Administrative Expense Claim) after the date on which a Disputed Administrative Expense Claim becomes an Allowed Claim


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against a Debtor, the Liquidation Trustee shall remit to the holder of such Administrative Expense Claim Cash equal to the amount that would have been distributed from the Effective Date through and including the date of such Distribution on account of such Allowed Claim had such Claim been Allowed as of the Effective Date. To the extent that a Disputed Administrative Expense Claim against a Debtor is disallowed by Final Order or becomes an Allowed Claim in an amount less than the amount retained with respect to such Claim pursuant to this provision, the amount that would have been distributed on account of such Disputed Administrative Expense Claim, or the excess of the amount of Cash that would have been distributed on account of such Disputed Administrative Expense Claim over the amount of Cash actually distributed on account of such Disputed Administrative Expense Claim, shall become available Cash for Distributions to the holders of Allowed Claims by the Liquidation Trust.

6.5 Manner of Payment Under Plan.

At the option of the Debtors or the Liquidation Trustee, as applicable, any Cash payment to be made hereunder may be made by a check or wire transfer. Any wire transfer fees incurred by the Debtors or the Liquidation Trust (as applicable) in connection with the transmission of a wire transfer shall be deducted from the amount of the recipient holder’s Distribution. The Debtors or the Liquidation Trustee, as applicable, will, to the extent practicable, make aggregate Distributions on account of all the Allowed Claims held by a particular holder.

6.6 Minimum Cash Distributions.

The Debtors and the Liquidation Trust shall not be required to make any payment to any holder of an Allowed Claim on any Distribution Date of Cash less than $100; provided, however, that if any Distribution is not made pursuant to this Section 6.6, such Distribution shall be added to any subsequent Distribution to be made on behalf of the holder’s Allowed Claim. The Debtors and the Liquidation Trust shall not be required to make any final Distributions of Cash less than $50 to any holder of an Allowed Claim.

6.7 Setoffs.

The Debtors, the Liquidation Trustee, and the Litigation Trustee may, but shall not be required to, set off against any Claim, any Claims of any nature whatsoever that the Debtors, the Liquidation Trustee, or the Litigation Trustee may have against the holder of such Claim; provided that neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtors, the Liquidation Trustee, or the Litigation Trustee of any such Claim the Debtors, the Liquidation Trustee, or the Litigation Trustee may have against the holder of such Claim.

6.8 Distributions After Effective Date.

Distributions made after the Effective Date to holders of Disputed Claims that are not Allowed Claims as of the Effective Date but which later become Allowed Claims shall be deemed to have been made on the Effective Date.


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6.9 Allocation of Distributions Between Principal and Interest.

Except as otherwise provided in this Plan, to the extent that any Allowed Claim entitled to a Distribution under the Plan is comprised of indebtedness and accrued but unpaid interest thereon, such Distribution shall be allocated to the principal amount (as determined for U.S. federal income tax purposes) of the Claim first, and then to accrued but unpaid interest.

6.10 No Postpetition Interest on Claims.

Except as otherwise provided in the Plan, the Confirmation Order, or another order of the Bankruptcy Court, or required by the Bankruptcy Code, postpetition interest shall not accrue or be paid on any Claims and no holder of a Claim shall be entitled to interest accruing on or after the Petition Date.

6.11 No Distribution in Excess of Amount of Allowed Claim.

Notwithstanding anything to the contrary in the Plan, no holder of an Allowed Claim shall, on account of such Allowed Claim, receive a Distribution in excess of the Allowed amount of such Claim.

6.12 Securities Registration Exemption.

The Debtors intend that the Litigation Trust Beneficial Interests and the Liquidation Trust Beneficial Interests shall not be “securities” under applicable laws and believe the Litigation Trust Beneficial Interests and Liquidation Trust Beneficial Interests should not be deemed to be “securities,” but to the extent such units are deemed to be “securities,” the Debtors believe the issuance of such units under the Plan is exempt, pursuant to section 1145 of the Bankruptcy Code (except with respect to an entity that is an “underwriter” as defined in subsection (b) of section 1145 of the Bankruptcy Code).

SECTION 7. PROCEDURES FOR DISPUTED CLAIMS.

7.1 Objections to Claims.

As of the Effective Date, objections to, and requests for estimation of Claims against the Debtors may only be interposed and prosecuted by the Liquidation Trustee; provided that the Litigation Trustee shall have the exclusive authority to object to, recharacterize, seek to subordinate or request estimation of Claims of any of the DV Entities or any of the Former D&Os or Shareholders and to prosecute the DV Claims and Former D&O and Shareholder Causes of Action. Such objections and requests for estimation shall be served and filed on or before the Claims Objection Bar Date.

7.2 Allowance of Claims.

After the Effective Date, the Liquidation Trust and the Litigation Trust, as applicable, shall have and shall retain any and all rights and defenses that the Debtors had with respect to any Claim against a Debtor, except with respect to any Claim deemed Allowed under this Plan. As of the Effective Date of the Plan, all Claims of the DV Entities, Former D&Os and


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Shareholders are Disputed. Except as expressly provided in this Plan or in any order entered in the Chapter 11 Cases prior to the Effective Date (including, without limitation, the Confirmation Order), no Claim shall become an Allowed Claim unless and until such Claim is deemed Allowed under this Plan or the Bankruptcy Code or the Bankruptcy Court has entered a Final Order, including, without limitation, the Confirmation Order, in the Chapter 11 Cases allowing such Claim.

7.3 Estimation of Claims.

The (i) Debtors (after consulting with the Creditors’ Committee if prior to the Effective Date) or the Liquidation Trustee, as applicable, may at any time request that the Bankruptcy Court estimate any contingent, unliquidated, or Disputed Claim, other than the Claims of any of the DV Entities or any of the Former D&Os or Shareholders, and (ii) the Litigation Trustee may at any time request that the Bankruptcy Court estimate any contingent, unliquidated, or Disputed Claim of any of the DV Entities or any of the Former D&Os or Shareholders, pursuant to section 502(c) of the Bankruptcy Code regardless of whether any party in interest previously objected to such Claim or whether the Bankruptcy Court has ruled on any such objection. In the event that the Bankruptcy Court estimates any contingent, unliquidated, or Disputed Claim, the amount so estimated shall constitute either the Allowed amount of such Claim or the maximum limit of such Claim, as determined by the Bankruptcy Court. If the estimated amount constitutes a maximum limitation on the amount of such Claim, the Liquidation Trustee or the Litigation Trustee, as applicable, may pursue supplementary proceedings to object to the allowance of such Claim. All of the aforementioned objection, estimation and resolution procedures are intended to be cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn, or resolved by any mechanism approved by the Bankruptcy Court.

7.4 No Distributions Pending Allowance.

No payment or Distribution provided under the Plan shall be made on account of a Disputed Claim unless and until such Disputed Claim becomes an Allowed Claim.

7.5 Reserve on Account of Disputed Claims.

From and after the Effective Date, and until such time as each Disputed Claim has been compromised and settled, estimated by the Bankruptcy Court in an amount constituting the Allowed amount, or Allowed or Disallowed by Final Order, the Liquidation Trustee or the Litigation Trustee, as applicable, shall establish, for the benefit of each holder of a Disputed Claim, a Disputed Claims Reserve consisting of Cash and any dividends, gains or income attributable to the Liquidation Trust Assets or Litigation Trust Assets, as applicable, in an amount equal to the Pro Rata share of Distributions that would have been made to the holder of such Disputed Claim if it were an Allowed Claim in an amount equal to the lesser of (i) the liquidated amount set forth in the filed Proof of Claim relating to such Disputed Claim, (ii) the amount in which the Disputed Claim has been estimated by the Bankruptcy Court pursuant to section 502 of the Bankruptcy Code as constituting and representing the maximum amount in which such Claim may ultimately become an Allowed Claim or (iii) such other amount as may be agreed upon by the holder of such Disputed Claim and the Liquidation Trustee or the Litigation Trustee, as applicable. Prior to the


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Effective Date, the Debtors shall consult with the Creditors’ Committee in establishing the initial amount of the Liquidation Trust’s Disputed Claims Reserve. For the avoidance of doubt, any Cash retained and held for the benefit of a holder of a Disputed Claim as part of a Disputed Claims Reserve shall be treated as a payment and reduction on account of such Disputed Claim for purposes of computing any additional amounts to be paid in Cash in the event the Disputed Claim ultimately becomes an Allowed Claim. Cash held in a Disputed Claims Reserve (including any earnings that have accrued thereon, net of any expenses, allocable to the Disputed Claims Reserve, including any taxes imposed with respect to Liquidating Trust Assets retained on account of, or otherwise allocable to, Disputed Claims) shall be retained by the Liquidation Trust or the Litigation Trust, as applicable for the benefit of holders of Disputed Claims pending determination of their entitlement thereto under the terms of the Plan. Any Cash and proceeds of the Liquidation Trust Assets or the Litigation Trust Assets shall be either (x) held by the Liquidation Trust or the Litigation Trust, as applicable, in an interest-bearing account or (y) invested in interest-bearing obligations issued by the United States government and guaranteed by the United States government, and having (in either case) a maturity of not more than 30 days. No payments or Distributions shall be made with respect to all or any portion of any Disputed Claim pending the entire resolution thereof by Final Order. For the avoidance of doubt, Cash held in a Disputed Claims Reserve will (i) be deposited in an interest-bearing account and held in trust, pending distribution by the Liquidation Trustee, or the Litigation Trustee, as applicable, for the benefit of holders of Allowed Claims, (ii) be accounted for separately and (iii) not constitute property of the Liquidation Trust or the Litigation Trust; provided that the Disputed Claims Reserve shall be responsible for any expenses allocable to the Disputed Claims Reserve, including any taxes imposed with respect to Liquidating Trust Assets retained on account of, or otherwise allocable to, Disputed Claims. See Section 5.6(f) hereof regarding the tax treatment of the Disputed Claims Reserve.

If a Disputed Claim is Disallowed, in whole or in part, the Liquidation Trustee or Litigation Trustee, as applicable shall distribute any amounts that were reserved for such Disallowed Disputed Claims to the holders of the Liquidation Trust Beneficial Interests or the Litigation Trust Beneficial Interests, as applicable and as provided for under the terms of this Plan.

7.6 Resolution of Claims.

Except as otherwise provided herein (including the release provisions hereof) or in the Confirmation Order, or in any contract, instrument, release, or other agreement or document entered into in connection with this Plan, in accordance with section 1123(b) of the Bankruptcy Code, on and after the Effective Date, the Liquidation Trustee may enforce, sue on, settle, or compromise (or decline to do any of the foregoing) all Claims, Disputed Claims, rights, Causes of Action, suits and proceedings, whether in law or in equity, whether known or unknown, that the Liquidation Trust may hold against any Person, and any contract, instrument, release, indenture, or other agreement entered into in connection herewith; provided, however, that on and after the Effective Date the Litigation Trustee shall have the sole authority to enforce, sue on, settle, or compromise (or decline to do any of the foregoing) the DV Claims, the Claims of any DV Entities, Former D&O and Shareholder Causes of Action, the Claims of any of the Former D&Os or Shareholders and any other Causes of Action that are or become Litigation Trust Assets.


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7.7 Late Filed Claims.

Except as otherwise provided herein or as agreed to by the Debtors (with the consent of the Creditors’ Committee if prior to the Effective Date) or Liquidation Trustee, any Proof of Claim filed after the Bar Date with respect to such Claim shall be deemed Disallowed and expunged as of the Effective Date without any further notice to or action, order, or approval of the Bankruptcy Court, and holders of such Claims may not receive any Distributions on account of such Claims, unless such late Proof of Claim has been deemed timely filed by a Final Order.

7.8 Amendments to Claims.

A Claim may not be filed, amended, or supplemented without the prior written authorization of the Bankruptcy Court or the Liquidation Trustee, and any such new, amended, or supplemented Claim filed without such written authorization shall be deemed Disallowed in full and expunged without any further notice to or action, order, or approval of the Bankruptcy Court to the maximum extent provided by applicable law.

7.9 Insured Claims.

If any portion of an Allowed Claim is an Insured Claim, no distributions under the Plan shall be made on account of such Allowed Claim until the holder of such Allowed Claim has exhausted all remedies with respect to any applicable insurance policies. To the extent that the Debtors’ insurers agree to satisfy a Claim in whole or in part, then immediately upon such agreement, the portion of such Claim so satisfied may be expunged without an objection to such Claim having to be filed and without any further notice to or action, order or approval of the Court.

SECTION 8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES.

8.1 Assumption and Assignment of Executory Contracts and Unexpired Leases.

On the Effective Date, except as otherwise provided in the Plan, each Executory Contract and Unexpired Lease not previously rejected, assumed, or assumed and assigned shall be deemed automatically rejected pursuant to sections 365 and 1123 of the Bankruptcy Code, unless such Executory Contract or Unexpired Lease: (i) as of the Effective Date is subject to a pending motion to assume such Unexpired Lease or Executory Contract; (ii) is a contract, release, or other agreement or document entered into in connection with the Plan; (iii) is a D&O Policy or an insurance policy; or (iv) is identified for assumption on the Assumption Schedule included in the Plan Supplement.

8.2 Indemnification Obligations.

Notwithstanding anything in the Plan to the contrary, each Indemnification Obligation shall be assumed by the applicable Debtor effective as of the Effective Date, pursuant to sections 365 and 1123 of the Bankruptcy Code or otherwise. Each Indemnification Obligation shall remain in full force and effect, shall not be modified, reduced, discharged, impaired, or otherwise affected in any way, and shall survive Unimpaired and unaffected, irrespective of when such obligation arose.


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8.3 Claims Based on Rejection of Executory Contracts and Unexpired Leases.

Unless otherwise provided by an order of the Bankruptcy Court, any Proofs of Claim based on the rejection of the Debtors’ Executory Contracts or Unexpired Leases pursuant to the Plan or otherwise, must be filed with Bankruptcy Court and served on the Liquidation Trustee no later than thirty (30) days after the earlier of the Effective Date or the effective date of rejection of such Executory Contract or Unexpired Lease.

Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not filed with the Bankruptcy Court within such time will be automatically disallowed, forever barred from assertion, and shall not be enforceable against the Debtors, the Liquidation Trust, the Litigation Trust, the Debtors’ Estates, or the property for any of the foregoing without the need for any objection by the Liquidation Trustee or the Litigation Trustee or further notice to, or action, order, or approval of the Bankruptcy Court or any other Entity, and any Claim arising out of the rejection of the Executory Contract or Unexpired Lease shall be deemed fully compromised, settled, and released, notwithstanding anything in the Schedules or a Proof of Claim to the contrary. All Allowed Claims arising from the rejection of the Debtors’ prepetition Executory Contracts or prepetition Unexpired Leases shall be classified as General Unsecured Claims, except as otherwise provided by order of the Bankruptcy Court.

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

Any Cure Obligation due under each Executory Contract and Unexpired Lease to be assumed or assumed and assigned pursuant to the Plan shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment in Cash on the Effective Date (or as soon as reasonably practicable thereafter), subject to the limitation described below, by the Debtors or the Liquidation Trust, as applicable, or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree.

In the event of a dispute regarding (i) the amount of the Cure Obligation, (ii) the ability of the Liquidation Trust or any other applicable assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the Executory Contract or Unexpired Lease, or (iii) any other matter pertaining to assumption or assumption and assignment (as applicable), the obligations of section 365 of the Bankruptcy Code shall be deemed satisfied following the entry of a Final Order or orders resolving the dispute and approving the assumption or assumption and assignment (as applicable); provided, that the Debtors or the Liquidation Trust (as applicable) may settle any dispute regarding the amount of any Cure Obligation without any further notice to any party or any action, order, or approval of the Bankruptcy Court.

Assumption or assumption and assignment of any Executory Contract or Unexpired Lease pursuant to the Plan, or otherwise, shall result in the full release and satisfaction of any defaults, subject to satisfaction of the Cure Obligations, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition


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or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time before the Effective Date of assumption and/or assignment. Any prepetition default amount set forth in the Schedules and/or any Proofs of Claim filed with respect to an Executory Contract or Unexpired Lease that has been assumed or assumed and assigned shall be deemed Disallowed and expunged, without further notice to or action, order, or approval of the Bankruptcy Court or any other Entity.

8.5 Modifications, Amendments, Supplements, Restatements, or Other Agreements.

Unless otherwise provided in the Plan, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, and all Executory Contracts and Unexpired Leases related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously rejected or repudiated or is rejected or repudiated under the Plan.

Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease, or the validity, priority, or amount of any Claims that may arise in connection therewith.

8.6 Reservation of Rights.

Neither the exclusion nor inclusion of any contract or lease in the Assumption Schedule or the Sale Order, nor anything contained in the Plan, shall constitute an admission by the Debtors that any such contract or lease is in fact an Executory Contract or Unexpired Lease or that the Debtors’ Estates have any liability thereunder. In the event of a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption or rejection, the Debtors or the Liquidation Trustee, as applicable, shall have sixty 60 days following entry of a Final Order resolving such dispute to alter the treatment of such contract or lease as otherwise provided in the Plan.

SECTION 9. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE.

9.1 Conditions Precedent to the Effective Date.

The occurrence of the Effective Date of the Plan is subject to the following conditions precedent:

(a) the Bankruptcy Court shall have entered the Confirmation Order, the Confirmation Date shall have occurred and the Confirmation Order shall not be subject to any stay, modification, vacation on appeal, and shall have become a Final Order;

(b) all funding, actions, documents and agreements necessary to implement and consummate the Plan and the transactions and other matters contemplated thereby,


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shall have been effected or executed, including the funding of (i) the Wind-Down Reserve, and (ii) the Litigation Trust Minimum Funding as provided for in Section 5.5(c) of this Plan; and

(c) all documents and agreements necessary to implement the Plan shall have (i) been tendered for delivery and (ii) been effected or executed by all Entities party thereto, and all conditions precedent to the effectiveness of such documents and agreements shall have been satisfied or waived pursuant to the terms of such documents or agreements.

9.2 Waiver of Conditions Precedent.

Each of the conditions precedent in Section 9.1 other than the condition set forth in Section 9.1(a) may be waived in writing by the Debtors with the consent of the Creditors’ Committee, which shall not be unreasonably withheld. Any such waivers may be effected at any time, without notice, without leave or order of the Bankruptcy Court and without any formal action.

9.3 Substantial Consummation.

On the Effective Date, the Plan shall be deemed to be substantially consummated under sections 1101 and 1127(b) of the Bankruptcy Code.

9.4 Effect of Vacatur of Confirmation Order.

If the Confirmation Order is vacated, (i) no distributions under the Plan shall be made, (ii) the Debtors and all holders of Claims and Interests shall be restored to the status quo ante as of the day immediately preceding the Confirmation Date as though the Confirmation Date never occurred, and (iii) all the Debtors’ obligations with respect to the Claims and the Interests shall remain unchanged and nothing contained herein shall be deemed to constitute a waiver or release of any Claims by or against the Debtors or any other entity or to prejudice in any manner the rights of the Debtors or any other entity in any further proceedings involving the Debtors or otherwise.

SECTION 10. SETTLEMENT, RELEASES, INJUNCTIONS, AND RELATED PROVISIONS.

10.1 Release of Liens.

Except as otherwise provided in the Plan or in any contract, instrument, release, or other agreement or document created pursuant to the Plan, on the Effective Date, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released, settled, and compromised and all rights, titles, and interests of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall revert to the Debtors.

10.2 Binding Effect.

(a) Confirmation of the Plan does not provide the Debtors with a discharge under section 1141 of the Bankruptcy Code because the Plan is a liquidating chapter 11 plan. Except as otherwise provided in section 1141(d)(3) of the Bankruptcy Code and subject to the occurrence of the Effective Date, on and after the Effective Date, the provisions of the Plan


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shall bind any holder of a Claim against, or Interest in, the Debtors, and such holder’s respective successors and assigns, whether or not the Claim or Interest of such holder is Impaired under the Plan and whether or not such holder has accepted the Plan.

(b) By participating in the Plan by voting (as contemplated in Section 4 above) or by accepting Distributions pursuant to the Plan (in whatever sum), each holder of an Allowed Claim or Interest extinguished, discharged, or released pursuant to the Plan shall be deemed to have affirmatively and specifically consented to and accepted the terms of the Plan, and each such holder acknowledges and accepts that the Plan is a binding compromise of an Allowed Claim or an Interest extinguished and releases all rights in respect of such Allowed Claim or Interest extinguished such that such holders of Claims agree to waive any right (if any) to object to or otherwise challenge the Plan and its effect on Claims or any other matter whatsoever in the Courts of the Special Administrative Region of Hong Kong or any other tribunal, whether in Hong Kong or elsewhere, and that such release and waiver shall be effective irrespective of which law governs the rights of the said holder as against a Debtor.

10.3 Term of Injunctions or Stays.

Unless otherwise provided, all injunctions or stays arising under or entered during the Chapter 11 Cases under section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect until the later of the closing of all of the Debtors’ Chapter 11 Cases and the date indicated in the order providing for such injunction or stay.

10.4 Releases by the Debtors.

As of the Effective Date, except (i) for the rights that remain in effect from and after the Effective Date to enforce the Plan; and (ii) as otherwise provided in the Plan or in the Confirmation Order, for good and valuable consideration, including their cooperation and contributions to the Chapter 11 Cases, the Released Parties will be deemed conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged, to the maximum extent permitted by law, by the Debtors and the Estates, in each case, on behalf of themselves and their respective successors (including the Liquidation Trust and the Litigation Trust), assigns, and representatives, and any and all other persons that may purport to assert any Cause of Action derivatively, by, through or on behalf of the foregoing Persons and Entities, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise that the Debtors or the Estates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre- and post-petition marketing and sale process, the Sale Transaction, the APA, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests


53 RLF1 24703901v.1

before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including the Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or the Sale Transaction; provided, further, that nothing in this Section 10.4 shall constitute a release of any of the DV Claims or the Former D&O and Shareholder Causes of Action.

10.5 Releases By Holders of Claims and Interests.

As of the Effective Date, except (i) for the right to enforce the Plan; and (ii) as otherwise expressly provided in the Plan or in the Confirmation Order, in exchange for good and valuable consideration, including the obligations of the Debtors under the Plan, to the fullest extent permissible under applicable law, as such law may be extended or integrated after the Effective Date, the Released Parties shall be deemed conclusively, absolutely, unconditionally, irrevocably and forever, released, and discharged by the Releasing Parties in each case, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, asserted or unasserted, accrued or unaccrued, existing or hereinafter arising, in law or equity, whether arising under federal or state statutory or common law, or any other applicable international, foreign, or domestic law, rule, statute, regulation, treaty, right, duty, requirement or otherwise, that such entity would have been legally entitled to assert in their own right (whether individually, derivatively, or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, or in any manner arising prior to the Effective Date, from, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre-and post-petition marketing and sale process, the Sale Transaction, the APA, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including any Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or Sale Transaction. The Releasing Parties shall be permanently enjoined from prosecuting any of the foregoing Claims or Causes of Action released under this Section 10.5 against each of the Released Parties.


54 RLF1 24703901v.1

10.6 Exculpation.

To the maximum extent permitted by applicable law, no Exculpated Party will have or incur, and each of the Exculpated Parties are hereby released and exculpated from, any claim, obligation, suit, judgment, damage, demand, debt, right, cause of action, remedy, loss, and liability for any claim arising on or after the Petition Date in connection with or arising out of the filing or administration of the Chapter 11 Cases, the administration of the Recognition Proceedings, the postpetition marketing and sale process, the postpetition purchase, sale, or rescission of the purchase or sale of any security or asset of the Debtors; the negotiation and pursuit of the Disclosure Statement, the APA, the Sale Transaction, the Plan, or the solicitation of votes for, or confirmation of, the Plan; the funding or consummation of the Plan; the occurrence of the Effective Date; the DIP Credit Agreement; the post-Effective Date administration of the Plan or the property to be distributed under the Plan; or the transactions in furtherance of any of the foregoing; except for fraud, gross negligence, or willful misconduct, as determined by a Final Order. This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities, exculpations and any other applicable law or rules protecting such Exculpated Parties from liability. Notwithstanding anything to the contrary in the foregoing, the exculpation set forth herein does not release any post-Effective Date obligation or liability of any Entity under the Plan, the Sale Transaction, or any document, instrument, or agreement (including those set forth in the Plan Supplement) executed to implement the Plan or the Sale Transaction.

10.7 Injunction.


(b) Except as expressly provided in the Plan, the Confirmation Order, or a separate order of the Bankruptcy Court or as agreed to by the Debtors and a holder of a Claim against or Interest in the Debtors, all Entities who have held, hold, or may hold Claims against or Interests in the Debtors (whether or not proof of such Claims or Interests has been filed and whether or not such Entities vote in favor of, against or abstain from voting on the Plan or are presumed to have accepted or deemed to have rejected the Plan) and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates are permanently enjoined, on and after the Effective Date, solely with respect to any Claims, Interests, and Causes of Action that will be or are extinguished, discharged, or released pursuant to the Plan from (i) commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral, administrative or other forum) against or affecting the Debtors, the Liquidation Trust, and the Litigation Trust, or the property of any of the Debtors, the Liquidation Trust, the Litigation Trust; (ii) enforcing, levying, attaching (including, without limitation, any prejudgment attachment), collecting, or otherwise recovering by any manner or means, whether directly or indirectly, any judgment, award, decree, or order against the Debtors, and the Liquidation Trust; or the property of any of the Debtors, the Liquidation


55 RLF1 24703901v.1

Trust, and the Litigation Trust; (iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any encumbrance of any kind against the Debtors, the Liquidation Trust, and the Litigation Trust or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iv) asserting any right of setoff, directly or indirectly, against any obligation due from the Debtors, the Liquidation Trust, and the Litigation Trust, or against property or interests in property of any of the Debtors, the Liquidation Trust, and the Litigation Trust except as contemplated or allowed by the Plan; and (v) acting or proceeding in any manner, in any place whatsoever, that does not conform to or comply with the provisions of the Plan.

(c) By accepting distributions pursuant to the Plan, each holder of an Allowed Claim or Interest extinguished, discharged, or released pursuant to the Plan shall be deemed to have affirmatively and specifically consented to be bound by the Plan, including, without limitation, the injunctions set forth in this Section 10.7.

(d) The injunctions in this Section 10.7 shall extend to any successors of the Debtors, the Liquidation Trust, and the Litigation Trust and their respective property and interests in property.

10.8 Waiver of Statutory Limitation on Releases.

EACH RELEASING PARTY IN EACH OF THE RELEASES CONTAINED IN THE PLAN (INCLUDING UNDER SECTION 10 OF THE PLAN) EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE PARTY RELEASED, IT HAS CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT IN DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE OF SUCH UNKNOWN LOSSES OR CLAIMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES THAT A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE RELEASED PARTY, INCLUDING THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542. THE RELEASES CONTAINED IN SECTION 10 OF THE PLAN ARE EFFECTIVE REGARDLESS OF WHETHER THOSE RELEASED MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEN OR UNFORESEEN.

10.9 Solicitation of the Plan.

Pursuant to the terms of the Plan, the only holders of Claims or Interests who are entitled to vote are Class 3 PBGC Claims and Class 4 General Unsecured Claims. As of and subject to the occurrence of the Confirmation Date: (i) the Debtors shall be deemed to have previously solicited acceptances of the Plan in good faith and in compliance with the applicable provisions of the Bankruptcy Code, including without limitation, sections 1125(a) and (e) of the Bankruptcy Code,


56 RLF1 24703901v.1

and any applicable non-bankruptcy law, rule or regulation governing the adequacy of disclosure in connection with such solicitation, and (ii) the Debtors and each of their respective directors, officers, employees, Affiliates, agents, financial advisors, investment bankers, professionals, accountants, and attorneys shall be deemed to have participated in good faith and in compliance with the applicable provisions of the Bankruptcy Code in the offer and issuance of any securities under the Plan, and therefore, are not, and on account of such offer, issuance and solicitation will not be, liable at any time for any violation of any applicable law, rule or regulation governing the solicitation of acceptances or rejections of the Plan or the offer and issuance of any securities under the Plan.

10.10 PBGC Release.

As of the Effective Date, to the maximum extent permitted by applicable law, other than the Debtors with respect to the Allowed PBGC Claims, the Released Parties, for good and valuable consideration, shall be deemed to be released and discharged by the PBGC and the Pension Plans from any Causes of Action based on or relating to the Pension Plans; provided, however, that nothing in the Plan, the Confirmation Order, or any other document filed in the Debtors’ Chapter 11 Cases without notice to the PBGC shall be construed to release (i) non-Debtor members of the controlled group of the Pension Plans’ sponsors (within the meaning of Section 4001 of ERISA or Section 414 of the Internal Revenue Code of 1986, as amended) as of the Pension Plan Termination Date from Causes of Action or any other obligations based on or relating to the Pension Plans, or (ii) any fiduciary breaches or prohibited transactions (in each case within the meaning of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended) relating to the Pension Plans. The Debtors shall use commercially reasonable efforts to provide notice to the PBGC of any pleading filed in the Debtors’ Chapter 11 Cases seeking relief that is contradictory to this Section 10.10.

SECTION 11. RETENTION OF JURISDICTION.

On and after the Effective Date, the Bankruptcy Court shall retain jurisdiction over all matters arising in, arising under, and related to the Chapter 11 Cases for, among other things, the following purposes:

(a) to hear and determine motions and/or applications for the assumption or rejection of Executory Contracts or Unexpired Leases and the allowance, classification, priority, compromise, estimation or payment of Claims resulting therefrom;

(b) to determine any motion, adversary proceeding, application, contested matter, or other litigated matter pending on or commenced after the Confirmation Date, including any such motions, adversary proceeding, application, contested matter or other litigated matter brought by the Litigation Trustee;

(c) to ensure that distributions to holders of Allowed Claims are accomplished as provided herein;

(d) to consider Claims or the allowance, classification, priority, compromise, estimation or payment of any Claim;


57 RLF1 24703901v.1

(e) to enter, implement or enforce such orders as may be appropriate in the event the Confirmation Order is for any reason stayed, reversed, revoked, modified or vacated;

(f) to issue injunctions, enter and implement other orders, and take such other actions as may be necessary or appropriate to restrain interference by any Person with the Consummation, implementation or enforcement of the Plan, the Confirmation Order, or any other order of the Bankruptcy Court;

(g) to hear and determine any application to modify the Plan in accordance with section 1127 of the Bankruptcy Code, to remedy any defect or omission or reconcile any inconsistency in the Plan, or any order of the Bankruptcy Court, including the Confirmation Order, in such a manner as may be necessary to carry out the purposes and effects thereof;

(h) to hear and determine all applications under sections 330, 331, and 503(b) of the Bankruptcy Code for awards of compensation for services rendered and reimbursement of expenses incurred before the Confirmation Date;

(i) to hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan, the Confirmation Order, the APA, the Sale Order, the Liquidation Trust Agreement, the Litigation Trust Agreement, or any agreement, instrument, or other document governing or relating to any of the foregoing;

(j) to take any action and issue such orders as may be necessary to construe, interpret, enforce, implement, execute, and consummate the Plan or to maintain the integrity of the Plan following Consummation;

(k) to hear any disputes arising out of, and to enforce, any order approving alternative dispute resolution procedures to resolve personal injury, employment litigation and similar Claims pursuant to section 105(a) of the Bankruptcy Code;

(l) to determine such other matters and for such other purposes as may be provided in the Confirmation Order;

(m) to hear and determine matters concerning state, local and federal taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy Code (including any requests for expedited determinations under section 505(b) of the Bankruptcy Code);

(n) to adjudicate, decide or resolve any and all matters related to section 1141 of the Bankruptcy Code;

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

(p) to hear and determine any other matters related hereto and not inconsistent with the Bankruptcy Code and title 28 of the United States Code;


58 RLF1 24703901v.1

(q) to enter one or more final decrees closing the Chapter 11 Cases;

(r) to enforce all orders previously entered by the Bankruptcy Court;

(s) to recover all assets of the Debtors and property of the Debtors’ Estates, wherever located; and

(t) to hear and determine any rights, Claims or Causes of Action held by or accruing to the Debtors pursuant to the Bankruptcy Code or pursuant to any federal statute or legal theory.

SECTION 12. MISCELLANEOUS PROVISIONS.

12.1 No Revesting of Assets.

To the extent not otherwise distributed in accordance with this Plan, the property of the Debtors’ Estates shall not revest in the Debtors on or after the Effective Date but shall instead vest in the Liquidation Trust or the Litigation Trust, as applicable, to be administered by the Liquidation Trustee or the Litigation Trustee in accordance with this Plan, the Liquidation Trust Agreement and the Litigation Trust Agreement. For the avoidance of doubt, the Litigation Trust Funding shall be subject to the adjustments set forth in Section 5.5(c) of the Plan.

12.2 Subordinated Claims.

The allowance, classification, and treatment of all Allowed Claims and Interests and the respective distributions and treatments under the Plan take into account and conform to the relative priority and rights of the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, section 510(b) of the Bankruptcy Code, or otherwise. Pursuant to section 510 of the Bankruptcy Code, the Debtors reserve the right for the Liquidation Trustee (or the Litigation Trustee solely with respect to any Claims of any of the DV Entities or the Former D&Os or Shareholders) to re-classify any Allowed Claim or Interest in accordance with any contractual, legal, or equitable subordination relating thereto.

12.3 Payment of Statutory Fees.

All fees due and payable pursuant to 28 U.S.C. § 1930(a) prior to the Effective Date shall be paid by the Debtors in full in Cash on the Effective Date or as soon as is reasonably practicable thereafter. On and after the Effective Date, the Debtors (or the Liquidation Trustee) shall pay any and all such fees in full in Cash when due and payable, and shall file with the Bankruptcy Court quarterly reports in a form reasonably acceptable to the U.S. Trustee. Each Debtor (or the Liquidation Trustee) shall remain obligated to pay quarterly fees to the U.S. Trustee until the earliest of that particular Debtor’s case being closed, dismissed, or converted to a case under chapter 7 of the Bankruptcy Code.


59 RLF1 24703901v.1

12.4 Dissolution of Creditors’ Committee.

On the Effective Date, the Creditors’ Committee shall dissolve, and the members thereof shall be released and discharged from all rights and duties arising from, or related to, the Chapter 11 Cases; provided, however, that after the Effective Date, the Creditors’ Committee shall continue to exist solely to prosecute applications filed pursuant to sections 330 and 331 of the Bankruptcy Code or to prosecute any appeals ongoing as of the Effective Date or for which the appeal period has not yet run as of the Effective Date.

12.5 Amendments.

(a) Plan Modifications. The Plan may be amended, modified or supplemented by the Debtors, with the consent of the Creditors Committee (not to be unreasonably withheld) prior to the Effective Date, in the manner provided for by section 1127 of the Bankruptcy Code or as otherwise permitted by law without additional disclosure pursuant to section 1125 of the Bankruptcy Code; provided that such amendments, modifications or supplements shall be reasonably satisfactory in all respects to the Debtors and the Creditors’ Committee. In addition, after the Confirmation Date, the Debtors may, after consulting with the Creditors’ Committee, institute proceedings in the Bankruptcy Court to remedy any defect or omission or reconcile any inconsistencies in the Plan or the Confirmation Order, with respect to such matters as may be necessary to carry out the purposes and effects of the Plan.

(b) Other Amendments. Before the Effective Date, the Debtors may, with the consent of the Creditors’ Committee (not to be unreasonably withheld), make appropriate technical adjustments and modifications to the Plan and any of the documents prepared in connection herewith without further order or approval of the Bankruptcy Court.

12.6 Revocation or Withdrawal of the Plan.

The Debtors reserve the right, after consulting with the Creditors’ Committee, to revoke or withdraw the Plan, including the right to revoke or withdraw the Plan for any Debtor or all Debtors, prior to the Confirmation Date. If the Debtors, after consulting with the Creditors’ Committee, revoke or withdraw the Plan, or if Confirmation or Consummation does not occur, then: (i) the Plan shall be null and void in all respects; (ii) any settlement or compromise embodied in the Plan (including the fixing or limiting to an amount certain of any Claim or Interest or Class of Claims or Interests), assumption or rejection of Executory Contracts or Unexpired Leases effected by the Plan, and any document or agreement executed pursuant to the Plan, shall be deemed null and void; and (ii) nothing contained in the Plan shall: (A) constitute a waiver or release of any Claims or Interests; (B) prejudice in any manner the rights of the Debtors, the Debtors’ Estates, or any other Entity; or (C) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtors, the Debtors’ Estates, or any other Entity.

12.7 Severability of Plan Provisions upon Confirmation.

If, before the entry of the Confirmation Order, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court, at the request of the Debtors, after consulting with the Creditors’ Committee, shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable,


60 RLF1 24703901v.1

consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is (i) valid and enforceable pursuant to its terms; (ii) integral to the Plan and may not be deleted or modified without the consent of the Debtors or the Liquidation Trustee (as the case may be); and (iii) nonseverable and mutually dependent.

12.8 Governing Law.

Except to the extent that the Bankruptcy Code or other federal law is applicable, or to the extent an exhibit hereto provides otherwise, the rights, duties and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to the principles of conflict of laws thereof.

12.9 Time.

In computing any period of time prescribed or allowed by the Plan, unless otherwise set forth herein or determined by the Bankruptcy Court, the provisions of Bankruptcy Rule 9006 shall apply.

12.10 Additional Documents.

On or before the Effective Date, the Debtors may, after consulting with the Creditors’ Committee, file with the Bankruptcy Court or the Canadian Court such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan. The Debtors and all holders of Claims or Interests receiving distributions pursuant to the Plan and all other parties in interest shall, prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan.

12.11 Immediate Binding Effect.

Notwithstanding Bankruptcy Rules 3020(e), 6004(h), or 7062 or otherwise, upon the occurrence of the Effective Date, the terms of the Plan shall be immediately effective and enforceable and deemed binding upon and inure to the benefit of the Debtors, the holders of Claims and Interests, the Released Parties, the Exculpated Parties, and each of their respective successors and assigns, including, without limitation, the Liquidation Trustee.


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12.12 Successor and Assigns.

The rights, benefits and obligations of any Person named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or permitted assign, if any, of each Entity.

12.13 Entire Agreement.

On the Effective Date, the Plan and the Confirmation Order shall supersede all previous and contemporaneous negotiations, promises, covenants, agreements, understandings and representations on such subjects, all of which have become merged and integrated into the Plan.

12.14 Notices.

All notices, requests and demands to or upon the Debtors to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:

(i) if to the Debtors or the Liquidation Trustee:

Ankura Consulting Group, LLC 485 Lexington Avenue 10th Floor New York, NY 10017 Attn: Adrian Frankum Telephone: (646) 968-3655 Facsimile: (212) 818-1551 – and –

Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 Attn: Garrett A. Fail David J. Cohen Telephone: (212) 310-8000 Facsimile: (212) 310-8007

– with copies to –

Richards, Layton & Finger, P.A. One Rodney Square 920 N. King Street Wilmington, DE 19801 Attn: Mark D. Collins Zachary I. Shapiro Christopher M. De Lillo


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Telephone: (302) 651-7700 Facsimile: (302) 651-7701

– and, if it relates to BB Canada or the Recognition Proceedings –

Osler, Hoskin & Harcourt LLP 100 King Street West 1 First Canadian Place Suite 6200, P.O. Box 50 Toronto ON M5X 1B8 Attn: Tracy Sandler Martino Calvaruso Telephone: (416) 362-2111 Facsimile: (416) 862-6666

(ii) if to the Creditors’ Committee:

Akin Gump Strauss Hauer & Feld LLP One Bryant Park Bank of America Tower New York, NY 10036 Attn: Meredith A. Lahaie Abid Qureshi Telephone: (212) 872-1000 Facsimile: (212) 872-1002

– and –

2001 K Street NW Washington, DC 20006 Attn: Kate Doorley Julie Thompson Telephone: (202) 877-4000 Facsimile: (202) 872-4288

– and –

Troutman Pepper Hamilton Sanders LLP Hercules Plaza, Suite 5100 1313 N. Market Street, P.O. Box 1709 Wilmington, DE 19899 Attn: David B. Stratton David M. Fournier Evelyn J. Meltzer Marcy J. McLaughlin Smith Telephone: (302) 777-6500 Facsimile: (302) 421-8390


63 RLF1 24703901v.1

After the Effective Date, the Debtors have authority to send a notice to Entities that to continue to receive documents pursuant to Bankruptcy Rule 2002, they must file a renewed request to receive documents pursuant to Bankruptcy Rule 2002. After the Effective Date, the Liquidation Trust is authorized to limit the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to those Entities who have filed such renewed requests.


Respectfully submitted,

By: Name: Stephen Marotta Title: Chief Restructuring Officer

/s/ Stephen Marotta


THIS IS EXHIBIT “N” REFERRED TO IN THE







of America,


____________________________________________


560


------------------------------------------------------------ x : In re: : Chapter 11 : BBGI US, INC., et al., : Case No. 20–11785 (CSS) : Debtors.1 : (Jointly Administered) : ------------------------------------------------------------ x Re: D.I. 918, 957

NOTICE OF FILING OF PLAN SUPPLEMENT

PLEASE TAKE NOTICE that, on January 22, 2021, BBGI US, Inc. and its debtor

affiliates, as debtors and debtors in possession in the above captioned chapter 11 cases

(the “Debtors”), filed the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and

Its Affiliated Debtors [D.I. 918] (as amended, supplemented and otherwise modified, the “Plan”)

with the United States Bankruptcy Court for the District of Delaware (the “Court”).

PLEASE TAKE FURTHER NOTICE that the Plan contemplates the submission of

certain schedules and exhibits (or forms thereof) in advance of the hearing on confirmation of the

Plan (the “Plan Supplement”).

PLEASE TAKE FURTHER NOTICE that the Debtors hereby file the following

Plan Supplement documents:




2

Exhibit A – Section 1129(a)(5) Disclosures

Exhibit B – Liquidation Trust Agreement

Exhibit C – Litigation Trust Agreement

Exhibit D – Assumption Schedule

Exhibit E – Schedule of Retained Causes of Action

Exhibit F – Schedule of Allowed Non-Debtor Subsidiary Claims

Exhibit G – Alternative Plan Debtors

PLEASE TAKE FURTHER NOTICE that the Plan Supplement is integral to, part

of, and incorporated by reference into the Plan. If the Plan is approved, the documents contained

in the Plan Supplement will be approved by the Bankruptcy Court pursuant to the order confirming

the Plan.

PLEASE TAKE FURTHER NOTICE that the documents contained in the Plan

Supplement are not final and remain subject to continuing negotiations among the Debtors and

other interested parties. Accordingly, the Debtors reserve their right, subject to the terms and

conditions set forth in the Plan, to alter, amend, modify, or supplement any document in the Plan

Supplement, and such parties reserve their rights with respect to the form of documents filed

herewith and such documents remain subject to review and revision in all respects.

PLEASE TAKE FURTHER NOTICE that the deadline to file objections to the

Plan, including any objections regarding the assumption of, or cure amounts for, Executory

Contracts identified on Exhibit D hereto, is February 26, 2021 at 4:00 p.m. (prevailing Eastern

Time).

PLEASE TAKE FURTHER NOTICE that, as previously noticed, the hearing to

consider confirmation of the Plan will be held before the Honorable Christopher S. Sontchi, Chief


3

United States Bankruptcy Judge, in the Bankruptcy Court, located at 824 North Market Street, 5th

Floor, Courtroom 6, Wilmington, Delaware 19801 on March 5, 2021 at 1:00 p.m. (prevailing

Eastern Time).

PLEASE TAKE FURTHER NOTICE that the Plan Supplement and the Plan are

available for viewing or downloading, free of charge, on the Debtors’ restructuring website, at

https://cases.primeclerk.com/brooksbrothers, or for a fee on the Bankruptcy Court’s website at

http://www.deb.uscourts.gov.

Dated: February 19, 2021 Wilmington, Delaware

/s/ Christopher M. De Lillo RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981) Zachary I. Shapiro (No. 5103) Christopher M. De Lillo (No. 6355) One Rodney Square 920 N. King Street Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701 E-mail: [email protected] [email protected] [email protected] - and - WEIL, GOTSHAL & MANGES LLP Garrett A. Fail (admitted pro hac vice) David J. Cohen (admitted pro hac vice) 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 E-mail: [email protected] [email protected]



Exhibit A

Section 1129(a)(5) Disclosures


Exhibit A

Section 1129(a)(5) Disclosures1


On the Effective Date, the Liquidation Trustee,2 the Litigation Trustee, and the members of the Litigation Trust Oversight Board will consist of the individuals set forth in the following chart:

Position Party

Liquidation Trustee Adrian Frankum

Litigation Trustee William T. Reid, IV

Litigation Trust Oversight Board All members of the Creditors’ Committee

1 Capitalized terms used herein shall have the meaning ascribed to such terms in the Plan.

2 A Delaware Trustee will be appointed to serve as the trustee of the Liquidation Trust for the sole purpose of satisfying the requirement of 12 DE Code Section 3807(a).


Exhibit B

Liquidation Trust Agreement


LIQUIDATION TRUST AGREEMENT

This Liquidation Trust Agreement (as it may be amended, modified, supplemented or restated from time to time, this “Agreement”) dated as of [•], 2021, is made and entered into by and among BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.); Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; 696 White Plains Road, LLC; and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (“BB Canada”) (each a “Debtor” and collectively, the “Debtors”), [•], solely in [its] capacity as Delaware resident trustee pursuant to section 11 hereof, and the Liquidation Trustee (as defined below) for the purpose of forming a trust and is executed in connection with and pursuant to the terms of the Amended Joint Plan of Liquidation for BBGI US, Inc. and its Affiliated Debtors [Docket No. 918] (as it may be further amended, modified, supplemented or restated from time to time, the “Plan”), which Plan provides for, among other things, the establishment of the liquidation trust evidenced hereby (the “Liquidation Trust”).1

WI T N E S S E T H

WHEREAS, the Chapter 11 Cases were commenced by the Debtors filing voluntary chapter 11 petitions in the Bankruptcy Court on July 8, 2020 and September 10, 2020;

WHEREAS, the Bankruptcy Court confirmed the Plan by order dated [•], 2021;

WHEREAS, this Agreement is entered into to effectuate the establishment of the Liquidation Trust as provided in the Plan and the Confirmation Order;

WHEREAS, pursuant to the Plan, the Liquidation Trust is established for the benefit of the holders of Allowed Class 3 PBGC Claims and Allowed Class 4 General Unsecured Claims (each such holder a “Liquidation Trust Beneficiary” and together, the “Liquidation Trust Beneficiaries”);

WHEREAS, the Liquidation Trust is established (i) for the purpose of collecting, administering, distributing and liquidating the Liquidation Trust Assets for the benefit of the Liquidation Trust Beneficiaries in accordance with the terms of this Agreement, the Plan, and the Confirmation Order, (ii) to pay certain Allowed Claims, and (iii) to make Distributions of the Liquidation Trust Assets to the Liquidation Trust Beneficiaries, in each case to the extent provided in the Plan;

WHEREAS, the Liquidation Trust shall have no objective or authority to continue or to engage in the conduct of a trade or business, except to the extent reasonably necessary to, and consistent with, the purpose of the Liquidation Trust as set forth in this Agreement and the Plan;

1 All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan.


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WHEREAS, the Liquidation Trust Beneficiaries are entitled to their applicable Liquidation Trust Interests (defined below);

WHEREAS, the Liquidation Trust is intended to qualify as a “liquidating trust” within the meaning of United States Treasury Regulation (hereinafter “Treasury Regulation”) Section 301.7701-4(d) and, as such, as a “grantor trust” for U.S. federal income tax purposes with the Liquidation Trust Beneficiaries treated as the grantors and owners of the Liquidation Trust (subject to the elective treatment of one or more Disputed Claims Reserves as “disputed ownership funds” described in Treasury Regulation Section 1.468B-9);

WHEREAS, the Liquidation Trust is intended to be exempt from the requirements of the Investment Company Act of 1940;

WHEREAS, in addition to jurisdiction as provided herein as required by the Act, the Bankruptcy Court shall have jurisdiction over the Liquidation Trust, the Liquidation Trustee, and the Liquidation Trust Assets as provided herein and in the Plan.

NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and in the Plan, the Debtors and the Liquidation Trustee agree as follows:


A. Definitions.

All capitalized terms used in this Agreement not otherwise defined herein shall have the respective meanings ascribed to such terms in the Plan. The following capitalized terms have the meanings herein as described below:

1.1. Act shall have the meaning set forth in Section 2.1(a) below

1.2. Agreement shall have the meaning set forth in the introductory paragraph to this Agreement.

1.3. Debtor(s) shall have the meaning set forth in the introductory paragraph to this Agreement.

1.4. Delaware Trustee shall have the meaning set forth in Section 11.1(a) below.

1.5. Effectiveness shall have the meaning set forth in Section 2.5 below.

1.6. Indemnified Party shall the meaning set forth in Section 6.3 below.

1.7. Insurance Coverages shall have the meaning set forth in Section 12.3 below.

1.8. Liquidation Trust shall have the meaning set forth in the introductory paragraph to this Agreement.

1.9. Liquidation Trust Beneficiary shall have the meaning set forth above herein.


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1.10. Liquidation Trust Interest shall mean the non-certificated beneficial interests in the Liquidation Trust, which shall be granted Pro Rata to the holder of the Allowed PBGC Claims and the holders of Allowed General Unsecured Claims pursuant to the terms of the Plan, and which shall entitle each such holders to a share of each Distribution of the Liquidation Trust Assets, in accordance with, and all as more fully set forth in the Plan.

1.11. Liquidation Trustee shall mean (i) initially, Adrian Frankum in his capacity as Senior Managing Director of Ankura Consulting Group, LLC who is to serve as trustee of this Liquidation Trust, and (ii) any successors or replacements duly appointed under the terms of this Agreement.

1.12. Plan shall have the meaning set forth in the introductory paragraph to this Agreement.

1.13. Specified Notice Parties shall have the meaning set forth in Section 7.4 below.

1.14. Transfer shall mean, with respect to a Liquidation Trust Interest, any transfer, sale, pledge, assignment, conveyance, gift, bequest, inheritance, grant, distribution, hypothecation or other disposition of or creation or a security interest in such Liquidation Trust Interest, whether voluntarily or by operation of law. “Transferor,” “Transferee,” and “Transferred” shall have correlative meanings.

B. Plan Terms Control.

In the case of any inconsistency between the terms of this Agreement and the terms of the Plan or the Confirmation Order, such terms of the Plan or the Confirmation Order are incorporated herein by reference and shall govern and control. This Agreement shall not be construed to impair or limit in any way the rights of any Person under the Plan or the Confirmation Order

C. Interpretation.

In this Agreement, except to the extent the context otherwise requires, (i) reference to any Section, subsection, clause, Schedule, Exhibit, preamble or recital, is to that such Section, Article, subsection, clause, Schedule, Exhibit, preamble or recital under this Agreement, (ii) the words “hereof,” “herein,” and similar terms shall refer to this Agreement and not to any particular section or article of this Agreement, (iii) references to any document or agreement, including this Agreement, shall be deemed to include references to such document or agreement as amended, supplemented, replaced or restated from time to time in accordance with its terms and subject to compliance with any requirements set forth therein, (iv) references to any law, statute, rule, regulation or form (including in the definition thereof) shall be deemed to include references to such statute, rule, regulation or form as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, include any rules and regulations promulgated under such statute), and all references to any section of any statute, rule, regulation or form include any successor to such section, (v) references to any party hereto shall include its successors and permitted assigns, (vi) wherever the word “include,” “includes” or “including” is used herein, it shall be deemed to be followed by the words “without limitation,” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision with respect to which such examples are provided, (vii) the words “shall” and “will” are used


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interchangeably throughout this Agreement, and the use of either connotes a mandatory requirement, (viii) the word “or” is not meant to be exclusive, and shall be interpreted as “and/or”, (ix) references to “day” or “days” are references to calendar days, (x) the terms “Dollars” and “$” mean United States Dollars, (xi) whenever the context requires, terms shall include the plural as well as the singular number, the masculine gender shall include the feminine, and the feminine gender shall include the masculine and (xii) references to any time periods herein that are initiated by the receipt of a notice shall be deemed not to include the date such notice is received in the calculation of such time period.

SECTION 2. ESTABLISHMENT, PURPOSE AND FUNDING OF LIQUIDATION TRUST

2.1 Creation and Name; Formation; Office.

(a) Upon the Effectiveness of this Agreement, the Liquidation Trust, which is referred to in the Plan (in Section 1 thereof in the definition of “Liquidation Trust” and in certain other sections thereof), is hereby created. It is the intention of the parties hereto that the trust created hereby constitutes a statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. § 3801 et seq. (the “Act”) and that this Agreement constitutes the governing instrument of the Trust. The trust created hereby shall be known as “BBGI Liquidation Trust” in which name the Liquidation Trustee may conduct the affairs of the Liquidation Trust, make and execute contracts, and sue and be sued. The Delaware Trustee and the Liquidation Trustee are hereby authorized and directed to execute and file a certificate of trust pursuant to the Act.

(b) The principal office of the Liquidation Trust, and such

additional offices as the Liquidation Trustee may determine to establish, shall be located at such place or places inside or outside the State of Delaware as the Liquidation Trustee may designate from time to time.

2.2 Purpose of Liquidation Trust.

The Debtors and the Liquidation Trustee, pursuant to the Plan and the Confirmation Order and in accordance with the Bankruptcy Code, hereby establish the Liquidation Trust for the purpose of collecting, administering, liquidating and distributing the assets transferred to it, in accordance with Treasury Regulation section 301.7701-4(d), with no objective to continue or engage in the conduct of a trade or business, except to the extent reasonably necessary to, and consistent with, the liquidating purpose of the Liquidation Trust. Accordingly, the Liquidation Trustee shall, in an expeditious but orderly manner, liquidate and convert to Cash the Liquidation Trust Assets, make timely distributions to the Liquidation Trust Beneficiaries, and not unduly prolong its duration. Except as otherwise provided in the Plan, the Debtors shall have no liability with respect to the distribution or payment of any proceeds of the Liquidation Trust Assets to any of the Liquidation Trust Beneficiaries or other holders of Allowed Claims. The activities of the Liquidation Trust shall be limited to those activities set forth in this Agreement and as otherwise contemplated by the Plan.


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2.3 Transfer of Liquidation Trust Assets.

(a) On or prior to the date of Effectiveness, the Debtors shall have transferred the Liquidation Trust Assets to the Liquidation Trustee. Each Debtor hereby grants, releases, assigns, conveys, transfers and delivers, on behalf of the Liquidation Trust Beneficiaries, all of the Liquidation Trust Assets owned, held, possessed or controlled by such Debtor to the Liquidation Trustee as of this Agreement’s Effectiveness, in trust for the benefit of the Liquidation Trust Beneficiaries for the uses and purposes as specified in this Agreement and the Plan. Except as otherwise provided in the Plan, none of the Debtors shall have any further obligations with respect to Allowed Claims or the distribution or payment of any proceeds of the Liquidation Trust Assets to any of the Liquidation Trust Beneficiaries upon the transfer of the Liquidation Trust Assets to the Liquidation Trustee in accordance with the Plan; provided, that the Debtors shall, from time to time until their dissolution pursuant to the terms of the Plan, execute and deliver or cause to be executed and delivered all such documents (in recordable form where necessary or appropriate) and the Debtors shall take or cause to be taken such further action, in each case as the Liquidation Trustee may reasonably deem necessary or appropriate, to vest or perfect in or confirm to the Liquidation Trustee title to and possession of the Liquidation Trust Assets. None of the foregoing transfers to the Liquidation Trust or the Liquidation Trustee shall constitute a merger or consolidation of any of the Causes of Action that constitute Liquidation Trust Assets, each of which shall retain its separateness following the transfer for all purposes relevant to the prosecution thereof.

(b) To the extent that any Liquidation Trust Assets cannot be

transferred to the Liquidation Trust, including because of a restriction on transferability under applicable non-bankruptcy law that is not superseded or preempted by Section 1123 of the Bankruptcy Code or any other provision of the Bankruptcy Code, such Liquidation Trust Assets shall be deemed to have been retained by the Debtors or their successor and the Liquidation Trustee shall be deemed to have been designated as a representative of the Debtors or their successor pursuant to Section 1123(b)(3)(B) of the Bankruptcy Code to enforce and pursue such Liquidation Trust Assets on the behalf of the Debtors or their successor. Notwithstanding the foregoing, all proceeds of such Liquidation Trust Assets (net of all reasonable and documented costs and expenses (including the reasonable and documented fees and expenses of professionals)), if received by the Debtors, shall be transferred to the Liquidation Trust or the Liquidation Trustee on behalf its behalf to be distributed in accordance with this Agreement and the terms of the Plan.

(c) In no event shall any part of the Liquidation Trust Assets

revert to or be distributed to any Debtor.

2.4 Privileges.

(a) All attorney-client privileges, work product protections, joint client privilege, common interest or joint defense privilege or protection and all other privileges, immunities or protections from disclosure (the “Privileges”) held by any of (1) any one or more of the Debtors or (2) any pre-petition or post-petition committee or subcommittee of the board of directors or equivalent governing body of any of the Debtors and their predecessors (together the “Privilege Transfer Parties”) related in any way to the Liquidation Trust Assets, the analysis or prosecution of any claims or the purpose of the Liquidation Trust (the “Transferred


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Privileged Information”) are hereby transferred and assigned to, and vested in, the Liquidation Trust and its authorized representatives. The Transferred Privileged Information shall include documents and information of all manner, whether oral, written or digital, and whether or not previously disclosed or discussed. For the avoidance of doubt, the Privileges shall include any right to preserve or enforce or waive a privilege that arises from any joint defense, common interest or similar agreement involving any of the Privilege Transfer Parties.

(b) The foregoing transfer and assignment shall vest the

Privileges concerning the Transferred Privileged Information exclusively in the Liquidation Trust, consistent with sections 1123(a)(5)(B) and 1123(b)(3)(B) of the Bankruptcy Code, for the sole benefit of the Liquidation Trust and the Liquidation Trust Beneficiaries; provided, however, that to the extent that any such Privileges or Transferred Privileged Information relates to both Liquidation Trust Assets and Litigation Trust Assets, such Privileges and Transferred Privileged Information shall vest jointly in the Liquidation Trust and the Litigation Trust. Except only as provided in the Litigation Trust Agreement as relates to any Privileges or Transferred Privileged Information held jointly with the Litigation Trust, the Liquidation Trust shall have the exclusive authority and sole discretion to maintain the Privileges and keep the Transferred Privileged Information confidential, or waive any Privileges and/or disclose and/or use in litigation or any proceeding any or all of the Transferred Privileged Information.

(c) The Privilege Transfer Parties agree to take all necessary

actions to effectuate the transfer of such Privileges, and to provide to the Liquidation Trust without the necessity of a subpoena all Transferred Privileged Information in their respective possession, custody or control. The Liquidation Trust is further expressly authorized to formally or informally request or subpoena documents, testimony or other information that would constitute Transferred Privileged Information from any persons, including former directors or officers of any of the Debtors, attorneys, professionals, consultants and experts, and no such person may object to the production to the Liquidation Trust of such Transferred Privileged Information on the basis of a Privilege. Until and unless the Liquidation Trust makes a determination to waive any Privilege, Transferred Privileged Information shall be produced solely to the Liquidation Trust. For the avoidance of doubt, this Subsection is subject in all respects to Section 2.4(a) of this Agreement.

(d) Pursuant to, inter alia, Federal Rule of Evidence 502(d), no

Privileges shall be waived by the transfer and assignment of the Privileges or the production of any Transferred Privileged Information to the Liquidation Trust or any of its respective employees, professionals or representatives, or by disclosure of such Transferred Privileged Information between the Privilege Transfer Parties, on the one hand, and the Liquidation Trust, on the other hand, or any of their respective employees, professionals or representatives.

(e) If a Privilege Transfer Party, the Liquidation Trust, any of

their respective employees, professionals or representatives or any other person inadvertently produces or discloses Transferred Privileged Information to any third party, such production shall not be deemed to destroy any of the Privileges, or be deemed a waiver of any confidentiality protections afforded to such Transferred Privileged Information. In such circumstances, the disclosing party shall promptly upon discovery of the production notify the Liquidation Trust of


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the production and shall demand of all recipients of the inadvertently disclosed Transferred Privileged Information that they return or confirm the destruction of such materials.

2.5 Nature of Liquidation Trust.

The Liquidation Trust is irrevocable but this Agreement is subject to amendment and waiver as provided in this Agreement. The Liquidation Trust is not intended to be, and shall not be deemed to be or treated as, a general partnership, limited partnership, limited liability partnership, joint venture, corporation, limited liability company, joint stock company or association, nor shall the Liquidation Trustee, or the Liquidation Trust Beneficiaries, or any of them, for any purpose be, or be deemed to be or treated in any way whatsoever to be, liable or responsible hereunder as partners or joint venturers. The relationship of the Liquidation Trust Beneficiaries, on the one hand, to the Liquidation Trust and the Liquidation Trustee, on the other hand, shall not be deemed a principal or agency relationship, and their rights shall be limited to those conferred upon them by this Agreement, the Plan and the Confirmation Order.

2.6 Effectiveness.

The effectiveness of this Agreement (“Effectiveness”) (and the establishment of the Liquidation Trust hereunder) shall occur on the Effective Date of the Plan.

SECTION 3. ADMINISTRATION OF THE LIQUIDATION TRUST

3.1 Rights, Powers and Privileges.

In connection with the administration of the Liquidation Trust, except as set forth in this Agreement and the Plan, the Liquidation Trustee is authorized to perform any and all acts necessary or desirable to accomplish the purposes of the Liquidation Trust (including, without limitation, all powers, rights, and duties under applicable law). In connection therewith, and subject to the limitations herein, the Liquidation Trustee shall have absolute discretion to pursue or not to pursue any and all Causes of Action that constitute Liquidation Trust Assets as the Liquidation Trustee determines are in the best interests of the Liquidation Trust Beneficiaries and consistent with the purposes of the Liquidation Trust and the terms of the Plan, and shall have no liability for the outcomes of his decisions except as provided herein. The Liquidation Trust and the Liquidation Trustee, as applicable, shall have all of the rights and powers granted to the “Liquidation Trustee” in the Plan as it pertains to Liquidation Trust Beneficiaries, including inter alia, without limitation, Section 4 and Section 5 of the Plan including, but not limited to, the power to (i) effect all actions and execute all agreements, instruments and other documents necessary to perform its duties under the Plan, (ii) establish, as necessary, disbursement accounts for the deposit and distribution of all amounts to be distributed under the Plan to holders of Allowed Claims, (iii) make Distributions in accordance with the Plan, (iv) object to Claims (as appropriate) that are not Claims of the DV Entities or of any of the Former D&Os or Shareholders, (v) employ and compensate professionals to represent the Liquidation Trustee with respect to the Liquidation Trustee’s responsibilities, (vi) assert any of the Debtors’ claims, Causes of Action, rights of setoff, or other legal or equitable defenses that (a) constitute Liquidation Trust Assets, (b) may be applicable in pursuing or facilitate pursuit of any Causes of Action that are Liquidation Trust Assets, or (c) are applicable to or facilitate disputing or object to Claims that are not Claims of the


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DV Entities or of any of the Former D&Os or Shareholders, and (v) exercise such other powers as may be vested in the Liquidation Trustee by order of the Bankruptcy Court, pursuant to the Plan, or as deemed by the Liquidation Trustee to be necessary and proper to implement the provisions of the Plan. The Liquidation Trustee may abandon any Liquidation Trust Assets (other than Cash and cash equivalents) that the Liquidation Trustee reasonably determines to be without material monetary value or burdensome to the Liquidation Trustee’s administration of the Liquidation Trust, in each case after giving effect to the costs and expenses reasonably expected to liquidate such assets to Cash. The Liquidation Trust and Liquidation Trustee also may incur such expenses in operating the Liquidation Trust and performing the Liquidation Trustee’s duties as the Liquidation Trustee deems appropriate. No implied duties or obligations shall be read into this Agreement, and to the extent that, at law or in equity, the Liquidation Trustee has duties and liabilities relating to the Liquidation Trust or the Liquidation Trust Beneficiary, it is hereby understood and agreed that such duties and liabilities are eliminated and replaced by the duties and liabilities of the Liquidation Trustee expressly set forth in this Agreement.

3.2 Agents and Professionals.

The Liquidation Trustee may, but shall not be required to, consult with, select, retain and compensate (all in the Liquidation Trustee’s sole discretion) any professionals, including but not limited to attorneys, accountants, real estate brokers, appraisers, valuation counselors, transfer agents, financial advisors, claims agents, custodians, investment advisors, or other parties (collectively, the “Trust Professionals”) deemed by the Liquidation Trustee in his sole discretion to have qualifications necessary to assist in the proper administration of the Liquidation Trust in order to assist the Liquidation Trustee in carrying out his duties hereunder. Reasonable salaries, fees and expenses of such persons (including those of the Liquidation Trustee), including contingency fees, shall be paid out of the Liquidation Trust Assets. The Liquidation Trustee’s retention of a professional retained by the Debtors or any other party in interest during the Chapter 11 Cases shall not be deemed a conflict of interest or, to the extent such conflict of interest exists, such conflict is hereby waived by the Debtors, the applicable party and the Liquidation Trust, as applicable. Subject to the Plan and this Agreement, the Liquidation Trustee may pay the salaries, fees, and expenses of such persons or firms out of the Liquidation Trust Assets, without Bankruptcy Court approval. The Liquidation Trustee shall not be liable for any loss to the Debtors, the Estates, or the Liquidation Trust or any person interested therein, including Beneficiaries, by reason of any mistake or default of any such agent or consultant or Trust Professional.

3.3 Investment and Safekeeping of Liquidation Trust Assets.

(a) All monies and other Liquidation Trust Assets received by the Liquidation Trustee shall, until distributed or paid as provided in this Agreement or the Plan, be held in the Liquidation Trust for the benefit of the Liquidation Trust Beneficiaries. The Liquidation Trustee shall be under no obligation to generate or produce, or have any liability for, interest or other income on any monies received by the Liquidation Trust and held for distribution or payment to the Liquidation Trust Beneficiaries, except as such interest or income shall be actually received by the Liquidation Trustee.

(b) Investments of any Cash of the Liquidation Trust, including any

earnings thereon or proceeds therefrom, any Cash realized from the liquidation of the Liquidation


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Trust Assets, or any Cash that is remitted to the Liquidation Trust from any other Person, shall be administered in view of the manner in which individuals of ordinary prudence, discretion and judgment would act in the management of their own affairs; provided, however, that the right and power of the Liquidation Trustee to invest monies of the Liquidation Trust shall be limited to the right and power to invest such monies pending periodic Distributions in accordance with the terms hereof and the Plan; provided further, that the investment powers of the Liquidation Trustee in this Agreement, other than those reasonably necessary to maintain the value of the Liquidation Trust Assets and the liquidation purpose of the Liquidation Trust, are limited to powers to invest in demand and time deposits, such as short-term certificates of deposits, in banks or other savings institutions, or other temporary, liquid investments, such as treasury bills, but, for the avoidance of doubt, shall not be required to comply with Bankruptcy Code Section 345(b); provided, further, however, that such investments must be investments that are permitted to be made by a “liquidating trust” within the meaning of Treasury Regulation Section 301.7701-4(d), as reflected therein, or under applicable guidelines, rulings, or other controlling authorities.

3.4 Limitations on and Rights of Liquidation Trustee.

(a) Other than as contemplated by the Plan or this Agreement, the Liquidation Trustee is not empowered to incur indebtedness.

(b) The Liquidation Trustee shall have no liability in the event

of the insolvency or failure of any institution in which he or she has invested any funds of the Liquidation Trust.

(c) The Liquidation Trustee shall hold, collect, conserve, protect

and administer the Liquidation Trust Assets in accordance with the provisions of this Agreement and the Plan, and pay and distribute amounts as set forth herein for the purposes set forth in this Agreement. Any determination by the Liquidation Trustee as to what actions are in the best interests of the Liquidation Trust shall be determinative.

(d) Notwithstanding anything herein to the contrary, the

Liquidation Trustee shall not at any time: (i) enter into or engage in any trade or business that involves use of the Liquidation Trust Assets (other than the management and disposition of the Liquidation Trust Assets), and no part of the Liquidation Trust Assets or the proceeds, revenue or income therefrom shall be used or disposed of by the Liquidation Trust in furtherance of any trade or business, (ii) except as provided in Section 3.3 hereof and below, reinvest any Liquidation Trust Assets, or (iii) take any action that would jeopardize treatment of the Liquidation Trust as a “liquidating trust” for U.S. federal income tax purposes.

3.5 Bankruptcy Court Approval of Liquidation Trustee Actions.

Except as provided in the Plan or otherwise specified in this Agreement, the Liquidation Trustee need not obtain the order or approval of the Bankruptcy Court in the exercise of any power, rights, or discretion conferred hereunder, or account to the Bankruptcy Court. Except as otherwise provided herein, the Liquidation Trustee shall exercise his business judgment for the benefit of the Liquidation Trust Beneficiaries in order to maximize the value of the Liquidation Trust Assets and Distributions, giving due regard to the cost, risk, and delay of any course of action.


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Notwithstanding the foregoing, the Liquidation Trustee shall have the right to submit to the Bankruptcy Court any question or questions regarding which the Liquidation Trustee may desire to have explicit approval of the Bankruptcy Court for the taking of any specific action proposed to be taken by the Liquidation Trust with respect to any of the Liquidation Trust Assets, this Agreement, or the Plan, including the administration, distribution, or proposed sale of any of the Liquidation Trust Assets. The Bankruptcy Court shall retain jurisdiction and power for such purposes and shall approve or disapprove any such proposed action upon motion by the Liquidation Trust.

3.6 Reliance by Liquidation Trustee.

(a) The Liquidation Trustee may rely, and shall be protected in acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other paper or document believed by them to be genuine and to have been signed or presented by the proper party or parties;

(b) The Liquidation Trustee may consult with any and all of the

Liquidation Trustee’s professionals and the Liquidation Trustee shall not be liable for any action taken or omitted to be taken by the Liquidation Trustee in good faith in accordance with the advice of such professionals; and

(c) Persons dealing with the Liquidation Trustee shall look only

to the Liquidation Trust Assets to satisfy any liability incurred by the Liquidation Trustee to such Person in carrying out the terms of this Agreement, and the Liquidation Trustee shall not have any personal obligation to satisfy any such liability.


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SECTION 4. DISTRIBUTIONS FROM THE LIQUIDATION TRUST

4.1 Distributions.

After the Effective Date, as and to the extent required by the Plan and this Agreement, the Liquidation Trustee shall make Distributions from the Liquidation Trust Assets in accordance with this Agreement to the Liquidation Trust Beneficiaries in respect of their Liquidation Trust Interests.

4.2 Timing of Distributions

(a) The Liquidation Trustee shall make Distributions from the Liquidation Trust to the Liquidation Trust Beneficiaries at least annually all unrestricted Cash then on hand (including any Cash received from the Debtors on the Effective Date, and treating any permissible investment as Cash for purposes of this Section 4.3), except the Liquidation Trustee may retain such amounts (i) as are allocable to or retained on account of Disputed Claims in accordance with the Plan, (ii) as are reasonably necessary to meet contingent liabilities and to maintain the value of the Liquidation Trust Assets pending their liquidation during the term of the Liquidation Trust, (iii) as are necessary to pay reasonably incurred or anticipated expenses (including, but not limited to, any taxes imposed on or payable by the Debtors or the Liquidation Trust or in respect of the Liquidation Trust Assets, the compensation and the reimbursement of reasonable, actual and necessary costs, fees (including attorneys’ fees) and expenses of the Liquidation Trustee in connection with the performance of the Liquidation Trustee’s duties in connection with this Agreement), (iv) to fund the Wind-Down Reserve, and (v) to satisfy all other liabilities incurred or assumed by the Liquidation Trust (or to which the Liquidation Trust Assets are otherwise subject) in accordance with the Plan and this Agreement.

(b) Any payment or other distribution required to be made under

the Plan on a day other than a Business Day shall be due on the next succeeding Business Day, but shall be deemed to have been made on the required date. Any payment of Cash to be made pursuant to the Plan, subject to the terms hereof, shall be deemed made, if by electronic wire transfer, when the applicable electronic wire transfer is initiated by the sending bank or, if by check drawn on a domestic bank, when the earliest occurs of depositing in the mail for the entitled recipient, receipt by the entitled recipient, or delivery to a third party delivery service for delivery to the entitled recipient.


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4.3 Payments Limited to Liquidation Trust Assets.

All payments to be made by the Liquidation Trustee to or for the benefit of any Liquidation Trust Beneficiary shall be made only to the extent that the Liquidation Trustee, in his capacity as such, has sufficient funds or reserves to make such payments in accordance with this Agreement and the Plan. Each Liquidation Trust Beneficiary shall have recourse only to the Liquidation Trust Assets for distributions under this Agreement and the Plan.

4.4 Fees and Expenses.

(a) Periodically and before approving Distributions to or for the benefit of the Liquidation Trust Beneficiaries, subject to the limitations set forth herein and in the Plan, the Liquidation Trustee shall pay, establish, supplement or reduce the Wind-Down Reserve, which shall be a reserve sufficient to fund the Liquidation Trust’s activities, including operating and administrative expenses of the Liquidation Trust.

(b) The Liquidation Trustee shall satisfy any fees and expenses

of the Liquidation Trust with the Liquidation Trust Assets to the extent available. (c) The Liquidation Trust shall pay any and all fees that are

required to be paid by the Liquidation Trust under the Plan.

4.5 Priority of Distributions.

Any recovery by the Liquidation Trust on account of the Liquidation Trust Assets, including any funds received by the Liquidation Trust from the Litigation Trust, shall be applied in accordance with the Plan.

4.6 Right to Object to Claims.

The Liquidation Trustee shall have the responsibility and authority for administering, disputing, compromising and settling or otherwise resolving and finalizing payments or other Distributions under the Plan with respect to Claims that are not Claims of the DV Entities or of any of the Former D&Os or Shareholders, in accordance with, and all as more fully set forth in the Plan, including Sections 5.4(a) and 7.6 thereof.


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SECTION 5. LIQUIDATION TRUST BENEFICIARIES

5.1 Identification and Addresses of Liquidation Trust Beneficiaries.

The Liquidation Trustee may deliver a notice to the Liquidation Trust Beneficiaries, which may include a form for each Liquidation Trust Beneficiary to complete in order to be properly registered as a Liquidation Trust Beneficiary and be eligible for Distributions under the Liquidation Trust. A Liquidation Trust Beneficiary may, after the Effective Date, select an alternative mailing address by notifying the Liquidation Trustee in writing of such alternative distribution address. Absent receipt of such notice, the Liquidation Trustee shall not be obligated to recognize any such change of address. Such notification shall be effective only upon receipt by the Liquidation Trustee.

5.2 Beneficial Interest Only.

The ownership of a Liquidation Trust Interest shall not entitle any Liquidation Trust Beneficiary to any title in or to any of the Liquidation Trust Assets or to any right to call for a partition or division of such Liquidation Trust Assets or to require an accounting, except as specifically provided herein. Except as expressly provided in this Agreement, a Liquidation Trust Beneficiary shall not have standing to direct or to seek to direct the Liquidation Trust or Liquidation Trustee to do or not to do any act or to institute any action or proceeding at law or in equity against any Person upon or with respect to the Liquidation Trust Assets.

5.3 Ownership of Beneficial Interests Hereunder.

Each Liquidation Trust Beneficiary shall own a beneficial interest in the Liquidation Trust (as represented by the Liquidation Trust Interest(s) issued to such Liquidation Trust Beneficiary consistent with the Plan). The record holders of the Liquidation Trust Interests shall be recorded and set forth in a registry maintained by, or at the direction of, the Liquidation Trustee expressly for such purpose.

5.4 Evidence of Beneficial Interest.

Ownership of a Liquidation Trust Interest shall not be evidenced by any certificate, security, or receipt (unless otherwise determined by the Liquidation Trustee) or in any other form or manner whatsoever. Ownership of the Liquidation Trust Interests shall be maintained on books and records of the Liquidation Trust maintained by the Liquidation Trustee, which may be the official claims register maintained in the Chapter 11 Cases.

5.5 No Right to Accounting.

Except as set forth in Sections 7.4 and 7.9 of this Agreement, neither the Liquidation Trust Beneficiaries nor their successors, assigns, creditors, or any other Person shall have any right to an accounting by the Liquidation Trustee, and the Liquidation Trustee shall not be obligated to provide any accounting to any Person. Nothing in this Agreement is intended to require the Liquidation Trustee at any time or for any purpose to file any accounting or seek approval of any court with respect to the administration of the Liquidation Trust or as a condition for making any advance, payment, or distribution out of proceeds of Liquidation Trust Assets.


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5.6 No Standing.

Except as expressly provided in this Agreement, if at all, a Liquidation Trust Beneficiary shall not have standing to direct or to seek to direct the Liquidation Trust or Liquidation Trustee to do or not to do any act or to institute any action or proceeding at law or in equity against any Person upon or with respect to the Liquidation Trust Assets.

5.7 Requirement of Undertaking.

The Liquidation Trustee may request the Bankruptcy Court to require, in any suit for the enforcement of any right or remedy under this Agreement, or in any suit against the Liquidation Trustee for any action taken or omitted by it as Liquidation Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, including reasonable attorneys’ fees, against any party litigant in such suit; provided, however, that the provisions of this Section 5.7 shall not apply to any suit by the Liquidation Trustee.

5.8 Limitation on Transferability.

It is understood and agreed that the Liquidation Trust Interests shall be non-transferable and non-assignable other than if transferred by will, intestate succession, or otherwise by operation of law. For purposes of Distributions hereunder, any such Transfer by operation of law shall not be effective until appropriate notification and proof thereof is submitted to the Liquidation Trustee, and the Liquidation Trustee may continue to cause the Liquidation Trust to pay all amounts to or for the benefit of the assigning Liquidation Trust Beneficiaries until receipt of proper notification and proof of such Transfer. For purposes of Distributions hereunder, the Liquidation Trustee may rely upon such proof without the requirement of any further investigation. Notwithstanding any other provision to the contrary, the Liquidation Trustee may disregard any purported Transfer of Claims by will, intestate succession or operation of law if sufficient necessary information (as reasonably determined by the Liquidation Trustee), including applicable tax-related information, is not provided by such purported transferee or assignee to the Liquidation Trustee.

5.9 Limited Liability.

No provision of this Agreement, the Plan or the Confirmation Order, and no mere enumeration herein of the rights or privileges of any Liquidation Trust Beneficiary, shall give rise to any liability of such Liquidation Trust Beneficiary solely in its capacity as such, whether such liability is asserted by any Debtor, by creditors, employees, or equity interest holders of any Debtor, or by any other Person. Liquidation Trust Beneficiaries are deemed to receive the Liquidation Trust Interests in accordance with the provisions of this Agreement, the Plan and the Confirmation Order in exchange for their Allowed Claims, without further obligation or liability of any kind, but subject to the provisions of this Agreement.


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SECTION 6. THIRD PARTY RIGHTS AND LIMITATION OF LIABILITY

6.1 Parties Dealing With the Liquidation Trustee.

In the absence of actual knowledge to the contrary, any Person dealing with the Liquidation Trust or the Liquidation Trustee shall be entitled to rely on the authority of the Liquidation Trustee or any of the Liquidation Trustee’s agents to act in connection with the Liquidation Trust Assets. No Person that may deal with the Liquidation Trustee shall have any obligation to inquire into the validity or expediency or propriety of any transaction by the Liquidation Trustee or any agent of the Liquidation Trustee.

6.2 Limitation of Liquidation Trustee’s Liability; Indemnification.

(a) The Liquidation Trustee and the Trust Professionals shall be entitled to the benefits of the limitation of liability and indemnification provisions as set forth in Sections 5.4(h) and 5.4(i) of the Plan, respectively. The indemnification rights inuring to the benefit of the Liquidation Trustee pursuant to Sections 5.4(i) of the Plan and Section 6.2 herein shall apply mutatis mutandis to the Liquidation Trust Professionals.

(b) The Liquidation Trustee shall not be liable except for the

performance of such duties and obligations as are specifically set forth herein, in the Plan and Confirmation Order, and no other or further covenants or obligations shall be implied into this Agreement. The Liquidation Trustee shall not be responsible in any manner whatsoever for the correctness of any recitals, statements, representations, or warranties herein or in any documents or instrument evidencing or otherwise constituting a part of the Liquidation Trust Assets. The Liquidation Trustee makes no representations as to the value of the Liquidation Trust Assets or any part thereof, nor as to the validity, execution, enforceability, legality, or sufficiency of this Agreement; and the Liquidation Trustee shall incur no liability or responsibility with respect to any such matters.

(c) The Liquidation Trustee, the Trust Professionals, and the Liquidation Trustee’s agents and representatives shall not in any way be liable for any acts or omissions to act except by reason of their bad faith, gross negligence, willful misconduct, reckless disregard of duty, self-dealing, fraud, or a criminal act in the performance of their duties under the Plan, Confirmation Order, or this Agreement, in each case as determined by a final non-appealable court order from a court of competent jurisdiction. The Liquidation Trust shall indemnify the Liquidation Trustee, the Trust Professionals, and the Liquidation Trustee’s agents and representatives and hold them harmless from and against any and all liabilities, expenses, claims, damages and losses incurred by them as a result of actions taken or omissions to act by them in such capacity or otherwise related to this Agreement or the Liquidation Trust. The Liquidation Trust shall indemnify and hold harmless any party who was, or is, a party, or is threatened to be made a party, to any pending or contemplated action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such party is or was the Liquidation Trustee, a Trust Professional, and the Liquidation Trustee’s agent or representative, against all costs, expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by such Entity in connection with such action, suit or proceeding, or the defense or settlement of any claim, issue or matter therein, to the fullest extent permitted by applicable law, except if such costs and expenses, judgments, fines or amounts paid in settlement are found in a final, non-


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appealable judgment by a court of competent jurisdiction to have resulted from the Liquidation Trustee’s bad faith, gross negligence, reckless disregard of duty, criminal acts, willful misconduct, self-dealing, or fraud. Costs or expenses incurred by any party entitled to the benefit of the provisions of this Section 6.2(c) in defending any such action, suit or proceeding may be paid by the Liquidation Trust incurred and advance of the institution or final disposition of such action, suit or proceeding, if authorized by the Liquidation Trustee, subject to providing an undertaking to repay all such advanced amounts if it is subsequently determined that such party is not entitled to indemnification under this Section 6.2(c). To the fullest extent permitted by the Act, any dispute regarding such indemnification of the Liquidation Trustee shall be resolved only by the Bankruptcy Court, which shall retain jurisdiction over matters relating to the indemnification provided under this Section 6.2(c). The Liquidation Trustee may in its discretion purchase and maintain insurance on behalf of any Entity who is or was a beneficiary of this provision. Promptly after receipt by an indemnified party or parties (the “Indemnified Party”) of notice of any claim, or notice of commencement of any action, suit, or proceeding by an Entity other than the Liquidation Trustee, in respect of which the Indemnified Party may seek indemnification from the Liquidation Trust pursuant to this Section 6.2(c), the Indemnified Party, if not the Liquidation Trustee, shall notify the Liquidation Trustee of such claim, action, suit or proceeding and shall thereafter promptly convey all further communications and information in respect thereof to the Liquidation Trustee. If the Indemnified Party is the Liquidation Trustee, the Liquidation Trustee shall notify the Bankruptcy Court of such claim, action, suit, or proceeding and shall thereafter promptly convey all further communications and information in respect thereof to the Bankruptcy Court. The Liquidation Trustee shall, if it so elects, have sole control at the expense of the Liquidation Trust over the contest, settlement, adjustment, or compromise of any claim, action, suit, or proceeding in respect of which this Section 6.2(c) requires that the Liquidation Trust indemnify the Indemnified Party. If the Liquidation Trustee is the Indemnified Party, he shall obtain the written approval of Bankruptcy Court before settling, adjusting, or compromising any claim, action suit, or proceeding in respect of which this Section 6.2(c) requires that the Liquidation Trust indemnify the Indemnified Party. The Indemnified Party shall cooperate with the reasonable requests of the Liquidation Trustee in connection with such contest, settlement, adjustment, or compromises, provided that (i) the Indemnified Party (if not the Liquidation Trustee) may, if it so elects, employ counsel at its own expense to assist in (but not control) the handling of such claim, action, suit, or proceeding, (ii) the Liquidation Trustee shall obtain the prior written approval of the Indemnified Party before entering into any settlement, adjustment, or compromise of such claim, action, suit, or proceeding, or ceasing to defend against such claim, action, suit, or proceeding, if pursuant thereto, or as a result thereof, injunction or other relief would be imposed upon the Indemnified Party, and (iii) the Indemnified Party shall obtain the prior written approval of the Liquidation Trustee, or, if the Liquidation Trustee is the Indemnified Party, the prior written approval of the Bankruptcy Court, before entering into any settlement, adjustment or compromise of such claim, action, suit, or proceeding, or ceasing to defend against such claim, action, suit, or proceeding, and no such settlement, adjustment, or compromise shall be binding on the Liquidation Trust without such approval.

(d) Upon the appointment and acceptance of a successor

Liquidation Trustee in accordance with Section 7.5 and the delivery of the then remaining Liquidation Trust Assets to the successor Liquidation Trustee, the predecessor Liquidation Trustee and any of its respective accountants, agents, assigns, attorneys, bankers, consultants, directors,


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employees, executors, financial advisors, investment bankers, real estate brokers, transfer agents, managers, members, officers, partners, predecessors, principals, professional persons, representatives, affiliate, employer, and successors shall have no further liability or responsibility with respect thereto (other than liabilities arising prior to the cessation of its role as Liquidation Trustee). A successor Liquidation Trustee shall have no duty to examine or inquire into the acts or omissions of its immediate or remote predecessor, and no successor Liquidation Trustee shall be in any way liable for the acts or omissions of any predecessor Liquidation Trustee, unless a successor Liquidation Trustee expressly assumes such responsibility. A predecessor Liquidation Trustee shall have no liability for the acts or omissions of any immediate or subsequent successor Liquidation Trustee for any events or occurrences subsequent to the cessation of its role as Liquidation Trustee.

(e) Notwithstanding Section 1.B hereof, in the event of any

inconsistencies between Section 6 of this Agreement and Sections 5.4(h) and 5.4(i) of the Plan, the terms of this Agreement shall control with respect to such provisions.

SECTION 7. SELECTION, REMOVAL AND COMPENSATION OF LIQUIDATION TRUSTEE

7.1 Appointment.

The Liquidation Trustee has been selected pursuant to the provisions of the Plan, and is a “United States person” within the meaning of section 7701(a)(30) of the Tax Code. To effectuate an orderly and efficient transition of the administration, in accordance herewith, of the Liquidation Trust Assets from the Debtors to the Liquidation Trustee, the Liquidation Trustee may perform certain services in connection with its duties and obligations under this Agreement prior to the Effective Date, and the authorization for such performance is ratified by the execution hereof to the extent not already authorized by the Plan or Confirmation Order. The reasonable fees actually incurred by the Liquidation Trustee (or any professional retained by the Liquidation Trustee) for such services shall be deemed Liquidation Trust Expenses and paid pursuant to the terms of the Plan.

7.2 Term of Service.

The Liquidation Trustee shall serve until the earlier to occur of (a) the termination of the Liquidation Trust in accordance with this Agreement and the Plan or (b) the Liquidation Trustee’s death, dissolution, resignation or removal.

7.3 Removal of a Liquidation Trustee.

Any Person serving as Liquidation Trustee may be removed and replaced by an order of the Bankruptcy Court upon a showing of good cause. The removal shall be effective on the date specified in the order. Notwithstanding the removal of the Liquidation Trustee pursuant to this Section 7.3, the rights of the resigning Liquidation Trustee under this Agreement with respect to acts or omissions occurring prior to the effectiveness of such removal will continue for the benefit of such resigning Liquidation Trustee following the effectiveness of such resignation.


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7.4 Resignation of Liquidation Trustee.

The Liquidation Trustee may resign at any time by giving prior written notice of his intention to do so to the Bankruptcy Court, which notice shall be at least thirty (30) days unless the resignation is due to a disability or other incapacity. Without limiting any other reporting or accounting obligations under the Plan or this Agreement, in the event of a resignation, the resigning Liquidation Trustee shall file with the Bankruptcy Court a full and complete written accounting of monies and Liquidation Trust Assets received, disbursed, and held during the term of office of that Liquidation Trustee. The resignation shall be effective on the later to occur of: (a) the date specified in the notice; or (b) the appointment of a successor by the resigning Liquidation Trustee, the acceptance by such successor of such appointment and the approval of the successor’s appointment by the Bankruptcy Court; provided, that such resignation shall become effective on the date specified in the Liquidation Trustee’s notice without the appointment of a successor Liquidation Trustee if (i) the Liquidation Trustee determines in its reasonable judgment that the Liquidation Trust lacks sufficient assets and financial resources for the Liquidation Trustee to complete the duties and powers assigned to the Liquidation Trustee under the Plan, the Confirmation Order, and/or this Agreement, or (ii) the Insurance Coverages (as defined below) terminate for any reason other than the Liquidation Trustee’s unreasonable refusal to renew such Insurance Coverages, and provided further that if a successor Liquidation Trustee is not appointed or does not accept his appointment or if the appointment of a successor Liquidation Trustee has not been approved by the Bankruptcy Court within thirty (30) days following delivery of notice of resignation, the resigning Liquidation Trustee may petition the Bankruptcy Court for the appointment of a successor Liquidation Trustee. Notwithstanding the resignation of the Liquidation Trustee pursuant to this Section 7.4, the rights of the resigning Liquidation Trustee under this Agreement (including but not limited to indemnification and limitations on liability) with respect to acts or omissions occurring prior to the effectiveness of such resignation will continue for the benefit of such resigning Liquidation Trustee following the effectiveness of such resignation.

7.5 Appointment of Successor Liquidation Trustee.

The Liquidation Trustee may, at any time, select a successor Liquidation Trustee, subject to the approval of the Bankruptcy Court, to fill the vacancy created upon the resignation, death or dissolution of the Liquidation Trustee, provided, that, in the event the Liquidation Trustee is removed for cause pursuant to Section 7.3 hereof, or upon the unexpected death of the Liquidation Trustee at the time of which no successor trustee has been selected pursuant to this Section 7.5, any such successor Liquidation Trustee shall be approved by the Bankruptcy Court after motion filed by counsel to the Liquidation Trust and requisite notice provided to parties in interest in the Debtors’ chapter 11 case. Any successor Liquidation Trustee shall be a “United States person” within the meaning of section 7701(a)(30) of the Tax Code. Any successor Liquidation Trustee so appointed shall consent to and accept in writing the terms of this Agreement and agrees that the provisions of this Agreement shall be binding upon and inure to the benefit of the successor Liquidation Trustee.


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7.6 Powers and Duties of Successor Liquidation Trustee.

A successor Liquidation Trustee shall have all the rights, privileges, powers, and duties of his predecessor under this Agreement and the Plan. Notwithstanding anything to the contrary herein, a removed or resigning Liquidation Trustee shall, when requested in writing by the successor Liquidation Trustee, execute and deliver an instrument or, instruments conveying and transferring to such successor Liquidation Trustee under the Liquidation Trust all the estates, properties, rights, powers, and trusts of such predecessor Liquidation Trustee.

7.7 Liquidation Trust Continuance.

The death, resignation, dissolution, incapacity or removal of the Liquidation Trustee shall not terminate the Liquidation Trust or revoke any then-existing agency created pursuant to this Agreement or invalidate any action theretofore taken by the Liquidation Trustee.

7.8 Compensation and Costs of Administration.

The Liquidation Trustee shall receive fair and reasonable compensation for his services on an hourly basis at the Liquidation Trustee’s standard hourly billing rates plus all reasonable and documented costs and expenses, which shall be charged against and paid out of the Liquidation Trust Assets without further Bankruptcy Court approval or order (subject to the limitations set forth in this Agreement and the Plan). All costs, expenses, and obligations, including filing fees, incurred by the Liquidation Trustee (or Trust Professionals who may be employed by the Liquidation Trustee in administering the Liquidation Trust, in carrying out their responsibilities under this Agreement, or in any manner connected, incidental, or related thereto) shall be paid from the applicable Liquidation Trust Assets prior to any distribution to the Liquidation Trust Beneficiaries without further Bankruptcy Court approval or order (subject to the limitations set forth in this Agreement and the Plan). If the cash in the Liquidation Trust shall be insufficient to enable payment of any such amounts, then the Liquidation Trustee is hereby authorized to reduce to cash that portion of the Liquidation Trust Assets that are Causes of Action as necessary to effect such payment, subject to the terms of the Plan.

7.9 Periodic Reporting.

The Liquidation Trustee on behalf of the Liquidation Trust shall, as soon as practicable after the end of each calendar year and upon termination of the Liquidation Trust, provide or make available a written report and account to the holders of Liquidation Trust Interests, which report and account sets forth (i) the assets and liabilities of the Liquidation Trust at the end of each such calendar year and upon termination and the receipts and disbursements of the Liquidation Trust for such calendar year or period, and (ii) changes in the Liquidation Trust Assets and actions taken by the Liquidation Trustee in the performance of its duties under the Plan or the Agreement that the Liquidation Trustee determines in its discretion may be relevant to holders of Liquidation Trust Interests, such as material changes or actions that, in the opinion of the Liquidation Trustee, may have a material effect on the Liquidation Trust Assets that were not previously reported. The Liquidation Trustee on behalf of the Liquidation Trust may provide or make available to holders of Liquidation Trust Interests similar reports for such interim periods during the calendar year as the Liquidation Trustee deems advisable. Such reports may be provided or made available to the


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holders of Liquidation Trust Interests, in the discretion of the Liquidation Trustee, by any reasonable means, including U.S. mail, electronic transmission, display on IntraLinks or a similar virtual data room to which holders shall have access, filing with the Bankruptcy Court, publication to a publicly-available website or by press release distributed via a generally recognized business news service.

7.10 Confidentiality.

Except as required in the performance of his duties, the Liquidation Trustee shall, while serving as Liquidation Trustee under this Agreement, hold strictly confidential and not use for personal gain any material, non-public information of or pertaining to any Person to which any of the Liquidation Trust Assets relate or of which he has become aware in his capacity as Liquidation Trustee. Notwithstanding the foregoing, the Liquidation Trustee may disclose information in connection with executing his duties hereunder to the Trust Professionals, employees, officers, directors and agents of Ankura Consulting Group, LLC and as required or requested pursuant to law, legal process or regulation.

SECTION 8. MAINTENANCE OF RECORDS

During the term of the Liquidation Trust, the Liquidation Trustee may destroy business records in the Liquidation Trustee’s possession as the Liquidation Trustee deems appropriate provided that, absent express Bankruptcy Court approval to do otherwise, the Liquidation Trustee shall maintain books and records containing a description of all property from time to time constituting the Liquidation Trust Assets and an accounting of all receipts and disbursements until at least six (6) years after the final report to the Bankruptcy Court has been rendered by the Liquidation Trustee. At the Liquidation Trustee’s discretion, all of such records and documents may, but need not, be destroyed at any time after six (6) years from the completion and winding up of the affairs of the Liquidation Trust (except to the extent such records and documents are necessary to be held longer to fulfill the Liquidation Trustee’s obligations pursuant to this Agreement). The Liquidation Trustee may estimate and include, as part of the Liquidation Trustee’s compensation, a reasonable sum to be used for the purposes of maintaining, accessing and destroying records during the term of the Liquidation Trust and for three (6) or more years thereafter, as applicable, which costs shall be payable from the Liquidation Trust Assets.

Notwithstanding the foregoing, the Liquidation Trustee shall store and preserve the documents and records necessary for the administration of the Pension Plans to the degree required by and in accordance with Section 5.3(b) of the Plan.

SECTION 9. DURATION OF LIQUIDATION TRUST

9.1 Duration.

This Agreement and the establishment of the Liquidation Trust shall be effective on the date of Effectiveness. Thereupon, this Agreement shall remain and continue in full force and effect until the Liquidation Trust is terminated in accordance with the provisions of this Agreement.

9.2 Dissolution of the Liquidation Trust.


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The Liquidation Trust shall be dissolved at such time as:

(a) upon (i) the payment of all costs, expenses and obligations incurred in connection with administering the Liquidation Trust, (ii) the Distribution of all Liquidation Trust Assets, and (iii) the completion of all responsibilities of the Liquidation Trust (or the Liquidation Trustee on its behalf), each as set forth in, and in accordance with, the provisions of the Plan, the Confirmation Order and this Agreement;

(b) if the Liquidation Trust has not been previously terminated

pursuant to this Agreement, (i) on the fifth anniversary of the Effective Date of the Plan (unless the Liquidation Trust term has been extended in accordance with this section), or (ii) in the event the Liquidation Trustee determines that the pursuit of additional actions on behalf of the Liquidation Trust is not likely to yield sufficient additional proceeds to justify further pursuit of such actions, the Liquidation Trustee shall, after payment of all costs, expenses and obligations incurred in connection with administering the Liquidation Trust, Distribute all of the Liquidation Trust Assets to the Liquidation Trust Beneficiaries in accordance with the Plan, and immediately thereafter the Liquidation Trust shall dissolve and terminate and the Liquidation Trustee shall have no further responsibility in connection therewith except to the limited extent set forth in this Agreement. In no event shall the Liquidation Trust be dissolved later than five years from the Effective Date of the Plan unless the Bankruptcy Court, upon motion made within the six month period before such fifth anniversary (and, in the event of further extension, by order of the Bankruptcy Court, upon motion made at least six months before the end of the preceding extension), determines that a fixed period extension (not to exceed three years, together with any prior extensions, without a favorable private letter ruling from the Internal Revenue Service or an opinion of counsel satisfactory to the Liquidation Trustee that any further extension would not adversely affect the status of the Liquidation Trust as a liquidating trust for U.S. federal income tax purposes) is necessary to facilitate or complete the recovery on, and liquidation of, the Liquidation Trust Assets, including all responsibilities of the Liquidation Trust (or the Liquidation Trustee on its behalf) as set forth in, and in accordance with, the provisions of the Plan, the Confirmation Order and this Agreement. If at any time the Liquidation Trustee determines, in reliance upon such Trust Professionals as the Liquidation Trustee may retain, that the expense of administering the Liquidation Trust so as to make a final distribution to the Liquidation Trust Beneficiaries is likely to exceed the value of the assets remaining in the Liquidation Trust, the Liquidation Trustee may apply to the Bankruptcy Court for authority to (i) reserve any amount necessary to dissolve the Liquidation Trust, (ii) donate any balance to a charitable organization (A) of the type described in section 501(c)(3) of the Tax Code, (B) exempt from U.S. federal income tax under section 501(a) of the Tax Code, (C) that is not a “private foundation”, as defined in section 509(a) of the Tax Code, and (D) that is unrelated to the Debtors, the Reorganized Debtors, the Liquidation Trust, and any insider of the Liquidation Trustee, and (iii) dissolve the Liquidation Trust.


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9.3 No Termination by Liquidation Trust Beneficiaries.

The Liquidation Trust may not be terminated at any time by the Liquidation Trust Beneficiaries.

9.4 Continuance of Liquidation Trust for Winding Up.

After the dissolution of the Liquidation Trust and for the purpose of liquidation and winding up the affairs of the Liquidation Trust, the Liquidation Trustee shall continue to act as such until his duties have been fully performed, including such post-distribution tasks as necessary to wind up the affairs of the Liquidation Trust. Subject to the provisions of Section 8 hereof, after the termination of the Liquidation Trust, the Liquidation Trustee, for a time, shall retain or cause to be retained certain books, records, Liquidation Trust Beneficiary lists, and certificates and other documents and files that shall have been delivered to or created by the Liquidation Trustee. Except as otherwise specifically provided herein, upon the discharge of all liabilities of the Liquidation Trust, final Distribution of the Liquidation Trust and termination of the Liquidation Trust, the Liquidation Trustee shall have no further duties or obligations hereunder.

SECTION 10. TAX MATTERS

10.1 Liquidation Trustee’s Tax Power for Debtors.

(a) For all taxable periods ended on or before the dissolution of the Debtors, the Liquidation Trustee shall have full and exclusive authority and responsibility in respect of all taxes of the Debtors (including as the common parent or other agent of any consolidated, combined or unitary tax group of which the Debtors were the agent), to the same extent as if the Liquidation Trustee were the Debtors. Without limiting the foregoing, each of the Debtors shall execute, on or prior to the Effective Date, a power of attorney authorizing the Liquidation Trustee to correspond with any tax authority on behalf of such Debtor and to sign, collect, negotiate, settle, and administer tax payments and tax returns.

(b) In furtherance of the transfer of the Liquidation Trust Assets to the Liquidation Trust on the Effective Date, the Liquidation Trust shall be entitled to all tax refunds of the Debtors (and the Liquidation Trust shall bear responsibility for all tax liabilities of the Debtors for taxable periods ended on or before the dissolution of the Debtors, to the extent not discharged by the Plan or provided for payment or otherwise satisfied in the Plan).

(c) Following the Effective Date, the Liquidation Trustee shall prepare and file (or cause to be prepared and filed), on behalf of the Debtors, all tax returns required to be filed or that the Liquidation Trustee otherwise deems appropriate, including the filing of amended tax returns or requests for refunds for all taxable periods ended on or before the dissolution of the Debtors.


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10.2 Liquidating Trust Status; Ownership of Liquidation Trust Assets.

(a) For U.S. federal income tax purposes (and to the extent applicable, for state and local income tax purposes), the Liquidation Trust is intended to be treated as a “liquidating trust” under Treasury Regulations section 301.7701-4(d) and, thus, as a grantor trust pursuant to sections 671-677 of the Tax Code (subject to the elective treatment of one or more Disputed Claims Reserves as “disputed ownership funds” described in Treasury Regulation section 1.468B-9). The Liquidation Trust shall at all times be administered so as to constitute a domestic trust for U.S. federal income tax purposes.

(b) For all U.S. federal income tax purposes, all parties (including the Debtors, the Liquidation Trustee, and the Liquidation Trust Beneficiaries) shall treat the transfer of the Liquidation Trust Assets to the Liquidation Trust as a deemed transfer of the Liquidation Trust Assets by the Debtors to the Liquidation Trust Beneficiaries on account of their Allowed Claims under the Plan (subject to any obligations relating to those assets), followed by a deemed transfer of the Liquidation Trust Assets by the Liquidation Trust Beneficiaries to the Liquidation Trust in exchange for the beneficial interests herein (subject to the elective treatment of one or more Disputed Claims Reserves as “disputed ownership funds” described in Treasury Regulation section 1.468B-9). Accordingly, the Liquidation Trust Beneficiaries shall be treated for U.S. federal income tax purposes as the grantors and owners of their respective share of such Liquidation Trust Assets. The foregoing treatment shall also apply, to the extent permitted by applicable law, for state and local income tax purposes.

10.3 Tax Reporting; Valuation

(a) The Liquidation Trustee shall file tax returns for the Liquidation Trust treating the Liquidation Trust as a grantor trust pursuant to Treasury Regulation section 1.671-4(a) and in accordance with this Section 10. The Liquidation Trustee also will annually send to each holder of a Liquidation Trust Interest a separate statement regarding the receipts and expenditures of the Liquidation Trust as relevant for U.S. federal income tax purposes and will instruct all such holders to use such information in preparing their U.S. federal income tax returns or to forward the appropriate information to such holder’s underlying beneficial holders with instructions to utilize such information in preparing their U.S. federal income tax returns. The Liquidation Trustee shall also file (or cause to be filed) any other statement, return or disclosure relating to the Liquidation Trust that is required by any governmental unit.

(b) As soon as reasonably practicable after Liquidation Trust Assets are transferred to the Liquidation Trust, the Liquidation Trustee shall make a good faith valuation of Liquidation Trust Assets and the Liquidation Trustee shall apprise, in writing, the Liquidation Trust Beneficiaries of such valuation, as relevant, from time to time. In connection with the preparation of the valuation contemplated hereby and by the Plan, the Liquidation Trust shall be entitled to retain such professionals and advisors as the Liquidation Trust shall determine to be appropriate or necessary, and the Liquidation Trustee shall take such other actions in connection therewith as it determines to be appropriate or necessary. Such valuation shall be used consistently by such parties for all U.S. federal income tax purposes, including for determining tax basis and gain or loss.


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(c) Allocations of Liquidation Trust taxable income among the Liquidation Trust Beneficiaries (other than taxable income allocable to, or retained on account of, any Disputed Claims Reserve) shall be determined by reference to the manner in which an amount of Cash representing such taxable income would be distributed (were such cash permitted to be distributed at such time) if, immediately prior to such deemed Distribution, the Liquidation Trust had distributed all its assets (valued at their tax book value, and other than any Disputed Claims Reserve) to the holders of the Liquidation Trust Interests, adjusted for prior taxable income and loss and taking into account all prior and concurrent Distributions from the Liquidation Trust. Similarly, taxable loss of the Liquidation Trust will be allocated by reference to the manner in which an economic loss would be borne immediately after a hypothetical liquidating Distribution of the remaining Liquidation Trust Assets. The tax book value of the Liquidation Trust Assets for purposes of this Section 10.4(c) shall equal their fair market value on the Effective Date, or, if later, the date such assets were acquired by the Liquidation Trust, adjusted in accordance with tax accounting principles prescribed by the Tax Code, the applicable Treasury Regulations, and other applicable administrative and judicial authorities and pronouncements.

10.4 Tax Treatment of Disputed Claims Reserve.

(a) Subject to definitive guidance from the Internal Revenue Service or a court of competent jurisdiction to the contrary (including the receipt by the Liquidation Trustee of a private letter ruling if the Liquidation Trustee so requests one, or the receipt of an adverse determination by the Internal Revenue Service upon audit if not contested by the Liquidation Trustee), the Liquidation Trustee (i) may timely elect to treat any Disputed Claims Reserve as a “disputed ownership fund” governed by Treasury Regulation section 1.468B-9, and file such tax returns and pay such taxes as may be required consistent with such treatment, and (ii) to the extent permitted by applicable law, shall report consistently with the foregoing for state and local income tax purposes. If a “disputed ownership fund” election is made, all parties (including the Liquidation Trustee and the Liquidation Trust Beneficiaries) shall report for U.S. federal, state and local income tax purposes consistently with the foregoing.

(b) The Liquidation Trustee shall be responsible for payment, out of the Liquidation Trust Assets, of any taxes imposed on the Liquidation Trust or its assets, including any Disputed Claims Reserve. More particularly, any taxes imposed on any Disputed Claims Reserve or its assets will be paid out of the assets of the Disputed Claims Reserve, and netted against any subsequent distributions in respect of the allowance or disallowance of such Claims. In the event, and to the extent, any Cash in any Disputed Claims Reserve is insufficient to pay the portion of any taxes attributable to taxable income arising from assets of the Disputed Claims Reserve (including any income that may arise upon an actual or constructive distribution of the assets of the reserve in respect of the resolution of Disputed Claims), assets of the Disputed Claims Reserve (including those otherwise distributable) may be sold to pay such taxes.

10.5 Prompt Determination of Taxes. The Liquidation Trustee may request an expedited determination of taxes of the Liquidation Trust (including any Disputed Claims Reserve) or the Debtors under section 505(b) of the Bankruptcy Code for all tax returns filed for, or on behalf of, the Liquidation Trust or the Debtors for all taxable periods through the dissolution of the Liquidation Trust and for all applicable taxable periods of the Debtors.


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10.6 Tax Withholding by Liquidation Trustee.

(a) The Liquidation Trustee may withhold and pay to the appropriate tax authority all amounts required to be withheld pursuant to the Tax Code or any provision of any foreign, state or local tax law with respect to any payment or Distribution to the holders of Liquidation Trust Interests. All such amounts withheld and paid to the appropriate tax authority (or placed in escrow pending resolution of the need to withhold) shall be treated as amounts distributed to such holders of Liquidation Trust Interests for all purposes of this Agreement.

(b) The Liquidation Trustee shall be authorized to collect such tax information from the holders of Liquidation Trust Interests (including social security numbers or other tax identification numbers) as in its sole discretion the Liquidation Trustee deems necessary to effectuate the Plan, the Confirmation Order, and this Agreement. In order to receive Distributions under the Plan, all holders of Liquidation Trust Interests shall be required to identify themselves to the Liquidation Trustee and provide tax information and the specifics of their holdings, to the extent the Liquidation Trustee deems appropriate in the manner and in accordance with the procedures from time to time established by the Liquidation Trustee for these purposes. This identification requirement generally applies to all holders, including those who hold their Claims in “street name.” The Liquidation Trustee may refuse to make a Distribution to any holder of a Liquidation Trust Interest that fails to furnish such information in a timely fashion, and until such information is delivered may treat such holder’s Liquidation Trust Interests as disputed; provided, however, that, upon the delivery of such information by a holder of a Liquidation Trust Interest, the Liquidation Trustee shall make such Distributions to which the holder of the Liquidation Trust Interest is entitled, without additional interest occasioned by such holder’s delay in providing tax information; provided, further, that, if such information is not furnished to the Liquidation Trustee within 150 days of the original request to furnish such information, the amount of such Distribution shall irrevocably revert to the Liquidation Trust, any Claim in respect of such Distribution shall be discharged and forever barred from assertion against any Debtor and its respective property, and no further Distributions shall be made to the holder of such Liquidation Trust Interest; provided, further, that, if the Liquidation Trustee fails to withhold in respect of amounts received or distributable with respect to any such holder and the Liquidation Trustee is later held liable for the amount of such withholding, such holder shall reimburse the Liquidation Trustee for such liability (to the extent such amounts were actually distributed to such holder).

SECTION 11. THE DELAWARE TRUSTEE

11.1 Delaware Trustee Protections. Notwithstanding any other provision hereof to the contrary, the parties hereto agree to the following:

(a) [DELAWARE TRUSTEE] (the “Delaware Trustee”) is appointed to serve as the trustee of the Liquidation Trust for the sole purpose of satisfying the requirement of Section 3807(a) of the Act that a statutory trust have at least one trustee with a principal place of business in the State of Delaware or is an individual who is a resident of the State of Delaware.

(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Liquidation Trust in the State of Delaware and (ii) the execution of any


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certificates which the Delaware Trustee is required to execute under the Act. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Liquidation Trust or the Liquidation Trust Beneficiary, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are eliminated and replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Agreement.

(c) Notwithstanding any provision herein, the Delaware Trustee shall not be required to take any action hereunder if it shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in personal liability or is contrary to the terms hereof or is otherwise contrary to law or a policy of any regulatory authority or governmental agency.

(d) Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement or is unsure as to the application of any provision of this Agreement or any such provision is ambiguous as to its application, or may be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by the Delaware Trustee or is silent or is incomplete as to the course of action that the Delaware Trustee is required or permitted to take with respect to a particular set of facts, the Delaware Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Liquidation Trustee requesting instruction as to the course of action to be adopted, and to the extent that the Delaware Trustee acts or refrains from acting in good faith in accordance with any such written instruction, the Delaware Trustee shall not be personally liable on account of such action or inaction to any Person. If the Delaware Trustee shall not have received appropriate instruction within ten (10) calendar days of receipt of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action, not inconsistent with this Agreement, as it shall deem to be in the best interests of the Liquidation Trust Beneficiaries, and shall have no personal liability to any Person for such action or inaction.

(e) The Delaware Trustee shall have no duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of, or otherwise deal with the Liquidation Trust Assets, and no implied duties (including fiduciary duties) or obligations shall be read into this Agreement. The Delaware Trustee shall have no responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to the Liquidation Trust or to prepare or file any filing for the Liquidation Trust (other than as required by the Act) or to record this Agreement or any other document.

(f) The Delaware Trustee acts hereunder not in its individual capacity, and all Persons having any claim against the Delaware Trustee by reason of the transactions contemplated by this Agreement shall look only to the Liquidation Trust Assets for payment or satisfaction thereof.

(g) The Delaware Trustee makes no representations as to the validity or sufficiency of this Agreement or of any of the Liquidation Trust Assets or related documents. The Delaware Trustee shall have no personal responsibility or liability for or with respect to the


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legality, validity and enforceability of any Liquidation Trust Asset, or the perfection and priority of any security interest created by any Liquidation Trust Asset or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Liquidation Trust Assets or its ability to generate the payments to be distributed to the related Liquidation Trust Beneficiaries under this Agreement, including, without limitation: the origination, the existence, condition, ownership and servicing of any Liquidation Trust Asset; the existence and enforceability of any insurance thereon; the existence and contents of any Liquidation Trust Asset on any computer or other record thereof, the validity of the assignment of any Liquidation Trust Asset to the Liquidation Trust or of any intervening assignment; the completeness of any Liquidation Trust Asset; the performance or enforcement of any Liquidation Trust Asset; the compliance with any warranty or representation made under any document or the accuracy of any such warranty or representation.

(h) The Delaware Trustee shall not be personally answerable or accountable hereunder under any circumstances, except to the Liquidation Trust Beneficiaries and the Liquidation Trust for its own willful misconduct or gross negligence in the performance of its express duties hereunder, The Delaware Trustee shall have no liability for the acts or omissions of any other Person.

(i) The Delaware Trustee shall not be personally liable for any error of judgment made by the Delaware Trustee.

(j) The Delaware Trustee shall not be personally liable with respect to any action taken or omitted to be taken by it in accordance with the instructions of the Liquidation Trustee.

(k) No provision of this Agreement or any related document shall require the Delaware Trustee to expend or risk its own funds or otherwise incur any personal financial liability in the performance of any of its respective rights, duties, or powers hereunder.

(l) Under no circumstances shall the Delaware Trustee be personally liable for any duties, obligations or indebtedness of the Liquidation Trust.

(m) The Delaware Trustee shall not be personally liable for the default or misconduct of any other Person hereunder or other party to any document to which the Liquidation Trust is a party or signatory or otherwise and shall not be personally liable for monitoring the performance of such Persons.

(n) The right of the Delaware Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty.

(o) Notwithstanding any other provisions hereof to the contrary, the Delaware Trustee shall not be liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Delaware Trustee has been advised of the likelihood of such loss or damage, and regardless of the form of action.

(p) The Delaware Trustee shall not be liable or responsible for delays or failures in the performance of their obligations hereunder arising out of or caused, directly or indirectly,


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by circumstances beyond their control (such acts include but are not limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, shelter in place or similar directive and interruptions, losses or malfunctions of utilities, computer (hardware or software) or communications services).

(q) The Delaware Trustee shall not incur any personal liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond, or other document or paper believed by it to be genuine and believed by it to be signed by an appropriate Person, may accept a certified copy of a resolution of the board of directors or other governing body of any Person as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect, and as to any fact or matter the method of the determination of which is not specifically prescribed herein, may for all purposes hereof rely on a certificate, signed by the Liquidation Trustee as to such fact or matter and such certificate shall constitute full protection to the Delaware Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.

(r) In the performance of its duties and obligations under this Agreement, the Delaware Trustee at the expense of the Liquidation Trust (i) may act directly or through its agents or attorneys pursuant to agreements entered into with any of them, and the Delaware Trustee shall not be personally liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Delaware Trustee in good faith and (ii) may consult with counsel, accountants and other skilled persons, in each case, to be selected by the Delaware Trustee in good faith, and such advice shall be full and complete authorization and protection with respect to any action taken or omitted by it hereunder in good faith and in accordance with the advice or opinion of counsel, accountants or other such persons.

11.2 Third Party Beneficiary. The Delaware Trustee shall be a third party beneficiary of this Agreement entitled to enforce this Agreement to the same extent as though a party hereto.

11.3 Fees and Indemnity. The Delaware Trustee shall be entitled to

receive from the Liquidation Trust as compensation for its services hereunder such fees as set forth in the fee letter with the Delaware Trustee, which compensation shall not be limited by any provision of law in regard to compensation of a trustee of an express trust. The Liquidation Trust shall (i) reimburse the Delaware Trustee for all reasonable and documented expenses incurred by it in connection with the execution and performance of its rights and duties hereunder (including reasonable fees and expenses of counsel and other experts, including fees and expenses of counsel in the enforcement of this Agreement, including indemnification provisions); (ii) indemnify, defend and hold harmless the Delaware Trustee (in both its individual and trustee capacities) and the officers, directors, employees and agents of the Delaware Trustee (collectively, including the Delaware Trustee in its individual capacity, the “Covered Persons”) from and against any and all documented losses, damages, liabilities, claims, actions, suits, costs, expenses, disbursements (including the reasonable fees and expenses of counsel), taxes and penalties of any kind and nature whatsoever, to the extent that such expenses arise out of or are imposed upon or asserted at any time against one or more Covered Persons with respect to the performance of this Agreement, the creation, operation, administration or termination of the Trust, or the transactions contemplated hereby (all such expenses as provided in clauses (i) and


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(ii) are herein referred to collectively as “Expenses”), provided, however, that the Trust shall not be required to indemnify an Covered Person for Expenses to the extent such Expenses result from the willful misconduct or gross negligence of such Covered Person; and (iii) advance to each Covered Person Expenses (including reasonable legal fees) incurred by such Covered Person in defending any claim, demand, action, suit or proceeding, prior to the final disposition of such claim, demand, action, suit or proceeding. With respect to reimbursement or indemnity provided hereunder, an Covered Person shall have a lien on the Liquidation Trust Assets prior to any rights in such property of the Liquidation Trust Beneficiaries. The indemnities contained in this Section shall survive the removal, resignation or termination of the Delaware Trustee and the termination of the Liquidation Trust and this Agreement.

11.4 Resignation and Removal. The Delaware Trustee may resign and

be discharged hereunder upon not less than 30 days’ prior written notice to the Liquidation Trustee. The Delaware Trustee also may be removed and discharged, with or without cause, upon the delivery by the Liquidation Trustee to the Delaware Trustee of a written notice of removal. Upon receiving such a notice of resignation or removal, the Liquidation Trustee shall use its best efforts promptly to appoint a substitute or successor Delaware Trustee in the manner and meeting the qualifications hereinafter provided by written instrument or instruments delivered to such resigning Delaware Trustee and the substitute or successor Delaware Trustee. Any resignation or removal of the Delaware Trustee and appointment of a substitute or successor Delaware Trustee shall become effective only upon acceptance of the appointment by the substitute or successor Delaware Trustee. If no substitute or successor Delaware Trustee shall have been appointed within 30 days after notice of such resignation or removal has been delivered, at the expense of the Liquidation Trust the Delaware Trustee may apply to a court of competent jurisdiction for the appointment of a successor Delaware Trustee. Such court may thereupon, after such notice, if any, as it may deem proper, prescribe and appoint a successor Delaware Trustee meeting the qualifications provided for herein.

11.5 Merger. Any Person into which the Delaware Trustee may be

merged or with which it may be consolidated, or any Person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any Person that succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the successor Delaware Trustee under this Agreement without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto (except for the filing of an amendment to the Trust’s certificate of trust if required by the Act), notwithstanding anything to the contrary herein; provided, however, that such successor Delaware Trustee shall have its principal place of business in the State of Delaware and otherwise meet the requirements of the Act and applicable law.

SECTION 12. MISCELLANEOUS

12.1 Preservation of Privilege.

In connection with the rights, claims, and causes of action that constitute Liquidation Trust Assets, any attorney-client privilege, work-product doctrine, or other privilege or immunity attaching to any documents or communications (whether written or oral) transferred to the Liquidation Trust pursuant to the terms of the Plan or otherwise shall vest in the Liquidation


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Trustee and his representatives, and the Liquidation Trustee is authorized to take all necessary actions to effectuate the transfer of such privileges, as necessary. The Liquidation Trustee’s receipt of such privileges shall not operate as a waiver of any other privileges or immunities possessed by the Debtors.

12.2 Notices.

Unless otherwise expressly provided herein, all notices to be given to Liquidation Trust Beneficiaries may be given by ordinary mail, or may be delivered personally, to the holders at the addresses appearing on the books kept by the Liquidation Trustee. Any notice or other communication which may be or is required to be given, served, or sent to the Liquidation Trust shall be in writing and shall be sent by email and registered or certified United States mail, return receipt requested, postage prepaid, or transmitted by hand delivery (if receipt is confirmed) addressed as follows:

If to the Liquidation Trust or the Liquidation Trustee:

Ankura Consulting Group, LLC 485 Lexington Avenue 10th Floor New York, NY 10017 Attn: Adrian Frankum Email: [email protected] Telephone: (646) 968-3655 Facsimile: (212) 818-1551 With a copy to:

Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 Attn: Garrett A. Fail David J. Cohen Email: [email protected] [email protected] Telephone: (212) 310-8000 Facsimile: (212) 310-8007

12.3 No Bond / Insurance.

Notwithstanding any state law to the contrary, the Liquidation Trustee (including any successor) shall be exempt from giving any bond or other security in any jurisdiction, unless the Liquidation Trustee decides in his reasonable judgment to obtain such bond or other security. The Liquidation Trustee is hereby authorized, but not required to obtain all reasonable insurance coverage for itself, its agents, representatives, employees or independent contractors, including coverage with respect to the liabilities, duties and obligations of the Liquidation Trustee and its agents, representatives, employees or independent contractors under this Agreement and the Plan


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(“Insurance Coverages”). The cost of any such Insurance Coverage shall be an expense of the Liquidation Trust and paid out of the Liquidation Trust Assets.

12.4 Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware (excluding conflict of laws rules), including all matters of validity, construction and administration; provided, however, that there shall not be applicable to the Liquidation Trust, the Liquidation Trustee or this Agreement, (a) the provisions of Section 3540 of Title 12 of the Delaware Code and (b) to the fullest extent permitted by applicable law any provisions of the laws (statutory or common) of the State of Delaware pertaining to trusts that relate to or regulate, in a manner inconsistent with the terms hereof, (i) the filing with any court or governmental body or agency of trustee accounts or schedule of trustee fees and charges, (ii) affirmative requirements to post bonds for trustees, officers, agents or employees of a trust, (iii) the necessity for obtaining court or other governmental approval concerning the acquisition, holding or disposition of real or personal property, (iv) fees or other sums payable to trustees, officers, agents or employees of a trust, (v) the allocation of receipts and expenditures to income and principal, or (vi) restrictions or limitations on the permissible nature, amount or concentration of trust investments or requirements relating to the titling, storage or other manner of holding or investing trust assets.

12.5 Successors and Assigns.

This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns.

12.6 Headings.

The various headings of this Agreement are inserted for convenience only and shall not affect the meaning or understanding of this Agreement or any provision hereof.

12.7 Cumulative Rights and Remedies.

The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies under law or in equity.

12.8 No Execution.

All funds in the Liquidation Trust shall be deemed in custodia legis until such times as the funds have actually been paid to or for the benefit of a Liquidation Trust Beneficiary, and no Liquidation Trust Beneficiary or any other Person can execute upon, garnish or attach the Liquidation Trust Assets or the Liquidation Trust in any manner or compel payment from the Liquidation Trust except by Final Order of the Bankruptcy Court. Payment will be solely governed by this Agreement and the Plan.


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12.9 Amendment.

The Liquidation Trustee may, from time to time, modify, supplement, or amend this Agreement but only to clarify any ambiguity or inconsistency, or render the Agreement in compliance with its stated purposes, and only if such amendment does not materially and adversely affect the interests, rights, treatment, or Distributions of any Liquidation Trust Beneficiary or with respect to any Allowed Unsecured Claim. The Liquidation Trustee, with the approval of the Bankruptcy Court, may, from time to time, modify, supplement, or amend this Agreement. No amendment or waiver of any provision of this Agreement which adversely affects the Delaware Trustee shall be effective against it without its prior written consent.

12.10 Waiver.

No failure by the Liquidation Trustee to exercise or delay in exercising any right, power, or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any further exercise thereof, or of any other right, power, or privilege.

12.11 Severability.

If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

12.12 Counterparts and Facsimile Signatures.

This Agreement may be executed in counterparts and a facsimile or other electronic form of signature shall be of the same force and effect as an original.

12.13 Jurisdiction.

The Bankruptcy Court shall have jurisdiction regarding the Liquidation Trust, the Liquidation Trustee, and the Liquidation Trust Assets, including the determination of all disputes arising out of or related to administration of the Liquidation Trust. The Bankruptcy Court shall have continuing jurisdiction and venue to hear and finally determine all disputes and related matters arising out of or related to this Agreement or the administration of the Liquidation Trust. The parties expressly consent to the Bankruptcy Court hearing and exercising such judicial power as is necessary to finally determine all such disputes and matters. If the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or is otherwise without jurisdiction over any matter arising in, arising under, or related to the Chapter 11 Cases, including the matters set forth in this Agreement, then the provisions of this Agreement shall have no effect on and shall not control, limit or prohibit the exercise of jurisdiction by any other court having competent jurisdiction with respect to such matter, and all applicable references in this Agreement to an order or decision of the Bankruptcy Court shall instead mean an order or decision of such other court of competent jurisdiction. Notwithstanding anything herein to the contrary, to the extent required by the Act (i) the parties hereto and the Liquidation Trust Beneficiaries agree to the non-exclusive


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jurisdiction of the courts of the State of Delaware and (ii) the Court of Chancery of the State of Delaware shall have jurisdiction over the Liquidation Trust to the same extent as it has jurisdiction over common law trusts formed under the laws of the State of Delaware.

[The remainder of this page is intentionally left blank.]


IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above.

DEBTORS: BBGI US, Inc. Brooks Brothers Far East Limited BBD Holding 1, LLC BBD Holding 2, LLC; BBDI, LLC BBGI International, LLC BBGI Restaurant, LLC Deconic Group LLC Golden Fleece Manufacturing Group, LLC RBA Wholesale, LLC Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc. 696 White Plains Road, LLC BBGI Canada Ltd.

By: Name: [•]

LIQUIDATION TRUSTEE:

By: Name: Adrian Frankum, solely in his capacity as a Senior

Managing Director of Ankura Consulting Group, LLC and as Liquidation Trustee and not in any individual capacity

Accepted and agreed: [DELAWARE TRUSTEE]

By: Name:

Title:


Exhibit C

Litigation Trust Agreement


43334.0050043334.00500

LITIGATION TRUST AGREEMENT

This LITIGATION TRUST AGREEMENT is made this (this “Agreement”), by and among BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.); Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; 696 White Plains Road, LLC; and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.), as debtors and debtors-in-possession (collectively, the “Debtors”), and William T. Reid, IV PLLC, as trustee of the Litigation Trust referred to herein (in such capacity, the “Litigation Trustee”). This Agreement creates and establishes the Litigation Trust (the “Litigation Trust”) referenced herein in order to facilitate the implementation of the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and its Affiliated Debtors, dated [January 27, 2021] (as may be amended, supplemented, or otherwise modified from time to time in accordance with the terms and provisions thereof, the “Plan”). Each Debtor and the Litigation Trustee are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties.”

RECITALS

WHEREAS, each of the Debtors filed a voluntary petition for relief (collectively, the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) on July 8, 2020 (the “Petition Date”) in the District of Delaware (the “Bankruptcy Court”);

WHEREAS, on July 21, 2020, the United States Trustee for the District of Delaware appointed an official committee of unsecured creditors (as may be reconstituted from time to time, the “Creditors’ Committee”) in the Chapter 11 Cases;

WHEREAS, on December 24, 2020, the Debtors filed the Plan (Docket No. 844) and the disclosure statement relating to the Plan (Docket No. 845) with the Bankruptcy Court;

WHEREAS, on January 22, 2021, the Debtors filed an amended version of the Plan (Docket No. 918) and the disclosure statement relating to the Plan (Docket No. 919) with the Bankruptcy Court;

WHEREAS, on January 27, 2021, the Debtors filed a further amended version of the Plan (Docket No. 957);

WHEREAS, , the Bankruptcy Court entered its order confirming the Plan (Docket (the “Confirmation Order”);

WHEREAS, the Plan provides, among other things, as of the effective date of the Plan (the “Effective Date”), for the establishment of the Litigation Trust to liquidate the Litigation Trust Assets,1 including by, among other things, prosecuting, settling, compromising, abandoning, or otherwise assessing and, if possible, realizing the value of the DV Claims, Former D&O and

1 For all purposes of this Agreement, capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Plan.


2

Shareholder Causes of Action, and any other Causes of Action assigned to the Litigation Trust pursuant to the Plan, from time to time in accordance with the terms of the Plan for the benefit of the Litigation Trust Beneficiaries;

WHEREAS, the Litigation Trust’s primary purpose is liquidating the Litigation Trust Assets, with no objective to continue or engage in the conduct of a trade or business except to the extent reasonably necessary to, and consistent with, the Litigation Trust’s liquidating purpose and reasonably necessary to conserve and protect the Litigation Trust Assets and provide for the orderly liquidation thereof;

WHEREAS, consistent with the terms of the Plan, the Litigation Trust is intended to be treated for U.S. federal income tax purposes as a liquidating trust described in Treasury Regulation section 301.7701-4(d) and generally in compliance with Revenue Procedure 94-45, 1994-2 C.B. 684; accordingly, for U.S. federal income tax purposes, the Litigation Trust is intended to qualify as a “grantor trust” within the meaning of sections 671 through 679 of the Internal Revenue Code of 1986, as amended (the “Tax Code”) with the Litigation Trust Beneficiaries treated as grantors and owners of the Litigation Trust (other than with respect to any assets allocable to, or retained on account of, disputed claims as a “disputed ownership fund”, within the meaning of Treasury Regulation section 1.468B-9);

WHEREAS, for U.S. federal income tax purposes, the transfer of assets by the Debtors to the Litigation Trust is intended to be treated as the transfer of assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, subject to any liability of the Debtors or the Litigation Trust payable from the proceeds of such assets, followed by the transfer of such assets (subject to such liabilities) by such holders to the Litigation Trust in exchange for the beneficial interests in the Litigation Trust; and thus, the Litigation Trust Beneficiaries are intended to be treated as the grantors and owners of a grantor trust for U.S. federal income tax purposes;

WHEREAS, the Litigation Trust shall not be deemed a successor-in-interest of the Debtors for any purpose other than as specifically set forth in this Agreement or the Plan; and

WHEREAS, the Litigation Trustee shall have all powers necessary to implement the provisions of this Agreement and administer the Litigation Trust as provided herein.

NOW, THEREFORE, pursuant to the Plan and the Confirmation Order, in consideration of the promises, the mutual agreements of the Parties contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and affirmed, the Parties hereby agree as follows:

ARTICLE I ESTABLISHMENT OF THE LITIGATION TRUST

1.1 Establishment of the Litigation Trust and Appointment of the Litigation Trustee and the Litigation Trust Oversight Board.

(a) The Debtors and the Litigation Trustee, pursuant to the Plan and the Confirmation Order and in accordance with the applicable provisions of the Bankruptcy Code,


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hereby establish a trust on behalf of the Litigation Trust Beneficiaries, which shall be known as the “Brooks Brothers Litigation Trust,” on the terms set forth herein. In connection with the exercise of the Litigation Trustee’s powers hereunder, the Litigation Trustee may use this name or such variation thereof as the Litigation Trustee sees fit or as may otherwise be authorized by the Litigation Trust Oversight Board.

(b) The Litigation Trustee is hereby appointed as trustee of the Litigation Trust effective as of the Effective Date.

(c) In accordance with Section 5.1 of this Agreement, the initial members of the Litigation Trust Oversight Board (each such Person and any other Person appointed to be a member of the Litigation Trust Oversight Board pursuant to this Agreement, a “Member”) shall consist of all the members of the Creditors’ Committee or a representative thereof. [At all times all Members of the Litigation Trust Oversight Board shall be “United States persons” as such term is defined in Section 7701(a)(30) of the Tax Code. Each Member of the Litigation Trust Oversight Board shall be required to submit a quarterly statement attesting that they are “United States persons” as such term is defined in Section 7701(a)(30) of the Tax Code. Any non-United States persons shall serve as observers and will be consulted on any decision by the Litigation Trust Oversight Board.]

(d) The Litigation Trustee agrees to accept and hold the Litigation Trust Assets in trust for the Litigation Trust Beneficiaries, subject to the provisions of the Plan, the Confirmation Order and this Agreement, and shall serve at the direction of the Litigation Trust Oversight Board in accordance with the terms of this Agreement, including Section 5.2 hereof.

(e) The Litigation Trustee and each successor trustee serving from time to time hereunder shall have all the rights, powers, and duties as set forth herein.

(f) The Litigation Trustee is, and any successor trustee serving from time to time hereunder shall be, a “United States person” as such term is defined in Section 7701(a)(30) of the Tax Code.

(g) Subject to the terms of this Agreement, any action by the Litigation Trustee and/or the Litigation Trust Oversight Board that affects the interests of more than one Litigation Trust Beneficiary shall be binding and conclusive on all Litigation Trust Beneficiaries even if such Litigation Trust Beneficiaries have different or conflicting interests.

(h) For the avoidance of doubt, (x) none of the Litigation Trustee or any Member is or shall be deemed an officer, director, or fiduciary of any of the Debtors or their respective subsidiaries and (y) none of the Debtors is or shall be deemed a fiduciary or agent of the Litigation Trust, and such parties owe no duties or obligations to the Litigation Trust except as are expressly set forth in the Plan, the Confirmation Order, this Agreement or other future written agreement between such Persons and the Litigation Trust.

1.2 Transfer of Assets Into the Litigation Trust. Pursuant to the Plan, upon the Effective Date: (i) the DV Claims, Former D&O and Shareholder Causes of Action, and all rights to object to Claims of the DV Entities or any Former D&Os or Shareholders; and (ii) the Litigation Trust Minimum Funding, shall vest in and be transferred to the Litigation Trust. The act of


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transferring the Litigation Trust Assets, as authorized by the Plan, shall not be construed to destroy or limit any such assets or rights or be construed as a waiver of any right, and such rights may be asserted by the Litigation Trust as if the asset or right was still held by the applicable Debtor.

1.3 Litigation Trust Funding. The Litigation Trust shall be funded with the Litigation Trust Minimum Funding on the Effective Date of the Plan and as a condition to the Effective Date of the Plan (subject to waiver in accordance with Section 9.2 of the Plan). The Litigation Fees Amount will be funded after the Debtors or the Liquidation Trustee, as applicable, have paid or reserved for any amounts necessary to fund the Wind-Down Reserve and to pay all Administrative Expense Claims, Fee Claims, Secured Claims, Priority Tax Claims and Other Priority Claims after consulting with the Litigation Trustee as to any amounts to be reserved. The total amount of the Litigation Trust Funding shall be subject to the adjustments set forth in Section 5.5(c) of the Plan, but in any event shall not be less than the Litigation Trust Minimum Funding (subject to waiver in accordance with Section 9.2 of the Plan). To the extent the Debtors or the Liquidation Trustee, as applicable, determine in a good faith exercise of their business judgment consistent with their fiduciary duties that not funding all or a portion of the Litigation Fees Amount is necessary to allow the Debtors to fund or administer their chapter 11 cases (including to fund the Wind-Down Reserve and satisfy Administrative Expense Claims (including Fee Claims), Secured Claims, Priority Tax Claims and Other Priority Claims), the Debtors or the Liquidation Trustee, as applicable, are authorized to make such adjustment after consultation with the Litigation Trustee; provided that (i) in no event shall the Debtors or the Liquidation Trustee fund the Litigation Trust with an amount less than the Litigation Trust Minimum Funding, and (ii)(A) to the extent that the Debtors or the Liquidation Trustee, as applicable, make any such adjustment to the amount of the Litigation Fees Amount, and (B) the Debtors or the Liquidation Trustee, as applicable, is satisfied at a later date that the Debtors, or the Liquidation Trust, as applicable, have sufficient funds to satisfy all Allowed Administrative Expense Claims (including Fee Claims), Secured Claims, and Priority Tax Claims and Other Priority Claims, and be able to transfer some or all of such withheld amounts to the Litigation Trust, the Debtors or the Liquidation Trustee, as applicable, shall do so in accordance with the terms of the Plan.

1.4 Title to the Litigation Trust Assets. The transfer of the Litigation Trust Assets to the Litigation Trust pursuant to Section 1.2 hereof is being made for the sole benefit, and on behalf, of the Litigation Trust Beneficiaries. Upon the transfer of the Litigation Trust Assets to the Litigation Trust, the Litigation Trust shall succeed to all of the Brooks Brothers Parties’ and the Litigation Trust Beneficiaries’ rights, title and interest in the Litigation Trust Assets and no other Person shall have any interest, legal, beneficial or otherwise, in the Litigation Trust or the Litigation Trust Assets upon the assignment and transfer of such assets to the Litigation Trust (other than as provided in the Plan, the Confirmation Order or this Agreement).

1.5 Nature and Purpose of the Litigation Trust.

(a) Purpose. The Litigation Trust’s primary purpose is liquidating the Litigation Trust Assets, with no objective to continue or engage in the conduct of a trade or business except to the extent reasonably necessary to, and consistent with, the Litigation Trust’s liquidating purpose and reasonably necessary to conserve and protect the Litigation Trust Assets and provide for the orderly liquidation thereof. The Litigation Trust shall be established on the Effective Date, in accordance with the terms of the Plan and the Litigation Trust Agreement and


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shall be governed by the terms of this Agreement and shall liquidate the Litigation Trust Assets, including by, among other things, prosecuting, settling, compromising, abandoning, or otherwise assessing and, if possible, realizing the value of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that may be assigned to the Litigation Trust in accordance with the terms of the Plan, from time to time in accordance with the terms of the Plan for the benefit of the Litigation Trust Beneficiaries. At such time as the Litigation Trustee determines the Litigation Trust has, pursuant to Section 5.5 of the Plan and this Agreement, (i) resolved, settled, compromised, or otherwise liquidated the DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust from time to time in accordance with the terms of the Plan and this Agreement, and (ii) paid all Litigation Trust Expenses, the Litigation Trustee shall transfer any and all remaining Litigation Trust Assets to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan; provided that, if the Liquidation Trust has been dissolved pursuant to the terms of the Plan and this Agreement before such time as the Litigation Trustee has acted in accordance with the foregoing clauses (i) and (ii), the Litigation Trustee shall make a Distribution of the remaining Litigation Trust Assets to the Litigation Trust Beneficiaries in accordance with the terms of the Plan. From time to time, and after paying or appropriately reserving for Litigation Trust Expenses, the Litigation Trust may (and shall at least annually) distribute proceeds of the Litigation Trust Assets (including any proceeds thereafter invested) to the Liquidation Trust for Distribution to Litigation Trust Beneficiaries in accordance with the terms of the Plan.

(b) Relationship. This Agreement is intended to create a trust and a trust relationship and to be governed and construed in all respects as a trust. The Litigation Trust is not intended to be, and shall not be deemed to be, or be treated as, a general partnership, limited partnership, joint venture, corporation, joint stock company or association, nor shall the Litigation Trustee, the Litigation Trust Oversight Board (or any Member thereof) or the Litigation Trust Beneficiaries for any purpose be, or be deemed to be or treated in any way whatsoever to be, liable or responsible hereunder as partners or joint venturers. The relationship of the Litigation Trust Beneficiaries, on the one hand, to the Litigation Trustee and the Litigation Trust Oversight Board, on the other hand, shall be solely that of a beneficiary of a trust and shall not be deemed a principal and agency relationship, and their rights shall be limited to those conferred upon them by the Plan, the Confirmation Order and this Agreement.

(c) Relationship to and Incorporation of the Plan. The principal purpose of this Agreement is to aid in the implementation of the Plan and the Confirmation Order, and therefore this Agreement incorporates the provisions thereof by reference. To that end and subject to the provisions of the Plan, the Litigation Trustee shall have full power and authority to take any action consistent with the provisions of the Plan and the Confirmation Order, to seek any orders from the Bankruptcy Court in furtherance of implementation of the Plan that directly affect the interests of the Litigation Trust, and to seek any orders from the Bankruptcy Court solely in furtherance of this Agreement. As among the Litigation Trust, the Litigation Trustee, the Litigation Trust Oversight Board, the Litigation Trust Beneficiaries, and the Debtors, if any provisions of this Agreement are found to be inconsistent with the provisions of the Plan or the Confirmation Order, each such document shall have controlling effect in the following rank order: the Confirmation Order, the Plan, and this Agreement.


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1.6 Appointment as Representative. Upon the Effective Date, the Litigation Trustee is appointed as the duly appointed representative of the Debtors and their estates with respect to the Litigation Trust Assets, and, as such, upon such appointment, the Litigation Trustee succeeds to all of the rights and powers of a trustee in bankruptcy with respect to prosecution of the Litigation Trust Assets for the benefit of the Litigation Trust Beneficiaries.

1.7 Preservation of Rights of Action. On and after the Effective Date, the Litigation Trustee, subject to the Litigation Trustee Discretion, and under the supervision of the Litigation Trust Oversight Board, shall have sole and exclusive discretion to pursue and dispose of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets. All Causes of Action that are or become Litigation Trust Assets shall vest in the Litigation Trust as provided for herein and the Litigation Trustee may pursue or dispose of any Causes of Action that are or become Litigation Trust Assets in its sole discretion in the name of either the Litigation Trustee or the Litigation Trust. On and after the Effective Date, the Litigation Trustee under the supervision of the Litigation Trust Oversight Board, shall retain and shall have, including through its authorized agents or representatives, the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action, or to decline to do any of the foregoing, without the consent or approval of any third party or further notice to or action, order, or approval of the Bankruptcy Court or the Litigation Trust Beneficiaries.

1.8 Privileges.

(a) All attorney-client privileges, work product protections, joint client privilege, common interest or joint defense privilege or protection and all other privileges, immunities or protections from disclosure (the “Privileges”) held by any of (1) any one or more of the Debtors or (2) any pre-petition or post-petition committee or subcommittee of the board of directors or equivalent governing body of any of the Debtors and their predecessors (together the “Privilege Transfer Parties”) related in any way to the Litigation Trust Assets, the analysis or prosecution of any claims or the purpose of the Litigation Trust (the “Transferred Privileged Information”) are hereby transferred and assigned to, and vested in, the Litigation Trust and its authorized representatives. The Transferred Privileged Information shall include documents and information of all manner, whether oral, written or digital, and whether or not previously disclosed or discussed. For the avoidance of doubt, the Privileges shall include any right to preserve or enforce or waive a privilege that arises from any joint defense, common interest or similar agreement involving any of the Privilege Transfer Parties.

(b) The foregoing transfer and assignment shall vest the Privileges concerning the Transferred Privileged Information exclusively in the Litigation Trust, consistent with sections 1123(a)(5)(B) and 1123(b)(3)(B) of the Bankruptcy Code, for the sole benefit of the Litigation Trust and the Litigation Trust Beneficiaries; provided, however, that to the extent that any such Privileges or Transferred Privileged Information relates to both Liquidation Trust Assets and Litigation Trust Assets, such Privileges and Transferred Privileged Information shall vest jointly in the Liquidation Trust and the Litigation Trust. Except only as provided in the Liquidation Trust Agreement as relates to any Privileges or Transferred Privileged Information held jointly with the Liquidation Trust, the Litigation Trust shall have the exclusive authority and sole discretion to maintain the Privileges and keep the Transferred Privileged Information confidential, or waive any


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Privileges and/or disclose and/or use in litigation or any proceeding any or all of the Transferred Privileged Information.

(c) The Privilege Transfer Parties agree to take all necessary actions to effectuate the transfer of such Privileges, and to provide to the Litigation Trust without the necessity of a subpoena all Transferred Privileged Information in their respective possession, custody or control. The Litigation Trust is further expressly authorized to formally or informally request or subpoena documents, testimony or other information that would constitute Transferred Privileged Information from any persons, including former directors or officers of any of the Debtors, attorneys, professionals, consultants and experts, and no such person may object to the production to the Litigation Trust of such Transferred Privileged Information on the basis of a Privilege. Until and unless the Litigation Trust makes a determination to waive any Privilege, Transferred Privileged Information shall be produced solely to the Litigation Trust. For the avoidance of doubt, this Subsection is subject in all respects to 1.8(a) of this Agreement.

(d) Pursuant to, inter alia, Federal Rule of Evidence 502(d), no Privileges shall be waived by the transfer and assignment of the Privileges or the production of any Transferred Privileged Information to the Litigation Trust or any of its respective employees, professionals or representatives, or by disclosure of such Transferred Privileged Information between the Privilege Transfer Parties, on the one hand, and the Litigation Trust, on the other hand, or any of their respective employees, professionals or representatives. Moreover, the non-voting observer Members participation in the Litigation Trust Oversight Board shall not waive any Privileges held by the Litigation Trust, the Litigation Trustee, or the Litigation Trust Oversight Board.

(e) If a Privilege Transfer Party, the Litigation Trust, any of their respective employees, professionals or representatives or any other person inadvertently produces or discloses Transferred Privileged Information to any third party, such production shall not be deemed to destroy any of the Privileges, or be deemed a waiver of any confidentiality protections afforded to such Transferred Privileged Information. In such circumstances, the disclosing party shall promptly upon discovery of the production notify the Litigation Trust of the production and shall demand of all recipients of the inadvertently disclosed Transferred Privileged Information that they return or confirm the destruction of such materials.

ARTICLE II LITIGATION TRUST INTERESTS

2.1 Litigation Trust Beneficial Interests. On the date hereof, the Litigation Trust shall issue the Litigation Trust Interests to the Litigation Trust Beneficiaries in accordance with the terms of the Plan, the Confirmation Order, and this Agreement. The Litigation Trust Beneficiaries shall be entitled to distributions from the Litigation Trust Proceeds in accordance with the terms of the Plan, the Confirmation Order, and this Agreement. The beneficial interests in the Litigation Trust will be represented by book entries on the books and records of the Litigation Trust. The Litigation Trust will not issue any certificate or certificates to evidence any beneficial interests in the Litigation Trust.

2.2 Interests Beneficial Only. The ownership of the beneficial interests in the Litigation Trust shall not entitle the Litigation Trust Beneficiaries to any title in or to the Litigation Trust


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Assets as such (which title shall be vested in the Litigation Trust) or to any right to call for a partition or division of the Litigation Trust Assets or to require an accounting.

2.3 Non-Transferability of Litigation Trust Interests. The Litigation Trust Beneficial Interests shall be non-transferable other than if transferred by will, intestate succession or otherwise by operation of law.

2.4 Exemption from Registration. The Parties hereto intend that the rights of the Litigation Trust Beneficiaries arising under this Litigation Trust shall not be “securities” under applicable laws, but none of the Parties represent or warrant that such rights shall not be securities or shall be entitled to exemption from registration under applicable securities laws. If such rights constitute securities, the Parties hereto intend for the exemption from registration provided by section 1145 of the Bankruptcy Code and under applicable securities laws to apply to the issuance of the Litigation Trust Interests to the Litigation Trust Beneficiaries under the Plan.

2.5 Effect of Death, Incapacity or Bankruptcy. The death, incapacity or bankruptcy of any Litigation Trust Beneficiary during the term of the Litigation Trust shall not (i) operate to terminate the Litigation Trust, (ii) entitle the representatives or creditors of the deceased, incapacitated or bankrupt party to an accounting, (iii) entitle the representatives or creditors of the deceased, incapacitated or bankrupt party to take any action in the Bankruptcy Court or elsewhere for the distribution of the Litigation Trust Assets or for a partition thereof, or (iv) otherwise affect the rights and obligations of any of the Litigation Trust Beneficiaries under this Agreement.

2.6 Delivery of Distribution. In the event that any Distribution to any holder is returned as undeliverable, no Distribution to such holder shall be made unless and until the Debtors or the Liquidation Trustee, as applicable, has determined the then current address of such holder, at which time such Distribution shall be made to such holder without interest; provided, however, such Distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of six months from the date such Distribution was made. After such date, all unclaimed property or interests in property shall revert (notwithstanding any applicable federal or state escheat, abandoned, or unclaimed property laws to the contrary) to the Liquidation Trust automatically and without need for a further order by the Bankruptcy Court for Distribution in accordance with the Plan and the Claim of any such holder to such property or interest in property shall be released, settled, compromised, and forever barred.

ARTICLE III RIGHTS, POWERS AND DUTIES OF LITIGATION TRUSTEE

3.1 Role of the Litigation Trustee. In furtherance of and consistent with the purpose of the Litigation Trust and the Plan, subject to the terms and conditions contained in the Plan, the Confirmation Order and this Agreement, the Litigation Trustee shall, subject to the supervision of the Litigation Trust Oversight Board as provided in this Agreement, (i) receive, manage, supervise and protect the Litigation Trust Assets upon its receipt of same on behalf of and for the benefit of the Litigation Trust Beneficiaries; (ii) investigate, analyze, prosecute and, if necessary and appropriate, settle and compromise the Litigation Trust Assets; (iii) prepare and file all required tax returns and pay from the Litigation Trust Assets all taxes and all other obligations of the Litigation Trust; (iv) liquidate and convert the Litigation Trust Assets to Cash in accordance with


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this Agreement and the other Litigation Trust Documents and timely transfer such Cash to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan and as set forth in Section 3.5 herein; and (v) have all such other responsibilities as may be vested in the Litigation Trustee pursuant to the Plan, the Confirmation Order, this Agreement, and all other applicable orders of the Bankruptcy Court, provided however, that the Litigation Trustee shall not be required to take any action described in (i) through (v) above that he deems not to be in good faith or that is contrary to any action or inaction recommended to the Litigation Trustee by his counsel (the “Litigation Trustee Discretion”). If there is a dispute as a course of action to be taken for the Litigation Trust between the Litigation Trustee and the Litigation Trust Oversight Board, the parties shall seek to have such a dispute resolved before the Bankruptcy Court. The Litigation Trustee in consultation with, and subject to the supervision of, the Litigation Trust Oversight Board as provided in this Agreement, shall be responsible for all decisions and duties with respect to the Litigation Trust and the Litigation Trust Assets, and such decisions and duties shall be carried out in accordance with the Plan, the Confirmation Order, this Agreement, and all other applicable orders of the Bankruptcy Court. In all circumstances, the Litigation Trustee shall act in the best interests of the Litigation Trust Beneficiaries and in furtherance of the purpose of the Litigation Trust, and shall use commercially reasonable efforts to prosecute, settle or otherwise resolve the Causes of Action constituting the Litigation Trust Assets, and to otherwise monetize the Litigation Trust Assets and not unreasonably prolong the duration of the Litigation Trust.

3.2 Fiduciary Duties. The Litigation Trustee shall have fiduciary duties to the Litigation Trust Beneficiaries consistent with the fiduciary duties that a member of an official committee appointed pursuant to section 1102 of the Bankruptcy Code has to the creditor constituents represented by such committee and shall exercise his, her or its responsibilities accordingly; provided, however, such fiduciary duties include maximizing the value of the Litigation Trust Assets, including the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action assigned to the Litigation Trust for the benefit of the Litigation Trust Beneficiaries.

3.3 Authority to Prosecute and Settle Litigation Claims.

(a) Subject to the provisions of this Agreement, the Plan, the Confirmation Order, supervision by the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, the Litigation Trustee shall prosecute, pursue, compromise, settle, or abandon any and all DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust, that have not already been resolved as of the Effective Date. The Litigation Trustee, upon supervision by the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, shall have the absolute right to pursue, not pursue, release, abandon, and/or settle any and all DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust (including any counterclaims asserted against the Litigation Trust) as it determines in the best interests of the Litigation Trust Beneficiaries, and consistent with the purposes of the Litigation Trust, and shall have no liability for the outcome of its decision except for any damages caused by fraud, willful misconduct or gross negligence.

(b) Subject to the provisions of this Agreement, the Plan and the Confirmation Order, the Litigation Trustee shall have sole authority to reconcile, prosecute objections,


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compromise, abandon or settle, as applicable, any and all Claims of any of the DV Entities or any of the Former D&Os or Shareholders, DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that may be assigned to the Litigation Trust from time to time that have not already been resolved as of the Effective Date; provided, that for the avoidance of doubt, settlement of any of the Claims of any of the DV Entities or any of the Former D&Os or Shareholders, the DV Claims, the Former D&O and Shareholder Causes of Action, or any other Causes of Action assigned to the Litigation Trust will not require Bankruptcy Court approval. The Litigation Trustee, upon supervision of the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, shall have the absolute right to pursue, not pursue, release, abandon, and/or settle any and all Claims of any of the DV Entities or any of the Former D&Os or Shareholders, DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust (including any counterclaims asserted against the Litigation Trust) as it determines in the best interests of the Litigation Trust Beneficiaries, and consistent with the purposes of the Litigation Trust, and shall have no liability for the outcome of its decision except for any damages caused by fraud, willful misconduct or gross negligence.

(c) To the extent that any action has been taken to prosecute, adjudicate or otherwise resolve any of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action assigned to the Litigation Trust prior to the Effective Date by the Debtors, the Litigation Trustee or Litigation Trust shall be substituted for the Debtors in connection therewith in accordance with Rule 25 of the Federal Rules of Civil Procedure, made applicable to the litigation by Bankruptcy Rule 7025, and the caption with respect to such pending litigation shall be changed to the following, at the option of the Litigation Trust: “[Name of Trustee], as Trustee for the BB Litigation Trust v. [Defendant]” or “BB Litigation Trust v. [Defendant].” Without limiting the foregoing, the Litigation Trustee, in the name of either the Litigation Trustee or Litigation Trust, shall take any and all actions necessary or prudent to intervene as plaintiff, movant or additional party, as appropriate, with respect to any applicable DV Claim, Former D&O and Shareholder Causes of Action, or other Causes of Action assigned to the Litigation Trust. For purposes of exercising its powers, the Litigation Trustee shall be deemed to be a representative of the Estates pursuant to section 1123(b)(3)(B) of the Bankruptcy Code.

(d) Any determinations by the Litigation Trustee, under the supervision of the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, with regard to the amount or timing of settlement or other disposition of any Claims of any of the DV Entities or any of the Former D&Os or Shareholders, DV Claim, Former D&O and Shareholder Cause of Action, or other Cause of Action assigned to the Litigation Trust settled in accordance with the terms of this Agreement shall be conclusive and binding on the Litigation Trust Beneficiaries and all other parties in interest upon the entry of an order of a court of competent jurisdiction (including a Final Order issued by the Bankruptcy Court) approving such settlement or other disposition, to the extent any such order is required to be obtained to enforce any such determinations.

3.4 Liquidation of Litigation Trust Assets. The Litigation Trustee, upon direction by the Litigation Trust Oversight Board, subject to the Litigation Trustee Discretion, and in the exercise of their collective reasonable business judgment, shall, in an expeditious but orderly manner and subject to the other provisions of the Plan, the Confirmation Order, and this Agreement, liquidate and convert to Cash the Litigation Trust Assets, and timely transfer such Cash to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance


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with the terms of the Plan, the Confirmation Order, and this Agreement, and not unduly prolong the existence of the Litigation Trust. The Litigation Trustee shall exercise reasonable business judgment and liquidate the Litigation Trust Assets to optimize net recoveries to the Litigation Trust Beneficiaries, provided, however, that in addition to the Litigation Trustee Discretion, the Litigation Trustee shall be entitled to take into consideration the risks, timing, anticipated duration, and costs of potential actions in making determinations as to the methodologies to be employed to optimize such recoveries. Such liquidations may be accomplished through the prosecution, compromise and settlement, abandonment or dismissal of any or all of the DV Claims, Former D&O and Shareholder Causes of Action, or other Causes of Action assigned to the Litigation Trust or otherwise or through the sale or other disposition of the Litigation Trust Assets (in whole or in combination). Pursuant to an agreed-upon budget, the Litigation Trustee may incur any reasonable and necessary expenses in connection with the liquidation of the Litigation Trust Assets and Distributions.

3.5 Distributions. At such time as the Litigation Trustee determines the Litigation Trust has, pursuant to Section 5.5 of the Plan and this Agreement, (i) resolved, settled, compromised, or otherwise liquidated the DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust from time to time in accordance with the terms of the Plan and the Litigation Trust Agreement, and (ii) paid all Litigation Trust Expenses, the Litigation Trustee shall transfer any and all remaining Litigation Trust Assets to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan; provided that, if the Liquidation Trust has been dissolved pursuant to the terms of the Plan and the Liquidation Trust Agreement before such time as the Litigation Trustee has acted in accordance with the foregoing clauses (i) and (ii), the Litigation Trustee shall make a Distribution of the remaining Litigation Trust Assets to the Litigation Trust Beneficiaries in accordance with the terms of the Plan. From time to time, and after paying or appropriately reserving for Litigation Trust Expenses, the Litigation Trust may (and shall at least annually) distribute proceeds of the Litigation Trust Assets (including any proceeds thereafter invested) to the Liquidation Trust for Distribution to Litigation Trust Beneficiaries in accordance with the terms of the Plan.

3.6 Retention of Counsel and Other Professionals. The Litigation Trustee, on behalf of the Litigation Trust, may employ and pay in the ordinary course of business, any professional for services rendered or expenses incurred on and after the Effective Date, in accordance with the terms of any agreement entered into between the Litigation Trust and such professional in the discretion of the Litigation Trustee and with the approval of the Litigation Trust Oversight Board, that are necessary or appropriate to assist the Litigation Trustee in the performance of the Litigation Trustee’s duties under the Plan and the Litigation Trust Agreement. With approval of the Litigation Trust Oversight Board, the Litigation Trust may select any professionals in its sole discretion, and such professionals’ affiliation with the Litigation Trustee shall not preclude the Litigation Trust’s retention of such professionals.

3.7 Fees and Expenses of the Litigation Trust. From and after the Effective Date, Litigation Trust Expenses shall be paid from the Litigation Trust Assets in the ordinary course of business, in accordance with the Plan and the Litigation Trust Agreement. Without any further notice to any party or action, order or approval of the Bankruptcy Court, the Litigation Trustee, on behalf of the Litigation Trust, may employ and pay in the ordinary course of business, any


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professional for services rendered or expenses incurred on and after the Effective Date, in accordance with the terms of any agreement entered into between the Litigation Trust and such professional, in the discretion of the Litigation Trustee and with the approval of the Litigation Trust Oversight Board for any expense over $2,000, that are necessary or appropriate to assist the Litigation Trustee in the performance of the Litigation Trustee’s duties under the Plan and the Litigation Trust Agreement.

3.8 Agreements. Pursuant to the Plan, the Confirmation Order and the other provisions of this Agreement, the Litigation Trustee may enter into any agreement or execute any document required by or consistent with the Plan, the Confirmation Order or this Agreement and perform all of the Litigation Trust’s obligations thereunder.

3.9 Powers of the Litigation Trustee. In furtherance of and consistent with the purpose of the Litigation Trust and the Plan, subject to and to the extent set forth in the Plan, the Confirmation Order, the Liquidation Trust Agreement or any other order of the Bankruptcy Court entered in connection therewith, the Litigation Trust and the Litigation Trustee shall be empowered to:

(a) conduct investigations of the DV Claims, the Former D&O and Shareholder Causes of Action and other Causes of Action that are Litigation Trust Assets pursuant to Bankruptcy Rule 2004;

(b) perform all actions and execute all agreements, instruments and other documents necessary to effectuate the purpose of the Litigation Trust;

(c) establish, maintain and administer trust accounts, which shall be segregated to the extent appropriate in accordance with the Plan and this Agreement;

(d) manage, liquidate, supervise, prosecute, and protect, as applicable, the Litigation Trust Assets;

(e) settle Claims that are Litigation Trust Assets, including the DV Claims, the Former D&O and Shareholder Causes of Action, and Claims of the Former D&Os and Shareholders, without further order of the Bankruptcy Court;

(f) control and effectuate the Claims reconciliation process for Claims of any of the DV Entities or any of the Former D&Os or Shareholders, including to object to, seek to subordinate, recharacterize, compromise or settle any and all such Claims, pursuant to the procedures prescribed in the Plan and this Agreement;

(g) pursue, prosecute, abandon or otherwise resolve the DV Claims, the Former D&O and Shareholder Causes of Action, and other Causes of Action that are Litigation Trust Assets;

(h) retain, compensate and employ professionals to represent the Litigation Trust;


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(i) receive, manage, invest, supervise, protect, and liquidate the Litigation Trust Assets, withdraw and make distributions from and pay taxes and other obligations owed by the Litigation Trust from funds held by the Litigation Trustee and/or the Litigation Trust in the Litigation Trust Account as long as such actions are consistent with the Litigation Trust’s status as a liquidating trust within the meaning of Treasury Regulation section 301.7701-4(d) and are merely incidental to its liquidation and dissolution;

(j) prepare, or have prepared, and file, if necessary, with the appropriate governmental entity any and all tax returns, information returns, and other required documents with respect to the Litigation Trust (including, without limitation, U.S. federal, state, local or foreign tax or information returns required to be filed by the Litigation Trust) and pay taxes properly payable by the Litigation Trust, if any, and cause all taxes payable by the Litigation Trust, if any, to be paid exclusively out of the Litigation Trust Assets;

(k) request any appropriate tax determination with respect to the Litigation Trust, including, without limitation, a determination pursuant to section 505 of the Bankruptcy Code;

(l) make tax elections by and on behalf of the Litigation Trust, which are deemed by the Litigation Trustee, either independently or with the advice of Litigation Trust Professionals, to be in the best interest of maximizing the liquidation value of the Litigation Trust Assets;

(m) exercise such other powers as may be vested in the Litigation Trust under this Agreement and the Plan, or as are deemed by the Litigation Trustee to be necessary and proper to implement the provisions of this Agreement and effectuate the purpose of the Litigation Trust; and

(n) dissolve the Litigation Trust in accordance with the terms of this Agreement.

3.10 Functions of the Litigation Trustee. On and after the Effective Date, the Litigation Trustee and/or the Litigation Trust, as applicable, shall carry out the functions set forth in this Section and may take such actions without supervision or approval by the Bankruptcy Court or the Canadian Court and free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules, CCAA or BIA, other than any restrictions expressly imposed by the Plan, the Confirmation Order or this Agreement. Such functions shall include any and all powers and authority to:

(a) take any actions necessary to resolve all matters related to the Litigation Trust Assets;

(b) retain, compensate and employ professionals to represent the Litigation Trust or the Litigation Trustee, as applicable;

(c) transfer all Cash proceeds of the DV Claims, the Former D&O and Shareholder Causes of Action, and of other Causes of Action assigned to the Litigation Trust, after payment of the Litigation Trust Expenses to the Liquidation Trust, unless the Liquidation Trust has been dissolved;


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(d) consult with the Information Officer in respect of any matters set forth in Section 5.5 of the Plan or this Agreement as such matters also relate to Canada; and

(e) take any other actions not inconsistent with the provisions hereof that the Litigation Trustee deems reasonably necessary or desirable in connection with the foregoing functions.

3.11 Management of Litigation Trust Assets.

(a) Except as otherwise provided in the Plan, the Confirmation Order or this Agreement, and subject to Treasury Regulations governing liquidating trusts and the retained jurisdiction of the Bankruptcy Court as provided for in the Plan, but without prior or further authorization, the Litigation Trustee may, subject to supervision of the Litigation Trust Oversight Board, control and exercise authority over the Litigation Trust Assets, over the management and disposition thereof, and over the management and conduct of the Litigation Trust, in each case, as necessary or advisable to enable the Litigation Trustee to fulfill the intents and purposes of this Agreement. No Person dealing with the Litigation Trust will be obligated to inquire into the authority of the Litigation Trustee in connection with the acquisition, management or disposition of the Litigation Trust Assets.

(b) In connection with the management and use of the Litigation Trust Assets and except as otherwise expressly limited in the Plan, the Confirmation Order or this Agreement, the Litigation Trust will have, in addition to any powers conferred upon the Litigation Trust by any other provision of this Agreement, the power to take any and all actions as, in the Litigation Trustee’s reasonable discretion, are necessary or advisable to effectuate the primary purposes of the Litigation Trust, subject to (i) the Litigation Trustee Discretion, and (ii) any supervision of the Litigation Trust Oversight Board as set forth herein, including, without limitation, the power and authority to (a) pay taxes and other obligations owed by the Litigation Trust or incurred by the Litigation Trustee; (b) commence and/or pursue any and all actions involving the Causes of Action constituting Litigation Trust Assets that could arise or be asserted at any time, unless otherwise limited, waived, released, compromised, settled, or relinquished in the Plan, the Confirmation Order, or this Agreement; and (c) act and implement the Plan, this Agreement, and applicable orders of the Bankruptcy Court (including, as applicable, the Confirmation Order).

3.12 Limitations on Power and Authority of the Litigation Trustee. Notwithstanding anything in this Agreement to the contrary, the Litigation Trustee will not have the authority to do any of the following on behalf of the Litigation Trust:

(a) take any action in contravention of the Plan, the Confirmation Order, or this Agreement;

(b) take any action that would make it impossible to carry on the activities of the Litigation Trust;

(c) possess property of the Litigation Trust or assign the Litigation Trust’s rights in specific property for any purpose other than as provided herein;

(d) cause or permit the Litigation Trust to engage in any trade or business;


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(e) receive transfers of any listed stocks or securities or any readily marketable assets or any operating assets of a going business; provided, however, that in no event shall the Litigation Trustee receive any such investment that would jeopardize treatment of the Litigation Trust as a “liquidating trust” for federal income tax purposes under Treasury Regulation section 301.7701-4(d), or any successor provision thereof;

(f) receive or retain any operating assets of an operating business, a partnership interest in a partnership that holds operating assets or 50% or more of the stock of a corporation with operating assets; provided, however, that in no event shall the Litigation Trustee receive or retain any such asset or interest that would jeopardize treatment of the Litigation Trust as a “liquidating trust” for federal income tax purposes under Treasury Regulation section 301.7701-4(d) or any successor provision thereof; or

(g) take any other action or engage in any investments or activities that would jeopardize treatment of the Litigation Trust as a liquidating trust for federal income tax purposes under Treasury Regulation section 301.7701-4(d), or any successor provision thereof.

3.13 Books and Records.

The Litigation Trustee shall maintain books and records relating to and income realized from the Litigation Trust Assets and the payment of, costs and expenses of, and liabilities of claims against or assumed by, the Litigation Trust in such detail and for such period of time as may be necessary to enable him/her/it to make full and proper accounting in respect thereof and in accordance with applicable law. Such books and records shall be maintained as reasonably necessary to facilitate compliance with the tax reporting requirements of the Litigation Trust. Nothing in this Agreement requires the Litigation Trustee to file any accounting or seek approval of any court with respect to the administration of the Litigation Trust or as a condition for managing any payment or distribution out of the Litigation Trust Assets, except as may otherwise be set forth in the Plan or the Confirmation Order.

3.14 Documents and Data. The Litigation Trustee shall be provided with originals or copies of or access to all documents and business records accessible to or retained by the Debtors or the Liquidation Trustee necessary for the disposition and liquidation of Litigation Trust Assets; provided that the Litigation Trustee or the Litigation Trust shall reimburse the Liquidation Trust and/or the Liquidation Trustee, as applicable, for any reasonable out-of-pocket fees or expenses incurred in assisting the Litigation Trustee in the procurement of records that were not retained by the Debtors after the Sale Transaction. The Liquidation Trustee shall reasonably cooperate with the Litigation Trustee in the administration of the Litigation Trust, including but not limited to providing books and records relating to the DV Claims and Former D&O and Shareholder Causes of Action.

3.15 Reports.

(a) Financial and Status Reports. The fiscal year of the Litigation Trust shall be the calendar year. Within 90 days after the end of each calendar year during the term of the Litigation Trust, and within 45 days after the end of each calendar quarter during the term of the


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Litigation Trust (other than the fourth quarter) and as soon as practicable upon termination of the Litigation Trust, the Litigation Trustee shall make available, upon request, to the Litigation Trust Beneficiaries appearing in the Trust Registry as of the end of such period or such date of termination, a written report including: (i) financial statements of the Litigation Trust for such period, and, if the end of a calendar year, an unaudited report (which may be prepared by an independent certified public accountant employed by the Litigation Trustee) reflecting the result of such agreed-upon procedures relating to the financial accounting administration of the Litigation Trust as proposed by the Litigation Trustee; (ii) a summary description of any action taken by the Litigation Trust which, in the judgment of the Litigation Trustee, materially affects the Litigation Trust and of which notice has not previously been given to the Litigation Trust Beneficiaries; (iii) a description of the progress of liquidating the Litigation Trust Assets and making distributions to the Litigation Trust Beneficiaries, which description shall include a written report detailing, among other things, the litigation status of the Litigation Claims transferred to the Litigation Trust, any settlements entered into by the Litigation Trust with respect to the Litigation Claims; and the Litigation Trust Proceeds recovered to date (in each instance to the extent not confidential and to the extent that the Litigation Trustee determines that public disclosure will not adversely affect the liquidation of any remaining Litigation Trust Assets), and the distributions made by the Litigation Trust to date; and (iv) any other material information relating to the Litigation Trust Assets and the administration of the Litigation Trust deemed appropriate to be disclosed by the Litigation Trustee or required to be included in the written report by the Litigation Trust Oversight Board. In addition, the Litigation Trust shall make unaudited financial statements available to each Litigation Trust Beneficiary on a quarterly basis (which may be quarterly operating reports filed with the Bankruptcy Court). The first report shall be due the first quarter after confirmation. The Litigation Trustee may post any such report on a website maintained by the Litigation Trustee or electronically file it with the Bankruptcy Court in lieu of actual notice to each Litigation Trust Beneficiary (unless otherwise required by law).

(b) If instructed by the Litigation Trust Oversight Board, the Litigation Trustee shall prepare and submit to the Litigation Trust Oversight Board for approval an annual plan and budget in such detail as is reasonably requested.

(c) For so long as the Claims reconciliation and investigation and/or prosecution of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that or become Litigation Trust Assets shall continue, the Litigation Trustee shall make periodic reports to the Litigation Trust Oversight Board with such and in such detail frequency as the Litigation Trust Oversight Board may reasonably request.

ARTICLE IV THE LITIGATION TRUSTEE GENERALLY

4.1 Independent Litigation Trustee. The Litigation Trustee, shall be a professional natural person or financial institution with experience administering other litigation trusts and may not be a Member of the Litigation Trust Oversight Board. As of the date of this Agreement, the Litigation Trustee shall be William T. Reid, IV PLLC.

4.2 Litigation Trustee’s Compensation and Reimbursement.


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(a) Compensation. The Litigation Trustee shall receive compensation from the Litigation Trust pursuant to agreement between the Litigation Trustee and the Litigation Trust Oversight Board. The compensation of the Litigation Trustee may be modified from time to time by the Litigation Trust Oversight Board.

(b) Expenses. The Litigation Trust will reimburse the Litigation Trustee for all actual, reasonable and documented out-of-pocket expenses incurred by the Litigation Trustee in connection with the performance of the duties of the Litigation Trustee hereunder or under the Confirmation Order or the Plan, including but not limited to, actual, reasonable and documented fees and disbursements of the Litigation Trustee’s legal counsel incurred in connection with the review, execution, and delivery of this Agreement and related documents (collectively, the “Litigation Trustee Expenses” and, together with the Litigation Trustee Compensation, the “Litigation Trustee Fees”).

(c) Payment. The Litigation Trustee Fees shall be paid to the Litigation Trustee upon approval of such fees and expenses by the Litigation Trust Oversight Board without necessity for review or approval by the Bankruptcy Court or any other Person. Payment of the Litigation Trustee Fees shall be initially payable out of the Litigation Trust Assets. The Bankruptcy Court shall retain jurisdiction to adjudicate any dispute between the Litigation Trustee and the Litigation Trust Oversight Board regarding the Litigation Trustee Fees.

4.3 Resignation. The Litigation Trustee (or any successor Litigation Trustee) may resign by giving not less than 90 days’ prior written notice thereof to the Litigation Trust Oversight Board. Such resignation shall become effective on the later to occur of: (a) the day specified in such notice, and (b) the appointment of a successor satisfying the requirements set out in Section 4.1 by a majority of the Members and the acceptance by such successor of such appointment. If a successor Litigation Trustee is not appointed or does not accept its appointment within 90 days following delivery of notice of resignation by the then current Litigation Trustee, such Litigation Trustee may file a motion with the Bankruptcy Court, upon notice and a hearing, for the appointment of a successor Litigation Trustee satisfying the requirements set out in Section 4.1 hereof, during which time the then-serving Litigation Trustee shall be entitled to receive the Litigation Trustee Compensation provided for in Section 4.2(a) hereof, provided, however, that the right of the Litigation Trustee to file a motion for appointment of a successor Litigation Trustee shall not impose upon the Litigation Trustee an obligation to find a successor Litigation Trustee prior to his resignation. Notwithstanding the foregoing, (a) upon the resignation of the Litigation Trustee and expiration of the 90 days’ notice of resignation, the obligation to find a successor Litigation Trustee shall be the obligation of the Litigation Trust Oversight Board; and (b) upon the Dissolution of the Litigation Trust (as set forth in Section 8.1 below), the Litigation Trustee shall be deemed to have resigned.

4.4 Removal.

(a) The Litigation Trustee (or any successor Litigation Trustee) may be removed by [a majority] vote of the Members of the Litigation Trust Oversight Board, for Cause (as defined in Section 5.8 herein), immediately upon notice thereof, or without Cause, upon not less than 90 days’ prior written notice.


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(b) The Bankruptcy Court, on its own initiative or on motion of any Member, may (i) for Cause, and after notice and a hearing, remove the Litigation Trustee or (ii) issue an order requiring interested parties to show cause why the Litigation Trustee should not be removed.

(c) To the extent there is any dispute regarding the removal of a Litigation Trustee (including any dispute relating to any portion of the Litigation Trustee Fees), the Bankruptcy Court shall retain jurisdiction to consider and adjudicate any such dispute. Notwithstanding the foregoing, the Litigation Trustee will continue to serve as the Litigation Trustee after his removal until the earlier of (i) the time when appointment of a successor Litigation Trustee will become effective in accordance with Section 4.5 of this Agreement or (ii) such date as the Bankruptcy Court otherwise orders.

4.5 Appointment of Successor Litigation Trustee.

(a) In the event of the death or Disability (as defined in Section 5.8 herein) (in the case of a Litigation Trustee that is a natural person), dissolution (in the case of a Litigation Trustee that is not a natural person), resignation, incompetency or removal of the Litigation Trustee, the Litigation Trust Oversight Board shall designate a successor Litigation Trustee satisfying the requirements set forth in Section 4.1 hereof by majority vote. If the Members of the Litigation Trust Oversight Board are unable to secure a majority vote, the Bankruptcy Court will determine the successor Litigation Trustee satisfying the requirements set forth in Section 4.1 hereof on motion of the Members. Such appointment shall specify the date on which such appointment shall be effective. Every successor Litigation Trustee appointed hereunder shall execute, acknowledge and deliver to the Litigation Trust Oversight Board an instrument accepting the appointment under this Agreement and agreeing to be bound as Litigation Trustee hereto, and thereupon the successor Litigation Trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, trusts and duties of the predecessor Litigation Trustee and the successor Litigation Trustee shall not be personally liable for any act or omission of the predecessor Litigation Trustee; provided, however, that a predecessor Litigation Trustee shall, nevertheless, when reasonably requested in writing by the successor Litigation Trustee, execute and deliver an instrument or instruments conveying and transferring to such successor Litigation Trustee under the Litigation Trust all the estates, properties, rights, powers and trusts of such predecessor Litigation Trustee and otherwise assist and cooperate, without cost or expense to the predecessor Litigation Trustee, in effectuating the assumption by the successor Litigation Trustee of his/her/its obligations and functions hereunder.

(b) During any period in which there is a vacancy in the position of Litigation Trustee, the Litigation Trust Oversight Board shall appoint one of its Members to serve as interim Litigation Trustee (the “Interim Trustee”). The Interim Trustee shall be subject to all the terms and conditions applicable to a Litigation Trustee hereunder; provided, however, any such Interim Trustee shall not be entitled to receive the Litigation Trustee Compensation unless approved by the Litigation Trust Oversight Board, but shall be entitled to receive payment for the Litigation Trustee Expenses. Such Interim Trustee shall not be limited in any manner from exercising any rights or powers as a Member of the Litigation Trust Oversight Board merely by such Person’s appointment as Interim Trustee, but shall be limited in the exercise of such rights or powers as a Litigation Trustee to the extent a majority of the Litigation Trust Oversight Board shall, to the


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extent applicable in this Agreement, fail to approve any such action or undertaking by the Interim Trustee.

4.6 Effect of Resignation or Removal. The death, Disability, dissolution, bankruptcy, resignation, incompetency, incapacity or removal of the Litigation Trustee, as applicable, shall not operate to terminate the Litigation Trust created by this Agreement or to revoke any existing agency created pursuant to the terms of this Agreement or invalidate any action theretofore taken by the Litigation Trustee or any prior Litigation Trustee. In the event of the resignation or removal of the Litigation Trustee, such Litigation Trustee will promptly (a) execute and deliver such documents, instruments and other writings as may be ordered by the Bankruptcy Court or reasonably requested by Litigation Trust Oversight Board or the successor Litigation Trustee to effect the termination of such Litigation Trustee’s capacity under this Agreement, (b) deliver to the Bankruptcy Court (if required), the Litigation Trust Oversight Board and/or the successor Litigation Trustee all documents, instruments, records and other writings related to the Litigation Trust as may be in the possession of such Litigation Trustee, but may retain a copy at his election, and (c) otherwise assist and cooperate in effecting the assumption of its obligations and functions by such successor Litigation Trustee.

4.7 Confidentiality. The Litigation Trustee shall, during the period that the Litigation Trustee serves as Litigation Trustee under this Agreement and for a period of two (2) years following the later of the termination of this Agreement or such Litigation Trustee’s removal or resignation hereunder, hold strictly confidential and not use for personal gain or for the gain of any Entity or Person for whom such Litigation Trustee may be employed any non-public information of or pertaining to any Person to which any of the Litigation Trust Assets relates or of which the Litigation Trustee has become aware in the Litigation Trustee’s capacity as Litigation Trustee (including information contained or reflected in the Litigation Trust Materials), until (a) such information is made public other than by disclosure by the Litigation Trust, the Litigation Trustee, or any Litigation Trust Professionals in violation of this Agreement; (b) the Litigation Trust is required by law to disclose such information (in which case the Litigation Trust shall provide the relevant Person reasonable advance notice and an opportunity to protect his, her, or its rights); or (c) the Litigation Trust obtains a waiver of confidentiality from the applicable Person. However, nothing in this paragraph shall limit the Litigation Trustee’s ability to exercise the authority and perform the obligations provided herein, including, but not limited to, the prosecution, pursuit, compromise, or settlement of any and all DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust.

ARTICLE V LITIGATION TRUST OVERSIGHT BOARD

5.1 Litigation Trust Oversight Board. On the Effective Date, the Litigation Trust Oversight Board shall be established. The initial Litigation Trust Oversight Board members shall consist of all the members of the Creditors’ Committee or designated representatives thereof, as identified on Exhibit 1 hereto.


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5.2 Authority and Responsibilities.

(a) Upon its formation, the duties of the Litigation Trust Oversight Board shall include: (i) overseeing the Litigation Trustees’ performance of the Claims reconciliation and settlement process related to the Claims of the DV Entities, Former D&Os, and Shareholders conducted by or on behalf of the Litigation Trustee; (ii) overseeing the Litigation Trustee’s investigation into, and, if applicable, prosecution of, the DV Claims and Former D&O and Shareholder Causes of Action; (iii) formulating with the Litigation Trustee appropriate procedures for the settlement of DV Claims, Former D&O and Shareholder Causes of Action, and Claims of the DV Entities; (iv) overseeing the distributions to the Litigation Trust Beneficiaries as provided for under the Plan; and (v) appearing before and being heard by the Bankruptcy Court and other courts of competent jurisdiction in connection with the above limited duties.

(b) The Litigation Trust Oversight Board shall, as and when requested by the Litigation Trustee, or when the Members otherwise deem it to be appropriate or as is otherwise required under the Plan, the Confirmation Order, or this Agreement, consult with and advise the Litigation Trustee as to the administration and management of the Litigation Trust in accordance with the Plan, the Confirmation Order, and this Agreement and shall have the other responsibilities and powers as set forth herein. The Litigation Trust Oversight Board shall have the authority and responsibility to oversee, review, govern, and, as specifically set forth herein, to direct the activities of the Litigation Trust and supervise the performance of the Litigation Trustee and shall have the authority to remove the Litigation Trustee in accordance with Section 4.4 hereof; provided, however, that the Litigation Trust Oversight Board may not direct the Litigation Trustee to nor shall the Members act in a manner inconsistent with their respective duties and obligations under the Plan, the Confirmation Order, or this Agreement.

(c) The Litigation Trust Oversight Board shall also (a) monitor and oversee the administration of the Litigation Trust and the Litigation Trustee’s performance of his/her/its responsibilities under the Plan, the Confirmation Order, and this Agreement and (b) perform such other tasks as are set forth in the Plan, the Confirmation Order, and this Agreement.

(d) The Litigation Trustee shall consult with and provide information to the Litigation Trust Oversight Board in accordance with and pursuant to the terms of the Plan, the Confirmation Order, and this Agreement sufficient in scope and detail to enable the Litigation Trust Oversight Board to meet its obligations hereunder.

(e) Notwithstanding any provision of this Agreement to the contrary, the Litigation Trustee shall not be required to obtain the approval or follow the directions of the Litigation Trust Oversight Board to the extent that: (i) the Litigation Trust Oversight Board has not authorized the Litigation Trustee to take any action that the Litigation Trustee, in good faith, reasonably determines, based on the advice of legal counsel, is required to be taken by applicable law; or (ii) the Litigation Trust Oversight Board directs the Litigation Trustee to take action that the Litigation Trustee, in good faith, reasonably determines, based on the advice of legal counsel, is prohibited by applicable law.


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5.3 Fiduciary Duties.

(a) The Litigation Trust Oversight Board and its Members shall have fiduciary duties to the Litigation Trust Beneficiaries consistent with the fiduciary duties that the members of an official committee of creditors appointed pursuant to section 1102 of the Bankruptcy Code have to the creditor constituents represented by such committee and shall exercise its responsibilities accordingly; provided, however, that the Litigation Trust Oversight Board shall not owe fiduciary obligations to any defendants of the DV Claims, Former D&O and Shareholder Causes of Action, or other Causes of Action assigned to the Litigation Trust in their capacities as such, it being the intent of such fiduciary duties to ensure that the Litigation Trust Oversight Board’s obligations are to optimize the value of the Litigation Trust Assets. In all circumstances, the Litigation Trust Oversight Board shall act in the best interests of the Litigation Trust Beneficiaries and in furtherance of the purpose of the Litigation Trust.

(b) While each Member acknowledges that such Member is acting as fiduciary in its capacity as a Member, nothing contained in this Agreement shall, subject to all of such Member’s obligations hereunder including fiduciary and confidentiality obligations, prevent any such Member from exercising (or omitting to exercise) or seeking (or omitting to seek) to enforce or protect any of its rights, duties and powers in its capacity as an individual creditor or party-in-interest as it may deem appropriate.

5.4 Meetings of the Litigation Trust Oversight Board. Meetings of the Litigation Trust Oversight Board are to be held not less often than quarterly. Special meetings of the Litigation Trust Oversight Board may be held whenever and wherever called for by the Litigation Trustee or any Member; provided, however, that notice of any such meeting shall be duly given in writing no less than 48 hours prior to such meeting (such notice being subject to waiver by the Members). Any action required or permitted to be taken by the Litigation Trust Oversight Board at a meeting may be taken without a meeting if the action is taken by unanimous written consent of the Litigation Trust Oversight Board as evidenced by one or more written consents describing the action taken, signed by all Members and recorded in the minutes, if any, or other transcript, if any, of proceedings of the Litigation Trust Oversight Board. Unless the Litigation Trust Oversight Board decides otherwise (which decision shall rest in the reasonable discretion of the Litigation Trust Oversight Board), the Litigation Trustee and the Litigation Trustee’s designated Litigation Trust Professional(s) may, but are not required to, attend meetings of the Litigation Trust Oversight Board.

5.5 Manner of Acting.

(a) A quorum for the transaction of business at any meeting of the Litigation Trust Oversight Board shall consist of [a majority] of the Members. Except as set forth in Sections 5.5(c) and 5.9(a) herein, the majority vote of the Members present at a duly called meeting at which a quorum is present throughout shall be the act of the Litigation Trust Oversight Board except as otherwise required by law or as provided for in this Agreement. Any or all of the Members may participate in a regular or special meeting by, or conduct the meeting through the use of, conference telephone, video conference or similar communications equipment by means of which all Persons participating in the meeting may hear each other, in which case any required notice of such meeting may generally describe the arrangements (rather than or in addition to the place) for the holding


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thereof. Any Member participating in a meeting by this means is deemed to be present in person at the meeting. Voting (including on negative notice) maybe conducted by electronic mail or individual communications by the Litigation Trustee and each Member.

(b) Any Member who is present and entitled to vote at a meeting of the Litigation Trust Oversight Board (including any meeting of the Litigation Trustee and the Litigation Trust Oversight Board) when action is taken is deemed to have assented to the action taken, subject to the requisite vote of the Litigation Trust Oversight Board, unless: (i) such Member of the Litigation Trust Oversight Board objects at the beginning of the meeting (or promptly upon his/her arrival) to holding or transacting business at the meeting; (ii) his/her dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) he/she delivers written notice (including by electronic or facsimile transmission) of his/her dissent or abstention to the Litigation Trust Oversight Board before its adjournment. The right of dissent or abstention is not available to any Member of the Litigation Trust Oversight Board who votes in favor of the action taken.

(c) Prior to the taking of a vote on any matter or issue or the taking of any action with respect to any matter or issue, each Member of the Litigation Trust Oversight Board shall report to the Litigation Trust Oversight Board any conflict of interest such Member has or may have with respect to the matter or issue at hand and fully disclose the nature of such conflict or potential conflict (including, without limitation, disclosing any and all financial or other pecuniary interests that such Member may have with respect to or in connection with such matter or issue, other than solely as a holder of Litigation Trust Interests). A Member who, with respect to a matter or issue, has or who may have a conflict of interest whereby such Member’s interests are adverse to the interests of the Litigation Trust (i) shall be deemed to be a “Conflicted Member” who shall not be entitled to vote or take part in any action with respect to such matter or issue, (ii) the vote or action with respect to such matter or issue shall be undertaken only by Members of the Litigation Trust Oversight Board who are not Conflicted Members and (iii) notwithstanding anything contained herein to the contrary, the affirmative vote of only a majority of the Members of the Litigation Trust Oversight Board who are not Conflicted Members shall be required to approve of such matter or issue and the same shall be the act of the Litigation Trust Oversight Board; provided, however, that a Member shall not be deemed to be a Conflicted Member with respect to a particular matter or issue if such Member merely has an economic interest in the outcome of such matter or issue solely as a holder of Litigation Trust Interests.

5.6 Tenure of the Members of the Litigation Trust Oversight Board. The authority of the Members will be effective as of the Effective Date and will remain and continue in full force and effect until the Litigation Trust is dissolved in accordance with Section 8.1 hereof. The Members will serve until such Member’s successor is duly appointed or until such Member’s earlier death or resignation pursuant to Section 5.7 below, or removal pursuant to Section 5.8 below.

5.7 Resignation. A Member may resign by giving not less than 90 days’ prior written notice thereof to the Litigation Trustee and the other Members. Such resignation shall become effective on the later to occur of: (i) the day specified in such notice and (ii) the appointment of a successor in accordance with Section 5.9 below.


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5.8 Removal.

(a) A majority of the Litigation Trust Oversight Board may remove any Member for Cause or Disability. Notwithstanding the foregoing, upon the occurrence of the Dissolution of the Litigation Trust (as set forth in in Section 8.1 below), any or all of the Members shall be deemed to have resigned.

(b) For purposes of Section 4.4 hereof and this Section 5.8:

(i) “Cause” shall mean (i) a Person’s willful failure to perform his/her/its material duties hereunder (including, without limitation, with respect to a Member or, to the extent applicable, the Litigation Trustee, regular attendance at meetings of the Litigation Trust Oversight Board), which is not remedied within 30 days of notice; (ii) a Person’s commission of an act of fraud, theft or embezzlement during the performance of his/her/its duties hereunder; (iii) a Person’s conviction of a felony with all appeals having been exhausted or appeal periods lapsed; or (iv) a Person’s gross negligence, bad faith, willful misconduct, or knowing violation of law in the performance of his/her/its duties hereunder;

(ii) “Disability” of the Litigation Trustee or a Member who is a natural person shall have occurred if, as a result of such Person’s incapacity due to physical or mental illness as determined by a physician selected by the Litigation Trustee or the Member, as applicable, and reasonably acceptable to the Litigation Trust Oversight Board, the Litigation Trustee or the Member shall have been substantially unable to perform his or her duties hereunder for three (3) consecutive months or for an aggregate of 180 days during any period of twelve (12) consecutive months; and

(c) the Bankruptcy Court shall retain jurisdiction to adjudicate any dispute regarding the removal or attempted removal of any Member, including, without limitation, any issue regarding Cause or Disability.

5.9 Appointment of a Successor Member.

(a) In the event of a vacancy on the Litigation Trust Oversight Board (whether by removal, death or resignation), a new Member may be appointed to fill such position by [a majority of] the remaining Members. The appointment of a successor Member will be further evidenced by the Litigation Trustee’s filing with the Bankruptcy Court and posting on the Litigation Trustee’s website of a notice of appointment, at the direction of the Litigation Trust Oversight Board, which notice will include the name, address, and telephone number of the successor Member.

(b) Immediately upon the appointment of any successor Member, all rights, powers, duties, authority and privileges of the predecessor Member hereunder will be vested in and undertaken by the successor Member without any further act, and such successor Member will not be liable personally for any act or omission of the predecessor Member.


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(c) Every successor Member appointed hereunder shall execute, acknowledge and deliver to the Litigation Trustee and other Members an instrument accepting the appointment under this Agreement and agreeing to be bound hereto, and thereupon the successor Member without any further act, deed or conveyance, shall become vested with all rights, powers, trusts and duties of the retiring Member.

5.10 Compensation and Reimbursement of Expenses. Unless determined by the Litigation Trust Oversight Board, no Member shall be entitled to compensation in connection with his or her service to the Litigation Trust Oversight Board and no Member shall receive attorneys’ fees. However, the Litigation Trust will reimburse the Members for all reasonable and documented out-of-pocket expenses incurred by the Members in connection with the performance of each of their duties hereunder.

5.11 Confidentiality. Each Member, including a non-voting observer Member, shall, during the period that such Member serves as a Member under this Agreement and following the termination of this Agreement or following such Member’s removal or resignation, hold strictly confidential and not use for any purpose, non-public information of which such Member has become aware in the Member’s capacity as a Member, except as otherwise required by law. Notwithstanding anything to the contrary, Member Pension Benefit Guaranty Corporation (“PBGC”), as a governmental agency, may disclose confidential information (i) to the Executive Branch of the United States, the PBGC Board of Directors, officials, advisors, consultants, and representatives who have a need to know the information as part of their job responsibilities; (ii) as required by law; (iii) as may be necessary in connection with any court or administrative proceedings; (iv) upon request of Congress or any committee, joint committee or subcommittee thereof, including the Comptroller General and the Congressional Budget Office.

ARTICLE VI LIABILITY AND INDEMNIFICATION

6.1 Indemnification of the Litigation Trustee2

(a) The Litigation Trust shall indemnify the Litigation Trustee for, and shall hold them harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of their respective professionals) incurred without fraud, gross negligence or willful misconduct on the part of the Litigation Trustee in its capacity as such (which fraud, gross negligence or willful misconduct, if any, must be determined by a Final Order of a court of competent jurisdiction) for any action taken, suffered or omitted to be taken by the Litigation Trustee in connection with the acceptance, administration, exercise and performance of its duties under the Plan or this Agreement, as applicable. An act or omission taken with the approval of the Bankruptcy Court or the Canadian Court, and not inconsistent therewith, will be conclusively deemed not to constitute fraud, gross negligence or willful misconduct. In addition, the Litigation Trust shall, to the fullest extent permitted by law, indemnify and hold harmless the Litigation Trustee, in its capacity as such, from and against and with respect to any and all liabilities, losses, damages, claims, costs and expenses, including attorneys’ fees arising out of or due to its actions or omissions, or consequences of such

2 Including members of the Litigation Trust Oversight Board in their capacities as such.


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actions or omissions, with respect to the Litigation Trust or the implementation or administration of the Plan if the Litigation Trustee acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the Litigation Trust. To the extent the Litigation Trust indemnifies and holds the Litigation Trustee harmless as provided above, the reasonable legal fees and related costs incurred by counsel to the Litigation Trustee in monitoring or participating in the defense of such claims giving rise to the right of indemnification shall be paid as Litigation Trust Expenses. The costs and expenses incurred in enforcing the right of indemnification in this Section 6.1(a) shall be paid by the Litigation Trust. This provision shall survive the termination of this Agreement and the death, dissolution, liquidation, resignation, replacement or removal of the Litigation Trustee.

(b) The Litigation Trustee shall be authorized, but not required, to obtain any reasonably necessary insurance coverage, at the Litigation Trust’s sole expense, for the Litigation Trust Oversight Board, the Litigation Trust, and the Litigation Trustee and their respective agents, including coverage with respect to the liabilities, duties and obligations of the Litigation Trustee, which insurance coverage may, at the sole option of the Litigation Trustee, be extended for a reasonable period after the termination of the Litigation Trust Agreement.

6.2 Limitation of Liability. The Litigation Trustee, including any agents or professionals of the Litigation Trustee, and the members of the Litigation Trustee Oversight Board will not be liable for punitive, exemplary, consequential, special or other damages for a breach of this Agreement under any circumstances in connection with the Litigation Trust Agreement, whether such claims are brought in contract or tort, except for damages arising from specific actions or omissions resulting from willful misconduct, gross negligence, malpractice, or intentional fraud. The Litigation Trustee shall enjoy all of the rights, powers, immunities and privileges applicable to a chapter 7 trustee or any other analogous trustee with respect to the DV Claims, Claims of the DV Entities, any of the Former D&Os or Shareholders, the Former D&O and Shareholder Causes of Action, and other Causes of Action that are Litigation Trust Assets. The Litigation Trustee may, in connection with the performance of his, her or its functions, in the Litigation Trustee’s sole and absolute discretion, consult with his, her or its attorneys, accountants, advisors and agents, and shall not be liable for any act taken, or omitted to be taken, or suggested to be done in accordance with advice or opinions rendered by such persons, regardless of whether such advice or opinions are in writing. Notwithstanding such authority, the Litigation Trustee shall be under no obligation to consult with any such attorneys, accountants, advisors or agents, and any determination not to do so shall not result in the imposition of liability on the Litigation Trustee or its members unless such determination is based on willful misconduct, gross negligence or fraud. Persons dealing with the Litigation Trustee shall look only to the Litigation Trust Assets to satisfy any liability incurred by the Litigation Trustee to such person in carrying out the terms of the Litigation Trust Agreement, and the Litigation Trustee shall have no personal obligation to satisfy such liability.

ARTICLE VII TAX MATTERS

7.1 Tax Treatment; No Successor in Interest. The Litigation Trust is intended to be treated for U.S. federal income tax purposes as a liquidating trust described in Treasury Regulation section 301.7701-4(d). For U.S. federal income tax purposes, the transfer of assets by the Debtors


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to the Litigation Trust will be treated as the transfer of assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, as applicable, subject to any liabilities of the Debtors or the Litigation Trust payable from the proceeds of such assets, followed by the transfer of such assets (subject to such liabilities) by such holders to the Litigation Trust in exchange for the beneficial interests in the Litigation Trusts. For all U.S. federal income tax purposes, all parties (including the Debtors, the Litigation Trustee and the Litigation Trust Beneficiaries) shall treat the transfer of the Litigation Trust Assets by the Debtors to the Litigation Trust in the manner set forth above as a transfer of such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, followed by a transfer by such holders to the Litigation Trust.

7.2 Liquidation Purpose of the Litigation Trust. The Litigation Trust shall be established for the primary purpose of liquidating and distributing the assets transferred to it, in accordance with Treasury Regulation section 301.7701-4(d), with no objective to continue or engage in the conduct of a trade or business, except to the extent reasonably necessary to, and consistent with, the liquidating purpose of the Litigation Trust. Accordingly, the Litigation Trustee shall, in an expeditious but orderly manner and in conformity with the Plan, liquidate and convert to Cash the Litigation Trust Assets, make timely distributions to the Litigation Trust Beneficiaries and not unduly prolong their duration. The Litigation Trust shall not be deemed a successor-in-interest of the Debtors for any purpose other than as specifically set forth in this Plan or this Agreement. The record holders of beneficial interests shall be recorded and set forth in a register maintained by the Litigation Trustee expressly for such purpose. The Liquidation Trust will keep a record of Litigation Trust Beneficiaries for the Litigation Trust.

7.3 Cash Investments. The right and power of the Litigation Trustee to invest the Litigation Trust Assets, the proceeds thereof or any income earned by the Litigation Trust, shall be limited to the right and power that a liquidating trust, within the meaning of section 301.7701-4(d) of the Treasury Regulations, is permitted to hold, pursuant to the Treasury Regulations, or any modification in the IRS guidelines, including Revenue Procedure 94-45, whether set forth in IRS rulings or other IRS pronouncements, and to the investment guidelines of section 345 of the Bankruptcy Code. The Litigation Trustee may retain any Litigation Trust Assets received that are not Cash only for so long as may be required for the prompt and orderly liquidation of such assets, and the Litigation Trustee may expend the Litigation Trust Assets; (i) as reasonably necessary to meet contingent liabilities and realize or maintain the value of the Litigation Trust Assets during liquidation; (ii) to pay reasonable and documented administrative expenses (including, but not limited to, any taxes imposed on the Litigation Trust or reasonable fees and expenses in connection with liquidating the Litigation Trust Assets); and (iii) to satisfy other liabilities incurred or assumed by the Litigation Trust (or to which the Litigation Trust Assets are otherwise subject) in accordance with the Plan or this Agreement.

7.4 Litigation Trust as Grantor Trust. The Litigation Trust is intended to qualify as a “grantor trust” for U.S. federal income tax purposes with the Litigation Trust Beneficiaries treated as grantors and owners of the Litigation Trust. For all U.S. federal income tax purposes, all parties (including the Debtors, the Litigation Trustee and the Litigation Trust Beneficiaries) shall treat the transfer of the Litigation Trust Assets by the Debtors to the Litigation Trust, as set forth in the Litigation Trust Agreement, as a transfer of such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, followed by a transfer by such


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holders to the Litigation Trust. Thus, the Litigation Trust Beneficiaries shall be treated as the grantors and owners of a grantor trust for U.S. federal income tax purposes.

7.5 Tax Reporting and Tax Payments.

(a) The Litigation Trustee shall file tax returns for the Litigation Trusts treating the Litigation Trust as a grantor trust pursuant to Treasury Regulation section 1.671-4(a). The Litigation Trustee also shall annually send or otherwise provide to each holder of a Litigation Trust Beneficial Interest a separate statement regarding the receipts and expenditures of the Litigation Trust as relevant for U.S. federal income tax purposes and will instruct all such holders to use such information in preparing their U.S. federal income tax returns or to forward the appropriate information to such holders’ underlying beneficial holders with instructions to utilize such information in preparing their U.S. federal income tax returns.

(b) As soon as practicable after the Effective Date, the Litigation Trustee shall make a good faith determination of the fair market value of the Litigation Trust Assets as of the Effective Date. This valuation shall be made available to the parties from time to time as relevant and shall be used consistently by all parties for all U.S. federal income tax purposes. The Bankruptcy Court shall resolve any dispute regarding the valuation of the assets of the Litigation Trust.

(c) The Litigation Trust shall be responsible for payment, out of the Litigation Trust Assets, of any taxes imposed on the Litigation Trust or the Litigation Trust Assets.

(d) The Litigation Trustee may request an expedited determination of taxes of the Litigation Trust, under section 505(b) of the Bankruptcy Code for all tax returns filed for, or on behalf of, such Litigation Trust for all taxable periods through the dissolution of the Litigation Trust.

7.6 Withholding of Taxes.

(a) The Litigation Trustee shall deduct and withhold and pay to the appropriate Governmental Unit all amounts required to be deducted or withheld pursuant to the Tax Code or any provision of any state, local or non-U.S. tax law with respect to any payment or distribution by the Litigation Trust to the Litigation Trust Beneficiaries. Notwithstanding the above, each holder of an Allowed Claim that is to receive a distribution under the Plan shall have the sole and exclusive responsibility for the satisfaction and payment of any taxes imposed on such holder by any governmental authority, including income, withholding and other tax obligations, on account of such distribution. All such amounts withheld and paid to the appropriate Governmental Unit shall be treated as amounts distributed to the applicable Litigation Trust Beneficiary for all purposes of this Agreement.

(b) The Litigation Trustee shall be authorized to collect such tax information from the Litigation Trust Beneficiaries (including, without limitation, social security numbers or other tax identification numbers) as it, in its sole discretion, deems necessary to effectuate the Plan, the Confirmation Order and this Agreement. As a condition to receive distributions under the Plan, all Litigation Trust Beneficiaries may be required to identify themselves to the Litigation Trustee and provide tax information and the specifics of their holdings, to the extent the Litigation


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Trustee deems appropriate, including an IRS Form W-9 or, in the case of Litigation Trust Beneficiaries that are not United States persons for federal income tax purposes, certification of foreign status on an applicable IRS Form W-8 unless such Person is exempt under the Tax Code and provides the Litigation Trustee with the appropriate documentation, satisfactory to the Litigation Trustee, establishing such exemption. The Litigation Trustee may refuse to make a distribution to any Litigation Trust Beneficiary that fails to furnish such information in a timely fashion, until such information is delivered; provided, however, that, upon the delivery of such information by a Litigation Trust Beneficiary within 150 days of the initial request by the Litigation Trustee, the Litigation Trustee shall make such distribution to which the Litigation Trust Beneficiary is entitled, without interest; If such request is made by the Liquidation Trustee, the Litigation Trustee or such other Person designated by the applicable Trustee and the holder fails to comply before the date that is 150 days after the request is made, the amount of such distribution shall irrevocably revert to the Liquidation Trust or Litigation Trust, as applicable, and any Claim in respect of such Distribution shall be discharged and forever barred from assertion against any Debtor and its respective property. If the Litigation Trustee fails to withhold in respect of amounts received or distributable with respect to any such holder and the Litigation Trustee is later held liable for the amount of such withholding, such holder shall reimburse the Litigation Trustee for such liability.

(c) The identification requirements in this Section 7.6 may, in certain cases, extend to holders who hold their securities in street name.

7.7 Tax Returns and Books and Records upon Dissolution. Upon the dissolution of the Litigation Trust, the Litigation Trustee shall transfer all tax returns and filings and other books and records of the Litigation Trust related to taxes to the Liquidation Trust if the Liquidation Trust has not been previously dissolved.

7.8 Exemption from Certain Transfer Taxes. To the maximum extent provided by section 1146(a) of the Bankruptcy Code, any post Confirmation sale by any Debtor, or any transfer from any Entity pursuant to, in contemplation of, or in connection with the Plan or pursuant to: (i) the issuance, distribution, transfer, or exchange of any debt, equity security, or other interest in the Debtors; or (ii) the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including any deeds, bills of sale, assignments, or other instruments of transfer executed in connection with any transaction arising out of, contemplated by, or in any way related to the Plan, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, Uniform Commercial Code or similar filing or recording fee, or other similar tax or governmental assessment, in each case to the extent permitted by applicable bankruptcy law, and the appropriate federal, state, provincial or local government officials or agents shall forego collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment.


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ARTICLE VIII DISSOLUTION OF LITIGATION TRUST

8.1 Dissolution of the Litigation Trust. In no event shall the Litigation Trust be dissolved later than five (5) years from the Effective Date unless the Bankruptcy Court, upon motion made within the six month period before such fifth anniversary (and, in the event of further extension, by order of the Bankruptcy Court, upon motion made within six months before the end of the extended term), determines that a fixed period extension (not to exceed three years, together with any prior extensions, without a favorable private letter ruling from the IRS or an opinion of counsel satisfactory to the Litigation Trustee that any further extension would not adversely affect the status of the trust as a liquidating trust for U.S. federal income tax purposes) is necessary to facilitate or complete the recovery on, and liquidation of, the Litigation Trust Assets. Upon the dissolution of the Litigation Trust, the Litigation Trustee shall transfer any remaining Litigation Trust Assets to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan; provided that if the Liquidation Trust is dissolved before the dissolution of the Litigation Trust, the Litigation Trustee shall distribute the Litigation Trust Assets directly to Litigation Trust Beneficiaries in accordance with the terms of the Plan.

ARTICLE IX AMENDMENT AND WAIVER

9.1 Subject to Sections 9.2 and 9.3 of this Agreement, the Litigation Trustee, with the prior approval of the Litigation Trust Oversight Board, upon notice to the Liquidation Trustee with the opportunity to object, may seek Bankruptcy Court approval of any amendment, supplement or waiver with respect to any provision of this Agreement. Technical amendments to this Agreement may be made, as necessary to clarify this Agreement or enable the Litigation Trustee to effectuate the terms or purposes of this Agreement, by the Litigation Trustee with approval by a majority of the Litigation Trust Oversight Board and upon five (5) prior business days’ notice to the Liquidation Trustee.

9.2 Notwithstanding Section 9.1 of this Agreement, no amendment, supplement or waiver of or to this Agreement shall (a) adversely affect the payments and/or distributions to be made under the Plan, the Confirmation Order or this Agreement, (b) adversely affect the U.S. federal income tax status of the Litigation Trust as a “liquidating trust” or (c) be inconsistent with the purpose and intention of the Litigation Trust to liquidate in an expeditious but orderly manner the Litigation Trust Assets in accordance with Treasury Regulation section 301.7701-4(d).

9.3 No failure by the Litigation Trust, the Litigation Trustee, or the Litigation Trust Oversight Board to exercise or delay in exercising any right, power, or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any further exercise thereof, or of any other right, power, or privilege.


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ARTICLE X MISCELLANEOUS PROVISIONS

10.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware (without reference to principles of conflicts of law that would require or permit application of the law of another jurisdiction).

10.2 Jurisdiction. Subject to the proviso below, the Parties agree that the Bankruptcy Court shall have jurisdiction over the Litigation Trust and the Litigation Trustee, including, without limitation, the administration and activities of the Litigation Trust and the Litigation Trustee to the fullest extent permitted by law; provided, however, that notwithstanding the foregoing, the Litigation Trustee shall have power and authority to bring any action in any court of competent jurisdiction to prosecute any of Causes of Action constituting Litigation Trust Assets and pursue any recoveries in respect of any such Causes of Action. Each Party to this Agreement hereby irrevocably consents to the jurisdiction of the Bankruptcy Court in any action to enforce, interpret or construe any provision of this Agreement or of any other agreement or document delivered in connection with this Agreement, and also hereby irrevocably waives any defense of improper venue, forum non conveniens, or lack of personal jurisdiction to any such action brought in the Bankruptcy Court. Until the closing or dismissal of the Chapter 11 Cases, any action to enforce, interpret, or construe any provision of this Agreement will be brought only in the Bankruptcy Court; provided, however, that in the event that the Bankruptcy Court does not have jurisdiction pursuant to the foregoing provision, including after the closing or dismissal of the Chapter 11 Cases, any action to enforce, interpret, or construe any provision of this Agreement will be brought in either a state or federal court of competent jurisdiction in the state of Delaware (without prejudice to the right of any Party to seek to reopen the Chapter 11 Cases to hear matters with respect to this Agreement). Each Party hereby irrevocably consents to the service by certified or registered mail, return receipt requested, of any process in any action to enforce, interpret, or construe any provision of this Agreement.

10.3 Severability. In the event any provision of this Agreement or the application thereof to any person or circumstances shall be determined by Final Order to be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to persons or circumstances or in jurisdictions other than those as to or in which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

10.4 Notices. Any notice or other communication required or permitted to be made under this Agreement shall be in writing and shall be deemed to have been sufficiently given, for all purposes, if delivered personally or by facsimile or electronic communication, sent by nationally recognized overnight delivery service or mailed by first-class mail. The date of receipt of such notice shall be the earliest of (a) the date of actual receipt by the receiving party, (b) the date of personal delivery (or refusal upon presentation for delivery), (c) the date of the transmission confirmation or (d) three Business Days after service by first-class mail, to the receiving party’s below address(es):

(i) if to the Litigation Trustee, to:


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William T. Reid, IV PLLC Reid Collins & Tsai LLP 330 West 58th Street

Suite 403 New York, NY 10019

[email protected]

(ii) if to any Litigation Trust Beneficiary, to the last known address of such Litigation Trust Beneficiary according to the Litigation Trustee’s records;

(iii) if to the Debtors, to:

Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 Attn: Garrett A. Fail David J. Cohen Email: [email protected] [email protected]

(iv) if to a Member of the Litigation Trust Oversight Board, to the applicable address(es) set forth on Exhibit 1.

10.5 Headings. The headings contained in this Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of this Agreement or of any term or provision hereof.

10.6 Plan and Confirmation Order. The principal purpose of this Agreement is to aid in the implementation of the Plan and, therefore, this Agreement incorporates and, is subject to the provisions of the Plan and the Confirmation Order. In the event of any direct conflict or inconsistency between any provision of this Agreement, on the one hand, and the provisions of the Plan, on the other hand, the provisions of the Plan shall govern and control. In the event of any direct conflict or inconsistency between any provision in the Plan, on the one hand, and the provisions of the Confirmation Order, on the other hand, the provisions of the Confirmation Order shall govern and control.

10.7 Entire Agreement. This Agreement and the exhibits attached hereto, together with the Plan and the Confirmation Order, contain the entire agreement between the parties and supersede all prior and contemporaneous agreements or understandings between the parties with respect to the subject matter hereof.

10.8 Cumulative Rights and Remedies. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights under law or in equity, subject to any limitations provided under the Plan and the Confirmation Order.

10.9 Meanings of Other Terms. Except where the context otherwise requires, words importing the masculine gender include the feminine and the neuter, if appropriate, words


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importing the singular number shall include the plural number and vice versa and words importing persons shall include firms, associations, corporations and other entities. All references herein to Articles, Sections and other subdivisions, unless referring specifically to the Plan or provisions of the Bankruptcy Code, the Bankruptcy Rules or other law, statute or regulation, refer to the corresponding Articles, Sections and other subdivisions of this Agreement and the words “herein,” “hereof” or “herewith” and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision of this Agreement. The term “including” shall mean “including, without limitation.”

10.10 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of any successor in interest to any one or more of the Brooks Brothers Parties, including, but not limited to, the Debtors (as limited by the Plan and the Confirmation Order), that shall, upon becoming any such successor be subject to and obligated to comply with the terms and conditions hereof. The obligations of the Litigation Trust and Litigation Trustee to any one or more of the Brooks Brothers Parties pursuant to this Agreement shall also be obligations of the Litigation Trust and Litigation Trustee to any such successor in interest, including, but not limited to, the Reorganized Debtors. For the avoidance of doubt, in the event that any Person (including, as applicable, the Reorganized Debtors) becomes a successor in interest to a Brooks Brothers Party, the claims, privileges, books and records and directors, officers, employees, agents and professionals of such Person, to the extent not otherwise subject to the provisions and requirements of this Agreement prior to such Person becoming a successor in interest to the applicable Brooks Brothers Party, shall not become subject to the provisions and requirements of this Agreement solely because such Person becomes a successor in interest to the applicable Brooks Brothers Party.

10.11 Limitations. Except as otherwise specifically provided in this Agreement, the Plan or the Confirmation Order, nothing herein is intended or shall be construed to confer upon or to give any person other than the parties hereto and the Litigation Trust Beneficiaries any rights or remedies under or by reason of this Agreement and notwithstanding anything in this Agreement, the Parties hereby acknowledge and agree that nothing herein is intended to, does, or shall be construed to prejudice or harm in any way the rights, remedies or treatment (including any releases, exculpation, indemnification, or otherwise) of any Released Party or Exculpated Party, solely in their capacity as a Released Party or Exculpated Party, under the Plan.

10.12 Further Assurances. From and after the Effective Date, the parties hereto covenant and agree to execute and deliver all such documents and notices and to take all such further actions as may reasonably be required from time to time to carry out the intent and purposes of this Agreement, and to consummate the transactions contemplated hereby.

10.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but such counterparts shall together constitute but one and the same instrument. A facsimile or electronic mail signature of any party shall be considered to have the same binding legal effect as an original signature.

10.14 Authority. Each Party hereby represents and warrants to the other Parties that: (i) such Party has full corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby; (ii) the execution


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and delivery by such Party of this Agreement, the performance by such Party of its obligations hereunder, and the consummation by Seller of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of such Party; (iii) this Agreement has been duly executed and delivered by such Party, and (assuming due authorization, execution and delivery by the other Parties hereto) this Agreement constitutes a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms.


[Signature Page to Brooks Brothers Litigation Trust Agreement]

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement or caused this Agreement to be duly executed by their respective officers, representatives or agents, effective as of the date first above written.

WILLIAM T. REID, IV PLLC, AS TRUSTEE OF THE BROOKS BROTHERS LITIGATION TRUST By: Name: Title:

BBGI US, INC., ON BEHALF OF THE DEBTORS

By: Name: Title:


EXHIBIT 1

Initial Members of the Litigation Trust Oversight Board

[To Come]


Exhibit D

Assumption Schedule


Exhibit D

Assumption Schedule

The following contracts shall be assumed and assigned to the Liquidation Trust on the

Effective Date.

Counterparty Debtor Agreement Contract Date

Address Proposed Cure Amount

Hartford Life And Accident Insurance Company

BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.)

Long Term Disability Benefit Administration Agreement

1/1/2020 1 Hartford Plaza Hartford, CT 06155

$90,363.38

United Healthcare


Excess Loss Coverage Agreement

1/1/2020 9700 Health Care Lane Minnetonka, MN 55343

$0.00

United Healthcare


Administrative Services Agreement inclusive of all amendments

1/1/2019 9700 Health Care Lane Minnetonka, MN 55343

$0.00

Cigna Dental BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.)

Health Care Dental Benefit Agreement

N/A 900 Cottage Grove Rd Hartford, CT 06152

$0.00

Berkley Professional Liability


Directors and Officers Liability Agreement

2/1/2019 757 Third Avenue 10th Floor New York, NY 10017

$0.00


2

Notes to the Assumption Schedule1

1. Neither the exclusion or inclusion by the Debtors of any contract or lease on the Assumption Schedule shall constitute an admission by the Debtors that any such contract or lease is or is not an Executory Contract or Unexpired Lease or that the Debtors or the Liquidation Trustee have any liability thereunder. The Debtors, consistent with the terms of the Plan, reserve the right to amend, supplement or modify the Assumption Schedule by adding or removing Executory Contracts and Unexpired Leases.

2. As a matter of administrative convenience, in certain cases the Debtors may have listed the original parties to the Executory Contracts or Unexpired Leases listed on the Assumption Schedule without taking into account any succession, transfer, or assignments from one party to another. The fact that the current parties to a particular Executory Contract or Unexpired Lease may not be named in the Assumption Schedule is not intended to change the treatment of such Executory Contract or Unexpired Lease.

3. References to any Executory Contract or Unexpired Lease on the Assumption Schedule are to the applicable agreement and other operative documents as of the date hereof, as they may have been amended, modified, or supplemented by the parties thereto between such date and the effective date of assumption of such contract or lease.

4. In addition to the Executory Contracts and Unexpired Leases listed on the Assumption Schedule, all of the Debtors’ D&O Policies and insurance policies shall be assumed, including but not limited to those listed herein, regardless of whether such insurance policies are listed on the Assumption Schedule.

1 Capitalized terms shall have the meanings ascribed to such term in the Plan.


Exhibit E

Schedule of Retained Causes of Action


Exhibit E

Schedule of Retained Causes of Action1

This Schedule of Retained Causes of Action (this “Schedule”) comprises part of the Plan Supplement and describes the categories of Causes of Action2 to be retained by the Debtors and vested in the Liquidation Trust or the Litigation Trust (as applicable), in each case, on the Effective Date pursuant to the Plan (the “Retained Causes of Action”). This Schedule does not limit or narrow the scope of the Retained Causes of Action under the Plan. This Schedule is intended to provide further information and explanation to parties in interest of the Causes of Action to be retained by the Debtors and vested in the Liquidation Trust or the Litigation Trust, as applicable. The Debtors expressly reserve the right to alter, modify, amend, remove, augment, or supplement this Schedule at any time in accordance with the terms of the Plan. Any such modification will be set forth in an amended Plan Supplement.

The following is a non-exclusive list of the categories of Causes of Action that will be retained by the Debtors and vest in the Liquidation Trust, on the Effective Date pursuant to the Plan (collectively, the “Liquidation Trust Causes of Action”):

1. any and all Causes of Action based in whole or in part upon any and all insurance contracts, insurance policies, occurrence policies, and occurrence contracts to which any of the Debtors is a party or pursuant to which any Debtor has any rights whatsoever, including any Causes of Action against insurance carriers, reinsurance carriers, insurance brokers, third party administrators, underwriters, occurrence carriers, or surety bond issuers related to coverage, indemnity, contribution, reimbursement, or any other matters;

2. any and all Causes of Action that any of the Debtors hold or may hold against any party that is or may in the future become party to litigation, arbitration or any other type of adversarial proceeding or dispute resolution proceeding, whether formal or informal, or judicial or non-judicial;

3. any and all Causes of Action based in whole or in part upon any and all postings of a security deposit, adequate assurance payment, or any other type of deposit of collateral, regardless of whether such posting of security deposit, adequate assurance payment, or any other type of deposit or collateral is listed in the Plan, any proof of Claim and/or in any Bankruptcy Court filing;

4. any and all Causes of Action based in whole or in part upon any and all contracts, leases or other agreements to which any of the Debtors is, or at one time was, a party or pursuant to which any Debtor has any rights whatsoever (regardless of whether such contracts, leases or other agreements are Executory Contracts);

1 Capitalized terms used but not defined herein have the meanings assigned to them in the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and its Affiliated Debtors [Docket No. 957] (as may be amended, modified and/or supplemented, the “Plan”). 2 For the avoidance of doubt, “Causes of Action” as defined in the Plan excludes “Purchased Actions” under the Sale Order.


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5. any and all Causes of Action based in whole or in part upon any tax liability, tax return or any other matters relating to any tax obligations;

6. any and all Causes of Action related to all Persons that owe money to any Debtor, and any and all Causes of Action related to all Persons that assert that such Debtor owes money to such Persons;

7. any and all Causes of Action based in whole or in part upon, or arising under, any order of the Bankruptcy Court, including without limitation any Causes of Action related to payments made by the Debtors to any Persons or Entities pursuant to any order of the Bankruptcy Court;

8. any and all Causes of Action in connection with asserting or exercising the right to object to all Claims that are not Claims of the DV Entities or of any of the Former D&Os or Shareholders;

9. all Causes of Action and/or rights to setoff, recoupment, and/or recovery the Debtors could assert under section 553 or 558 of the Bankruptcy Code or under any other similar rights under state or federal statutes and common law;

10. any and all Avoidance Actions and/or other Causes of Action that any of the Debtors could assert against any Person under Bankruptcy Code sections 506(d), 522, 541, 542, 543, 544, 545, 547, 548, 549, 550 and/or 553 or otherwise under the Bankruptcy Code or under similar or related state or federal statutes and common law, including, without limitation, all preference, fraudulent conveyance, fraudulent transfer, and/or other similar avoidance claims, rights, and causes of action; and

11. any and all defenses relating to the foregoing.

Notwithstanding anything to the contrary herein, including the foregoing, the following shall vest in the Litigation Trust on the Effective Date pursuant to the terms of the Plan (the “Litigation Trust Causes of Action” and together with the Liquidation Trust Causes of Action, the “Specified Causes of Action”):

1. the Former D&O and Shareholder Causes of Action and DV Claims;

2. any and all Causes of Action in connection with asserting or exercising the right to object to Claims of the DV Entities and the Former D&Os and Shareholders; and

3. any and all defenses relating to the foregoing.

In addition, notwithstanding anything to the contrary herein, including the foregoing, any and all Causes of Action, including any Specified Causes of Action, released or exculpated pursuant to the Plan, including pursuant to Section 10 of the Plan shall not be retained by the Debtors or vest in the Liquidation Trust or the Litigation Trust on the Effective Date.


3

Specified Causes of Action include, without limitation, all Causes of Action of the Debtors and their respective Estates, of every kind and nature, that are not released or exculpated under the express terms of the Plan, whether or not delineated above. No Person may rely on the absence of a specific reference in the Plan, the Plan Supplement (including this Schedule), or the Disclosure Statement to any Retained Causes of Action against it as any indication that the Liquidation Trust or the Litigation Trust (as applicable) will not, or may not, pursue any and all available Retained Causes of Action against it. The Liquidation Trust and the Litigation Trust (as applicable) expressly reserve all rights to prosecute any and all Retained Causes of Action against any Person. Unless a Retained Cause of Action against a holder or other Person is expressly waived, relinquished, released, compromised or settled in the Plan, the PBGC Settlement, or any Final Order (including the Confirmation Order), the Debtors, the Liquidation Trust, and the Litigation Trust (as applicable) expressly reserve such Retained Cause of Action for later adjudication by the Liquidation Trust or the Litigation Trust, as applicable (including, without limitation, Retained Causes of Action not specifically identified or described in this Schedule or elsewhere or of which the Debtors may presently be unaware or which may arise or exist by reason of additional facts or circumstances unknown to the Debtors at this time or facts or circumstances which may change or be different from those the Debtors now believe to exist), and, therefore, no preclusion doctrine, including, without limitation, the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, waiver, estoppel (judicial, equitable or otherwise) or laches shall apply to such Retained Causes of Action upon or after the entry of the Confirmation Order or the Effective Date based on the Disclosure Statement, the Plan or the Confirmation Order, except where such Retained Causes of Action have been released in the Plan (including, without limitation, and for the avoidance of doubt, the Releases contained in Section 10.4, Section 10.5 and Section 10.10 of the Plan), or any other Final Order (including the Confirmation Order). In addition, the Debtors, the Liquidation Trust, and the Litigation Trust, as applicable, expressly reserve the right to pursue or adopt any claims alleged in any lawsuit in which the Debtor is a defendant or an interested party, against any Person, including, without limitation, the plaintiffs or co-defendants in such lawsuits.


Exhibit F

Schedule of Allowed Non-Debtor Subsidiary Claims


Exhibit F

Schedule of Allowed Non-Debtor Subsidiary Claims1

The Allowed Non-Debtor Subsidiary Claims in the Plan are set forth in the following chart. All other Non-Debtor Subsidiary Claims shall be Disallowed as of the Effective Date.

Non-Debtor Subsidiary Class Allowed Claim

Amount

Brooks Brothers UK Limited Class 4 (General Unsecured Claim) $11,220,611

Brooks Brother Greater China Ltd Class 4 (General Unsecured Claim) $2,227,367

Brooks Brothers Ireland Limited N/A $0

Brooks Brothers Australia Pty Limited N/A $0

Brooks Brothers Korea Ltd N/A $0

Brooks Brothers Malaysia SDN. BHD N/A $0

Brooks Brothers Singapore Pte. Ltd N/A $0

Brooks Brothers Austria GmbH N/A $0

Brooks Brothers (Japan) Ltd N/A $0

Brooks Brothers (Shanghai) Commercial Co. Ltd N/A $0

Brooks Brothers Hong Kong Limited N/A $0

Brooks Brothers Macau Limited N/A $0

Brooks Brothers India Private Limited N/A $0

Q.C Service Limited N/A $0

1 Capitalized terms used herein shall have the meaning ascribed to such terms in the Plan.


Exhibit G

Alternative Plan Debtors


Exhibit G

Schedule of Alternative Plan Debtors

Not applicable.


THIS IS EXHIBIT “O” REFERRED TO IN THE







of America,


____________________________________________


648

RLF1 24816342v.2


------------------------------------------------------------ x : In re: : Chapter 11 : BBGI US, INC., et al., : Case No. 20–11785 (CSS) : Debtors.1 : (Jointly Administered) : ------------------------------------------------------------ x Re: D.I. 957, 1046

NOTICE OF FILING OF AMENDED PLAN SUPPLEMENT

PLEASE TAKE NOTICE that, on February 19, 2021, BBGI US, Inc. and its debtor

affiliates, as debtors and debtors in possession in the above captioned chapter 11 cases (the

“Debtors”), filed the Notice of Filing of Plan Supplement [D.I. 1046] (the “Initial Plan

Supplement”) with the United States Bankruptcy Court for the District of Delaware (the

“Court”).

PLEASE TAKE FURTHER NOTICE that the Debtors hereby file this amendment

to the Initial Plan Supplement (the “Amended Plan Supplement” and together with the Initial

Plan Supplement, the “Plan Supplement”) in support of the Amended Joint Chapter 11 Plan of

Liquidating for BBGI US, Inc. and It’s Affiliated Debtors [D.I. 957] (as amended, supplemented

and otherwise modified, the “Plan”).




2 RLF1 24816342v.2

PLEASE TAKE FURTHER NOTICE that this Amended Plan Supplement contains

revised versions of the following documents:

Exhibit B – Liquidation Trust Agreement

Exhibit C – Litigation Trust Agreement

PLEASE TAKE FURTHER NOTICE that attached hereto as Exhibit B-1 is a

redline comparison of the revised Liquidation Trust Agreement marked against the version filed

with the Initial Plan Supplement.

PLEASE TAKE FURTHER NOTICE that attached hereto as Exhibit C-1 is a

redline comparison of the revised Litigation Trust Agreement marked against the version filed

with the Initial Plan Supplement.

PLEASE TAKE FURTHER NOTICE that the Plan Supplement is integral to, part

of, and incorporated by reference into the Plan. If the Plan is approved, the documents contained

in the Plan Supplement will be approved by the Bankruptcy Court pursuant to the order confirming

the Plan.

PLEASE TAKE FURTHER NOTICE that the documents contained in the Plan

Supplement are not final and remain subject to continuing negotiations among the Debtors and

other interested parties. Accordingly, the Debtors reserve their right, subject to the terms and

conditions set forth in the Plan, to alter, amend, modify, or supplement any document in the Plan

Supplement, and such parties reserve their rights with respect to the form of documents filed

herewith and such documents remain subject to review and revision in all respects.

PLEASE TAKE FURTHER NOTICE that the hearing to consider confirmation of

the Plan will be held by videoconference before the Honorable Christopher S. Sontchi, Chief

United States Bankruptcy Judge, in the Bankruptcy Court, located at 824 North Market Street, 5th


3 RLF1 24816342v.2

Floor, Courtroom 6, Wilmington, Delaware 19801 on March 5, 2021 at 1:00 p.m. (prevailing

Eastern Time).

PLEASE TAKE FURTHER NOTICE that this Amended Plan Supplement, the

Initial Plan Supplement, and the Plan are available for viewing or downloading, free of charge,

on the Debtors’ restructuring website, at https://cases.primeclerk.com/brooksbrothers/, or for a

fee on the Bankruptcy Court’s website at http://www.deb.uscourts.gov.

Dated: March 3, 2021 Wilmington, Delaware

/s/ Christopher M. De Lillo RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981) Zachary I. Shapiro (No. 5103) Christopher M. De Lillo (No. 6355) One Rodney Square 920 N. King Street Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701 E-mail: [email protected]

[email protected] [email protected]

- and -

WEIL, GOTSHAL & MANGES LLP Garrett A. Fail (admitted pro hac vice) David J. Cohen (admitted pro hac vice) 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 E-mail: [email protected]

[email protected]



RLF1 24816342v.2

EXHIBIT B

Liquidation Trust Agreement


RLF1 24874454V.2


This Liquidation Trust Agreement (as it may be amended, modified, supplemented or restated from time to time, this “Agreement”) dated as of [•], 2021, is made and entered into by and among BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.); Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; 696 White Plains Road, LLC; and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (“BB Canada”) (each a “Debtor” and collectively, the “Debtors”), Delaware Trust Company, solely in its capacity as Delaware resident trustee pursuant to section 11 hereof, and the Liquidation Trustee (as defined below) for the purpose of forming a trust and is executed in connection with and pursuant to the terms of the Amended Joint Plan of Liquidation for BBGI US, Inc. and its Affiliated Debtors [Docket No. 918] (as it may be further amended, modified, supplemented or restated from time to time, the “Plan”), which Plan provides for, among other things, the establishment of the liquidation trust evidenced hereby (the “Liquidation Trust”).1

WI T N E S S E T H









2

RLF1 24874454v.2







A. Definitions.












3

RLF1 24874454v.2








C. Interpretation.

In this Agreement, except to the extent the context otherwise requires, (i) reference to any Section, subsection, clause, Schedule, Exhibit, preamble or recital, is to that such Section, Article, subsection, clause, Schedule, Exhibit, preamble or recital under this Agreement, (ii) the words “hereof,” “herein,” and similar terms shall refer to this Agreement and not to any particular section or article of this Agreement, (iii) references to any document or agreement, including this Agreement, shall be deemed to include references to such document or agreement as amended, supplemented, replaced or restated from time to time in accordance with its terms and subject to compliance with any requirements set forth therein, (iv) references to any law, statute, rule, regulation or form (including in the definition thereof) shall be deemed to include references to such statute, rule, regulation or form as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, include any rules and regulations promulgated under such statute), and all references to any section of any statute, rule, regulation or form include any successor to such section, (v) references to any party hereto shall include its successors and permitted assigns, (vi) wherever the word “include,” “includes” or “including” is used herein, it shall be deemed to be followed by the words “without limitation,” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision with


4

RLF1 24874454v.2

respect to which such examples are provided, (vii) the words “shall” and “will” are used interchangeably throughout this Agreement, and the use of either connotes a mandatory requirement, (viii) the word “or” is not meant to be exclusive, and shall be interpreted as “and/or”, (ix) references to “day” or “days” are references to calendar days, (x) the terms “Dollars” and “$” mean United States Dollars, (xi) whenever the context requires, terms shall include the plural as well as the singular number, the masculine gender shall include the feminine, and the feminine gender shall include the masculine and (xii) references to any time periods herein that are initiated by the receipt of a notice shall be deemed not to include the date such notice is received in the calculation of such time period.









5

RLF1 24874454v.2







2.4 Privileges.



6

RLF1 24874454v.2











7

RLF1 24874454v.2




2.6 Effectiveness.






8

RLF1 24874454v.2









9

RLF1 24874454v.2













10

RLF1 24874454v.2









11

RLF1 24874454v.2


4.1 Distributions.







12

RLF1 24874454v.2













13

RLF1 24874454v.2













14

RLF1 24874454v.2

5.6 No Standing.









15

RLF1 24874454v.2










16

RLF1 24874454v.2





17

RLF1 24874454v.2





7.1 Appointment.







18

RLF1 24874454v.2






19

RLF1 24874454v.2










20

RLF1 24874454v.2








21

RLF1 24874454v.2


9.1 Duration.






pursuant to this Agreement, (i) on the fifth anniversary of the Effective Date of the Plan (unless the Liquidation Trust term has been extended in accordance with this section), or (ii) in the event the Liquidation Trustee determines that the pursuit of additional actions on behalf of the Liquidation Trust is not likely to yield sufficient additional proceeds to justify further pursuit of such actions, the Liquidation Trustee shall, after payment of all costs, expenses and obligations incurred in connection with administering the Liquidation Trust, Distribute all of the Liquidation Trust Assets to the Liquidation Trust Beneficiaries in accordance with the Plan, and immediately thereafter the Liquidation Trust shall dissolve and terminate and the Liquidation Trustee shall have no further responsibility in connection therewith except to the limited extent set forth in this Agreement. In no event shall the Liquidation Trust be dissolved later than five years from the Effective Date of the Plan unless the Bankruptcy Court, upon motion made within the six month period before such fifth anniversary (and, in the event of further extension, by order of the Bankruptcy Court, upon motion made at least six months before the end of the preceding extension), determines that a fixed period extension (not to exceed three years, together with any prior extensions, without a favorable private letter ruling from the Internal Revenue Service or an opinion of counsel satisfactory to the Liquidation Trustee that any further extension would not adversely affect the status of the Liquidation Trust as a liquidating trust for U.S. federal income tax purposes) is necessary to facilitate or complete the recovery on, and liquidation of, the Liquidation Trust Assets, including all responsibilities of the Liquidation Trust (or the Liquidation Trustee on its behalf) as set forth in, and in accordance with, the provisions of the Plan, the Confirmation Order and this Agreement. If at any time the Liquidation Trustee determines, in reliance upon such Trust Professionals as the Liquidation Trustee may retain, that the expense of administering the Liquidation Trust so as to make a final distribution to the Liquidation Trust Beneficiaries is likely to exceed the value of the assets remaining in the Liquidation Trust, the Liquidation Trustee may apply to the Bankruptcy Court for authority to (i) reserve any amount necessary to dissolve the Liquidation Trust, (ii) donate any balance to a charitable organization (A) of the type described in section 501(c)(3) of the Tax Code, (B) exempt from U.S. federal income tax under section 501(a) of the Tax Code, (C) that is not a “private foundation”, as defined


22

RLF1 24874454v.2

in section 509(a) of the Tax Code, and (D) that is unrelated to the Debtors, the Reorganized Debtors, the Liquidation Trust, and any insider of the Liquidation Trustee, and (iii) dissolve the Liquidation Trust. Upon the dissolution of the Liquidation Trust and completion of the winding up of the Liquidation Trust’s affairs, a Certificate of Cancellation canceling the Certificate of Trust of the Liquidation Trust shall be executed by the Liquidation Trustee and filed with the Delaware State Office. The Liquidation Trustee shall provide written notice of such filing to the Delaware Trustee promptly following such filing.









(c) Following the Effective Date, the Liquidation Trustee shall prepare and file (or cause to be prepared and filed), on behalf of the Debtors, all tax returns required


23

RLF1 24874454v.2

to be filed or that the Liquidation Trustee otherwise deems appropriate, including the filing of amended tax returns or requests for refunds for all taxable periods ended on or before the dissolution of the Debtors.






(b) As soon as reasonably practicable after Liquidation Trust Assets are transferred to the Liquidation Trust, the Liquidation Trustee shall make a good faith valuation of Liquidation Trust Assets and the Liquidation Trustee shall apprise, in writing, the Liquidation Trust Beneficiaries of such valuation, as relevant, from time to time. In connection with the preparation of the valuation contemplated hereby and by the Plan, the Liquidation Trust shall be entitled to retain such professionals and advisors as the Liquidation Trust shall determine to be appropriate or necessary, and the Liquidation Trustee shall take such other actions in


24

RLF1 24874454v.2

connection therewith as it determines to be appropriate or necessary. Such valuation shall be used consistently by such parties for all U.S. federal income tax purposes, including for determining tax basis and gain or loss.





10.5 Prompt Determination of Taxes. The Liquidation Trustee may request an expedited determination of taxes of the Liquidation Trust (including any Disputed


25

RLF1 24874454v.2

Claims Reserve) or the Debtors under section 505(b) of the Bankruptcy Code for all tax returns filed for, or on behalf of, the Liquidation Trust or the Debtors for all taxable periods through the dissolution of the Liquidation Trust and for all applicable taxable periods of the Debtors.






(a) Delaware Trust Company (the “Delaware Trustee”) is appointed to serve as the trustee of the Liquidation Trust for the sole purpose of satisfying the requirement of Section


26

RLF1 24874454v.2

3807(a) of the Act that a statutory trust have at least one trustee with a principal place of business in the State of Delaware or is an individual who is a resident of the State of Delaware.

(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Liquidation Trust in the State of Delaware and (ii) the execution of any certificates which the Delaware Trustee is required to execute under the Act. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Liquidation Trust or the Liquidation Trust Beneficiary, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are eliminated and replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Agreement.




(f) The Delaware Trustee acts hereunder not in its individual capacity, and all Persons having any claim against the Delaware Trustee by reason of the transactions contemplated


27

RLF1 24874454v.2

by this Agreement shall look only to the Liquidation Trust Assets for payment or satisfaction thereof.

(g) The Delaware Trustee makes no representations as to the validity or sufficiency of this Agreement or of any of the Liquidation Trust Assets or related documents. The Delaware Trustee shall have no personal responsibility or liability for or with respect to the legality, validity and enforceability of any Liquidation Trust Asset, or the perfection and priority of any security interest created by any Liquidation Trust Asset or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Liquidation Trust Assets or its ability to generate the payments to be distributed to the related Liquidation Trust Beneficiaries under this Agreement, including, without limitation: the origination, the existence, condition, ownership and servicing of any Liquidation Trust Asset; the existence and enforceability of any insurance thereon; the existence and contents of any Liquidation Trust Asset on any computer or other record thereof, the validity of the assignment of any Liquidation Trust Asset to the Liquidation Trust or of any intervening assignment; the completeness of any Liquidation Trust Asset; the performance or enforcement of any Liquidation Trust Asset; the compliance with any warranty or representation made under any document or the accuracy of any such warranty or representation.









28

RLF1 24874454v.2


(p) The Delaware Trustee shall not be liable or responsible for delays or failures in the performance of their obligations hereunder arising out of or caused, directly or indirectly, by circumstances beyond their control (such acts include but are not limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, shelter in place or similar directive and interruptions, losses or malfunctions of utilities, computer (hardware or software) or communications services).





receive from the Liquidation Trust as compensation for its services hereunder such fees as set forth in the fee letter with the Delaware Trustee, which compensation shall not be limited by any provision of law in regard to compensation of a trustee of an express trust. The Liquidation Trust shall (i) reimburse the Delaware Trustee for all reasonable and documented expenses incurred by it in connection with the execution and performance of its rights and duties hereunder (including reasonable fees and expenses of counsel and other experts, including fees and expenses of counsel in the enforcement of this Agreement, including indemnification provisions); (ii) indemnify, defend and hold harmless the Delaware Trustee (in both its individual and trustee capacities) and the officers, directors, employees and agents of the Delaware Trustee


29

RLF1 24874454v.2

(collectively, including the Delaware Trustee in its individual capacity, the “Covered Persons”) from and against any and all documented losses, damages, liabilities, claims, actions, suits, costs, expenses, disbursements (including the reasonable fees and expenses of counsel), taxes and penalties of any kind and nature whatsoever, to the extent that such expenses arise out of or are imposed upon or asserted at any time against one or more Covered Persons with respect to the performance of this Agreement, the creation, operation, administration or termination of the Trust, or the transactions contemplated hereby (all such expenses as provided in clauses (i) and (ii) are herein referred to collectively as “Expenses”), provided, however, that the Trust shall not be required to indemnify an Covered Person for Expenses to the extent such Expenses result from the willful misconduct or gross negligence of such Covered Person; and (iii) advance to each Covered Person Expenses (including reasonable legal fees) incurred by such Covered Person in defending any claim, demand, action, suit or proceeding, prior to the final disposition of such claim, demand, action, suit or proceeding. With respect to reimbursement or indemnity provided hereunder, an Covered Person shall have a lien on the Liquidation Trust Assets prior to any rights in such property of the Liquidation Trust Beneficiaries. The indemnities contained in this Section shall survive the removal, resignation or termination of the Delaware Trustee and the termination of the Liquidation Trust and this Agreement.






30

RLF1 24874454v.2



In connection with the rights, claims, and causes of action that constitute Liquidation Trust Assets, any attorney-client privilege, work-product doctrine, or other privilege or immunity attaching to any documents or communications (whether written or oral) transferred to the Liquidation Trust pursuant to the terms of the Plan or otherwise shall vest in the Liquidation Trustee and his representatives, and the Liquidation Trustee is authorized to take all necessary actions to effectuate the transfer of such privileges, as necessary. The Liquidation Trustee’s receipt of such privileges shall not operate as a waiver of any other privileges or immunities possessed by the Debtors.

12.2 Notices.






31

RLF1 24874454v.2

If to the Delaware Trustee:

Delaware Trust Company Attn: Corporate Trust Administration 251 Little Falls Drive Wilmington, DE 19808 Email: [email protected]


Notwithstanding any state law to the contrary, the Liquidation Trustee (including any successor) shall be exempt from giving any bond or other security in any jurisdiction, unless the Liquidation Trustee decides in his reasonable judgment to obtain such bond or other security. The Liquidation Trustee is hereby authorized, but not required to obtain all reasonable insurance coverage for itself, its agents, representatives, employees or independent contractors, including coverage with respect to the liabilities, duties and obligations of the Liquidation Trustee and its agents, representatives, employees or independent contractors under this Agreement and the Plan (“Insurance Coverages”). The cost of any such Insurance Coverage shall be an expense of the Liquidation Trust and paid out of the Liquidation Trust Assets.

12.4 Governing Law.





32

RLF1 24874454v.2

12.6 Headings.




12.8 No Execution.


12.9 Amendment.


12.10 Waiver.


12.11 Severability.



33

RLF1 24874454v.2



12.13 Jurisdiction.

The Bankruptcy Court shall have jurisdiction regarding the Liquidation Trust, the Liquidation Trustee, and the Liquidation Trust Assets, including the determination of all disputes arising out of or related to administration of the Liquidation Trust. The Bankruptcy Court shall have continuing jurisdiction and venue to hear and finally determine all disputes and related matters arising out of or related to this Agreement or the administration of the Liquidation Trust. The parties expressly consent to the Bankruptcy Court hearing and exercising such judicial power as is necessary to finally determine all such disputes and matters. If the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or is otherwise without jurisdiction over any matter arising in, arising under, or related to the Chapter 11 Cases, including the matters set forth in this Agreement, then the provisions of this Agreement shall have no effect on and shall not control, limit or prohibit the exercise of jurisdiction by any other court having competent jurisdiction with respect to such matter, and all applicable references in this Agreement to an order or decision of the Bankruptcy Court shall instead mean an order or decision of such other court of competent jurisdiction. Notwithstanding anything herein to the contrary, to the extent required by the Act (i) the parties hereto and the Liquidation Trust Beneficiaries agree to the non-exclusive jurisdiction of the courts of the State of Delaware and (ii) the Court of Chancery of the State of Delaware shall have jurisdiction over the Liquidation Trust to the same extent as it has jurisdiction over common law trusts formed under the laws of the State of Delaware.



RLF1 24874454v.2



By: Name: [•]




DELAWARE TRUSTEE

By: Delaware Trust Company, solely in its capacity as Delaware resident trustee and not in any other capacity

By: Name: [•] Title: [•]


RLF1 24816342v.2

Exhibit B-1

Redline of Liquidation Trust Agreement


RLF1 24874454V.2


This Liquidation Trust Agreement (as it may be amended, modified, supplemented or restated from time to time, this “Agreement”) dated as of [•], 2021, is made and entered into by and among BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.); Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; 696 White Plains Road, LLC; and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (“BB Canada”) (each a “Debtor” and collectively, the “Debtors”), [•]Delaware Trust Company, solely in [its] capacity as Delaware resident trustee pursuant to section 11 hereof, and the Liquidation Trustee (as defined below) for the purpose of forming a trust and is executed in connection with and pursuant to the terms of the Amended Joint Plan of Liquidation for BBGI US, Inc. and its Affiliated Debtors [Docket No. 918] (as it may be further amended, modified, supplemented or restated from time to time, the “Plan”), which Plan provides for, among other things, the establishment of the liquidation trust evidenced hereby (the “Liquidation Trust”).1

WI T N E S S E T H









2 RLF1 24874454v.2







A. Definitions.












3 RLF1 24874454v.2








C. Interpretation.

In this Agreement, except to the extent the context otherwise requires, (i) reference to any Section, subsection, clause, Schedule, Exhibit, preamble or recital, is to that such Section, Article, subsection, clause, Schedule, Exhibit, preamble or recital under this Agreement, (ii) the words “hereof,” “herein,” and similar terms shall refer to this Agreement and not to any particular section or article of this Agreement, (iii) references to any document or agreement, including this Agreement, shall be deemed to include references to such document or agreement as amended, supplemented, replaced or restated from time to time in accordance with its terms and subject to compliance with any requirements set forth therein, (iv) references to any law, statute, rule, regulation or form (including in the definition thereof) shall be deemed to include references to such statute, rule, regulation or form as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, include any rules and regulations promulgated under such statute), and all references to any section of any statute, rule, regulation or form include any successor to such section, (v) references to any party hereto shall include its successors and permitted assigns, (vi) wherever the word “include,” “includes” or “including” is used herein, it shall be deemed to be followed by the words “without limitation,” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision with


4 RLF1 24874454v.2

respect to which such examples are provided, (vii) the words “shall” and “will” are used interchangeably throughout this Agreement, and the use of either connotes a mandatory requirement, (viii) the word “or” is not meant to be exclusive, and shall be interpreted as “and/or”, (ix) references to “day” or “days” are references to calendar days, (x) the terms “Dollars” and “$” mean United States Dollars, (xi) whenever the context requires, terms shall include the plural as well as the singular number, the masculine gender shall include the feminine, and the feminine gender shall include the masculine and (xii) references to any time periods herein that are initiated by the receipt of a notice shall be deemed not to include the date such notice is received in the calculation of such time period.









5 RLF1 24874454v.2







2.4 Privileges.



6 RLF1 24874454v.2











7 RLF1 24874454v.2




2.6 Effectiveness.






8 RLF1 24874454v.2









9 RLF1 24874454v.2













10 RLF1 24874454v.2









11 RLF1 24874454v.2


4.1 Distributions.







12 RLF1 24874454v.2













13 RLF1 24874454v.2













14 RLF1 24874454v.2

5.6 No Standing.









15 RLF1 24874454v.2










16 RLF1 24874454v.2





17 RLF1 24874454v.2





7.1 Appointment.







18 RLF1 24874454v.2






19 RLF1 24874454v.2










20 RLF1 24874454v.2








21 RLF1 24874454v.2


9.1 Duration.






pursuant to this Agreement, (i) on the fifth anniversary of the Effective Date of the Plan (unless the Liquidation Trust term has been extended in accordance with this section), or (ii) in the event the Liquidation Trustee determines that the pursuit of additional actions on behalf of the Liquidation Trust is not likely to yield sufficient additional proceeds to justify further pursuit of such actions, the Liquidation Trustee shall, after payment of all costs, expenses and obligations incurred in connection with administering the Liquidation Trust, Distribute all of the Liquidation Trust Assets to the Liquidation Trust Beneficiaries in accordance with the Plan, and immediately thereafter the Liquidation Trust shall dissolve and terminate and the Liquidation Trustee shall have no further responsibility in connection therewith except to the limited extent set forth in this Agreement. In no event shall the Liquidation Trust be dissolved later than five years from the Effective Date of the Plan unless the Bankruptcy Court, upon motion made within the six month period before such fifth anniversary (and, in the event of further extension, by order of the Bankruptcy Court, upon motion made at least six months before the end of the preceding extension), determines that a fixed period extension (not to exceed three years, together with any prior extensions, without a favorable private letter ruling from the Internal Revenue Service or an opinion of counsel satisfactory to the Liquidation Trustee that any further extension would not adversely affect the status of the Liquidation Trust as a liquidating trust for U.S. federal income tax purposes) is necessary to facilitate or complete the recovery on, and liquidation of, the Liquidation Trust Assets, including all responsibilities of the Liquidation Trust (or the Liquidation Trustee on its behalf) as set forth in, and in accordance with, the provisions of the Plan, the Confirmation Order and this Agreement. If at any time the Liquidation Trustee determines, in reliance upon such Trust Professionals as the Liquidation Trustee may retain, that the expense of administering the Liquidation Trust so as to make a final distribution to the Liquidation Trust Beneficiaries is likely to exceed the value of the assets remaining in the Liquidation Trust, the Liquidation Trustee may apply to the Bankruptcy Court for authority to (i) reserve any amount necessary to dissolve the Liquidation Trust, (ii) donate any balance to a charitable organization (A) of the type described in section 501(c)(3) of the Tax Code, (B) exempt from U.S. federal income tax under section 501(a) of the Tax Code, (C) that is not a “private foundation”, as defined


22 RLF1 24874454v.2

in section 509(a) of the Tax Code, and (D) that is unrelated to the Debtors, the Reorganized Debtors, the Liquidation Trust, and any insider of the Liquidation Trustee, and (iii) dissolve the Liquidation Trust. Upon the dissolution of the Liquidation Trust and completion of the winding up of the Liquidation Trust’s affairs, a Certificate of Cancellation canceling the Certificate of Trust of the Liquidation Trust shall be executed by the Liquidation Trustee and filed with the Delaware State Office. The Liquidation Trustee shall provide written notice of such filing to the Delaware Trustee promptly following such filing.









(c) Following the Effective Date, the Liquidation Trustee shall prepare and file (or cause to be prepared and filed), on behalf of the Debtors, all tax returns required


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to be filed or that the Liquidation Trustee otherwise deems appropriate, including the filing of amended tax returns or requests for refunds for all taxable periods ended on or before the dissolution of the Debtors.






(b) As soon as reasonably practicable after Liquidation Trust Assets are transferred to the Liquidation Trust, the Liquidation Trustee shall make a good faith valuation of Liquidation Trust Assets and the Liquidation Trustee shall apprise, in writing, the Liquidation Trust Beneficiaries of such valuation, as relevant, from time to time. In connection with the preparation of the valuation contemplated hereby and by the Plan, the Liquidation Trust shall be entitled to retain such professionals and advisors as the Liquidation Trust shall determine to be appropriate or necessary, and the Liquidation Trustee shall take such other actions in


24 RLF1 24874454v.2

connection therewith as it determines to be appropriate or necessary. Such valuation shall be used consistently by such parties for all U.S. federal income tax purposes, including for determining tax basis and gain or loss.





10.5 Prompt Determination of Taxes. The Liquidation Trustee may request an expedited determination of taxes of the Liquidation Trust (including any Disputed


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Claims Reserve) or the Debtors under section 505(b) of the Bankruptcy Code for all tax returns filed for, or on behalf of, the Liquidation Trust or the Debtors for all taxable periods through the dissolution of the Liquidation Trust and for all applicable taxable periods of the Debtors.






(a) [DELAWARE TRUSTEE] Delaware Trust Company (the “Delaware Trustee”) is appointed to serve as the trustee of the Liquidation Trust for the sole purpose of satisfying the requirement of Section 3807(a) of the Act that a statutory trust have at least one


26 RLF1 24874454v.2

trustee with a principal place of business in the State of Delaware or is an individual who is a resident of the State of Delaware.

(b) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Liquidation Trust in the State of Delaware and (ii) the execution of any certificates which the Delaware Trustee is required to execute under the Act. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Liquidation Trust or the Liquidation Trust Beneficiary, it is hereby understood and agreed by the other parties hereto that such duties and liabilities are eliminated and replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Agreement.




(f) The Delaware Trustee acts hereunder not in its individual capacity, and all Persons having any claim against the Delaware Trustee by reason of the transactions contemplated


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by this Agreement shall look only to the Liquidation Trust Assets for payment or satisfaction thereof.

(g) The Delaware Trustee makes no representations as to the validity or sufficiency of this Agreement or of any of the Liquidation Trust Assets or related documents. The Delaware Trustee shall have no personal responsibility or liability for or with respect to the legality, validity and enforceability of any Liquidation Trust Asset, or the perfection and priority of any security interest created by any Liquidation Trust Asset or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Liquidation Trust Assets or its ability to generate the payments to be distributed to the related Liquidation Trust Beneficiaries under this Agreement, including, without limitation: the origination, the existence, condition, ownership and servicing of any Liquidation Trust Asset; the existence and enforceability of any insurance thereon; the existence and contents of any Liquidation Trust Asset on any computer or other record thereof, the validity of the assignment of any Liquidation Trust Asset to the Liquidation Trust or of any intervening assignment; the completeness of any Liquidation Trust Asset; the performance or enforcement of any Liquidation Trust Asset; the compliance with any warranty or representation made under any document or the accuracy of any such warranty or representation.









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(p) The Delaware Trustee shall not be liable or responsible for delays or failures in the performance of their obligations hereunder arising out of or caused, directly or indirectly, by circumstances beyond their control (such acts include but are not limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, shelter in place or similar directive and interruptions, losses or malfunctions of utilities, computer (hardware or software) or communications services).





receive from the Liquidation Trust as compensation for its services hereunder such fees as set forth in the fee letter with the Delaware Trustee, which compensation shall not be limited by any provision of law in regard to compensation of a trustee of an express trust. The Liquidation Trust shall (i) reimburse the Delaware Trustee for all reasonable and documented expenses incurred by it in connection with the execution and performance of its rights and duties hereunder (including reasonable fees and expenses of counsel and other experts, including fees and expenses of counsel in the enforcement of this Agreement, including indemnification provisions); (ii) indemnify, defend and hold harmless the Delaware Trustee (in both its individual and trustee capacities) and the officers, directors, employees and agents of the Delaware Trustee


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(collectively, including the Delaware Trustee in its individual capacity, the “Covered Persons”) from and against any and all documented losses, damages, liabilities, claims, actions, suits, costs, expenses, disbursements (including the reasonable fees and expenses of counsel), taxes and penalties of any kind and nature whatsoever, to the extent that such expenses arise out of or are imposed upon or asserted at any time against one or more Covered Persons with respect to the performance of this Agreement, the creation, operation, administration or termination of the Trust, or the transactions contemplated hereby (all such expenses as provided in clauses (i) and (ii) are herein referred to collectively as “Expenses”), provided, however, that the Trust shall not be required to indemnify an Covered Person for Expenses to the extent such Expenses result from the willful misconduct or gross negligence of such Covered Person; and (iii) advance to each Covered Person Expenses (including reasonable legal fees) incurred by such Covered Person in defending any claim, demand, action, suit or proceeding, prior to the final disposition of such claim, demand, action, suit or proceeding. With respect to reimbursement or indemnity provided hereunder, an Covered Person shall have a lien on the Liquidation Trust Assets prior to any rights in such property of the Liquidation Trust Beneficiaries. The indemnities contained in this Section shall survive the removal, resignation or termination of the Delaware Trustee and the termination of the Liquidation Trust and this Agreement.






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In connection with the rights, claims, and causes of action that constitute Liquidation Trust Assets, any attorney-client privilege, work-product doctrine, or other privilege or immunity attaching to any documents or communications (whether written or oral) transferred to the Liquidation Trust pursuant to the terms of the Plan or otherwise shall vest in the Liquidation Trustee and his representatives, and the Liquidation Trustee is authorized to take all necessary actions to effectuate the transfer of such privileges, as necessary. The Liquidation Trustee’s receipt of such privileges shall not operate as a waiver of any other privileges or immunities possessed by the Debtors.

12.2 Notices.






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If to the Delaware Trustee:

Delaware Trust Company Attn: Corporate Trust Administration 251 Little Falls Drive Wilmington, DE 19808 Email: [email protected]


Notwithstanding any state law to the contrary, the Liquidation Trustee (including any successor) shall be exempt from giving any bond or other security in any jurisdiction, unless the Liquidation Trustee decides in his reasonable judgment to obtain such bond or other security. The Liquidation Trustee is hereby authorized, but not required to obtain all reasonable insurance coverage for itself, its agents, representatives, employees or independent contractors, including coverage with respect to the liabilities, duties and obligations of the Liquidation Trustee and its agents, representatives, employees or independent contractors under this Agreement and the Plan (“Insurance Coverages”). The cost of any such Insurance Coverage shall be an expense of the Liquidation Trust and paid out of the Liquidation Trust Assets.

12.4 Governing Law.





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12.6 Headings.




12.8 No Execution.


12.9 Amendment.


12.10 Waiver.


12.11 Severability.



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12.13 Jurisdiction.

The Bankruptcy Court shall have jurisdiction regarding the Liquidation Trust, the Liquidation Trustee, and the Liquidation Trust Assets, including the determination of all disputes arising out of or related to administration of the Liquidation Trust. The Bankruptcy Court shall have continuing jurisdiction and venue to hear and finally determine all disputes and related matters arising out of or related to this Agreement or the administration of the Liquidation Trust. The parties expressly consent to the Bankruptcy Court hearing and exercising such judicial power as is necessary to finally determine all such disputes and matters. If the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or is otherwise without jurisdiction over any matter arising in, arising under, or related to the Chapter 11 Cases, including the matters set forth in this Agreement, then the provisions of this Agreement shall have no effect on and shall not control, limit or prohibit the exercise of jurisdiction by any other court having competent jurisdiction with respect to such matter, and all applicable references in this Agreement to an order or decision of the Bankruptcy Court shall instead mean an order or decision of such other court of competent jurisdiction. Notwithstanding anything herein to the contrary, to the extent required by the Act (i) the parties hereto and the Liquidation Trust Beneficiaries agree to the non-exclusive jurisdiction of the courts of the State of Delaware and (ii) the Court of Chancery of the State of Delaware shall have jurisdiction over the Liquidation Trust to the same extent as it has jurisdiction over common law trusts formed under the laws of the State of Delaware.



RLF1 24874454v.2 10756341/1



By: Name: [•]




Accepted and agreed:[ DELAWARE TRUSTEE]

By: Delaware Trust Company, solely in its capacity as Delaware resident trustee and not in any other capacity

By: Name: [•] Title: [•]


RLF1 24816342v.2

Exhibit C

Litigation Trust Agreement


1 43334.0050043334.00500

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This LITIGATION TRUST AGREEMENT is made this [•] day of [•], 2021 (this “Agreement”), by and among BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.); Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; 696 White Plains Road, LLC; and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.), as debtors and debtors-in-possession (collectively, the “Debtors”), and William T. Reid, IV PLLC, as trustee of the Litigation Trust referred to herein (in such capacity, the “Litigation Trustee”). This Agreement creates and establishes the Litigation Trust (the “Litigation Trust”) referenced herein in order to facilitate the implementation of the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and its Affiliated Debtors, dated [January 27, 2021] (as may be amended, supplemented, or otherwise modified from time to time in accordance with the terms and provisions thereof, the “Plan”). Each Debtor and the Litigation Trustee are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties.”

RECITALS






WHEREAS, on [•], 2021, the Bankruptcy Court entered its order confirming the Plan (Docket No. [•]) (the “Confirmation Order”);

WHEREAS, the Plan provides, among other things, as of the effective date of the Plan (the “Effective Date”), for the establishment of the Litigation Trust to liquidate the Litigation Trust Assets,1 including by, among other things, prosecuting, settling, compromising, abandoning, or



2 WEIL:\97837731\7\30950.0071

otherwise assessing and, if possible, realizing the value of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action assigned to the Litigation Trust pursuant to the Plan, from time to time in accordance with the terms of the Plan for the benefit of the Litigation Trust Beneficiaries;










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(a) The Debtors and the Litigation Trustee, pursuant to the Plan and the Confirmation Order and in accordance with the applicable provisions of the Bankruptcy Code, hereby establish a trust on behalf of the Litigation Trust Beneficiaries, which shall be known as the “Brooks Brothers Litigation Trust,” on the terms set forth herein. In connection with the exercise of the Litigation Trustee’s powers hereunder, the Litigation Trustee may use this name or such variation thereof as the Litigation Trustee sees fit or as may otherwise be authorized by the Litigation Trust Oversight Board.


(c) In accordance with Section 5.1 of this Agreement, the initial members of the Litigation Trust Oversight Board (each such Person and any other Person appointed to be a member of the Litigation Trust Oversight Board pursuant to this Agreement, a “Member”) shall consist of all the members of the Creditors’ Committee or a representative thereof. A majority of the Litigation Trust Oversight Board shall be “United States persons” within the meaning of section 7701(a)(30) of the Tax Code, and only United States persons shall have the ability to control substantial decisions of the Litigation Trust, whether made by the Litigation Trustee, the Litigation Trust Oversight Board, or any other person with authority to make a substantial decision of the Litigation Trust. For this purpose, the terms “control” and “substantial decisions” shall be applied as set forth in Treasury Regulations section 301.7701-7(d)(1). Any substantial decision of the Litigation Trust Oversight Board shall require the approval of both a majority of the Members of the Litigation Trust Oversight Board and a majority of the Members who are “United States person”, provided that in the event of a tie vote of all the Members, the vote of a majority of the “United States persons” shall be deemed to constitute a majority vote of the Litigation Trust Oversight Board. A supermajority shall not be required for any action other than removal of the Litigation Trustee. Notwithstanding the foregoing, (i) any action taken by non-United States persons – acting individually or collectively, or (ii) any provision of this Agreement that would cause the Litigation Trust to be a “foreign trust”, within the meaning of Section 7701(a)(31) of the Tax Code, shall be void ab initio. No United States person appointed to the Trust Oversight Board shall act at the direction of or under the control of any non-United States person.




(g) Subject to the terms of this Agreement, any action by the Litigation Trustee and/or the Litigation Trust Oversight Board that affects the interests of more than one Litigation


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Trust Beneficiary shall be binding and conclusive on all Litigation Trust Beneficiaries even if such Litigation Trust Beneficiaries have different or conflicting interests.


1.2 Transfer of Assets Into the Litigation Trust. Pursuant to the Plan, upon the Effective Date: (i) the DV Claims, Former D&O and Shareholder Causes of Action, and all rights to object to Claims of the DV Entities or any Former D&Os or Shareholders; and (ii) the Litigation Trust Minimum Funding, shall vest in and be transferred to the Litigation Trust. The act of transferring the Litigation Trust Assets, as authorized by the Plan, shall not be construed to destroy or limit any such assets or rights or be construed as a waiver of any right, and such rights may be asserted by the Litigation Trust as if the asset or right was still held by the applicable Debtor.

1.3 Litigation Trust Funding. The Litigation Trust shall be funded with the Litigation Trust Minimum Funding on the Effective Date of the Plan and as a condition to the Effective Date of the Plan (subject to waiver in accordance with Section 9.2 of the Plan). The Litigation Fees Amount will be funded after the Debtors or the Liquidation Trustee, as applicable, have paid or reserved for any amounts necessary to fund the Wind-Down Reserve and to pay all Administrative Expense Claims, Fee Claims, Secured Claims, Priority Tax Claims and Other Priority Claims after consulting with the Litigation Trustee as to any amounts to be reserved. The total amount of the Litigation Trust Funding shall be subject to the adjustments set forth in Section 5.5(c) of the Plan, but in any event shall not be less than the Litigation Trust Minimum Funding (subject to waiver in accordance with Section 9.2 of the Plan). To the extent the Debtors or the Liquidation Trustee, as applicable, determine in a good faith exercise of their business judgment consistent with their fiduciary duties that not funding all or a portion of the Litigation Fees Amount is necessary to allow the Debtors to fund or administer their chapter 11 cases (including to fund the Wind-Down Reserve and satisfy Administrative Expense Claims (including Fee Claims), Secured Claims, Priority Tax Claims and Other Priority Claims), the Debtors or the Liquidation Trustee, as applicable, are authorized to make such adjustment after consultation with the Litigation Trustee; provided that (i) in no event shall the Debtors or the Liquidation Trustee fund the Litigation Trust with an amount less than the Litigation Trust Minimum Funding, and (ii)(A) to the extent that the Debtors or the Liquidation Trustee, as applicable, make any such adjustment to the amount of the Litigation Fees Amount, and (B) the Debtors or the Liquidation Trustee, as applicable, is satisfied at a later date that the Debtors, or the Liquidation Trust, as applicable, have sufficient funds to satisfy all Allowed Administrative Expense Claims (including Fee Claims), Secured Claims, and Priority Tax Claims and Other Priority Claims, and be able to transfer some or all of such withheld amounts to the Litigation Trust, the Debtors or the Liquidation Trustee, as applicable, shall do so in accordance with the terms of the Plan.

1.4 Title to the Litigation Trust Assets. The transfer of the Litigation Trust Assets to the Litigation Trust pursuant to Section 1.2 hereof is being made for the sole benefit, and on behalf,


5 WEIL:\97837731\7\30950.0071

of the Litigation Trust Beneficiaries. Upon the transfer of the Litigation Trust Assets to the Litigation Trust, the Litigation Trust shall succeed to all of the Brooks Brothers Parties’ and the Litigation Trust Beneficiaries’ rights, title and interest in the Litigation Trust Assets and no other Person shall have any interest, legal, beneficial or otherwise, in the Litigation Trust or the Litigation Trust Assets upon the assignment and transfer of such assets to the Litigation Trust (other than as provided in the Plan, the Confirmation Order or this Agreement).


(a) Purpose. The Litigation Trust’s primary purpose is liquidating the Litigation Trust Assets, with no objective to continue or engage in the conduct of a trade or business except to the extent reasonably necessary to, and consistent with, the Litigation Trust’s liquidating purpose and reasonably necessary to conserve and protect the Litigation Trust Assets and provide for the orderly liquidation thereof. The Litigation Trust shall be established on the Effective Date, in accordance with the terms of the Plan and the Litigation Trust Agreement and shall be governed by the terms of this Agreement and shall liquidate the Litigation Trust Assets, including by, among other things, prosecuting, settling, compromising, abandoning, or otherwise assessing and, if possible, realizing the value of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that may be assigned to the Litigation Trust in accordance with the terms of the Plan, from time to time in accordance with the terms of the Plan for the benefit of the Litigation Trust Beneficiaries. At such time as the Litigation Trustee determines the Litigation Trust has, pursuant to Section 5.5 of the Plan and this Agreement, (i) resolved, settled, compromised, or otherwise liquidated the DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust from time to time in accordance with the terms of the Plan and this Agreement, and (ii) paid all Litigation Trust Expenses, the Litigation Trustee shall transfer any and all remaining Litigation Trust Assets to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan; provided that, if the Liquidation Trust has been dissolved pursuant to the terms of the Plan and this Agreement before such time as the Litigation Trustee has acted in accordance with the foregoing clauses (i) and (ii), the Litigation Trustee shall make a Distribution of the remaining Litigation Trust Assets to the Litigation Trust Beneficiaries in accordance with the terms of the Plan. From time to time, and after paying or appropriately reserving for Litigation Trust Expenses, the Litigation Trust may (and shall at least annually) distribute proceeds of the Litigation Trust Assets (including any proceeds thereafter invested) to the Liquidation Trust for Distribution to Litigation Trust Beneficiaries in accordance with the terms of the Plan.

(b) Relationship. This Agreement is intended to create a trust and a trust relationship and to be governed and construed in all respects as a trust. The Litigation Trust is not intended to be, and shall not be deemed to be, or be treated as, a general partnership, limited partnership, joint venture, corporation, joint stock company or association, nor shall the Litigation Trustee, the Litigation Trust Oversight Board (or any Member thereof) or the Litigation Trust Beneficiaries for any purpose be, or be deemed to be or treated in any way whatsoever to be, liable or responsible hereunder as partners or joint venturers. The relationship of the Litigation Trust Beneficiaries, on the one hand, to the Litigation Trustee and the Litigation Trust Oversight Board, on the other hand, shall be solely that of a beneficiary of a trust and shall not be deemed a principal


6 WEIL:\97837731\7\30950.0071

and agency relationship, and their rights shall be limited to those conferred upon them by the Plan, the Confirmation Order and this Agreement.



1.7 Preservation of Rights of Action. On and after the Effective Date, the Litigation Trustee, subject to the Litigation Trustee Discretion, and under the supervision of the Litigation Trust Oversight Board, shall have sole and exclusive discretion to pursue and dispose of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets. The Litigation Trustee must receive the approval of the Litigation Trust Oversight Board by a majority of Members, as well as a majority of the “United States persons” that are Members, to settle any of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets valued at above $500,000. If the Litigation Trust Oversight Board does not approve a settlement by the Litigation Trustee, then the Litigation Trustee may either (i) seek approval by the Bankruptcy Court, upon notice and a hearing at which the Litigation Trust Oversight Board may be heard, or (ii) resign from the engagement. All Causes of Action that are or become Litigation Trust Assets shall vest in the Litigation Trust as provided for herein and the Litigation Trustee may pursue or dispose of any Causes of Action that are or become Litigation Trust Assets in its sole discretion in the name of either the Litigation Trustee or the Litigation Trust, provided, however, that as set forth above, the Litigation Trustee must receive the approval of the Litigation Trust Oversight Board by a majority of Members, as well as a majority of the “United States persons” that are Members. On and after the Effective Date, the Litigation Trustee under the supervision of the Litigation Trust Oversight Board, including the consent and approval rights set forth herein, shall retain and shall have, including through its authorized agents or representatives, the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action, or to decline to do any of the foregoing, without the consent or approval of any third party or further notice to or action, order, or approval of the Bankruptcy Court or the Litigation Trust Beneficiaries.


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1.8 Privileges.


(b) The foregoing transfer and assignment shall vest the Privileges concerning the Transferred Privileged Information exclusively in the Litigation Trust, consistent with sections 1123(a)(5)(B) and 1123(b)(3)(B) of the Bankruptcy Code, for the sole benefit of the Litigation Trust and the Litigation Trust Beneficiaries; provided, however, that to the extent that any such Privileges or Transferred Privileged Information relates to both Liquidation Trust Assets and Litigation Trust Assets, such Privileges and Transferred Privileged Information shall vest jointly in the Liquidation Trust and the Litigation Trust. Except only as provided in the Liquidation Trust Agreement as relates to any Privileges or Transferred Privileged Information held jointly with the Liquidation Trust, the Litigation Trust shall have the exclusive authority and sole discretion to maintain the Privileges and keep the Transferred Privileged Information confidential, or waive any Privileges and/or disclose and/or use in litigation or any proceeding any or all of the Transferred Privileged Information.


(d) Pursuant to, inter alia, Federal Rule of Evidence 502(d), no Privileges shall be waived by the transfer and assignment of the Privileges or the production of any Transferred Privileged Information to the Litigation Trust or any of its respective employees, professionals or representatives, or by disclosure of such Transferred Privileged Information between the Privilege Transfer Parties, on the one hand, and the Litigation Trust, on the other hand, or any of their


8 WEIL:\97837731\7\30950.0071

respective employees, professionals or representatives. Moreover, the non-voting observer Members participation in the Litigation Trust Oversight Board shall not waive any Privileges held by the Litigation Trust, the Litigation Trustee, or the Litigation Trust Oversight Board.




2.2 Interests Beneficial Only. The ownership of the beneficial interests in the Litigation Trust shall not entitle the Litigation Trust Beneficiaries to any title in or to the Litigation Trust Assets as such (which title shall be vested in the Litigation Trust) or to any right to call for a partition or division of the Litigation Trust Assets or to require an accounting.



2.5 Effect of Death, Incapacity or Bankruptcy. The death, incapacity or bankruptcy of any Litigation Trust Beneficiary during the term of the Litigation Trust shall not (i) operate to terminate the Litigation Trust, (ii) entitle the representatives or creditors of the deceased, incapacitated or bankrupt party to an accounting, (iii) entitle the representatives or creditors of the


9 WEIL:\97837731\7\30950.0071

deceased, incapacitated or bankrupt party to take any action in the Bankruptcy Court or elsewhere for the distribution of the Litigation Trust Assets or for a partition thereof, or (iv) otherwise affect the rights and obligations of any of the Litigation Trust Beneficiaries under this Agreement.



3.1 Role of the Litigation Trustee. In furtherance of and consistent with the purpose of the Litigation Trust and the Plan, subject to the terms and conditions contained in the Plan, the Confirmation Order and this Agreement, the Litigation Trustee shall, subject to the supervision of the Litigation Trust Oversight Board as provided in this Agreement, (i) receive, manage, supervise and protect the Litigation Trust Assets upon its receipt of same on behalf of and for the benefit of the Litigation Trust Beneficiaries; (ii) investigate, analyze, prosecute and, if necessary and appropriate, settle and compromise the Litigation Trust Assets; (iii) prepare and file all required tax returns and pay from the Litigation Trust Assets all taxes and all other obligations of the Litigation Trust; (iv) liquidate and convert the Litigation Trust Assets to Cash in accordance with this Agreement and the other Litigation Trust Documents and timely transfer such Cash to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan and as set forth in Section 3.5 herein; and (v) have all such other responsibilities as may be vested in the Litigation Trustee pursuant to the Plan, the Confirmation Order, this Agreement, and all other applicable orders of the Bankruptcy Court, provided however, that the Litigation Trustee shall not be required to take any action described in (i) through (v) above that he deems not to be in good faith or that is contrary to any action or inaction recommended to the Litigation Trustee by his counsel (the “Litigation Trustee Discretion”). If there is a dispute as a course of action to be taken for the Litigation Trust between the Litigation Trustee and the Litigation Trust Oversight Board, the parties shall seek to have such a dispute resolved before the Bankruptcy Court. The Litigation Trustee in consultation with, and subject to the supervision of, the Litigation Trust Oversight Board as provided in this Agreement, shall be responsible for all decisions and duties with respect to the Litigation Trust and the Litigation Trust Assets, and such decisions and duties shall be carried out in accordance with the Plan, the Confirmation Order, this Agreement, and all other applicable orders of the Bankruptcy Court. In all circumstances, the Litigation Trustee shall act in the best interests of the Litigation Trust Beneficiaries and in furtherance of the purpose of the Litigation Trust, and shall use commercially reasonable efforts to prosecute, settle or otherwise resolve the Causes of Action constituting the Litigation Trust


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Assets, and to otherwise monetize the Litigation Trust Assets and not unreasonably prolong the duration of the Litigation Trust.



(a) Subject to the provisions of this Agreement, the Plan, the Confirmation Order, supervision and/or approval by the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, the Litigation Trustee shall prosecute, pursue, compromise, settle, or abandon any and all DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust, that have not already been resolved as of the Effective Date. The Litigation Trustee, upon supervision and/or approval by the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, shall have the absolute right to pursue, not pursue, release, abandon, and/or settle any and all DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust (including any counterclaims asserted against the Litigation Trust) as it determines in the best interests of the Litigation Trust Beneficiaries, and consistent with the purposes of the Litigation Trust, and shall have no liability for the outcome of its decision except for any damages caused by fraud, willful misconduct or gross negligence.

(b) Subject to the provisions of this Agreement, the Plan and the Confirmation Order, the Litigation Trustee shall have sole authority to reconcile, prosecute objections, compromise, abandon or settle, as applicable, any and all Claims of any of the DV Entities or any of the Former D&Os or Shareholders, DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that may be assigned to the Litigation Trust from time to time that have not already been resolved as of the Effective Date; provided, that for the avoidance of doubt, settlement of any of the Claims of any of the DV Entities or any of the Former D&Os or Shareholders, the DV Claims, the Former D&O and Shareholder Causes of Action, or any other Causes of Action assigned to the Litigation Trust will not require Bankruptcy Court approval. The Litigation Trustee, upon supervision of the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, shall have the absolute right to pursue, not pursue, release, abandon, and/or settle any and all Claims of any of the DV Entities or any of the Former D&Os or Shareholders, DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust (including any counterclaims asserted against the Litigation Trust) as it determines in the best interests of the Litigation Trust Beneficiaries, and consistent with the purposes of the Litigation Trust, and shall have no liability for the outcome of its decision except for any damages caused by fraud, willful misconduct or gross negligence. Pursuant to Section 1.7 above, the Litigation Trustee must receive the approval of the Litigation


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Trust Oversight Board by a majority of Members, as well as a majority of the “United States persons” that are Members, to settle any of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets valued at above $500,000. If the Litigation Trust Oversight Board does not approve a settlement by the Litigation Trustee, then the Litigation Trustee may either (i) seek approval by the Bankruptcy Court, upon notice and a hearing at which the Litigation Trust Oversight Board may be heard, or (ii) resign from the engagement.



3.4 Liquidation of Litigation Trust Assets. The Litigation Trustee, upon direction by the Litigation Trust Oversight Board, subject to the Litigation Trustee Discretion, and in the exercise of their collective reasonable business judgment, shall, in an expeditious but orderly manner and subject to the other provisions of the Plan, the Confirmation Order, and this Agreement, liquidate and convert to Cash the Litigation Trust Assets, and timely transfer such Cash to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan, the Confirmation Order, and this Agreement, and not unduly prolong the existence of the Litigation Trust. The Litigation Trustee shall exercise reasonable business judgment and liquidate the Litigation Trust Assets to optimize net recoveries to the Litigation Trust Beneficiaries, provided, however, that in addition to the Litigation Trustee Discretion, the Litigation Trustee shall be entitled to take into consideration the risks, timing, anticipated duration, and costs of potential actions in making determinations as to the methodologies to be employed to optimize such recoveries. Such liquidations may be accomplished through the prosecution,


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compromise and settlement, abandonment or dismissal of any or all of the DV Claims, Former D&O and Shareholder Causes of Action, or other Causes of Action assigned to the Litigation Trust or otherwise or through the sale or other disposition of the Litigation Trust Assets (in whole or in combination). Pursuant to an agreed-upon budget, the Litigation Trustee may incur any reasonable and necessary expenses in connection with the liquidation of the Litigation Trust Assets and Distributions.



3.7 Fees and Expenses of the Litigation Trust. From and after the Effective Date, Litigation Trust Expenses shall be paid from the Litigation Trust Assets in the ordinary course of business, in accordance with the Plan and the Litigation Trust Agreement. Without any further notice to any party or action, order or approval of the Bankruptcy Court, the Litigation Trustee, on behalf of the Litigation Trust, may employ and pay in the ordinary course of business, any professional for services rendered or expenses incurred on and after the Effective Date, in accordance with the terms of any agreement entered into between the Litigation Trust and such professional, in the discretion of the Litigation Trustee and with the approval of the Litigation Trust Oversight Board for any expense over $2,000, that are necessary or appropriate to assist the Litigation Trustee in the performance of the Litigation Trustee’s duties under the Plan and the Litigation Trust Agreement.


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(e) settle Claims that are Litigation Trust Assets, including the DV Claims, the Former D&O and Shareholder Causes of Action, and Claims of the Former D&Os and Shareholders, pursuant to the procedures set forth in Section 1.7 above;






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(c) transfer all Cash proceeds of the DV Claims, the Former D&O and Shareholder Causes of Action, and of other Causes of Action assigned to the Litigation Trust, after payment of the Litigation Trust Expenses to the Liquidation Trust, unless the Liquidation Trust has been dissolved;



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3.15 Reports.

(a) Financial and Status Reports. The fiscal year of the Litigation Trust shall be the calendar year. Within 90 days after the end of each calendar year during the term of the


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Litigation Trust, and within 45 days after the end of each calendar quarter during the term of the Litigation Trust (other than the fourth quarter) and as soon as practicable upon termination of the Litigation Trust, the Litigation Trustee shall make available, upon request, to the Litigation Trust Beneficiaries appearing in the Trust Registry as of the end of such period or such date of termination, a written report including: (i) financial statements of the Litigation Trust for such period, and, if the end of a calendar year, an unaudited report (which may be prepared by an independent certified public accountant employed by the Litigation Trustee) reflecting the result of such agreed-upon procedures relating to the financial accounting administration of the Litigation Trust as proposed by the Litigation Trustee; (ii) a summary description of any action taken by the Litigation Trust which, in the judgment of the Litigation Trustee, materially affects the Litigation Trust and of which notice has not previously been given to the Litigation Trust Beneficiaries; (iii) a description of the progress of liquidating the Litigation Trust Assets and making distributions to the Litigation Trust Beneficiaries, which description shall include a written report detailing, among other things, the litigation status of the Litigation Claims transferred to the Litigation Trust, any settlements entered into by the Litigation Trust with respect to the Litigation Claims; and the Litigation Trust Proceeds recovered to date (in each instance to the extent not confidential and to the extent that the Litigation Trustee determines that public disclosure will not adversely affect the liquidation of any remaining Litigation Trust Assets), and the distributions made by the Litigation Trust to date; and (iv) any other material information relating to the Litigation Trust Assets and the administration of the Litigation Trust deemed appropriate to be disclosed by the Litigation Trustee or required to be included in the written report by the Litigation Trust Oversight Board. In addition, the Litigation Trust shall make unaudited financial statements available to each Litigation Trust Beneficiary on a quarterly basis (which may be quarterly operating reports filed with the Bankruptcy Court). The first report shall be due the first quarter after confirmation. The Litigation Trustee may post any such report on a website maintained by the Litigation Trustee or electronically file it with the Bankruptcy Court in lieu of actual notice to each Litigation Trust Beneficiary (unless otherwise required by law).






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4.4 Removal.

(a) The Litigation Trustee (or any successor Litigation Trustee) may be removed by a vote of at least five of the Members of the Litigation Trust Oversight Board, as well


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as a majority of the “United States persons” who are Members, for Cause (as defined in Section 5.8 herein), immediately upon notice thereof, or without Cause, upon not less than 90 days’ prior written notice.




(a) In the event of the death or Disability (as defined in Section 5.8 herein) (in the case of a Litigation Trustee that is a natural person), dissolution (in the case of a Litigation Trustee that is not a natural person), resignation, incompetency or removal of the Litigation Trustee, the Litigation Trust Oversight Board shall designate a successor Litigation Trustee satisfying the requirements set forth in Section 4.1 hereof by majority vote, which majority shall consist of a majority of the Members of the Litigation Trust Oversight Board, as well as a majority of the “United States persons” who are Members. If the Members of the Litigation Trust Oversight Board are unable to secure a majority vote, including a majority of the “United States persons” the Bankruptcy Court will determine the successor Litigation Trustee satisfying the requirements set forth in Section 4.1 hereof on motion of the Members. Such appointment shall specify the date on which such appointment shall be effective. Every successor Litigation Trustee appointed hereunder shall execute, acknowledge and deliver to the Litigation Trust Oversight Board an instrument accepting the appointment under this Agreement and agreeing to be bound as Litigation Trustee hereto, and thereupon the successor Litigation Trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, trusts and duties of the predecessor Litigation Trustee and the successor Litigation Trustee shall not be personally liable for any act or omission of the predecessor Litigation Trustee; provided, however, that a predecessor Litigation Trustee shall, nevertheless, when reasonably requested in writing by the successor Litigation Trustee, execute and deliver an instrument or instruments conveying and transferring to such successor Litigation Trustee under the Litigation Trust all the estates, properties, rights, powers and trusts of such predecessor Litigation Trustee and otherwise assist and cooperate, without cost or expense to the predecessor Litigation Trustee, in effectuating the assumption by the successor Litigation Trustee of his/her/its obligations and functions hereunder.

(b) During any period in which there is a vacancy in the position of Litigation Trustee, the Litigation Trust Oversight Board shall appoint one of its Members to serve as interim Litigation Trustee (the “Interim Trustee”). The Interim Trustee shall be subject to all the terms and conditions applicable to a Litigation Trustee hereunder; provided, however, any such Interim


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Trustee shall not be entitled to receive the Litigation Trustee Compensation unless approved by the Litigation Trust Oversight Board, but shall be entitled to receive payment for the Litigation Trustee Expenses. Such Interim Trustee shall not be limited in any manner from exercising any rights or powers as a Member of the Litigation Trust Oversight Board merely by such Person’s appointment as Interim Trustee, but shall be limited in the exercise of such rights or powers as a Litigation Trustee to the extent a majority of the Litigation Trust Oversight Board, as well as a majority of the “United States persons” serving as Members shall, to the extent applicable in this Agreement, fail to approve any such action or undertaking by the Interim Trustee.





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5.1 Litigation Trust Oversight Board. On the Effective Date, the Litigation Trust Oversight Board shall be established. The initial Litigation Trust Oversight Board members shall consist of all the members of the Creditors’ Committee or designated representatives thereof, as identified on Exhibit A hereto.






(e) Notwithstanding any provision of this Agreement to the contrary, the Litigation Trustee shall not be required to obtain the approval or follow the directions of the Litigation Trust Oversight Board to the extent that: (i) the Litigation Trust Oversight Board has not authorized the Litigation Trustee to take any action that the Litigation Trustee, in good faith, reasonably determines, based on the advice of legal counsel, is required to be taken by applicable


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law; or (ii) the Litigation Trust Oversight Board directs the Litigation Trustee to take action that the Litigation Trustee, in good faith, reasonably determines, based on the advice of legal counsel, is prohibited by applicable law.






(a) A quorum for the transaction of business at any meeting of the Litigation Trust Oversight Board shall consist of a majority of the Members. Except as set forth in Sections 5.5(c) and 5.9(a) herein, the majority vote of the Members, as well as a majority of the “United States persons” who are Members, present at a duly called meeting at which a quorum is present


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throughout shall be the act of the Litigation Trust Oversight Board except as otherwise required by law or as provided for in this Agreement. For the avoidance of doubt, in the event of any tie vote, the tiebreaker shall be determined by majority of the “United States persons” who are Members of the Litigation Trust Oversight Board. Any or all of the Members may participate in a regular or special meeting by, or conduct the meeting through the use of, conference telephone, video conference or similar communications equipment by means of which all Persons participating in the meeting may hear each other, in which case any required notice of such meeting may generally describe the arrangements (rather than or in addition to the place) for the holding thereof. Any Member participating in a meeting by this means is deemed to be present in person at the meeting. Voting (including on negative notice) maybe conducted by electronic mail or individual communications by the Litigation Trustee and each Member.


(c) Prior to the taking of a vote on any matter or issue or the taking of any action with respect to any matter or issue, each Member of the Litigation Trust Oversight Board shall report to the Litigation Trust Oversight Board any conflict of interest such Member has or may have with respect to the matter or issue at hand and fully disclose the nature of such conflict or potential conflict (including, without limitation, disclosing any and all financial or other pecuniary interests that such Member may have with respect to or in connection with such matter or issue, other than solely as a holder of Litigation Trust Interests). A Member who, with respect to a matter or issue, has or who may have a conflict of interest whereby such Member’s interests are adverse to the interests of the Litigation Trust (i) shall be deemed to be a “Conflicted Member” who shall not be entitled to vote or take part in any action with respect to such matter or issue, (ii) the vote or action with respect to such matter or issue shall be undertaken only by Members of the Litigation Trust Oversight Board who are not Conflicted Members and (iii) notwithstanding anything contained herein to the contrary, the affirmative vote of only a majority of the Members of the Litigation Trust Oversight Board who are not Conflicted Members, including a majority of the “United States persons” who are Members of the Litigation Trust Oversight Board and are not Conflicted Members shall be required to approve of such matter or issue and the same shall be the act of the Litigation Trust Oversight Board; provided, however, that a Member shall not be deemed to be a Conflicted Member with respect to a particular matter or issue if such Member merely has an economic interest in the outcome of such matter or issue solely as a holder of Litigation Trust Interests.

5.6 Tenure of the Members of the Litigation Trust Oversight Board. The authority of the Members will be effective as of the Effective Date and will remain and continue in full force


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and effect until the Litigation Trust is dissolved in accordance with Section 8.1 hereof. The Members will serve until such Member’s successor is duly appointed or until such Member’s earlier death or resignation pursuant to Section 5.7 below, or removal pursuant to Section 5.8 below.


5.8 Removal.

(a) A majority of the Litigation Trust Oversight Board, which shall include a majority of the “United States persons” who are Members, may remove any Member for Cause or Disability. Notwithstanding the foregoing, upon the occurrence of the Dissolution of the Litigation Trust (as set forth in in Section 8.1 below), any or all of the Members shall be deemed to have resigned.






(a) In the event of a vacancy on the Litigation Trust Oversight Board (whether by removal, death or resignation), a new Member may be appointed to fill such position by a


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majority of the remaining Members, including a majority of the “United States persons” who are Members. The appointment of a successor Member will be further evidenced by the Litigation Trustee’s filing with the Bankruptcy Court and posting on the Litigation Trustee’s website of a notice of appointment, at the direction of the Litigation Trust Oversight Board, which notice will include the name, address, and telephone number of the successor Member.




5.11 Confidentiality. Each Member, shall, during the period that such Member serves as a Member under this Agreement and following the termination of this Agreement or following such Member’s removal or resignation, hold strictly confidential and not use for any purpose, non-public information of which such Member has become aware in the Member’s capacity as a Member, except as otherwise required by law. Notwithstanding anything to the contrary, Member Pension Benefit Guaranty Corporation (“PBGC”), as a governmental agency, may disclose confidential information (i) to the Executive Branch of the United States, the PBGC Board of Directors, officials, advisors, consultants, and representatives who have a need to know the information as part of their job responsibilities; (ii) as required by law; (iii) as may be necessary in connection with any court or administrative proceedings; (iv) upon request of Congress or any committee, joint committee or subcommittee thereof, including the Comptroller General and the Congressional Budget Office.



(a) The Litigation Trust shall indemnify the Litigation Trustee for, and shall hold them harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand,

2 Including members of the Litigation Trust Oversight Board in their capacities as such.


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settlement, cost or expense (including the reasonable fees and expenses of their respective professionals) incurred without fraud, gross negligence or willful misconduct on the part of the Litigation Trustee in its capacity as such (which fraud, gross negligence or willful misconduct, if any, must be determined by a Final Order of a court of competent jurisdiction) for any action taken, suffered or omitted to be taken by the Litigation Trustee in connection with the acceptance, administration, exercise and performance of its duties under the Plan or this Agreement, as applicable. An act or omission taken with the approval of the Bankruptcy Court or the Canadian Court, and not inconsistent therewith, will be conclusively deemed not to constitute fraud, gross negligence or willful misconduct. In addition, the Litigation Trust shall, to the fullest extent permitted by law, indemnify and hold harmless the Litigation Trustee, in its capacity as such, from and against and with respect to any and all liabilities, losses, damages, claims, costs and expenses, including attorneys’ fees arising out of or due to its actions or omissions, or consequences of such actions or omissions, with respect to the Litigation Trust or the implementation or administration of the Plan if the Litigation Trustee acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the Litigation Trust. To the extent the Litigation Trust indemnifies and holds the Litigation Trustee harmless as provided above, the reasonable legal fees and related costs incurred by counsel to the Litigation Trustee in monitoring or participating in the defense of such claims giving rise to the right of indemnification shall be paid as Litigation Trust Expenses. The costs and expenses incurred in enforcing the right of indemnification in this Section 6.1(a) shall be paid by the Litigation Trust. This provision shall survive the termination of this Agreement and the death, dissolution, liquidation, resignation, replacement or removal of the Litigation Trustee.


6.2 Limitation of Liability. The Litigation Trustee, including any agents or professionals of the Litigation Trustee, and the members of the Litigation Trustee Oversight Board will not be liable for punitive, exemplary, consequential, special or other damages for a breach of this Agreement under any circumstances in connection with the Litigation Trust Agreement, whether such claims are brought in contract or tort, except for damages arising from specific actions or omissions resulting from willful misconduct, gross negligence, malpractice, or intentional fraud. The Litigation Trustee shall enjoy all of the rights, powers, immunities and privileges applicable to a chapter 7 trustee or any other analogous trustee with respect to the DV Claims, Claims of the DV Entities, any of the Former D&Os or Shareholders, the Former D&O and Shareholder Causes of Action, and other Causes of Action that are Litigation Trust Assets. The Litigation Trustee may, in connection with the performance of his, her or its functions, in the Litigation Trustee’s sole and absolute discretion, consult with his, her or its attorneys, accountants, advisors and agents, and shall not be liable for any act taken, or omitted to be taken, or suggested to be done in accordance with advice or opinions rendered by such persons, regardless of whether such advice or opinions are in writing. Notwithstanding such authority, the Litigation Trustee shall be under no obligation to consult with any such attorneys, accountants, advisors or agents, and any


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determination not to do so shall not result in the imposition of liability on the Litigation Trustee or its members unless such determination is based on willful misconduct, gross negligence or fraud. Persons dealing with the Litigation Trustee shall look only to the Litigation Trust Assets to satisfy any liability incurred by the Litigation Trustee to such person in carrying out the terms of the Litigation Trust Agreement, and the Litigation Trustee shall have no personal obligation to satisfy such liability.


7.1 Tax Treatment; No Successor in Interest. The Litigation Trust is intended to be treated for U.S. federal income tax purposes as a liquidating trust described in Treasury Regulation section 301.7701-4(d). For U.S. federal income tax purposes, the transfer of assets by the Debtors to the Litigation Trust will be treated as the transfer of assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, as applicable, subject to any liabilities of the Debtors or the Litigation Trust payable from the proceeds of such assets, followed by the transfer of such assets (subject to such liabilities) by such holders to the Litigation Trust in exchange for the beneficial interests in the Litigation Trusts. For all U.S. federal income tax purposes, all parties (including the Debtors, the Litigation Trustee and the Litigation Trust Beneficiaries) shall treat the transfer of the Litigation Trust Assets by the Debtors to the Litigation Trust in the manner set forth above as a transfer of such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, followed by a transfer by such holders to the Litigation Trust.


7.3 Cash Investments. The right and power of the Litigation Trustee to invest the Litigation Trust Assets, the proceeds thereof or any income earned by the Litigation Trust, shall be limited to the right and power that a liquidating trust, within the meaning of section 301.7701-4(d) of the Treasury Regulations, is permitted to hold, pursuant to the Treasury Regulations, or any modification in the IRS guidelines, including Revenue Procedure 94-45, whether set forth in IRS rulings or other IRS pronouncements, and to the investment guidelines of section 345 of the Bankruptcy Code. The Litigation Trustee may retain any Litigation Trust Assets received that are not Cash only for so long as may be required for the prompt and orderly liquidation of such assets, and the Litigation Trustee may expend the Litigation Trust Assets; (i) as reasonably necessary to


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meet contingent liabilities and realize or maintain the value of the Litigation Trust Assets during liquidation; (ii) to pay reasonable and documented administrative expenses (including, but not limited to, any taxes imposed on the Litigation Trust or reasonable fees and expenses in connection with liquidating the Litigation Trust Assets); and (iii) to satisfy other liabilities incurred or assumed by the Litigation Trust (or to which the Litigation Trust Assets are otherwise subject) in accordance with the Plan or this Agreement.

7.4 Litigation Trust as Grantor Trust. The Litigation Trust is intended to qualify as a “grantor trust” for U.S. federal income tax purposes with the Litigation Trust Beneficiaries treated as grantors and owners of the Litigation Trust. For all U.S. federal income tax purposes, all parties (including the Debtors, the Litigation Trustee and the Litigation Trust Beneficiaries) shall treat the transfer of the Litigation Trust Assets by the Debtors to the Litigation Trust, as set forth in the Litigation Trust Agreement, as a transfer of such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, followed by a transfer by such holders to the Litigation Trust. Thus, the Litigation Trust Beneficiaries shall be treated as the grantors and owners of a grantor trust for U.S. federal income tax purposes.







(a) The Litigation Trustee shall deduct and withhold and pay to the appropriate Governmental Unit all amounts required to be deducted or withheld pursuant to the Tax Code or


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any provision of any state, local or non-U.S. tax law with respect to any payment or distribution by the Litigation Trust to the Litigation Trust Beneficiaries. Notwithstanding the above, each holder of an Allowed Claim that is to receive a distribution under the Plan shall have the sole and exclusive responsibility for the satisfaction and payment of any taxes imposed on such holder by any governmental authority, including income, withholding and other tax obligations, on account of such distribution. All such amounts withheld and paid to the appropriate Governmental Unit shall be treated as amounts distributed to the applicable Litigation Trust Beneficiary for all purposes of this Agreement.

(b) The Litigation Trustee shall be authorized to collect such tax information from the Litigation Trust Beneficiaries (including, without limitation, social security numbers or other tax identification numbers) as it, in its sole discretion, deems necessary to effectuate the Plan, the Confirmation Order and this Agreement. As a condition to receive distributions under the Plan, all Litigation Trust Beneficiaries may be required to identify themselves to the Litigation Trustee and provide tax information and the specifics of their holdings, to the extent the Litigation Trustee deems appropriate, including an IRS Form W-9 or, in the case of Litigation Trust Beneficiaries that are not United States persons for federal income tax purposes, certification of foreign status on an applicable IRS Form W-8 unless such Person is exempt under the Tax Code and provides the Litigation Trustee with the appropriate documentation, satisfactory to the Litigation Trustee, establishing such exemption. The Litigation Trustee may refuse to make a distribution to any Litigation Trust Beneficiary that fails to furnish such information in a timely fashion, until such information is delivered; provided, however, that, upon the delivery of such information by a Litigation Trust Beneficiary within 150 days of the initial request by the Litigation Trustee, the Litigation Trustee shall make such distribution to which the Litigation Trust Beneficiary is entitled, without interest; If such request is made by the Liquidation Trustee, the Litigation Trustee or such other Person designated by the applicable Trustee and the holder fails to comply before the date that is 150 days after the request is made, the amount of such distribution shall irrevocably revert to the Liquidation Trust or Litigation Trust, as applicable, and any Claim in respect of such Distribution shall be discharged and forever barred from assertion against any Debtor and its respective property. If the Litigation Trustee fails to withhold in respect of amounts received or distributable with respect to any such holder and the Litigation Trustee is later held liable for the amount of such withholding, such holder shall reimburse the Litigation Trustee for such liability.



7.8 Exemption from Certain Transfer Taxes. To the maximum extent provided by section 1146(a) of the Bankruptcy Code, any post Confirmation sale by any Debtor, or any transfer from any Entity pursuant to, in contemplation of, or in connection with the Plan or pursuant to: (i) the issuance, distribution, transfer, or exchange of any debt, equity security, or other interest in the


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Debtors; or (ii) the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including any deeds, bills of sale, assignments, or other instruments of transfer executed in connection with any transaction arising out of, contemplated by, or in any way related to the Plan, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, Uniform Commercial Code or similar filing or recording fee, or other similar tax or governmental assessment, in each case to the extent permitted by applicable bankruptcy law, and the appropriate federal, state, provincial or local government officials or agents shall forego collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment.




9.1 Subject to Sections 9.2 and 9.3 of this Agreement, the Litigation Trustee, with the prior approval of the Litigation Trust Oversight Board, upon notice to the Liquidation Trustee with the opportunity to object, may seek Bankruptcy Court approval of any amendment, supplement or waiver with respect to any provision of this Agreement. Technical amendments to this Agreement may be made, as necessary to clarify this Agreement or enable the Litigation Trustee to effectuate the terms or purposes of this Agreement, by the Litigation Trustee with approval by a majority of the Litigation Trust Oversight Board, as well as a majority of the “United States persons” who are Members, and upon five (5) prior business days’ notice to the Liquidation Trustee.

9.2 Notwithstanding Section 9.1 of this Agreement, no amendment, supplement or waiver of or to this Agreement shall (a) adversely affect the payments and/or distributions to be made under the Plan, the Confirmation Order or this Agreement, (b) adversely affect the U.S. federal income tax status of the Litigation Trust as a “liquidating trust” or (c) be inconsistent with


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the purpose and intention of the Litigation Trust to liquidate in an expeditious but orderly manner the Litigation Trust Assets in accordance with Treasury Regulation section 301.7701-4(d).






10.4 Notices. Any notice or other communication required or permitted to be made under this Agreement shall be in writing and shall be deemed to have been sufficiently given, for


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all purposes, if delivered personally or by facsimile or electronic communication, sent by nationally recognized overnight delivery service or mailed by first-class mail. The date of receipt of such notice shall be the earliest of (a) the date of actual receipt by the receiving party, (b) the date of personal delivery (or refusal upon presentation for delivery), (c) the date of the transmission confirmation or (d) three Business Days after service by first-class mail, to the receiving party’s below address(es):




[email protected]




(iv) if to a Member of the Litigation Trust Oversight Board, to the applicable address(es) set forth on Exhibit A.




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10.9 Meanings of Other Terms. Except where the context otherwise requires, words importing the masculine gender include the feminine and the neuter, if appropriate, words importing the singular number shall include the plural number and vice versa and words importing persons shall include firms, associations, corporations and other entities. All references herein to Articles, Sections and other subdivisions, unless referring specifically to the Plan or provisions of the Bankruptcy Code, the Bankruptcy Rules or other law, statute or regulation, refer to the corresponding Articles, Sections and other subdivisions of this Agreement and the words “herein,” “hereof” or “herewith” and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision of this Agreement. The term “including” shall mean “including, without limitation.”




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10.14 Authority. Each Party hereby represents and warrants to the other Parties that: (i) such Party has full corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby; (ii) the execution and delivery by such Party of this Agreement, the performance by such Party of its obligations hereunder, and the consummation by Seller of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of such Party; (iii) this Agreement has been duly executed and delivered by such Party, and (assuming due authorization, execution and delivery by the other Parties hereto) this Agreement constitutes a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms.


Signature Page to Brooks Brothers Litigation Trust Agreement] WEIL:\97837731\7\30950.0071




By: Name: Title:


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EXHIBIT A


[To Come]


RLF1 24816342v.2

Exhibit C-1

Redline of Litigation Trust Agreement


1 43334.0050043334.00500

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This LITIGATION TRUST AGREEMENT is made this [•] day of [•], 2021 (this “Agreement”), by and among BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.); Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; 696 White Plains Road, LLC; and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.), as debtors and debtors-in-possession (collectively, the “Debtors”), and William T. Reid, IV PLLC, as trustee of the Litigation Trust referred to herein (in such capacity, the “Litigation Trustee”). This Agreement creates and establishes the Litigation Trust (the “Litigation Trust”) referenced herein in order to facilitate the implementation of the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and its Affiliated Debtors, dated [January 27, 2021] (as may be amended, supplemented, or otherwise modified from time to time in accordance with the terms and provisions thereof, the “Plan”). Each Debtor and the Litigation Trustee are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties.”

RECITALS






WHEREAS, on [•], 2021, the Bankruptcy Court entered its order confirming the Plan (Docket No. [•]) (the “Confirmation Order”);

WHEREAS, the Plan provides, among other things, as of the effective date of the Plan (the “Effective Date”), for the establishment of the Litigation Trust to liquidate the Litigation Trust Assets,1 including by, among other things, prosecuting, settling, compromising, abandoning, or



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otherwise assessing and, if possible, realizing the value of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action assigned to the Litigation Trust pursuant to the Plan, from time to time in accordance with the terms of the Plan for the benefit of the Litigation Trust Beneficiaries;










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(a) The Debtors and the Litigation Trustee, pursuant to the Plan and the Confirmation Order and in accordance with the applicable provisions of the Bankruptcy Code, hereby establish a trust on behalf of the Litigation Trust Beneficiaries, which shall be known as the “Brooks Brothers Litigation Trust,” on the terms set forth herein. In connection with the exercise of the Litigation Trustee’s powers hereunder, the Litigation Trustee may use this name or such variation thereof as the Litigation Trustee sees fit or as may otherwise be authorized by the Litigation Trust Oversight Board.


(c) In accordance with Section 5.1 of this Agreement, the initial members of the Litigation Trust Oversight Board (each such Person and any other Person appointed to be a member of the Litigation Trust Oversight Board pursuant to this Agreement, a “Member”) shall consist of all the members of the Creditors’ Committee or a representative thereof. [At all times all Members A majority of the Litigation Trust Oversight Board shall be “United States persons” as such term is defined in Section within the meaning of section 7701(a)(30) of the Tax Code. Each Member of the Litigation Trust Oversight Board shall be required to submit a quarterly statement attesting that they are “United States persons” as such term is defined in Section 7701(a)(30) of the Tax Code. Any non-, and only United States persons shall serve as observers and will be consulted on any decision by the Litigation Trust Oversight Board.]have the ability to control substantial decisions of the Litigation Trust, whether made by the Litigation Trustee, the Litigation Trust Oversight Board, or any other person with authority to make a substantial decision of the Litigation Trust. For this purpose, the terms “control” and “substantial decisions” shall be applied as set forth in Treasury Regulations section 301.7701-7(d)(1). Any substantial decision of the Litigation Trust Oversight Board shall require the approval of both a majority of the Members of the Litigation Trust Oversight Board and a majority of the Members who are “United States person”, provided that in the event of a tie vote of all the Members, the vote of a majority of the “United States persons” shall be deemed to constitute a majority vote of the Litigation Trust Oversight Board. A supermajority shall not be required for any action other than removal of the Litigation Trustee. Notwithstanding the foregoing, (i) any action taken by non-United States persons – acting individually or collectively, or (ii) any provision of this Agreement that would cause the Litigation Trust to be a “foreign trust”, within the meaning of Section 7701(a)(31) of the Tax Code, shall be void ab initio. No United States person appointed to the Trust Oversight Board shall act at the direction of or under the control of any non-United States person.




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(g) Subject to the terms of this Agreement, any action by the Litigation Trustee and/or the Litigation Trust Oversight Board that affects the interests of more than one Litigation Trust Beneficiary shall be binding and conclusive on all Litigation Trust Beneficiaries even if such Litigation Trust Beneficiaries have different or conflicting interests.


1.2 Transfer of Assets Into the Litigation Trust. Pursuant to the Plan, upon the Effective Date: (i) the DV Claims, Former D&O and Shareholder Causes of Action, and all rights to object to Claims of the DV Entities or any Former D&Os or Shareholders; and (ii) the Litigation Trust Minimum Funding, shall vest in and be transferred to the Litigation Trust. The act of transferring the Litigation Trust Assets, as authorized by the Plan, shall not be construed to destroy or limit any such assets or rights or be construed as a waiver of any right, and such rights may be asserted by the Litigation Trust as if the asset or right was still held by the applicable Debtor.

1.3 Litigation Trust Funding. The Litigation Trust shall be funded with the Litigation Trust Minimum Funding on the Effective Date of the Plan and as a condition to the Effective Date of the Plan (subject to waiver in accordance with Section 9.2 of the Plan). The Litigation Fees Amount will be funded after the Debtors or the Liquidation Trustee, as applicable, have paid or reserved for any amounts necessary to fund the Wind-Down Reserve and to pay all Administrative Expense Claims, Fee Claims, Secured Claims, Priority Tax Claims and Other Priority Claims after consulting with the Litigation Trustee as to any amounts to be reserved. The total amount of the Litigation Trust Funding shall be subject to the adjustments set forth in Section 5.5(c) of the Plan, but in any event shall not be less than the Litigation Trust Minimum Funding (subject to waiver in accordance with Section 9.2 of the Plan). To the extent the Debtors or the Liquidation Trustee, as applicable, determine in a good faith exercise of their business judgment consistent with their fiduciary duties that not funding all or a portion of the Litigation Fees Amount is necessary to allow the Debtors to fund or administer their chapter 11 cases (including to fund the Wind-Down Reserve and satisfy Administrative Expense Claims (including Fee Claims), Secured Claims, Priority Tax Claims and Other Priority Claims), the Debtors or the Liquidation Trustee, as applicable, are authorized to make such adjustment after consultation with the Litigation Trustee; provided that (i) in no event shall the Debtors or the Liquidation Trustee fund the Litigation Trust with an amount less than the Litigation Trust Minimum Funding, and (ii)(A) to the extent that the Debtors or the Liquidation Trustee, as applicable, make any such adjustment to the amount of the Litigation Fees Amount, and (B) the Debtors or the Liquidation Trustee, as applicable, is satisfied at a later date that the Debtors, or the Liquidation Trust, as applicable, have sufficient funds to satisfy all Allowed Administrative Expense Claims (including Fee Claims), Secured Claims, and


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Priority Tax Claims and Other Priority Claims, and be able to transfer some or all of such withheld amounts to the Litigation Trust, the Debtors or the Liquidation Trustee, as applicable, shall do so in accordance with the terms of the Plan.

1.4 Title to the Litigation Trust Assets. The transfer of the Litigation Trust Assets to the Litigation Trust pursuant to Section 1.2 hereof is being made for the sole benefit, and on behalf, of the Litigation Trust Beneficiaries. Upon the transfer of the Litigation Trust Assets to the Litigation Trust, the Litigation Trust shall succeed to all of the Brooks Brothers Parties’ and the Litigation Trust Beneficiaries’ rights, title and interest in the Litigation Trust Assets and no other Person shall have any interest, legal, beneficial or otherwise, in the Litigation Trust or the Litigation Trust Assets upon the assignment and transfer of such assets to the Litigation Trust (other than as provided in the Plan, the Confirmation Order or this Agreement).


(a) Purpose. The Litigation Trust’s primary purpose is liquidating the Litigation Trust Assets, with no objective to continue or engage in the conduct of a trade or business except to the extent reasonably necessary to, and consistent with, the Litigation Trust’s liquidating purpose and reasonably necessary to conserve and protect the Litigation Trust Assets and provide for the orderly liquidation thereof. The Litigation Trust shall be established on the Effective Date, in accordance with the terms of the Plan and the Litigation Trust Agreement and shall be governed by the terms of this Agreement and shall liquidate the Litigation Trust Assets, including by, among other things, prosecuting, settling, compromising, abandoning, or otherwise assessing and, if possible, realizing the value of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that may be assigned to the Litigation Trust in accordance with the terms of the Plan, from time to time in accordance with the terms of the Plan for the benefit of the Litigation Trust Beneficiaries. At such time as the Litigation Trustee determines the Litigation Trust has, pursuant to Section 5.5 of the Plan and this Agreement, (i) resolved, settled, compromised, or otherwise liquidated the DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust from time to time in accordance with the terms of the Plan and this Agreement, and (ii) paid all Litigation Trust Expenses, the Litigation Trustee shall transfer any and all remaining Litigation Trust Assets to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan; provided that, if the Liquidation Trust has been dissolved pursuant to the terms of the Plan and this Agreement before such time as the Litigation Trustee has acted in accordance with the foregoing clauses (i) and (ii), the Litigation Trustee shall make a Distribution of the remaining Litigation Trust Assets to the Litigation Trust Beneficiaries in accordance with the terms of the Plan. From time to time, and after paying or appropriately reserving for Litigation Trust Expenses, the Litigation Trust may (and shall at least annually) distribute proceeds of the Litigation Trust Assets (including any proceeds thereafter invested) to the Liquidation Trust for Distribution to Litigation Trust Beneficiaries in accordance with the terms of the Plan.

(b) Relationship. This Agreement is intended to create a trust and a trust relationship and to be governed and construed in all respects as a trust. The Litigation Trust is not intended to be, and shall not be deemed to be, or be treated as, a general partnership, limited partnership, joint venture, corporation, joint stock company or association, nor shall the Litigation


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Trustee, the Litigation Trust Oversight Board (or any Member thereof) or the Litigation Trust Beneficiaries for any purpose be, or be deemed to be or treated in any way whatsoever to be, liable or responsible hereunder as partners or joint venturers. The relationship of the Litigation Trust Beneficiaries, on the one hand, to the Litigation Trustee and the Litigation Trust Oversight Board, on the other hand, shall be solely that of a beneficiary of a trust and shall not be deemed a principal and agency relationship, and their rights shall be limited to those conferred upon them by the Plan, the Confirmation Order and this Agreement.



1.7 Preservation of Rights of Action. On and after the Effective Date, the Litigation Trustee, subject to the Litigation Trustee Discretion, and under the supervision of the Litigation Trust Oversight Board, shall have sole and exclusive discretion to pursue and dispose of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets. The Litigation Trustee must receive the approval of the Litigation Trust Oversight Board by a majority of Members, as well as a majority of the “United States persons” that are Members, to settle any of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets valued at above $500,000. If the Litigation Trust Oversight Board does not approve a settlement by the Litigation Trustee, then the Litigation Trustee may either (i) seek approval by the Bankruptcy Court, upon notice and a hearing at which the Litigation Trust Oversight Board may be heard, or (ii) resign from the engagement. All Causes of Action that are or become Litigation Trust Assets shall vest in the Litigation Trust as provided for herein and the Litigation Trustee may pursue or dispose of any Causes of Action that are or become Litigation Trust Assets in its sole discretion in the name of either the Litigation Trustee or the Litigation Trust, provided, however, that as set forth above, the Litigation Trustee must receive the approval of the Litigation Trust Oversight Board by a majority of Members, as well as a majority of the “United States persons” that are Members. On and after the Effective Date, the Litigation Trustee under the supervision of the Litigation Trust Oversight Board, including the consent and approval rights set forth herein, shall


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retain and shall have, including through its authorized agents or representatives, the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action, or to decline to do any of the foregoing, without the consent or approval of any third party or further notice to or action, order, or approval of the Bankruptcy Court or the Litigation Trust Beneficiaries.

1.8 Privileges.


(b) The foregoing transfer and assignment shall vest the Privileges concerning the Transferred Privileged Information exclusively in the Litigation Trust, consistent with sections 1123(a)(5)(B) and 1123(b)(3)(B) of the Bankruptcy Code, for the sole benefit of the Litigation Trust and the Litigation Trust Beneficiaries; provided, however, that to the extent that any such Privileges or Transferred Privileged Information relates to both Liquidation Trust Assets and Litigation Trust Assets, such Privileges and Transferred Privileged Information shall vest jointly in the Liquidation Trust and the Litigation Trust. Except only as provided in the Liquidation Trust Agreement as relates to any Privileges or Transferred Privileged Information held jointly with the Liquidation Trust, the Litigation Trust shall have the exclusive authority and sole discretion to maintain the Privileges and keep the Transferred Privileged Information confidential, or waive any Privileges and/or disclose and/or use in litigation or any proceeding any or all of the Transferred Privileged Information.



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(d) Pursuant to, inter alia, Federal Rule of Evidence 502(d), no Privileges shall be waived by the transfer and assignment of the Privileges or the production of any Transferred Privileged Information to the Litigation Trust or any of its respective employees, professionals or representatives, or by disclosure of such Transferred Privileged Information between the Privilege Transfer Parties, on the one hand, and the Litigation Trust, on the other hand, or any of their respective employees, professionals or representatives. Moreover, the non-voting observer Members participation in the Litigation Trust Oversight Board shall not waive any Privileges held by the Litigation Trust, the Litigation Trustee, or the Litigation Trust Oversight Board.




2.2 Interests Beneficial Only. The ownership of the beneficial interests in the Litigation Trust shall not entitle the Litigation Trust Beneficiaries to any title in or to the Litigation Trust Assets as such (which title shall be vested in the Litigation Trust) or to any right to call for a partition or division of the Litigation Trust Assets or to require an accounting.




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2.5 Effect of Death, Incapacity or Bankruptcy. The death, incapacity or bankruptcy of any Litigation Trust Beneficiary during the term of the Litigation Trust shall not (i) operate to terminate the Litigation Trust, (ii) entitle the representatives or creditors of the deceased, incapacitated or bankrupt party to an accounting, (iii) entitle the representatives or creditors of the deceased, incapacitated or bankrupt party to take any action in the Bankruptcy Court or elsewhere for the distribution of the Litigation Trust Assets or for a partition thereof, or (iv) otherwise affect the rights and obligations of any of the Litigation Trust Beneficiaries under this Agreement.



3.1 Role of the Litigation Trustee. In furtherance of and consistent with the purpose of the Litigation Trust and the Plan, subject to the terms and conditions contained in the Plan, the Confirmation Order and this Agreement, the Litigation Trustee shall, subject to the supervision of the Litigation Trust Oversight Board as provided in this Agreement, (i) receive, manage, supervise and protect the Litigation Trust Assets upon its receipt of same on behalf of and for the benefit of the Litigation Trust Beneficiaries; (ii) investigate, analyze, prosecute and, if necessary and appropriate, settle and compromise the Litigation Trust Assets; (iii) prepare and file all required tax returns and pay from the Litigation Trust Assets all taxes and all other obligations of the Litigation Trust; (iv) liquidate and convert the Litigation Trust Assets to Cash in accordance with this Agreement and the other Litigation Trust Documents and timely transfer such Cash to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan and as set forth in Section 3.5 herein; and (v) have all such other responsibilities as may be vested in the Litigation Trustee pursuant to the Plan, the Confirmation Order, this Agreement, and all other applicable orders of the Bankruptcy Court, provided however, that the Litigation Trustee shall not be required to take any action described in (i) through (v) above that he deems not to be in good faith or that is contrary to any action or inaction recommended to the Litigation Trustee by his counsel (the “Litigation Trustee Discretion”). If there is a dispute as a course of action to be taken for the Litigation Trust between the Litigation Trustee and the Litigation Trust Oversight Board, the parties shall seek to have such a dispute resolved before the Bankruptcy Court. The Litigation Trustee in consultation with, and subject to the supervision of, the Litigation Trust Oversight Board as provided in this Agreement, shall be responsible for all decisions and duties with respect to the Litigation Trust and the Litigation Trust Assets, and such decisions and duties shall be carried out in accordance with the Plan, the Confirmation Order, this


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Agreement, and all other applicable orders of the Bankruptcy Court. In all circumstances, the Litigation Trustee shall act in the best interests of the Litigation Trust Beneficiaries and in furtherance of the purpose of the Litigation Trust, and shall use commercially reasonable efforts to prosecute, settle or otherwise resolve the Causes of Action constituting the Litigation Trust Assets, and to otherwise monetize the Litigation Trust Assets and not unreasonably prolong the duration of the Litigation Trust.



(a) Subject to the provisions of this Agreement, the Plan, the Confirmation Order, supervision and/or approval by the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, the Litigation Trustee shall prosecute, pursue, compromise, settle, or abandon any and all DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust, that have not already been resolved as of the Effective Date. The Litigation Trustee, upon supervision and/or approval by the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, shall have the absolute right to pursue, not pursue, release, abandon, and/or settle any and all DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust (including any counterclaims asserted against the Litigation Trust) as it determines in the best interests of the Litigation Trust Beneficiaries, and consistent with the purposes of the Litigation Trust, and shall have no liability for the outcome of its decision except for any damages caused by fraud, willful misconduct or gross negligence.

(b) Subject to the provisions of this Agreement, the Plan and the Confirmation Order, the Litigation Trustee shall have sole authority to reconcile, prosecute objections, compromise, abandon or settle, as applicable, any and all Claims of any of the DV Entities or any of the Former D&Os or Shareholders, DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that may be assigned to the Litigation Trust from time to time that have not already been resolved as of the Effective Date; provided, that for the avoidance of doubt, settlement of any of the Claims of any of the DV Entities or any of the Former D&Os or Shareholders, the DV Claims, the Former D&O and Shareholder Causes of Action, or any other Causes of Action assigned to the Litigation Trust will not require Bankruptcy Court approval. The Litigation Trustee, upon supervision of the Litigation Trust Oversight Board, and subject to the Litigation Trustee Discretion, shall have the absolute right to pursue, not pursue, release, abandon, and/or settle any and all Claims of any of the DV Entities or any of the Former D&Os or Shareholders, DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust (including any counterclaims asserted against the


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Litigation Trust) as it determines in the best interests of the Litigation Trust Beneficiaries, and consistent with the purposes of the Litigation Trust, and shall have no liability for the outcome of its decision except for any damages caused by fraud, willful misconduct or gross negligence. Pursuant to Section 1.7 above, the Litigation Trustee must receive the approval of the Litigation Trust Oversight Board by a majority of Members, as well as a majority of the “United States persons” that are Members, to settle any of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets valued at above $500,000. If the Litigation Trust Oversight Board does not approve a settlement by the Litigation Trustee, then the Litigation Trustee may either (i) seek approval by the Bankruptcy Court, upon notice and a hearing at which the Litigation Trust Oversight Board may be heard, or (ii) resign from the engagement.



3.4 Liquidation of Litigation Trust Assets. The Litigation Trustee, upon direction by the Litigation Trust Oversight Board, subject to the Litigation Trustee Discretion, and in the exercise of their collective reasonable business judgment, shall, in an expeditious but orderly manner and subject to the other provisions of the Plan, the Confirmation Order, and this Agreement, liquidate and convert to Cash the Litigation Trust Assets, and timely transfer such Cash to the Liquidation Trust for Distribution to the Litigation Trust Beneficiaries in accordance with the terms of the Plan, the Confirmation Order, and this Agreement, and not unduly prolong the existence of the Litigation Trust. The Litigation Trustee shall exercise reasonable business judgment and liquidate the Litigation Trust Assets to optimize net recoveries to the Litigation Trust


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Beneficiaries, provided, however, that in addition to the Litigation Trustee Discretion, the Litigation Trustee shall be entitled to take into consideration the risks, timing, anticipated duration, and costs of potential actions in making determinations as to the methodologies to be employed to optimize such recoveries. Such liquidations may be accomplished through the prosecution, compromise and settlement, abandonment or dismissal of any or all of the DV Claims, Former D&O and Shareholder Causes of Action, or other Causes of Action assigned to the Litigation Trust or otherwise or through the sale or other disposition of the Litigation Trust Assets (in whole or in combination). Pursuant to an agreed-upon budget, the Litigation Trustee may incur any reasonable and necessary expenses in connection with the liquidation of the Litigation Trust Assets and Distributions.



3.7 Fees and Expenses of the Litigation Trust. From and after the Effective Date, Litigation Trust Expenses shall be paid from the Litigation Trust Assets in the ordinary course of business, in accordance with the Plan and the Litigation Trust Agreement. Without any further notice to any party or action, order or approval of the Bankruptcy Court, the Litigation Trustee, on behalf of the Litigation Trust, may employ and pay in the ordinary course of business, any professional for services rendered or expenses incurred on and after the Effective Date, in accordance with the terms of any agreement entered into between the Litigation Trust and such


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professional, in the discretion of the Litigation Trustee and with the approval of the Litigation Trust Oversight Board for any expense over $2,000, that are necessary or appropriate to assist the Litigation Trustee in the performance of the Litigation Trustee’s duties under the Plan and the Litigation Trust Agreement.







(e) settle Claims that are Litigation Trust Assets, including the DV Claims, the Former D&O and Shareholder Causes of Action, and Claims of the Former D&Os and Shareholders, without further order of the Bankruptcy Courtpursuant to the procedures set forth in Section 1.7 above;





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(c) transfer all Cash proceeds of the DV Claims, the Former D&O and Shareholder Causes of Action, and of other Causes of Action assigned to the Litigation Trust, after


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payment of the Litigation Trust Expenses to the Liquidation Trust, unless the Liquidation Trust has been dissolved;










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3.15 Reports.

(a) Financial and Status Reports. The fiscal year of the Litigation Trust shall be the calendar year. Within 90 days after the end of each calendar year during the term of the Litigation Trust, and within 45 days after the end of each calendar quarter during the term of the Litigation Trust (other than the fourth quarter) and as soon as practicable upon termination of the Litigation Trust, the Litigation Trustee shall make available, upon request, to the Litigation Trust Beneficiaries appearing in the Trust Registry as of the end of such period or such date of termination, a written report including: (i) financial statements of the Litigation Trust for such period, and, if the end of a calendar year, an unaudited report (which may be prepared by an independent certified public accountant employed by the Litigation Trustee) reflecting the result of such agreed-upon procedures relating to the financial accounting administration of the Litigation Trust as proposed by the Litigation Trustee; (ii) a summary description of any action taken by the Litigation Trust which, in the judgment of the Litigation Trustee, materially affects the Litigation Trust and of which notice has not previously been given to the Litigation Trust Beneficiaries; (iii) a description of the progress of liquidating the Litigation Trust Assets and making distributions to the Litigation Trust Beneficiaries, which description shall include a written report detailing, among other things, the litigation status of the Litigation Claims transferred to the Litigation Trust, any settlements entered into by the Litigation Trust with respect to the Litigation Claims; and the Litigation Trust Proceeds recovered to date (in each instance to the extent not confidential and to the extent that the Litigation Trustee determines that public disclosure will not adversely affect the liquidation of any remaining Litigation Trust Assets), and the distributions made by the Litigation Trust to date; and (iv) any other material information relating to the Litigation Trust Assets and the administration of the Litigation Trust deemed appropriate to be disclosed by the Litigation Trustee or required to be included in the written report by the Litigation Trust Oversight Board. In addition, the Litigation Trust shall make unaudited financial statements available to each Litigation Trust Beneficiary on a quarterly basis (which may be quarterly operating reports filed with the Bankruptcy Court). The first report shall be due the first quarter after confirmation. The Litigation Trustee may post any such report on a website maintained by the Litigation Trustee or electronically file it with the Bankruptcy Court in lieu of actual notice to each Litigation Trust Beneficiary (unless otherwise required by law).





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4.4 Removal.

(a) The Litigation Trustee (or any successor Litigation Trustee) may be removed by [a majority] a vote of at least five of the Members of the Litigation Trust Oversight Board, as well as a majority of the “United States persons” who are Members, for Cause (as defined in Section 5.8 herein), immediately upon notice thereof, or without Cause, upon not less than 90 days’ prior written notice.




(a) In the event of the death or Disability (as defined in Section 5.8 herein) (in the case of a Litigation Trustee that is a natural person), dissolution (in the case of a Litigation Trustee that is not a natural person), resignation, incompetency or removal of the Litigation Trustee, the Litigation Trust Oversight Board shall designate a successor Litigation Trustee satisfying the requirements set forth in Section 4.1 hereof by majority vote, which majority shall consist of a majority of the Members of the Litigation Trust Oversight Board, as well as a majority of the “United States persons” who are Members. If the Members of the Litigation Trust Oversight Board are unable to secure a majority vote, including a majority of the “United States persons” the Bankruptcy Court will determine the successor Litigation Trustee satisfying the requirements set forth in Section 4.1 hereof on motion of the Members. Such appointment shall specify the date on which such appointment shall be effective. Every successor Litigation Trustee appointed hereunder shall execute, acknowledge and deliver to the Litigation Trust Oversight Board an instrument accepting the appointment under this Agreement and agreeing to be bound as Litigation Trustee hereto, and thereupon the successor Litigation Trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, trusts and duties of the predecessor Litigation Trustee and the successor Litigation Trustee shall not be personally liable for any act or omission of the predecessor Litigation Trustee; provided, however, that a predecessor Litigation Trustee shall, nevertheless, when reasonably requested in writing by the successor Litigation Trustee, execute and deliver an instrument or instruments conveying and transferring to such successor Litigation Trustee under the Litigation Trust all the estates, properties, rights, powers and trusts of such predecessor Litigation Trustee and otherwise assist and cooperate, without cost or expense to the predecessor Litigation Trustee, in effectuating the assumption by the successor Litigation Trustee of his/her/its obligations and functions hereunder.


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(b) During any period in which there is a vacancy in the position of Litigation Trustee, the Litigation Trust Oversight Board shall appoint one of its Members to serve as interim Litigation Trustee (the “Interim Trustee”). The Interim Trustee shall be subject to all the terms and conditions applicable to a Litigation Trustee hereunder; provided, however, any such Interim Trustee shall not be entitled to receive the Litigation Trustee Compensation unless approved by the Litigation Trust Oversight Board, but shall be entitled to receive payment for the Litigation Trustee Expenses. Such Interim Trustee shall not be limited in any manner from exercising any rights or powers as a Member of the Litigation Trust Oversight Board merely by such Person’s appointment as Interim Trustee, but shall be limited in the exercise of such rights or powers as a Litigation Trustee to the extent a majority of the Litigation Trust Oversight Board , as well as a majority of the “United States persons” serving as Members shall, to the extent applicable in this Agreement, fail to approve any such action or undertaking by the Interim Trustee.




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5.1 Litigation Trust Oversight Board. On the Effective Date, the Litigation Trust Oversight Board shall be established. The initial Litigation Trust Oversight Board members shall consist of all the members of the Creditors’ Committee or designated representatives thereof, as identified on Exhibit 1 A hereto.






(e) Notwithstanding any provision of this Agreement to the contrary, the Litigation Trustee shall not be required to obtain the approval or follow the directions of the


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Litigation Trust Oversight Board to the extent that: (i) the Litigation Trust Oversight Board has not authorized the Litigation Trustee to take any action that the Litigation Trustee, in good faith, reasonably determines, based on the advice of legal counsel, is required to be taken by applicable law; or (ii) the Litigation Trust Oversight Board directs the Litigation Trustee to take action that the Litigation Trustee, in good faith, reasonably determines, based on the advice of legal counsel, is prohibited by applicable law.






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(a) A quorum for the transaction of business at any meeting of the Litigation Trust Oversight Board shall consist of[ a majority] of the Members. Except as set forth in Sections 5.5(c) and 5.9(a) herein, the majority vote of the Members , as well as a majority of the “United States persons” who are Members, present at a duly called meeting at which a quorum is present throughout shall be the act of the Litigation Trust Oversight Board except as otherwise required by law or as provided for in this Agreement. For the avoidance of doubt, in the event of any tie vote, the tiebreaker shall be determined by majority of the “United States persons” who are Members of the Litigation Trust Oversight Board. Any or all of the Members may participate in a regular or special meeting by, or conduct the meeting through the use of, conference telephone, video conference or similar communications equipment by means of which all Persons participating in the meeting may hear each other, in which case any required notice of such meeting may generally describe the arrangements (rather than or in addition to the place) for the holding thereof. Any Member participating in a meeting by this means is deemed to be present in person at the meeting. Voting (including on negative notice) maybe conducted by electronic mail or individual communications by the Litigation Trustee and each Member.


(c) Prior to the taking of a vote on any matter or issue or the taking of any action with respect to any matter or issue, each Member of the Litigation Trust Oversight Board shall report to the Litigation Trust Oversight Board any conflict of interest such Member has or may have with respect to the matter or issue at hand and fully disclose the nature of such conflict or potential conflict (including, without limitation, disclosing any and all financial or other pecuniary interests that such Member may have with respect to or in connection with such matter or issue, other than solely as a holder of Litigation Trust Interests). A Member who, with respect to a matter or issue, has or who may have a conflict of interest whereby such Member’s interests are adverse to the interests of the Litigation Trust (i) shall be deemed to be a “Conflicted Member” who shall not be entitled to vote or take part in any action with respect to such matter or issue, (ii) the vote or action with respect to such matter or issue shall be undertaken only by Members of the Litigation Trust Oversight Board who are not Conflicted Members and (iii) notwithstanding anything contained herein to the contrary, the affirmative vote of only a majority of the Members of the Litigation Trust Oversight Board who are not Conflicted Members, including a majority of the “United States persons” who are Members of the Litigation Trust Oversight Board and are not Conflicted Members shall be required to approve of such matter or issue and the same shall be the act of the Litigation Trust Oversight Board; provided, however, that a Member shall not be deemed


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to be a Conflicted Member with respect to a particular matter or issue if such Member merely has an economic interest in the outcome of such matter or issue solely as a holder of Litigation Trust Interests.

5.6 Tenure of the Members of the Litigation Trust Oversight Board. The authority of the Members will be effective as of the Effective Date and will remain and continue in full force and effect until the Litigation Trust is dissolved in accordance with Section 8.1 hereof. The Members will serve until such Member’s successor is duly appointed or until such Member’s earlier death or resignation pursuant to Section 5.7 below, or removal pursuant to Section 5.8 below.


5.8 Removal.

(a) A majority of the Litigation Trust Oversight Board , which shall include a majority of the “United States persons” who are Members, may remove any Member for Cause or Disability. Notwithstanding the foregoing, upon the occurrence of the Dissolution of the Litigation Trust (as set forth in in Section 8.1 below), any or all of the Members shall be deemed to have resigned.





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(a) In the event of a vacancy on the Litigation Trust Oversight Board (whether by removal, death or resignation), a new Member may be appointed to fill such position by [a majority of] the remaining Members, including a majority of the “United States persons” who are Members. The appointment of a successor Member will be further evidenced by the Litigation Trustee’s filing with the Bankruptcy Court and posting on the Litigation Trustee’s website of a notice of appointment, at the direction of the Litigation Trust Oversight Board, which notice will include the name, address, and telephone number of the successor Member.




5.11 Confidentiality. Each Member, including a non-voting observer Member, shall, during the period that such Member serves as a Member under this Agreement and following the termination of this Agreement or following such Member’s removal or resignation, hold strictly confidential and not use for any purpose, non-public information of which such Member has become aware in the Member’s capacity as a Member, except as otherwise required by law. Notwithstanding anything to the contrary, Member Pension Benefit Guaranty Corporation (“PBGC”), as a governmental agency, may disclose confidential information (i) to the Executive Branch of the United States, the PBGC Board of Directors, officials, advisors, consultants, and representatives who have a need to know the information as part of their job responsibilities; (ii) as required by law; (iii) as may be necessary in connection with any court or administrative proceedings; (iv) upon request of Congress or any committee, joint committee or subcommittee thereof, including the Comptroller General and the Congressional Budget Office.


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(a) The Litigation Trust shall indemnify the Litigation Trustee for, and shall hold them harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of their respective professionals) incurred without fraud, gross negligence or willful misconduct on the part of the Litigation Trustee in its capacity as such (which fraud, gross negligence or willful misconduct, if any, must be determined by a Final Order of a court of competent jurisdiction) for any action taken, suffered or omitted to be taken by the Litigation Trustee in connection with the acceptance, administration, exercise and performance of its duties under the Plan or this Agreement, as applicable. An act or omission taken with the approval of the Bankruptcy Court or the Canadian Court, and not inconsistent therewith, will be conclusively deemed not to constitute fraud, gross negligence or willful misconduct. In addition, the Litigation Trust shall, to the fullest extent permitted by law, indemnify and hold harmless the Litigation Trustee, in its capacity as such, from and against and with respect to any and all liabilities, losses, damages, claims, costs and expenses, including attorneys’ fees arising out of or due to its actions or omissions, or consequences of such actions or omissions, with respect to the Litigation Trust or the implementation or administration of the Plan if the Litigation Trustee acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the Litigation Trust. To the extent the Litigation Trust indemnifies and holds the Litigation Trustee harmless as provided above, the reasonable legal fees and related costs incurred by counsel to the Litigation Trustee in monitoring or participating in the defense of such claims giving rise to the right of indemnification shall be paid as Litigation Trust Expenses. The costs and expenses incurred in enforcing the right of indemnification in this Section 6.1(a) shall be paid by the Litigation Trust. This provision shall survive the termination of this Agreement and the death, dissolution, liquidation, resignation, replacement or removal of the Litigation Trustee.


6.2 Limitation of Liability. The Litigation Trustee, including any agents or professionals of the Litigation Trustee, and the members of the Litigation Trustee Oversight Board will not be liable for punitive, exemplary, consequential, special or other damages for a breach of this Agreement under any circumstances in connection with the Litigation Trust Agreement, whether such claims are brought in contract or tort, except for damages arising from specific actions or omissions resulting from willful misconduct, gross negligence, malpractice, or intentional fraud. The Litigation Trustee shall enjoy all of the rights, powers, immunities and 2 Including members of the Litigation Trust Oversight Board in their capacities as such.


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privileges applicable to a chapter 7 trustee or any other analogous trustee with respect to the DV Claims, Claims of the DV Entities, any of the Former D&Os or Shareholders, the Former D&O and Shareholder Causes of Action, and other Causes of Action that are Litigation Trust Assets. The Litigation Trustee may, in connection with the performance of his, her or its functions, in the Litigation Trustee’s sole and absolute discretion, consult with his, her or its attorneys, accountants, advisors and agents, and shall not be liable for any act taken, or omitted to be taken, or suggested to be done in accordance with advice or opinions rendered by such persons, regardless of whether such advice or opinions are in writing. Notwithstanding such authority, the Litigation Trustee shall be under no obligation to consult with any such attorneys, accountants, advisors or agents, and any determination not to do so shall not result in the imposition of liability on the Litigation Trustee or its members unless such determination is based on willful misconduct, gross negligence or fraud. Persons dealing with the Litigation Trustee shall look only to the Litigation Trust Assets to satisfy any liability incurred by the Litigation Trustee to such person in carrying out the terms of the Litigation Trust Agreement, and the Litigation Trustee shall have no personal obligation to satisfy such liability.


7.1 Tax Treatment; No Successor in Interest. The Litigation Trust is intended to be treated for U.S. federal income tax purposes as a liquidating trust described in Treasury Regulation section 301.7701-4(d). For U.S. federal income tax purposes, the transfer of assets by the Debtors to the Litigation Trust will be treated as the transfer of assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, as applicable, subject to any liabilities of the Debtors or the Litigation Trust payable from the proceeds of such assets, followed by the transfer of such assets (subject to such liabilities) by such holders to the Litigation Trust in exchange for the beneficial interests in the Litigation Trusts. For all U.S. federal income tax purposes, all parties (including the Debtors, the Litigation Trustee and the Litigation Trust Beneficiaries) shall treat the transfer of the Litigation Trust Assets by the Debtors to the Litigation Trust in the manner set forth above as a transfer of such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, followed by a transfer by such holders to the Litigation Trust.



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7.3 Cash Investments. The right and power of the Litigation Trustee to invest the Litigation Trust Assets, the proceeds thereof or any income earned by the Litigation Trust, shall be limited to the right and power that a liquidating trust, within the meaning of section 301.7701-4(d) of the Treasury Regulations, is permitted to hold, pursuant to the Treasury Regulations, or any modification in the IRS guidelines, including Revenue Procedure 94-45, whether set forth in IRS rulings or other IRS pronouncements, and to the investment guidelines of section 345 of the Bankruptcy Code. The Litigation Trustee may retain any Litigation Trust Assets received that are not Cash only for so long as may be required for the prompt and orderly liquidation of such assets, and the Litigation Trustee may expend the Litigation Trust Assets; (i) as reasonably necessary to meet contingent liabilities and realize or maintain the value of the Litigation Trust Assets during liquidation; (ii) to pay reasonable and documented administrative expenses (including, but not limited to, any taxes imposed on the Litigation Trust or reasonable fees and expenses in connection with liquidating the Litigation Trust Assets); and (iii) to satisfy other liabilities incurred or assumed by the Litigation Trust (or to which the Litigation Trust Assets are otherwise subject) in accordance with the Plan or this Agreement.

7.4 Litigation Trust as Grantor Trust. The Litigation Trust is intended to qualify as a “grantor trust” for U.S. federal income tax purposes with the Litigation Trust Beneficiaries treated as grantors and owners of the Litigation Trust. For all U.S. federal income tax purposes, all parties (including the Debtors, the Litigation Trustee and the Litigation Trust Beneficiaries) shall treat the transfer of the Litigation Trust Assets by the Debtors to the Litigation Trust, as set forth in the Litigation Trust Agreement, as a transfer of such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, followed by a transfer by such holders to the Litigation Trust. Thus, the Litigation Trust Beneficiaries shall be treated as the grantors and owners of a grantor trust for U.S. federal income tax purposes.






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(a) The Litigation Trustee shall deduct and withhold and pay to the appropriate Governmental Unit all amounts required to be deducted or withheld pursuant to the Tax Code or any provision of any state, local or non-U.S. tax law with respect to any payment or distribution by the Litigation Trust to the Litigation Trust Beneficiaries. Notwithstanding the above, each holder of an Allowed Claim that is to receive a distribution under the Plan shall have the sole and exclusive responsibility for the satisfaction and payment of any taxes imposed on such holder by any governmental authority, including income, withholding and other tax obligations, on account of such distribution. All such amounts withheld and paid to the appropriate Governmental Unit shall be treated as amounts distributed to the applicable Litigation Trust Beneficiary for all purposes of this Agreement.

(b) The Litigation Trustee shall be authorized to collect such tax information from the Litigation Trust Beneficiaries (including, without limitation, social security numbers or other tax identification numbers) as it, in its sole discretion, deems necessary to effectuate the Plan, the Confirmation Order and this Agreement. As a condition to receive distributions under the Plan, all Litigation Trust Beneficiaries may be required to identify themselves to the Litigation Trustee and provide tax information and the specifics of their holdings, to the extent the Litigation Trustee deems appropriate, including an IRS Form W-9 or, in the case of Litigation Trust Beneficiaries that are not United States persons for federal income tax purposes, certification of foreign status on an applicable IRS Form W-8 unless such Person is exempt under the Tax Code and provides the Litigation Trustee with the appropriate documentation, satisfactory to the Litigation Trustee, establishing such exemption. The Litigation Trustee may refuse to make a distribution to any Litigation Trust Beneficiary that fails to furnish such information in a timely fashion, until such information is delivered; provided, however, that, upon the delivery of such information by a Litigation Trust Beneficiary within 150 days of the initial request by the Litigation Trustee, the Litigation Trustee shall make such distribution to which the Litigation Trust Beneficiary is entitled, without interest; If such request is made by the Liquidation Trustee, the Litigation Trustee or such other Person designated by the applicable Trustee and the holder fails to comply before the date that is 150 days after the request is made, the amount of such distribution shall irrevocably revert to the Liquidation Trust or Litigation Trust, as applicable, and any Claim in respect of such Distribution shall be discharged and forever barred from assertion against any Debtor and its respective property. If the Litigation Trustee fails to withhold in respect of amounts received or distributable with respect to any such holder and the Litigation Trustee is later held liable for the amount of such withholding, such holder shall reimburse the Litigation Trustee for such liability.



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7.8 Exemption from Certain Transfer Taxes. To the maximum extent provided by section 1146(a) of the Bankruptcy Code, any post Confirmation sale by any Debtor, or any transfer from any Entity pursuant to, in contemplation of, or in connection with the Plan or pursuant to: (i) the issuance, distribution, transfer, or exchange of any debt, equity security, or other interest in the Debtors; or (ii) the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including any deeds, bills of sale, assignments, or other instruments of transfer executed in connection with any transaction arising out of, contemplated by, or in any way related to the Plan, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, Uniform Commercial Code or similar filing or recording fee, or other similar tax or governmental assessment, in each case to the extent permitted by applicable bankruptcy law, and the appropriate federal, state, provincial or local government officials or agents shall forego collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment.




9.1 Subject to Sections 9.2 and 9.3 of this Agreement, the Litigation Trustee, with the prior approval of the Litigation Trust Oversight Board, upon notice to the Liquidation Trustee with the opportunity to object, may seek Bankruptcy Court approval of any amendment, supplement or waiver with respect to any provision of this Agreement. Technical amendments to this Agreement


31 WEIL:\97837731\7\30950.0071

may be made, as necessary to clarify this Agreement or enable the Litigation Trustee to effectuate the terms or purposes of this Agreement, by the Litigation Trustee with approval by a majority of the Litigation Trust Oversight Board , as well as a majority of the “United States persons” who are Members, and upon five (5) prior business days’ notice to the Liquidation Trustee.

9.2 Notwithstanding Section 9.1 of this Agreement, no amendment, supplement or waiver of or to this Agreement shall (a) adversely affect the payments and/or distributions to be made under the Plan, the Confirmation Order or this Agreement, (b) adversely affect the U.S. federal income tax status of the Litigation Trust as a “liquidating trust” or (c) be inconsistent with the purpose and intention of the Litigation Trust to liquidate in an expeditious but orderly manner the Litigation Trust Assets in accordance with Treasury Regulation section 301.7701-4(d).






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10.4 Notices. Any notice or other communication required or permitted to be made under this Agreement shall be in writing and shall be deemed to have been sufficiently given, for all purposes, if delivered personally or by facsimile or electronic communication, sent by nationally recognized overnight delivery service or mailed by first-class mail. The date of receipt of such notice shall be the earliest of (a) the date of actual receipt by the receiving party, (b) the date of personal delivery (or refusal upon presentation for delivery), (c) the date of the transmission confirmation or (d) three Business Days after service by first-class mail, to the receiving party’s below address(es):




[email protected]




(iv) if to a Member of the Litigation Trust Oversight Board, to the applicable address(es) set forth on Exhibit 1A.



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10.9 Meanings of Other Terms. Except where the context otherwise requires, words importing the masculine gender include the feminine and the neuter, if appropriate, words importing the singular number shall include the plural number and vice versa and words importing persons shall include firms, associations, corporations and other entities. All references herein to Articles, Sections and other subdivisions, unless referring specifically to the Plan or provisions of the Bankruptcy Code, the Bankruptcy Rules or other law, statute or regulation, refer to the corresponding Articles, Sections and other subdivisions of this Agreement and the words “herein,” “hereof” or “herewith” and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision of this Agreement. The term “including” shall mean “including, without limitation.”



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10.14 Authority. Each Party hereby represents and warrants to the other Parties that: (i) such Party has full corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby; (ii) the execution and delivery by such Party of this Agreement, the performance by such Party of its obligations hereunder, and the consummation by Seller of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of such Party; (iii) this Agreement has been duly executed and delivered by such Party, and (assuming due authorization, execution and delivery by the other Parties hereto) this Agreement constitutes a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms.


[Signature Page to Brooks Brothers Litigation Trust Agreement] WEIL:\97837731\7\30950.0071




By: Name: Title:


WEIL:\97837731\7\30950.0071

EXHIBIT 1A


[To Come]


THIS IS EXHIBIT “P” REFERRED TO IN THE







of America,


____________________________________________


796


) In re: ) Chapter 11

) BBGI US, INC., et al., ) Case No. 20-11785 (CSS)

) Debtors.1 ) (Jointly Administered)

)

DECLARATION OF CRAIG E. JOHNSON OF PRIME CLERK LLC REGARDING THE SOLICITATION OF VOTES AND TABULATION OF

BALLOTS CAST ON THE AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION FOR BBGI US, INC. AND ITS AFFILIATED DEBTORS

I, Craig E. Johnson, declare, under the penalty of perjury:

1. I am a Director of Global Corporate Actions at Prime Clerk LLC

(“Prime Clerk”), located at One Grand Central Place, 60 East 42nd Street, Suite 1440, New York,

New York 10165. I am over the age of eighteen years and not a party to the above-captioned

action. Unless otherwise noted, I have personal knowledge of the facts set forth herein.

2. I submit this Declaration with respect to the solicitation of votes and the tabulation

of Ballots cast on the Amended Joint Chapter 11 Plan Liquidation for BBGI US, Inc. and its

Affiliated Debtors, dated January 27, 2021 [Docket No. 957] (as may be amended, supplemented,

or modified from time to time, the “Plan”)2. Except as otherwise noted, all facts set forth herein

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A); BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors’ corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082. 2 All capitalized terms used by not otherwise defined herein have the meanings ascribed to them in the Plan or Disclosure Statement Order (as defined below), as applicable.


2

are based on my personal knowledge, knowledge that I acquired from individuals under my

supervision, and my review of relevant documents. I am authorized to submit this Declaration on

behalf of Prime Clerk. If I were called to testify, I could and would testify competently as to the

facts set forth herein.

3. This Court authorized Prime Clerk’s retention as (a) the claims and noticing agent

to the above-captioned debtors and debtors in possession (collectively, the “Debtors”) pursuant to

the Order Authorizing Retention and Appointment of Prime Clerk LLC as Claims and Noticing

Agent dated July 10, 2020 [Docket No. 106] and (b) the Order Authorizing Employment and

Retention of Prime Clerk LLC as Administrative Advisor Nunc Pro Tunc to the Petition Date, dated

August 7, 2020 [Docket No. 321] (the “Retention Orders”). The Retention Orders authorize Prime

Clerk to assist the Debtors with, among other things, the service of solicitation materials and

tabulation of votes cast to accept or reject the Plan. Prime Clerk and its employees have

considerable experience in soliciting and tabulating votes to accept or reject Chapter 11 plans.

Service and Transmittal of Solicitation Packages and the Tabulation Process

4. Pursuant to the Order (I) Approving Disclosure Statement and Form and Manner

of Notice of Disclosure Statement Hearing, (II) Establishing Solicitation, Voting, and Related

Procedures, (III) Scheduling Confirmation Hearing, (IV) Establishing Notice and Objection

Procedures for Confirmation of Plan, and (V) Granting Related Relief, dated January 27, 2021

[Docket No. 954] (the “Disclosure Statement Order”), the Court established procedures to solicit

votes from, and tabulate Ballots submitted by, holders of claims entitled to vote on the Plan

(the “Solicitation Procedures”). Prime Clerk adhered to the Solicitation Procedures outlined in the

Disclosure Statement Order and, among other things, distributed Solicitation Packages (including

Ballots) to parties entitled to vote on the Plan. I supervised the solicitation and tabulation

performed by Prime Clerk’s employees.


3

5. The Solicitation Procedures established January 19, 2021 as the record date

(the “Voting Record Date”) for determining which creditors were entitled to vote on the Plan.

Pursuant to the Plan and the Solicitation Procedures, only holders of claims in the following classes

as of the Voting Record Date were entitled to vote to accept or reject the Plan

(the “Voting Classes”):

Plan Class Class Description

3 PBGC Claims

4 General Unsecured Claims

No other classes were entitled to vote on the Plan.

6. In accordance with the Solicitation Procedures, Prime Clerk worked closely with

the Debtors’ advisors to identify the holders of claims in the Voting Classes as of the Voting

Record Date entitled to vote and to coordinate the distribution of Solicitation Packages to these

holders. A detailed description of Prime Clerk’s distribution of Solicitation Packages is set forth

in Prime Clerk’s Affidavit of Service of Solicitation Materials, which was filed with this Court on

February 10, 2021 [Docket No. 1005].

7. In accordance with the Solicitation Procedures, Prime Clerk received, reviewed,

determined the validity of, and tabulated the Ballots submitted to vote on the Plan. Each Ballot

submitted to Prime Clerk was date-stamped, scanned, assigned a ballot number, entered into Prime

Clerk’s voting database and processed in accordance with the Solicitation Procedures.

To be included in the tabulation results as valid, a Ballot must have been (a) properly completed

pursuant to the Solicitation Procedures, (b) executed by the relevant holder entitled to vote on the

Plan (or such holder’s authorized representative), (c) returned to Prime Clerk via an approved

method of delivery set forth in the Solicitation Procedures, and (d) received by

Prime Clerk by 5:00 p.m. (Prevailing Eastern Time) on February 26, 2021 (the “Voting Deadline”).


4

8. All valid Ballots cast by holders entitled to vote in the Voting Classes and received

by Prime Clerk on or before the Voting Deadline (or such later date as extended by the Debtors in

their sole discretion) were tabulated pursuant to the Solicitation Procedures.

9. The final tabulation of votes cast by timely and properly completed Ballots received

by Prime Clerk is attached hereto as Exhibit A.

10. A report of all Ballots excluded from the final tabulation prepared by Prime Clerk,

and the reasons for exclusion of such Ballots, is attached hereto as Exhibit B.

11. Prime Clerk also reviewed and documented which entities checked the box

contained in Item 4 of the Ballot to opt out of the Third Party Release (the “Opt-Out Election”).

A report of all entities who made the Opt-Out Election on or before the Voting Deadline on Ballots

that included a signature and did not convey a vote to accept the Plan is attached hereto as

Exhibit C. For the avoidance of doubt, Exhibit C does not include entities that submitted the Opt-

Out Election after the Voting Deadline, failed to execute the Ballot through which they made their

Opt-Out Election, or voted to accept the Plan on the same Ballot in which they made the Opt-Out

Election. For the further avoidance of doubt, this Declaration does not certify the validity or

enforceability of any Opt-Out Elections received, including those reported on Exhibit C, but rather

is providing this report of Opt-Out Elections for informational purposes only.

[Remainder of page intentionally left blank]



Exhibit A


Number Accepting Number Rejecting Amount Accepting Amount Rejecting

% % % %

1 0 $62,000,000.00 $0.00

100% 0% 100% 0%

152 19 $112,950,055.59 $45,491,451.70

88.89% 11.11% 71.29% 28.71%

BBGI US, Inc.Exhibit A - Tabulation Summary

Class DescriptionClass Class Voting Result

4 General Unsecured Claims Accept

AcceptPBGC Claims3

Page 1 of 1


Exhibit B


Plan Class Plan Class Description Creditor Name Voting Amount Accept/Reject Reason(s) for Exclusion

4 General Unsecured Claims 11 East 44Th Street, LLC $497,486.58 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims 11 East 44Th Street, LLC $398,893.02 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims 11 East 44Th Street,LLC $190,071.20 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims 346 Madison Avenue, LLC $23,335,103.05 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims 346 Madison Avenue, LLC $3,763,843.94 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Amalgamated Life Insurance Company $22.55 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Amalgamated Retail Retirement Fund $23,613.84 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Amalgamated Retail Retirement Fund $11,998.00 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Amazon Web Services, Inc. $464,803.44 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Apparel Usa $23,886.00 Reject Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Atlanticlear Window Cleaning $64.20 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Bart Seidler Trust $68,624.07 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Bright White Lighting $3,400.00 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Brooks Brothers Uk Ltd $10,553,507.10 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims CCDC Retail LLC $87,032.51 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Clean Systems of America, Inc. $969.64 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Columbia Gas of Massachuse $27.77 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Complete Recycling Solutions, LLC $2,101.10 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Confezioni Benetti SRL $57,891.23 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Corozite SRL $3,331.00 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Del Vecchio, Claudio $7,369,916.92 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims EF Creative $1,000.00 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Euler Hermes Agent for Cervotessile SPA $79,674.81 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Euler Hermes Agent for Fragrance Xtreme Inc $35,032.00 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Farrar Filter Co., Inc. $1,473.75 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims First Sterling Greenwich Corp. $1,289,701.29 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Gettysburg Outlet Center Cmbs, LLC $30,072.60 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Gettysburg Outlet Center Cmbs, LLC $12,537.17 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Holiday Foliage Inc. $26,144.50 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Kmg Hauling, Inc. $3,962.66 Reject Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Koolspace $14,600.00 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Lardini SRL $228,012.36 Accept Ballot received after Voting Deadline

4 General Unsecured Claims Laredo Outlet Shoppes, Llc $130,544.86 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Laredo Outlet Shoppes, Llc $22,071.26 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Lemie SP $67,880.72 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Linea Mitiaro S.R.L. $53,169.00 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Marx-Kennedy, Patricia $46,350.00 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Miromar Outlet West, LLC $169,605.34 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Murphy, Edward T. $405,463.46 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Neva Limited $266,599.09 Accept Ballot received after Voting Deadline


Exhibit B ‐ Report of Ballots Excluded from Final TabulationBBGI US, Inc.

Page 1 of 2


Plan Class Plan Class Description Creditor Name Voting Amount Accept/Reject Reason(s) for Exclusion

Exhibit B ‐ Report of Ballots Excluded from Final TabulationBBGI US, Inc.



4 General Unsecured Claims Northeast Cutting Die Cor $1,100.00 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Northstar Disposal Corp $9,475.00 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Northstar Disposal Corp $9,475.00 Holder did not indicate vote to accept or reject the Plan; Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Northstar Pulp & Paper Co., Inc. $1,300.80 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims OCP Office Owner LLC $759.00 Holder did not indicate vote to accept or reject the Plan; Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Pacific Packaging Products, Inc $320.08 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims QST Industries, Inc. $550.00 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims QST Industries, Inc. $550.00 Holder did not indicate vote to accept or reject the Plan; Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims QST Industries, Inc. $550.00 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Red & Blue International Limited $93,765.77 Accept Ballot received after Voting Deadline

4 General Unsecured Claims Retirement Plan of the Amalgamated Insurance Fund $836,479.00 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Riopele - Texteis, S.A $451.54 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Salesforce.Com Inc. $106,486.10 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Sandy Alexander, Inc. $2,364.00 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Stefano Tordiglione Design Ltd $8,521.55 Accept Ballot received after Voting Deadline

4 General Unsecured Claims Stefano Tordiglione Design Ltd $5,034.28 Accept Ballot received after Voting Deadline

4 General Unsecured Claims Successfactors, Inc. $679,078.08 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims The CDV Trust $69,887,258.45 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Trajes Mexicanos S.A. de C.V. $6,634,311.17 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims U.S. Customs and Border Protection $1,140,494.44 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims U.S. Customs and Border Protection $3,499.11 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Unite Here Retirement Fund $361,745.00 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Unitika Trading Co.,Ltd. $406.93 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Warne, Angela $33,333.00 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims William V. Roberti, on behalf of himself and survivor beneficiary $1,591,018.06 Holder did not indicate vote to accept or reject the Plan

4 General Unsecured Claims Winnitex Limited $65.96 Accept Superseded by later received valid ballot included in final tabulation

4 General Unsecured Claims Yagi Tsusho Hong Kong Ltd. $18,435.40 Accept Superseded by later received valid ballot included in final tabulation

Page 2 of 2


Exhibit C


Plan Class Plan Class Description Creditor Name4 General Unsecured Claims 11 East 44th Street, LLC4 General Unsecured Claims 110 Bloor Street West Inc. 4 General Unsecured Claims 346 Madison Avenue, LLC4 General Unsecured Claims Amalgamated Life Insurance Company 4 General Unsecured Claims Amalgamated Retail Retirement Fund 4 General Unsecured Claims Amazon Web Services, Inc. 4 General Unsecured Claims Bart Seidler Trust 4 General Unsecured Claims Crown Equipment Corporation 4 General Unsecured Claims Del Vecchio, Claudio 4 General Unsecured Claims DI.CONF S.R.L. 4 General Unsecured Claims First Sterling Greenwich Corp. 4 General Unsecured Claims Gettysburg Outlet Center Cmbs, LLC4 General Unsecured Claims Google LLC4 General Unsecured Claims Jonathan Club 4 General Unsecured Claims KMG Hauling, Inc. 4 General Unsecured Claims Laredo Outlet Shoppes, LLC 4 General Unsecured Claims Legacy Plan of the National Retirement Fund 4 General Unsecured Claims Miromar Outlet West, LLC4 General Unsecured Claims Murphy, Edward T.4 General Unsecured Claims National Plus Plan 4 General Unsecured Claims National Retirement Fund 4 General Unsecured Claims New England Joint Board 4 General Unsecured Claims Quincy Asian Resources 4 General Unsecured Claims Reiss, Amanda 4 General Unsecured Claims Retirement Plan of the Amalgamated Insurance Fund 4 General Unsecured Claims Salesforce.com Inc. 4 General Unsecured Claims Seickel & Sons Maintenance, Inc. 4 General Unsecured Claims Seickel & Sons, Inc. 4 General Unsecured Claims Successfactors, Inc. 4 General Unsecured Claims The CDV Trust 4 General Unsecured Claims U.S. Customs and Border Protection 4 General Unsecured Claims Warne, Angela 4 General Unsecured Claims William V. Roberti, on behalf of himself and survivor beneficiary

Exhibit C ‐ Report of Parties that Made the Opt‐Out ElectionBBGI US, Inc.

(Please note that this report does not certify the validity or enforceability of such Opt‐Out Elections)

Page 1 of 1


THIS IS EXHIBIT “Q” REFERRED TO IN THE







of America,


____________________________________________


809

RLF1 24886597V.1


------------------------------------------------------------ x : In re : Chapter 11 : BBGI US, INC., et al., : Case No. 20–11785 (CSS) : Debtors.1 : (Jointly Administered) : ------------------------------------------------------------ x Re: D.I. 957

ORDER CONFIRMING AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION FOR BBGI US, INC. AND ITS AFFILIATED DEBTORS

Upon the filing by BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) and its

affiliated debtors, as debtors and debtors in possession in the above-captioned chapter 11 cases

(collectively, the “Debtors”)2 of the Amended Joint Chapter 11 Plan of Liquidation for BBGI US,

Inc. and Its Affiliated Debtors [D.I. 957] (as amended or modified in accordance with its terms,

the “Plan”) which is attached hereto as Exhibit A; and the Court previously having approved the

Disclosure Statement and the solicitation procedures related to the Disclosure Statement and the

solicitation of acceptances and rejections of the Plan, in each case pursuant to the Disclosure

Statement Order; and the Debtors having served the Disclosure Statement on the holders of Claims

and Interests pursuant to the Order (I) Approving Disclosure Statement and Form and Manner of


number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A), BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors’ corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.

2 Capitalized terms used in this Confirmation Order but not otherwise defined shall have the same meaning as in the Plan, unless the context otherwise requires.


2 RLF1 24886597V.1

Notice of Disclosure Statement Hearing, (II) Establishing Solicitation, Voting, and Related

Procedures, (III) Scheduling Confirmation Hearing, (IV) Establishing Notice and Objection

Procedures for Confirmation of Plan, and (V) Granting Related Relief [D.I. 954] (the “Disclosure

Statement Order”), see Affidavit of Service of Solicitation Materials [D.I. 1005]

(the “Solicitation Affidavit”); and the Debtors having filed the documents comprising the Plan

Supplement on February 19, 2021 and March 3, 2021 [D.I. 1046 and 1086] (collectively, and as

may be further amended or supplemented, the “Plan Supplement”); and the Court having

considered the Declaration of Adrian Frankum in Support of Confirmation of Amended Joint

Chapter 11 Plan of Liquidation For BBGI US, Inc. and Its Affiliated Debtors; and the Court having

considered the record in these chapter 11 cases, the stakeholder support for the Plan evidenced on

the record and in the Declaration of Craig E. Johnson of Prime Clerk, LLC Regarding the

Solicitation of Votes and Tabulation of Ballots Cast on the Amended Joint Chapter 11 Plan of

Liquidation for BBGI US, Inc. and Its Affiliated Debtors, filed on March 3, 2021 [D.I. 1085]

(the “Voting Certification”), the compromises and settlements embodied in and contemplated by

the Plan, the briefs and arguments regarding confirmation of the Plan, the evidence regarding

confirmation of the Plan, and the hearing on confirmation of the Plan having been held on March 5,

2021 (the “Confirmation Hearing”); and after due deliberation:

THE COURT HEREBY FINDS:

I. The findings and conclusions set forth herein and on the record of the

Confirmation Hearing constitute the Court’s findings of fact and conclusions of law pursuant to

Rule 52 of the Federal Rules of Civil Procedure, as made applicable herein by Bankruptcy Rules

7052 and 9014. To the extent any of the following findings of fact constitute conclusions of law,

they are adopted as such. To the extent any of the following conclusions of law constitute findings

of fact, they are adopted as such.


3 RLF1 24886597V.1

II. The Debtors are eligible debtors under section 109 of the Bankruptcy Code,

and, pursuant to Rule 9013-1(f) of the Local Rules of Bankruptcy Practice and Procedure of the

United States Bankruptcy Court for the District of Delaware (the “Local Rules”), the Debtors

consent to entry of a final order by the Court in accordance with the terms set forth herein to the

extent that it is later determined that the Court, absent consent of the parties, cannot enter final

orders or judgments consistent with Article III of the United States Constitution. Venue is proper

before the Court pursuant to 28 U.S.C. §§ 1408 and 1409. The Debtors are proper plan proponents

under section 1121(a) of the Bankruptcy Code.

III. The Court has jurisdiction to consider this matter pursuant to 28 U.S.C.

§§ 157 and 1334, and the Amended Standing Order of Reference from the United States District

Court of Delaware, dated February 29, 2012. This is a core proceeding pursuant to 28 U.S.C.

§ 157(b) and this Court has jurisdiction to enter a final order with respect thereto.

IV. Each of the Debtors has met the burden of proving that the Plan satisfies the

elements of 1129(a) and (b) of the Bankruptcy Code by a preponderance of the evidence.

V. The Plan was solicited in good faith and in compliance with applicable

provisions of the Bankruptcy Code and Bankruptcy Rules. As is evidenced by the Solicitation

Affidavit, the transmittal and service of the Plan, the Disclosure Statement, and the Ballots were

adequate and sufficient under the circumstances, and all parties required to be given notice of the

Confirmation Hearing (including the deadline for filing and serving objections to confirmation of

the Plan) have been given due, proper, timely, and adequate notice in accordance with the

Disclosure Statement Order and in compliance with the Bankruptcy Code, the Bankruptcy Rules,

the Local Rules, and applicable non-bankruptcy law and such parties have had an opportunity to

appear and be heard with respect thereto. No other further notice is required.


4 RLF1 24886597V.1

VI. The Plan has been proposed in good faith and not by any means forbidden

by law. In so finding, the Court has considered the totality of the circumstances of these cases,

and found that all constituencies acted in good faith. The Plan is the result of extensive, good faith,

arm’s length negotiations among the Debtors and their principal constituencies.

VII. Votes to accept or reject the Plan have been solicited and tabulated fairly,

in good faith, and in a manner consistent with the Bankruptcy Code, the Bankruptcy Rules and the

Disclosure Statement Order.

VIII. The Plan does not “discriminate unfairly” and is “fair and equitable” with

respect to the Classes that are impaired and are deemed to reject the Plan, because no Class senior

to any rejecting Class is being paid more than in full and the Plan does not provide a recovery on

account of any Claim or Interest that is junior to such rejecting Classes.

IX. The releases contained in Section 10 of the Plan are an essential component

of the Plan. In addition, the third-party release contained therein is consensual in that all parties

to be bound by such release were given due and adequate notice thereof and sufficient opportunity

and instruction to elect to opt out of such release. In addition, the releases contained in

Section 10.4 of the Plan are: (a) in exchange for the good and valuable consideration provided by

the Released Parties; (b) a good faith settlement and compromise of the claims released by such

section; (c) in the best interests of the Debtors and all holders of Claims and Interests; (d) fair,

equitable, and reasonable; and (e) given and made after due notice and opportunity for hearing.

X. The exculpation provided by Section 10.6 of the Plan for the benefit of the

Exculpated Parties is appropriately tailored to the circumstances of these cases.

XI. The Plan does not discriminate unfairly among the different classes of

creditors and equity security holders and does not offend the fair and equitable standard of the


5 RLF1 24886597V.1

Bankruptcy Code because grounds and justifications exist for treating the classes differently in

these cases.

FURTHER, IT IS HEREBY ORDERED THAT:

A. Confirmation of the Plan

1. The Plan is confirmed and approved in all respects.

2. Any and all objections to the Plan that have not been withdrawn or resolved

prior to the Confirmation Hearing are hereby overruled.

3. The documents contained in the Plan Supplement are integral to the Plan

and are approved by the Court and the Debtors, the Liquidation Trustee, and the Litigation Trustee

are authorized to take all actions required under the Plan and the Plan Supplement to effectuate the

Plan and the transactions contemplated therein.

4. The terms of the Plan, including the Plan Supplement and the exhibits

thereto are incorporated herein by reference and are an integral part of this Confirmation Order.

The terms of the Plan, the Plan Supplement, all exhibits thereto, and all other relevant and

necessary documents executed or to be executed in connection with the transactions contemplated

by the Plan shall be effective and binding as of the Effective Date. Subject to the terms of the

Plan, including the consent rights incorporated therein, the Debtors reserve the right to alter,

amend, update or modify the Plan Supplement before the Effective Date. The failure to

specifically include or refer to any particular article, section, or provision of the Plan, the Plan

Supplement, or any related document in this Confirmation Order does not diminish or impair the

effectiveness or enforceability of such article, section, or provision.

5. This Confirmation Order shall constitute all approvals and consents

required, if any, by the laws, rules or regulations of any state or any other governmental authority

with respect to the implementation or consummation of the Plan and any other acts that may be


6 RLF1 24886597V.1

necessary or appropriate for the implementation or consummation of the Plan. Pursuant to the

applicable provisions of the General Corporation Law of the State of Delaware, other applicable

non-bankruptcy law, and section 1142(b) of the Bankruptcy Code, no action of the respective

directors or stockholders of the Debtors shall be required to authorize the Debtors to enter into,

execute, deliver, file, adopt, amend, restate, consummate, or effectuate, as the case may be, the

Plan and any contract, instrument, or other document to be executed, delivered, adopted, or

amended in connection with implementation of the Plan.

6. Each federal, state, commonwealth, local, foreign or other governmental

agency is authorized to accept for filing and/or recording any and all documents, mortgages and

instruments necessary or appropriate to effectuate, implement or consummate the transactions

contemplated by the Plan and this Confirmation Order.

7. On or after the Effective Date, at the Liquidation Trustee’s direction: any of

the Debtor Affiliates may be merged into BB Parent and the Liquidation Trustee may complete

the winding up of such Debtor Affiliates without the necessity for any other or further actions to

be taken by or on behalf of such dissolving Debtor or its shareholders or any payments to be made

in connection therewith (including the payment of any franchise taxes), other than the filing of a

certificate of dissolution, cancellation, and/or merger with the appropriate governmental

authorities, and any such certificate of dissolution, cancellation, and/or merger may be filed by the

Liquidation Trustee without need for any authorization, signature or other act of any Person or

Entity, including without limitation any holder of any Claim or Interest. On or after the Effective

Date, as determined by the Liquidation Trustee, BB Canada shall be dissolved in accordance with

the Confirmation Recognition Order and applicable Canadian Law. After the Effective Date, the

Liquidation Trustee or his designee is authorized to and shall, subject to applicable non-bankruptcy


7 RLF1 24886597V.1

law and consistent with the implementation of this Plan, dissolve, liquidate, or take such other

similar action with respect BB Parent and complete the winding up of BB Parent as expeditiously

as practicable without the necessity for any other or further actions to be taken by or on behalf of

BB parent or its shareholders or members, as applicable, or any payments to be made in connection

therewith (including the payment of any franchise taxes), other than the filing of a certificate of

dissolution with the appropriate governmental authorities.

8. The PBGC Settlement satisfies the requirements of Bankruptcy Rule 9019

and is approved. The compromises and settlements set forth in the Plan, as reflected in the relative

distributions and recoveries of holders of Claims under the Plan, are approved pursuant to

Bankruptcy Rule 9019(a), including with respect to the PBGC Settlement, and will be effective

immediately and binding on all parties in interest on the Effective Date.

9. For the avoidance of doubt, pursuant to Bankruptcy Rule 3020(c)(1), the

following provisions in the Plan are hereby approved and will be effective immediately on the

Effective Date without further order or action by the Court, any of the parties to such release, or

any other Entity: (a) Releases by the Debtors (Section 10.4); (b) Third-Party Releases

(Section 10.5); (c) PBGC Release (Section 10.10); (d) Exculpation (Section 10.6); and

(e) Injunction (Section 10.7).

10. The Court finds that entry into the Liquidation Trust Agreement and the

Litigation Trust Agreement (substantially in the forms included in the Plan Supplement) is a

reasonable exercise of the Debtors’ business judgment. The entry by the Debtors into the

Liquidation Trust Agreement and the Litigation Trust Agreement is approved and shall not be in

conflict with any federal or state law. Further, the following appointments are approved: (i) Adrian

Frankum as Liquidation Trustee; (ii) Delaware Trust Company as Delaware resident trustee of the


8 RLF1 24886597V.1

Liquidation Trust; (iii) William T. Reid, IV, PPLC, as Litigation Trustee; and (iv) 39-15 Skillman

Realty Co. LLC., Workers United, Trajes Mexicanos S.A. de C.V., Swiss Garments Company,

and the Pension Benefits Guaranty Corporation, as members of the Litigation Trust Oversight

Board. The Debtors, the Liquidation Trustee, the Delaware resident trustee, and/or the Litigation

Trustee, as applicable, are hereby authorized to take all actions, on or prior to the Effective Date,

as may be necessary or appropriate to form the Liquidation Trust and/or Litigation Trust consistent

with the terms of the Plan and the respective trust agreement.

11. Except as otherwise may be set forth in the Plan or the Confirmation Order,

on the Effective Date, (i) the Liquidation Trust Assets shall vest in the Liquidation Trust free and

clear of any claim, Lien, encumbrance or other interest and (ii) the Litigation Trust Assets shall

vest in the Litigation Trust free and clear of any claim, Lien, encumbrance or other interest.

12. Pursuant to section 1146 of the Bankruptcy Code, (i) the issuance, transfer

or exchange of any securities, instruments or documents, (ii) the creation of any lien, mortgage,

deed of trust or other security interest, (iii) any sale transactions consummated by the Debtors and

approved by the Bankruptcy Court on and after the Confirmation Date through and including the

Effective Date of the Plan, including any transfers effectuated pursuant to the Plan, (iv) any

assumption, assignment, or sale by the Debtors of their interests in unexpired leases of

nonresidential real property or executory contracts pursuant to section 365(a) of the Bankruptcy

Code, and (v) the issuance, renewal, modification, or securing of indebtedness by such means, and

the making, delivery or recording of any deed or other instrument of transfer under, in furtherance

of, or in connection with, the Plan, including this Confirmation Order, shall not be subject to any

document recording tax, stamp tax, conveyance fee or other similar tax, mortgage tax, real estate

transfer tax, mortgage recording tax, Uniform Commercial Code filing or recording fee, regulatory


9 RLF1 24886597V.1

filing or recording fee, sales tax, use tax or other similar tax or governmental assessment.

Consistent with the foregoing, each recording officer for any county, city or Governmental Unit

in which any instrument hereunder is to be recorded is authorized, pursuant to this Confirmation

Order, to accept such instrument without requiring the payment of any filing fees, documentary

stamp tax, deed stamps, stamp tax, transfer tax, intangible tax or similar tax.

13. In furtherance of the transfer of the Liquidation Trust Assets to the

Liquidation Trust on the Effective Date, the Liquidation Trust shall be entitled to all refunds,

credits, rebates, abatements or other recovery for any taxes (including, for the avoidance of doubt,

income taxes, value added taxes and customs duties), together with any interest due thereon or

penalty rebate arising therefrom, of the Debtors (and the Liquidation Trust shall bear responsibility

for all tax liabilities of the Debtors for taxable periods ended on or before the dissolution of the

Debtors, to the extent not discharged by the Plan or provided for payment or otherwise satisfied in

the Plan).

14. Following the entry of this Confirmation Order and/or the Effective Date,

the Court shall have jurisdiction to authorize and approve (i) any sale of the Debtors’ assets or

Liquidation Trust Assets to the extent that the Debtors or Liquidation Trust, as applicable, seek to

approve such sale pursuant to section 363 of the Bankruptcy Code; (ii) the abandonment of any of

the Debtors’ assets or the Liquidation Trust Assets to the extent that the Debtors or the Liquidation

Trust, as applicable, seek to abandon such property under section 554 of the Bankruptcy Code;

and (iii) any modifications of retiree benefits (as defined in section 1114(a) of the Bankruptcy

Code) to the extent that the Debtors or Liquidation Trust, as applicable, seek to modify such

benefits pursuant to section 1114 of the Bankruptcy Code.


10 RLF1 24886597V.1

15. The Debtors shall cause to be served a notice of the entry of this

Confirmation Order (the “Confirmation Date Notice”), upon (a) all parties listed in the creditor

matrix maintained by Prime Clerk, LLC, and (b) such additional persons and entities as deemed

appropriate by the Debtors, no later than five (5) business days after the Confirmation Date. Within

seven (7) business days after the Confirmation Date, or as soon as reasonably practicable

thereafter, the Debtors shall cause the Confirmation Date Notice to be published in the (a) the

national editions of one of USA Today or The New York Times, (b) the national edition of The

Globe and Mail in Canada, and (c) other national, local, or foreign newspapers, trade journals, or

publications, if any, as the Debtors, after consultation with the Committee, deem appropriate.

16. The Debtors shall cause to be served a notice of the Effective Date, upon

(a) all parties listed in the creditor matrix maintained by Prime Clerk, LLC, and (b) such additional

persons and entities as deemed appropriate by the Debtors, no later than five (5) business days

after the Effective Date.

B. Administrative Expense Claims Bar Date

17. Except as otherwise provided in the Bar Date Orders or the Plan, requests

for payment of Administrative Expense Claims incurred on and after September 1, 2020 and prior

to the Effective Date, other than Fee Claims of Professionals, must be filed with the Bankruptcy

Court and served on the Debtors or the Liquidation Trust, as applicable, Prime Clerk, LLC in their

capacity as the Debtors’ claims and noticing agent, and the U.S. Trustee within thirty (30) days

from the date of service of the Confirmation Date Notice. Such proof of Administrative Expense

Claim must include at a minimum: (i) the name of the applicable Debtor that is purported to be

liable for the Administrative Expense Claim and if the Administrative Expense Claim is asserted

against more than one Debtor, the exact amount asserted to be owed by each such Debtor; (ii) the

name of the holder of the Administrative Expense Claim; (iii) the asserted amount of the


11 RLF1 24886597V.1

Administrative Expense Claim; (iv) the basis of the Administrative Expense Claim; and

(v) supporting documentation for the Administrative Expense Claim. FAILURE TO FILE AND

SERVE SUCH PROOF OF ADMINISTRATIVE EXPENSE CLAIM TIMELY AND

PROPERLY SHALL RESULT IN SUCH CLAIM BEING FOREVER BARRED AND

DISCHARGED. IF FOR ANY REASON ANY SUCH ADMINISTRATIVE EXPENSE CLAIM

IS INCAPABLE OF BEING FOREVER BARRED AND DISALLOWED, THEN THE HOLDER

OF SUCH CLAIM SHALL IN NO EVENT HAVE RECOURSE TO ANY PROPERTY TO BE

DISTRIBUTED PURSUANT TO THE PLAN.

C. Additional Matters

18. Notwithstanding anything provided in the Plan or this Confirmation Order

to the contrary, pursuant to the terms of the Stipulation and Agreement Between UniCredit S.p.A

– New York Branch and BBGI US, Inc. Regarding the Secured Claim of UniCredit S.p.A – New

York Branch (the “UniCredit Stipulation”) between UniCredit S.p.A. (“UniCredit”) and the

Debtors, which was approved by the Court on February 3, 2021 [D.I. 983], UniCredit and its

predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors,

principals, shareholders, members, partners, employees, agents, advisory board members,

financial advisors, attorneys, accountants, investment bankers, consultants, representatives,

management companies, and other professionals, and such persons’ respective heirs, executors,

estates, servants and nominees shall be a “Released Party” for the purposes of sections 10.4, 10.5

and 10.8 of the Plan; provided, that, notwithstanding anything in the Plan, this Confirmation Order,

or the UniCredit Stipulation, nothing shall relieve the Debtors or UniCredit of their obligations

under the UniCredit Stipulation or any agreement entered into contemporaneously therewith.

19. Nothing in this Confirmation Order and/or the Plan (including, without

limitation, Sections 1.A.1.122, 1.A.1.123, 10.4, 10.5, 10.6, 10.7 and 10.8 thereof), shall release,


12 RLF1 24886597V.1

enjoin, impair or otherwise affect the claims, if any, of the Board of Trustees of the National

Retirement Fund, the National Retirement Fund, the Legacy Plan of the National Retirement Fund

(f/k/a the Pension Plan of the National Retirement Fund), the Board of Trustees of the

Amalgamated Retail Retirement Fund, the Amalgamated Retail Retirement Fund, the Board of

Trustees of the Retirement Plan of the Amalgamated Insurance Fund, the Amalgamated Insurance

Fund and the Retirement Plan of the Amalgamated Insurance Fund (collectively, the “Benefit

Plans”) against non-Debtors that are part of the Debtors’ “controlled group” (as set forth in 26

U.S.C. § 414 and Section 4001(b) of the Employee Retirement Income Security Act of 1974, as

amended (“ERISA”), 29 U.S.C. § 1301(b), and the regulations implementing those provisions)

(collectively, the “Non-Debtor Controlled Group”) for asserted withdrawal liability and mass

withdrawal liability, as applicable, under ERISA. For the avoidance of doubt, the Benefit Plans’

rights to pursue withdrawal liability and mass withdrawal liability claims, as applicable, against

individuals and/or non-Debtor entities the Benefit Plans assert are part of the Non-Debtor

Controlled Group, are not impaired by this Confirmation Order and/or the Plan.

20. Notwithstanding Section 6.4 of the Plan, the Debtors shall reserve and set

aside for Winner Way Industrial Limited (“WW”) the amount of Three Million Four Hundred

Fifty Seven Thousand One Hundred Thirty Three Dollars and Ninety Six Cents ($3,457,133.96)

(as set forth in Administrative Expense Claims filed (in parts) at numbers 1367, 1368, 1370, 1371,

1382, and 1383). Notwithstanding any provision in the Plan or this Confirmation Order, WW

reserves all rights to assert that the Debtors shall be permitted to set-off any alleged Avoidance

Action or other Causes of Action against any Allowed Claim (whether an Administrative Expense

Claim or other Claim) of WW only to the extent that the Debtors have obtained a final judgment

liquidating such Avoidance Action or other Causes of Action, and the Debtors reserve all rights to


13 RLF1 24886597V.1

assert that an alleged Avoidance Action or other Cause of Action may otherwise be set-off against

any Allowed Claim of WW. Notwithstanding anything in the Plan, Confirmation Order,

Disclosure Statement or Ballots to the contrary, WW shall not be deemed to be a Releasing Party

(as defined in Section 1.123 of the Plan) and, for the avoidance of doubt, WW shall not be deemed

to give any releases to non-Debtors under the Plan. WW (a) shall not be deemed to give any

releases to non-Debtors under the Plan and (b) reserves its rights to distributions on its claims

(whether Administrative Expense Claims or General Unsecured Claims) under the Plan and this

Confirmation Order and the Debtors reserve all of their defenses to WW’s claims (whether

Administrative Expense Claims or General Unsecured Claims) and all of the Debtors’ claims and

other rights against WW.

21. Notwithstanding anything in the Plan or this Confirmation Order to the

contrary, including without limitation Sections 5.5, 10.2, 10.5, and 10.8 of the Plan, none of the

DV Entities (including in their capacities as former directors and officers) or Shareholders shall

be deemed to (i) be a Releasing Party (as defined in Section 1.123 of the Plan) or a Released Party

(as defined in Section 1.122 of the Plan), whether as a holder of a Claim, Interest, Administrative

Expense Claim or otherwise, and without needing to submit or file an “opt out” ballot as a member

of a voting class or an objection or reservation of rights as a member of a non-voting class;

(ii) grant a release, waiver or discharge of any kind or nature under Sections 10.5 or 10.8 of the

Plan; or (iii) waive any rights under Bankruptcy Rule 2004 or Delaware Local Bankruptcy Rule

2004-1, including without limitation the right to object to, move to quash, or seek any other relief

with respect to any Bankruptcy Rule 2004 investigation, examination, or discovery sought by the

Litigation Trustee with respect to the DV Claims, the D&O and Shareholder Causes of Action and

other Causes of Action that are Litigation Trust Assets. Notwithstanding anything in the Plan or


14 RLF1 24886597V.1

this Confirmation Order to the contrary, including without limitation Sections 10.5 and 10.7 of the

Plan, any and all setoff and recoupment rights and defenses of each of the DV Entities (including

in their capacities as former directors and officers) and Shareholders are expressly preserved and

shall not be enjoined, waived, released, modified, discharged or impaired, nor shall they be

expanded, enhanced, or enlarged, in any manner by the Plan or this Confirmation Order. None of

the DV Entities (including in their capacities as former directors and officers) or Shareholders shall

be deemed to be enjoined in any manner by Sections 10.5 or 10.7 of the Plan from asserting or

prosecuting defenses of any kind or nature, including without limitation affirmative defenses and

defenses in the nature of setoff or recoupment (including with respect to any claims, counterclaims,

cross-claims, or third-party claims), in any litigation commenced against them, nor shall the

Litigation Trustee be restricted in any manner from contesting those defenses. Notwithstanding

Section 12.14 of the Plan, the CDV Parties (as defined in their notice of appearance filed at D.I. 19)

and Delfin SARL (which filed its notice of appearance at D.I. 241), shall not be required to file

renewed Bankruptcy Rule 2002 requests in order to continue to receive documents after the

Effective Date. Notwithstanding Section 6.4 of the Plan, the Debtors shall reserve the full amount

of the Administrative Expense Claim asserted by 346 Madison Avenue LLC (assigned proof of

claim number 1223), or such other amount as may be ordered by the Court prior to the Effective

Date after notice to 346 Madison Avenue LLC and an opportunity for hearing.

22. Notwithstanding anything in the Plan to the contrary, including Sections

10.2, 10.5, and 10.8, as a result of the Plan, TAL Global Alliances and Castle Apparel Limited

shall not be deemed to (i) be a Releasing Party, whether as a holder of a Claim or Interest or

otherwise, and without needing to submit or file an “opt out” ballot as a member of a voting class,

or an objection or reservation of rights as a member of a non-voting class; (ii) be granted a release


15 RLF1 24886597V.1

or discharge under Section 10.5 of the Plan; (iii) be enjoined by Section 10.5 of the Plan;

(iv) compromise or release any claim against a non-Debtor party or waive rights related thereto;

or (v) be bound by Section 10.8 of the Plan. Notwithstanding Section 12.14 of the Plan, TAL

Global Alliances and Castle Apparel Limited (as defined in their notice of appearance filed at

D.I. 282) shall not be required to file renewed Bankruptcy Rule 2002 requests in order to continue

to receive documents after the Effective Date.

23. Notwithstanding anything to the contrary in the Plan, the Plan Supplement

or Confirmation Order or any other documents related to any of the foregoing, nothing shall modify

the rights, if any, of any party (including any landlord under a rejected Unexpired Lease) to an

Unexpired Lease of non-residential real property which the Debtors have not assumed to assert

any right of setoff or recoupment that such party may have under applicable bankruptcy or non-

bankruptcy law (including the express assertion of such setoff or recoupment through a timely

filed Proof of Claim), including, but not limited to: (i) the ability, if any, of such parties to setoff

or recoup a security deposit held pursuant to the terms of their Unexpired Lease(s) with the

Debtors; (ii) assertion of rights of setoff or recoupment, if any, in connection with Claims

reconciliation; or (iii) assertion of setoff or recoupment as a defense, if any, to any claim or action

by the Debtors or any representative or successors to the Debtors, including the Plan Trusts and

Plan Trustees, as applicable. The Debtors’ rights with respect thereto are expressly reserved.

24. Notwithstanding anything to the contrary in the Plan, or in any notice related

thereto, the ASO Agreement (as defined in the Objection of Cigna to Notice of Cure Costs and

Potential Assumption and Assignment of Executory Contracts and Unexpired Leases in

Connection with Sale Transaction [D.I. 385]) through which Cigna Health and Life Insurance

Company provides insurance-related services for Debtors' self-insured employee dental benefits


16 RLF1 24886597V.1

plan, shall be assumed and assigned to the Liquidation Trust under the Plan, and, in lieu of cure,

all obligations due and unpaid under the ASO Agreement accruing prior to the Effective Date shall

be unimpaired and reinstated, and nothing in this Confirmation Order or 11 U.S.C. § 365 shall

affect such obligations.

25. Notwithstanding anything in the Plan, Confirmation Order, or Disclosure

Statement to the contrary, each of (i) Oracle America, Inc., successor in interest to MICROS

Systems, Inc., and (ii) Proofpoint, Inc. shall not be deemed to be a Releasing Party (as defined in

Section 1.123 of the Plan).

26. On or within sixty (60) days after the Effective Date, the Debtors and/or

Liquidation Trust, as applicable, shall file with the Texas Comptroller of Public Accounts

(the “Texas Comptroller”) all of the unclaimed property reports due to be filed on or before the

Effective Date and identify the known unclaimed property (the “Texas Unclaimed Property”)

being held under Texas Property Code, Title 6, Chapters 72-76 and other applicable Texas laws

(the “Texas Unclaimed Property Laws”). With respect to any such Texas Unclaimed Property

timely remitted following the filing of the reports, the Texas Comptroller will not seek payment

of any interest or penalty by the Debtors or the Liquidation Trust. Notwithstanding section 362 of

the Bankruptcy Code and any injunction contained in the Plan, the Texas Comptroller and its

agents may commence an audit of the Debtors in accordance with the Texas Unclaimed Property

Laws (the “Texas Unclaimed Property Audit”). For the avoidance of doubt, to the extent any

Texas Unclaimed Property does not constitute property of the Estates, nothing in this Confirmation

Order or the Plan precludes the Texas Comptroller from pursuing recovery of such amounts. The

Texas Comptroller may amend any Proofs of Claim in these Chapter 11 Cases following the

Effective Date as a result of the filing of any property reports; provided, however, that the Debtors


17 RLF1 24886597V.1

or Liquidation Trust, as applicable, reserve all rights to object to such proofs of Claim on any and

all grounds. This provision is not an admission by any party that (i) such liability exists, (ii) any

such liability is or is not a non-priority Claim arising prior to the Petition Date and/or (iii) any

interest and/or penalties are subject to assessment. Nothing herein precludes Debtors and

Liquidation Trust from compliance with continued obligations pursuant to Texas Unclaimed

Property Laws. The Debtors’, Liquidation Trust’s, and Texas Comptroller’s rights and defenses

with respect to any allegations and claims asserted against the Debtors arising from or relating to

Texas Unclaimed Property Laws, including but not limited to the Texas Unclaimed Property Audit,

are hereby reserved.

27. Notwithstanding any provision to the contrary in the Plan, the Plan

Supplement, this Confirmation Order or any implementing Plan documents

(collectively, “Documents”):

i. Nothing in the Documents shall: (1) discharge, release, enjoin, impair or otherwise

preclude (a) any liability to the United States that is not a Claim, (b) any Claim of the United States

arising after the Confirmation Date, or (c) any liability of any Entity or Person under police or

regulatory statutes or regulations to any Governmental Unit as the owner, lessor, lessee or operator

of property or rights to property that such entity owns, operates or leases after the Confirmation

Date; (2) release, nullify, preclude or enjoin the enforcement of any police or regulatory power;

(3) modify the scope of Section 505 of the Bankruptcy Code; (4) pursuant to Section 6.8 of the

Plan, cause a Claim of the United States to be deemed as allowed on the Effective Date unless

such Claim is actually allowed on the Effective Date; (5) pursuant to Section 7.8 of the Plan,

Claims of the United States filed or amended on or after the Effective Date will not be

automatically deemed disallowed and expunged but will be treated in accordance with the


18 RLF1 24886597V.1

Bankruptcy Code and applicable law; (6) release, exculpate, enjoin, impair or discharge any non-

Debtor from any claim, liability, suit, right or Cause of Action of the United States nor shall the

United States be enjoined from bringing any claim, suit, Cause of Action or other proceeding

against any non-Debtor for any liability whatsoever; (7) affect any setoff or recoupment rights of

the United States (and such rights and all of the Debtors’ non-bankruptcy defenses are preserved);

(8) require the United States to file an administrative claim in order to receive payment for any

liability described in Section 503(b)(1)(B) and (C) (in accordance with Section 503(b)(1)(D) of

the Bankruptcy Code); (9) be deemed an approval or consent by the United States without

compliance with all applicable legal requirements and approvals under non-bankruptcy law; or

(10) be construed as a compromise or settlement of any liability, Claim, Cause of Action or interest

of the United States. Without limiting the foregoing but for the avoidance of doubt, (i) the United

States reserves, and the Documents are without prejudice to, any and all rights or Causes of Action

the United States has or may have against any surety under any bond, and nothing shall release,

discharge, or exculpate any surety from its obligations or liabilities pursuant to non-bankruptcy

law, including any obligation or liability of any surety of the Debtors with respect to any bond,

and (ii) the Debtors reserve any and all defenses with respect thereto.

ii. Liens securing Claims of the United States that are allowed pursuant to the Plan or

the Bankruptcy Code (if any) shall be retained until Claim, with interest (to the extent such interest

is allowed pursuant to the Bankruptcy Code and applicable law), is paid in full. Administrative

Expense Claims of the United States that are allowed pursuant to the Plan or the Bankruptcy Code

shall accrue interest and penalties as provided by non-bankruptcy law until paid in full. Priority

Tax Claims of the United States that are allowed pursuant to the Plan or the Bankruptcy Code will

be paid in accordance with Section 1129(a)(9)(C) of the Bankruptcy Code. To the extent allowed


19 RLF1 24886597V.1

Priority Tax Claims (including any penalties, interest or additions to tax entitled to priority under

the Bankruptcy Code) are not paid in full in cash on the Effective Date, then such Priority Tax

Claims shall accrue interest commencing on the Effective Date at the rate set forth in Section 511

of the Bankruptcy Code. Moreover, nothing shall effect a release, injunction or otherwise preclude

any Claim whatsoever against any Debtor or any of the Estates by or on behalf of the United States

for any liability arising (i) out of pre-petition or post-petition tax periods for which a return has not

been filed or (ii) as a result of a pending audit or audit that may be performed with respect to any

pre-petition or post-petition tax period. Further, nothing shall enjoin the United States from

amending any Claim against any Debtor or any of the Estates with respect to any tax liability

(i) arising out of pre-petition or post-petition tax periods for which a tax return has not been filed

or (ii) from a pending audit or audit that may be performed with respect to any pre-petition or post-

petition tax period. Any liability arising (i) out of pre-petition or post-petition tax periods for

which a return has not been filed or (ii) as a result of a pending audit or audit which may be

performed with respect to any pre-petition or post-petition tax period shall be paid in accordance

with section 1129(a)(9)(A) and (C) of the Bankruptcy Code. Without limiting the foregoing but

for the avoidance of doubt, nothing contained in the Documents shall be deemed to bind the United

States to any characterization of any transaction for tax purposes or to determine the tax liability

of any Person or Entity, including, but not limited to, the Debtors and the Estates, nor shall the

Documents be deemed to have determined the federal tax treatment of any item, distribution, or

Entity, including the federal tax consequences of the Plan, nor shall anything in the Documents be

deemed to have conferred jurisdiction upon the Bankruptcy Court to make determinations as to

federal tax liability and federal tax treatment except as provided under Section 505 of the

Bankruptcy Code.


20 RLF1 24886597V.1

28. Upon the later of the Effective Date and the formation of the Litigation

Trust, any attorney-client privilege, work-product protection, or other privilege, protection, or

immunity held by the Creditors’ Committee (“Privilege”) is hereby transferred, assigned, given

over to, and shall vest in the Litigation Trust, and the Litigation Trust shall have the exclusive

authority and sole discretion to maintain or waive any such Privilege or other protection. The

disclosure and/or provision of any Privilege from the Creditors’ Committee to the Litigation Trust

is not intended to and shall not void or waive any applicable Privilege.

D. Miscellaneous

29. The Plan shall not become effective unless and until all conditions set forth

in Section 9.1 of the Plan have been satisfied or waived pursuant to Section 9.2 of the Plan.

30. Notwithstanding Bankruptcy Rule 3020(e), the terms and conditions of this

Confirmation Order will be effective and enforceable immediately upon its entry.

31. Except as otherwise provided in this Confirmation Order, if any or all of the

provisions of this order are hereafter reversed, modified, vacated or stayed by subsequent order of

this Court, or any other court, such reversal, stay, modification, or vacatur shall not affect the

validity or enforceability of any act, obligation, indebtedness, liability, priority, or lien incurred or

undertaken by the Debtors, the Liquidation Trust and/or the Litigation Trust, as applicable, prior

to the effective date of such reversal, stay, modification, or vacatur. Notwithstanding any such

reversal, stay, modification or vacatur of this Confirmation Order, any such act or obligation

incurred or undertaken pursuant to, or in reliance on, this Confirmation Order prior to the effective

date of such reversal, stay, modification, or vacatur shall be governed in all respects by the

provisions of this Confirmation Order, the Plan, the Plan Supplement, or any amendments or

modifications to the foregoing.


21 RLF1 24886597V.1

32. The provisions of the Plan and this Confirmation Order, including the

findings of fact and conclusions of law set forth herein, are nonseverable and mutually dependent.

33. To the extent of any inconsistency between this Confirmation Order and the

Plan, this Confirmation Order shall govern.

34. Except as otherwise may be provided in the Plan or herein, notice of all

subsequent pleadings in these cases after the Effective Date shall be limited to the following

parties: (i) the Debtors and their counsel, (ii) the U.S. Trustee, (iii) the Liquidation Trustee, (iv) the

Litigation Trustee and (v) any party known to be directly affected by the relief sought.

Dated: March 5th, 2021 Wilmington, Delaware

CHRISTOPHER S. SONTCHI UNITED STATES BANKRUPTCY JUDGE


RLF1 24886597V.1

Exhibit A

Plan


RLF1 24703901v.1


------------------------------------------------------------ x :

In re : Chapter 11 :

BBGI US, INC., et al., : Case No. 20–11785 (CSS) :

Debtors.1 : (Jointly Administered) :

------------------------------------------------------------ x

AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION FOR BBGI US, INC. AND ITS AFFILIATED DEBTORS

WEIL, GOTSHAL & MANGES LLP Garrett A. Fail (admitted pro hac vice) David J. Cohen (admitted pro hac vice) 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007

RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981) Zachary I. Shapiro (No. 5103) Christopher M. De Lillo (No. 6355) One Rodney Square 910 N. King Street Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701



1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A); BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors’ corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.

Docket No. 957Filed: 1/27/21


i RLF1 24703901v.1

TABLE OF CONTENTS

SECTION 1. DEFINITIONS AND INTERPRETATION. .................................................... 1

SECTION 2. ADMINISTRATIVE EXPENSE AND PRIORITY CLAIMS. ...................... 16

2.1 Administrative Expense Claims. .......................................................................... 16 2.2 Fee Claims. .......................................................................................................... 16 2.3 Priority Tax Claims.............................................................................................. 17

SECTION 3. CLASSIFICATION OF CLAIMS AND INTERESTS. ................................. 18

3.1 Classification in General. .................................................................................... 18 3.2 Formation of Debtor Groups for Convenience Only. .......................................... 18 3.3 Summary of Classification. .................................................................................. 18 3.4 Special Provision Governing Unimpaired Claims. ............................................. 19 3.5 Elimination of Vacant Classes. ............................................................................ 19 3.6 Voting Classes; Presumed Acceptance by Non-Voting Classes. ......................... 19 3.7 Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the

Bankruptcy Code. ................................................................................................. 19

SECTION 4. TREATMENT OF CLAIMS AND INTERESTS. ......................................... 20

4.1 Other Priority Claims (Class 1). .......................................................................... 20 4.2 Secured Claims (Class 2). .................................................................................... 20 4.3 PBGC Claims (Class 3). ...................................................................................... 21 4.4 General Unsecured Claims (Class 4). ................................................................. 21 4.5 Intercompany Claims (Class 5). .......................................................................... 21 4.6 Debtor Interests (Class 6). ................................................................................... 22 4.7 Subordinated Claims (Class 7). ........................................................................... 22

SECTION 5. MEANS FOR IMPLEMENTATION. ............................................................ 22

5.1 Joint Chapter 11 Plan. ......................................................................................... 22 5.2 Limited Substantive Consolidation. ..................................................................... 22 5.3 PBGC Settlement. ................................................................................................ 24 5.4 Liquidation Trust. ................................................................................................ 24 5.5 Litigation Trust. ................................................................................................... 31 5.6 Plan Trusts Tax Matters....................................................................................... 37 5.7 Merger of Debtors................................................................................................ 39 5.8 Elimination of Duplicate Claims. ........................................................................ 40 5.9 Dissolution of BB Parent. .................................................................................... 40 5.10 Corporate Action. ................................................................................................ 40 5.11 Directors, Officers, Managers, Members and Authorized Persons of the

Debtor. ................................................................................................................. 40 5.12 Withholding and Reporting Requirements. .......................................................... 40 5.13 Exemption From Certain Transfer Taxes. ........................................................... 41 5.14 Effectuating Documents; Further Transactions. ................................................. 41 5.15 Preservation of Rights of Action. ......................................................................... 41 5.16 Stock Restrictions. ................................................................................................ 42 5.17 Closing of the Chapter 11 Cases. ........................................................................ 42



ii RLF1 24703901v.1

SECTION 6. DISTRIBUTIONS. ......................................................................................... 42

6.1 Distributions Generally. ...................................................................................... 42 6.2 Distribution Record Date. .................................................................................... 43 6.3 Delivery of Distributions...................................................................................... 43 6.4 Disputed Administrative Claims Holdback. ......................................................... 43 6.5 Manner of Payment Under Plan. ......................................................................... 44 6.6 Minimum Cash Distributions. .............................................................................. 44 6.7 Setoffs. .................................................................................................................. 44 6.8 Distributions After Effective Date. ....................................................................... 44 6.9 Allocation of Distributions Between Principal and Interest. ............................... 45 6.10 No Postpetition Interest on Claims. ..................................................................... 45 6.11 No Distribution in Excess of Amount of Allowed Claim. ..................................... 45 6.12 Securities Registration Exemption. ...................................................................... 45

SECTION 7. PROCEDURES FOR DISPUTED CLAIMS. ................................................ 45

7.1 Objections to Claims. ........................................................................................... 45 7.2 Allowance of Claims. ........................................................................................... 45 7.3 Estimation of Claims. ........................................................................................... 46 7.4 No Distributions Pending Allowance................................................................... 46 7.5 Reserve on Account of Disputed Claims. ............................................................. 46 7.6 Resolution of Claims. ........................................................................................... 47 7.7 Late Filed Claims. ................................................................................................ 48 7.8 Amendments to Claims. ........................................................................................ 48 7.9 Insured Claims. .................................................................................................... 48

SECTION 8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES. ...................... 48

8.1 Assumption and Assignment of Executory Contracts and Unexpired Leases. .................................................................................................................. 48

8.2 Indemnification Obligations. ............................................................................... 48 8.3 Claims Based on Rejection of Executory Contracts and Unexpired Leases. ...... 49 8.4 Cure of Defaults for Assumed Executory Contracts and Unexpired Leases. ...... 49 8.5 Modifications, Amendments, Supplements, Restatements, or Other

Agreements. .......................................................................................................... 50 8.6 Reservation of Rights. .......................................................................................... 50

SECTION 9. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. ...................... 50

9.1 Conditions Precedent to the Effective Date. ........................................................ 50 9.2 Waiver of Conditions Precedent. ......................................................................... 51 9.3 Substantial Consummation. ................................................................................. 51 9.4 Effect of Vacatur of Confirmation Order. ............................................................ 51

SECTION 10. SETTLEMENT, RELEASES, INJUNCTIONS, AND RELATED PROVISIONS. ................................................................................................ 51

10.1 Release of Liens. .................................................................................................. 51 10.2 Binding Effect....................................................................................................... 51 10.3 Term of Injunctions or Stays. ............................................................................... 52



iii RLF1 24703901v.1

10.4 Releases by the Debtors. ...................................................................................... 52 10.5 Releases By Holders of Claims and Interests. ..................................................... 53 10.6 Exculpation. ......................................................................................................... 54 10.7 Injunction. ............................................................................................................ 54 10.8 Waiver of Statutory Limitation on Releases. ........................................................ 55 10.9 Solicitation of the Plan......................................................................................... 55 10.10 PBGC Release. ..................................................................................................... 56

SECTION 11. RETENTION OF JURISDICTION. ............................................................... 56

SECTION 12. MISCELLANEOUS PROVISIONS. .............................................................. 58

12.1 No Revesting of Assets. ........................................................................................ 58 12.2 Subordinated Claims. ........................................................................................... 58 12.3 Payment of Statutory Fees. .................................................................................. 58 12.4 Dissolution of Creditors’ Committee. .................................................................. 59 12.5 Amendments. ........................................................................................................ 59 12.6 Revocation or Withdrawal of the Plan................................................................. 59 12.7 Severability of Plan Provisions upon Confirmation. ........................................... 59 12.8 Governing Law..................................................................................................... 60 12.9 Time...................................................................................................................... 60 12.10 Additional Documents. ......................................................................................... 60 12.11 Immediate Binding Effect. .................................................................................... 60 12.12 Successor and Assigns. ........................................................................................ 61 12.13 Entire Agreement. ................................................................................................ 61 12.14 Notices.................................................................................................................. 61


RLF1 24703901v.1

Each of the Debtors proposes the following joint chapter 11 plan of liquidation pursuant to section 1121(a) of the Bankruptcy Code. Capitalized terms used herein shall have the meanings set forth in Section 1.A.


A. Definitions.

1.1. Administration Charge means the charge granted by the Canadian Court in the Recognition Proceedings on the Canadian Assets to secure certain professional fees and disbursements incurred in respect of the Recognition Proceedings.

1.2. Administrative Expense Claim means any Claim for costs and expenses of administration during the Chapter 11 Cases pursuant to sections 328, 330, 363, 364(c)(1), 365, 503(b) or 507(a)(2) of the Bankruptcy Code, including, (i) the actual and necessary costs and expenses incurred after the Petition Date and through the Effective Date of preserving the Estates and operating the businesses of the Debtors; (ii) Fee Claims; and (iii) all fees and charges assessed against the Estates pursuant to section 1911 through 1930 of chapter 123 of title 28 of the United States Code, 28 U.S.C. §§ 1911-1930.

1.3. Administrative Expense Claims Bar Date means (i) December 18, 2020 at 5:00 p.m. (Eastern Time) for Administrative Expense Claims arising on or prior to August 31, 2020; and (ii) such date that is thirty (30) days following the Confirmation Date for Administrative Expense Claims arising on and after September 1, 2020 and prior to the Effective Date.

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

1.5. Allowed means, with reference to any Claim or Interest, a Claim or Interest (i) arising on or before the Effective Date as to which (A) no objection to allowance or priority, and no request for estimation or other challenge, including, without limitation, pursuant to section 502(d) of the Bankruptcy Code or otherwise, has been interposed and not withdrawn within the applicable period fixed by the Plan or applicable law, or (B) any objection has been determined in favor of the holder of the Claim or Interest by a Final Order; (ii) that is compromised, settled, or otherwise resolved pursuant to the authority of the Debtors (if prior to the Effective Date, with the consent of the Creditors’ Committee) or the Liquidation Trustee, as applicable; (iii) as to which the liability of the Debtors or the Liquidation Trust, as applicable, and the amount thereof are determined by a Final Order of a court of competent jurisdiction; (iv) that is listed in the Schedules as liquidated, non-contingent, and undisputed, and is not superseded by a Proof of Claim; or (v) expressly allowed hereunder; provided, notwithstanding the foregoing, (x) unless expressly waived by the Plan, the Allowed amount of Claims or Interests shall be subject to, and shall not exceed the limitations or maximum amounts permitted by the Bankruptcy Code, including sections 502 or 503 of the Bankruptcy Code, to the extent applicable, and (y) the Liquidation Trustee shall retain all claims and defenses with respect to Allowed Claims that are Unimpaired pursuant to the Plan.


2 RLF1 24703901v.1

1.6. Allowed General Unsecured Claims Distribution Amount means, for the purpose of calculating Distributions of Liquidation Trust Assets or proceeds of the Litigation Trust Assets, as applicable, to be received by holders of Allowed General Unsecured Claims on account of such holders’ Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, the amount determined based on the following formula:

(a - b) x y z

a = The amount of the Distribution to be made by the Liquidation Trustee or the Litigation Trustee, as applicable, to holders of the Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, respectively.

b = The PBGC Claims Distribution Amount. y = The aggregate amount of Allowed amount of General Unsecured Claims. z = The aggregate amount of Allowed and Disputed General Unsecured Claims

against the Debtors.

1.7. APA means that certain Asset Purchase Agreement entered into by and among certain of the Debtors and SPARC, dated July 23, 2020, as amended by that certain First Amendment to the Asset Purchase Agreement dated as of August 11, 2020, as further amended by that certain Second Amendment to the Asset Purchase Agreement dated as of August 31, 2020, as may be amended, modified, or supplemented from time to time in accordance with the Sale Order.

1.8. Assumption Schedule means the schedule of Executory Contracts and Unexpired Leases to be assumed or assumed and assigned by the Debtors pursuant to the Plan, which will be (i) in form and substance reasonably acceptable to the Creditors’ Committee, and (ii) included in the Plan Supplement, as may be amended, modified, or supplemented from time to time in accordance with the Confirmation Order.

1.9. Avoidance Action means any action commenced, or that may be commenced, before or after the Effective Date pursuant to the Bankruptcy Code, CCAA, BIA or applicable non-bankruptcy law, including actions or remedies under sections 544, 545, 547, 548, 549, 550, or 551 of the Bankruptcy Code.

1.10. Ballot means each of the ballots distributed to the holders of Claims in Class 3 and Class 4.

1.11. Bankruptcy Code means title 11 of the United States Code, 11 U.S.C. §§ 101, et seq., as amended from time to time, as applicable to the Chapter 11 Cases.

1.12. Bankruptcy Court means the United States Bankruptcy Court for the District of Delaware having jurisdiction over the Chapter 11 Cases and, to the extent of any reference made under section 157 of title 28 of the United States Code, the unit of such District Court having jurisdiction over the Chapter 11 Cases under section 151 of title 28 of the United States Code.

1.13. Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States


3 RLF1 24703901v.1

Code, as amended from time to time, applicable to the Chapter 11 Cases, and any Local Rules of the Bankruptcy Court.

1.14. Bar Date means the dates fixed by order(s) of the Bankruptcy Court (including the Bar Date Orders, the Administrative Expense Claims Bar Date, or otherwise in this Plan or the Confirmation Order) by which any Persons, asserting a Claim against any Debtor must have filed a Proof of Claim or application for allowance of such Claim (as applicable) with the Bankruptcy Court against any such Debtor or be forever barred from asserting such Claim.

1.15. Bar Date Orders means that certain (i) Order (I) Establishing a General Bar Date to File Proofs of Claim, (II) Establishing a Bar Date to file Proofs of Claim by Governmental Units, (III) Establishing an Amended Schedules Bar Date, (IV) Establishing A Rejection Damages Bar Date, (V) Approving the Form and Manner for Filing, (VI) Approving the Proposed Notice of Bar Date, and (VII) Granting Related Relief, entered by the Bankruptcy Court in the Chapter 11 Cases on August 11, 2020 [D.I. 366]; and (ii) Order (I) Establishing Bar Dates for (A) Filing Proofs of Claim Against BBGI Canada Ltd., (B) Assertion of Certain Administrative Expense Claims, and (C) Filing Proofs of Claim for Alexis Bittar Customer Programs, (II) Approving the Form and Manner for Filing Proofs of Claim, (III) Approving the Proposed Notice Thereof, and (IV) Granting Related Relief entered by the Bankruptcy Court in these Chapter 11 Cases on November 16, 2020 [D.I. 727].

1.16. BB Canada means BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.).

1.17. BB Parent means BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.).

1.18. BIA means the Bankruptcy and Insolvency Act R.S.C., 1985, c. B-3, as amended.

1.19. Business Day means any day, other than a Saturday, Sunday or “legal holiday” (as defined in Bankruptcy Rule 9006(a)).

1.20. Canadian Assets means the assets, undertakings and properties of BB Canada at the applicable time, excluding any Canadian Collateral Proceeds.

1.21. Canadian Collateral Proceeds means the BB Canada asset sale proceeds as defined in the Debtors’ Stipulation and Agreement with Wells Fargo N.A. Regarding Sale Order and Release of Liens and Claims dated August 30, 2020, paid or to be paid to BB Parent in accordance with the terms thereof and the Canadian Sale Order.

1.22. Canadian Court means the Ontario Superior Court of Justice (Commercial List).

1.23. Canadian Sale Order means the recognition, approval and vesting order issued by the Canadian Court dated September 25, 2020 in the Recognition Proceedings.

1.24. Cash means legal tender of the United States of America.


4 RLF1 24703901v.1

1.25. Causes of Action means any action, Claim, cause of action, controversy, demand, right, lien, indemnity, guaranty, suit, obligation, liability, damage, judgment, account, defense, offset, power, privilege, license and franchise of any kind or character whatsoever, known, unknown, contingent or non-contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively, whether arising before, on, or after the Petition Date, in contract or in tort, in law or in equity or pursuant to any other theory of law; provided that, for the avoidance of doubt, Causes of Action shall not include the Purchased Actions. Cause of Action also includes: (i) any right of setoff, counterclaim or recoupment and any claim for breach of contract or for breach of duties imposed by law or in equity; (ii) the right to object to Claims or Interests; and (iii) any claim or defense including fraud, mistake, duress and usury and any other defenses set forth in section 558 of the Bankruptcy Code.

1.26. CCAA means Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended.

1.27. Chapter 11 Cases means the jointly administered cases of the Debtors under chapter 11 of the Bankruptcy Code styled In re Brooks Brothers, Inc., et al., Case No. 20-11785 (CSS).

1.28. Claim has the meaning set forth in section 101(5) of the Bankruptcy Code.

1.29. Claims Objection Bar Date means the first Business Day that is 180 days after the Effective Date or such later date as may be permitted pursuant to an order of the Bankruptcy Court.

1.30. Class means any group of Claims or Interests classified pursuant to Section 3.1 of the Plan.

1.31. Confirmation means the entry on the docket of the Chapter 11 Cases of the Confirmation Order.

1.32. Confirmation Date means the date on which the Clerk of the Bankruptcy Court enters the Confirmation Order.

1.33. Confirmation Hearing means the hearing held by the Bankruptcy Court regarding Confirmation of the Plan, as such hearing may be adjourned or continued from time to time.

1.34. Confirmation Recognition Order means the order granted by the Canadian Court recognizing the Confirmation Order in the Recognition Proceedings.

1.35. Confirmation Order means an order of the Bankruptcy Court in form and substance acceptable to the Debtors and reasonably acceptable to the Creditors’ Committee confirming the Plan.

1.36. Consummation means the occurrence of the Effective Date of the Plan.


5 RLF1 24703901v.1

1.37. Creditors’ Committee means the statutory committee of unsecured creditors appointed by the U.S. Trustee in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code, as the same may be constituted from time to time.

1.38. Creditors’ Committee Counsel means Akin Gump Strauss Hauer & Feld LLP and Troutman Pepper Hamilton Sanders LLP in their respective capacities as counsel to the Creditors’ Committee.

1.39. Cure Obligation means all (a) amounts required to cure any monetary defaults, and (b) other obligations required to cure any non-monetary defaults, in each case under any Executory Contract or Unexpired Lease that is to be assumed by the Debtors pursuant to the Plan and sections 365 and 1123 of the Bankruptcy Code.

1.40. D&O Policy means any insurance policy for, among others, directors, members, trustees, and officers liability (or any equivalents) maintained by the Debtors’ Estates, and all agreements, documents or instruments relating thereto, including any runoff policies or tail coverage.

1.41. Debtor Affiliates means the Debtors other than BB Parent.

1.42. Debtors means BB Parent; Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; 696 White Plains Road, LLC; and BB Canada.

1.43. DIP Agent means ABG-BB, LLC, solely in its capacity as agent under the DIP Credit Agreement.

1.44. DIP Credit Agreement means that certain Debtor-in-Possession Term Loan Agreement dated as of July 10, 2020 among BB Parent, as the lead borrower, and the lenders party thereto.

1.45. DIP Lender shall have the meaning ascribed to the term “Lender” in the DIP Credit Agreement.

1.46. Directors’ Charge means the charge granted by the Canadian Court in the Recognition Proceedings on the Canadian Assets to indemnify the Debtors’ directors and officers against obligations and liabilities that they may incur as directors and officers in connection with the business in Canada, in each case incurred in respect of the Recognition Proceedings.


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1.47. Disallowed means a Claim against a Debtor, or any portion thereof, (i) that has been disallowed by a Final Order of the Bankruptcy Court, a settlement, or the Plan, (ii) that is listed in the Schedules at zero or as contingent, disputed, or unliquidated and as to which a Bar Date has been established but no Proof of Claim has been timely filed or deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or applicable law, or (iii) that is not listed in the Debtors’ Schedules and as to which a Bar Date has been established but no Proof of Claim has been timely filed or deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or under applicable law.

1.48. Disclosure Statement means the Disclosure Statement for the Plan, which is prepared and distributed in accordance with sections 1125, 1126(b) and/or 1145 of the Bankruptcy Code, Bankruptcy Rule 3018 and/or other applicable law.

1.49. Disputed means, with respect to a Claim, a Claim against a Debtor (i) neither Allowed nor Disallowed, or (ii) held by a Person or Entity against whom or which any of the Debtors, the Liquidation Trust or the Liquidation Trustee has commenced a proceeding, including an objection to such Claim or an Avoidance Action.

1.50. Disputed Claims Reserve means Liquidation Trust Assets or Litigation Trust Assets allocable to Disputed Claims.

1.51. Distribution means payment or distribution of consideration to holders of Allowed Claims, or Liquidation Trust Beneficiaries or Litigation Trust Beneficiaries pursuant to this Plan.

1.52. Distribution Date means a date or dates, including the Initial Distribution Date, as determined by the Debtors or the Liquidation Trustee, as applicable, in accordance with the terms of the Plan, on which the Debtors or the Liquidation Trustee makes a Distribution to holders of the Liquidation Trust Beneficial Interests or the Litigation Trust Interests, as applicable, on account of Allowed Claims.

1.53. Distribution Record Date means the Effective Date of the Plan.

1.54. DV Claims means any of the Debtors’ or the Estates’ Causes of Action against the DV Entities, including, but not limited to, Avoidance Actions or recharacterization, contractual subordination or equitable subordination of any Claims of any of the DV Entities, and all rights to object to Claims of any DV Entities.


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1.55. DV Entities means (i) Claudio Del Vecchio; (ii) Matteo Del Vecchio; (iii) any present or former member of Claudio Del Vecchio or Matteo Del Vecchio’s immediate families; (iv) the CDV Trust; (v) the CDV 2010 Annuity Trust; (vi) the Del Vecchio Family Trust; (vii) Delfin S.Á R.L.2; (viii) DV Family LLC; (ix) the CDV 2015 Annuity Trust; (x) the CDV 2015 Annuity Trust U/A/D 9-16-2015; (xi) the CDV 2015 Annuity Trust U/A/D 2-9-2006; (xii) 346 Madison Avenue, LLC; (xiii) 11 East 44th Street, LLC; (xiv) CDV Holdings LLC; (xv) 2015 Omega Trust U/A/D 9-16-2015; (xvi) DV Family, LLC; and (xvii) with respect to each of the foregoing entities in clauses (i) through (xvi), such entities’ respective trustees, beneficiaries, heirs, executors, estates, devisees, members, managers, transferees and assigns that are not Debtors.

1.56. Effective Date means the date on which all conditions to the effectiveness of the Plan set forth in Section 9 hereof have been satisfied or waived in accordance with the terms of the Plan.

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

1.58. Estate or Estates means individually or collectively, the estate or estates of the Debtors created under section 541 of the Bankruptcy Code.

1.59. Exculpated Parties means collectively: (i) the Debtors; (ii) the Estates; (iii) the Creditors’ Committee and the members of the Creditors’ Committee; and (iv) with respect to each of the foregoing entities in clauses (i) through (iv), such entities’ predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons’ respective heirs, executors, Estates, servants and nominees, in each case in their capacity as such; provided, however, that Exculpated Parties shall not include any Former D&Os.

1.60. Executory Contract means a contract or lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.

1.61. Fee Claim means a Claim for professional services rendered or costs incurred on or after the Petition Date through the Effective Date by professional persons retained by the Debtors, the Creditors’ Committee, or any other official committee appointed in these Chapter 11 Cases pursuant to sections 327, 328, 329, 330, 331, 503(b) or 1103 of the Bankruptcy Code; provided that the foregoing excludes Claims for compensation for services rendered by professionals retained under that certain Order (I) Authorizing Debtors to Employ Professionals Utilized in the Ordinary Course of Business and (II) Granting Related Relief, entered by the Bankruptcy Court in the Chapter 11 Cases on August 7, 2020 [D.I. 333].

1.62. Final DIP Order means that certain Final Order (I) Authorizing the Debtors to Obtain Postpetition Financing, (II) Authorizing the Debtors to Use Cash Collateral, (III) Granting Liens and Providing Superpriority Administrative Expense Status, (IV) Granting Adequate Protection to the Prepetition Secured Parties, (V) Modifying Automatic Stay, and (VI) 2 Inclusive of any alternative spellings, including Delfin SARL, Delfin S.À R.L., and Delfin S.a.r.l.


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Granting Related Relief, entered by the Bankruptcy Court in the Chapter 11 Cases on August 14, 2020 [D.I. 443].

1.63. Final Order means an order or judgment of a court of competent jurisdiction that has been entered on the docket maintained by the clerk of such court, which has not been reversed, vacated or stayed and as to which (i) the time to appeal, petition for certiorari, or move for a new trial, reargument or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for a new trial, reargument or rehearing shall then be pending, or (ii) if an appeal, writ of certiorari, new trial, reargument or rehearing thereof has been sought, such order or judgment shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, reargument or rehearing shall have been denied or resulted in no modification of such order, and the time to take any further appeal, petition for certiorari or move for a new trial, reargument or rehearing shall have expired; provided, however, that no order or judgment shall fail to be a “Final Order” solely because of the possibility that a motion pursuant to section 502(j) or 1144 of the Bankruptcy Code or under Rule 60 of the Federal Rules of Civil Procedure or Bankruptcy Rule 9024 has been or may be filed with respect to such order or judgment.

1.64. Former D&Os means each former director or former officer of any Debtor who was not a director or officer of a Debtor as of the Petition Date.

1.65. Former D&O and Shareholder Causes of Action means any and all of the Debtors’ or the Estates’ Causes of Action against any Former D&O or Shareholder.

1.66. Former Non-Debtor Subsidiaries means (i) Brooks Brothers Europe S.r.l.; (ii) Brooks Brothers Spain Srl; (iii) Brooks Brothers France SARL; (iv) Brooks Brothers Germany GmbH; and (v) Brooks Brothers Switzerland SAGL.

1.67. General Unsecured Claim means any unsecured Claim against any Debtor that is not an Administrative Expense Claim, Intercompany Claim, Fee Claim, Priority Tax Claim, Other Priority Claim, Secured Claim, Subordinated Claim, or PBGC Claim.

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

1.69. Impaired means, with respect to a Claim, Interest or Class of Claims or Interests, “impaired” within the meaning of section 1124 of the Bankruptcy Code.

1.70. Indemnification Obligations means each of the Debtors’ indemnification obligations in place immediately prior to the Effective Date, whether in the bylaws, certificates of incorporation or formation, limited liability company agreements, other organizational or formation documents, board resolutions, management or indemnification agreements, or employment or other contracts, or otherwise, for the directors and officers that are currently employed by, or serving on the board of directors of, any of the Debtors, as of the date immediately prior to the Effective Date, and the attorneys, accountants, investment bankers, and other Professionals that are retained by any of the Debtors as of the date immediately prior to the


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Effective Date; provided, that the foregoing shall not include the Debtors’ indemnification obligations, if any, to (i) the DV Entities, or (ii) any Former D&Os.

1.71. Information Officer means the information officer appointed by the Canadian Court in the Recognition Proceedings.

1.72. Initial Distribution means the first Distribution that either the Debtors or the Liquidation Trustee, as applicable, makes to holders of Allowed Claims.

1.73. Initial Distribution Date means the date selected by the Debtors or the Liquidation Trustee, as applicable, on or as soon as reasonably practicable after the Effective Date, on which the Debtors or the Liquidation Trustee, as applicable, will make the Initial Distribution.

1.74. Insured Claim means any Claim or portion of a Claim that is, or may be, insured under any of the Debtors’ insurance policies.

1.75. Intercompany Claim means a Claim against any Debtor by another Debtor.

1.76. Interest means any equity security (as defined in section 101(16) of the Bankruptcy Code) of a Debtor, including all shares, common stock, preferred stock, or other instrument evidencing any fixed or contingent ownership interest in any Debtor, whether or not transferable, and any option, warrant, or other right, contractual or otherwise, to acquire any such interest in the Debtors, whether fully vested or vesting in the future, including, without limitation, equity or equity-based incentives, grants, or other instruments issued, granted or promised to be granted to current or former employees, directors, officers, or contractors of the Debtors, to acquire any such interests in the Debtors that existed immediately before the Effective Date.

1.77. Interim Compensation Order means that certain Order (I) Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals and (II) Granting Related Relief entered by the Bankruptcy Court in the Chapter 11 Cases on August 11, 2020 [D.I. 367].

1.78. Lien has the meaning set forth in section 101(37) of the Bankruptcy Code.

1.79. Liquidation Trust means that certain trust established pursuant to Section 5.4 hereof to, among other things, hold the Liquidation Trust Assets and make Distributions to holders of Allowed Claims pursuant to this Plan.

1.80. Liquidation Trust Agreement means the trust agreement governing the Liquidation Trust, which shall be in form and substance reasonably acceptable to the Debtors and the Creditors’ Committee and shall be filed with the Plan Supplement.

1.81. Liquidation Trust Assets means all of the assets of the Estates (excluding the Professional Fees Account, any Canadian Collateral Proceeds in the possession of BB Canada pursuant to the Canadian Sale Order to support the Administration Charge and the Directors’ Charge, the Canadian Assets and the Litigation Funding Amount) that are not Litigation Trust Assets.


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1.82. Liquidation Trust Beneficial Interests means the beneficial interests in the Liquidation Trust.

1.83. Liquidation Trust Beneficiaries shall mean all holders of Allowed Class 3 PBGC Claims and Allowed Class 4 General Unsecured Claims.

1.84. Liquidation Trust Expenses means any and all reasonable fees, costs and expenses incurred by the Liquidation Trust or the Liquidation Trustee (or any professional or other Person retained by the Liquidation Trustee) on or after the Effective Date in connection with any of their duties under the Plan and the Liquidation Trust Agreement, including any administrative fees, attorneys’ fees and expenses, insurance fees, taxes and escrow expenses.

1.85. Liquidation Trustee means Adrian Frankum of Ankura Consulting Group, LLC, who is to serve as trustee of the Liquidation Trust, as contemplated by Section 5.4(c) of this Plan and the Liquidation Trust Agreement.

1.86. Litigation Fees Amount means the Cash remaining in that certain segregated bank account funded by the Debtors for the benefit of the Litigation Trust in the amount of $1,930,000, less any fees and expenses actually incurred by Creditors’ Committee Counsel between September 4, 2020 and the Effective Date (which amounts shall be funded into the Professional Fees Account), and subject to adjustment by the Debtor or the Liquidation Trustee, as applicable, as set forth in Section 5.5(c).

1.87. Litigation Trust means the trust that is created pursuant to Section 5.5 of the Plan and pursuant to the Litigation Trust Agreement, for the benefit of the Litigation Trust Beneficiaries.

1.88. Litigation Trust Agreement means the trust agreement governing the Litigation Trust, which shall be in form and substance reasonably acceptable to the Debtors and the Creditors’ Committee and filed with the Plan Supplement.

1.89. Litigation Trust Assets means (i) the DV Claims; (ii) the Litigation Trust Funding; (iii) Former D&O and Shareholder Causes of Action and all rights to object to Claims of any of the Former D&Os or Shareholders; and (iv) any additional Causes of Action as explicitly agreed upon by the Liquidation Trustee and the Litigation Trustee.

1.90. Litigation Trust Beneficial Interests means the beneficial interests in the Litigation Trust.

1.91. Litigation Trust Beneficiaries shall mean all holders of Allowed Class 3 PBGC Claims and Allowed Class 4 General Unsecured Claims.

1.92. Litigation Trust Expenses means the reasonable fees, costs and expenses incurred by the Litigation Trust or the Litigation Trustee (or any professional or other Person retained by the Litigation Trustee) on or after the Effective Date in connection with any of their duties under the Plan and the Litigation Trust Agreement, including but not limited to any administrative fees, attorneys’ fees and expenses, expert witness fees, financial advisor fees, insurance fees, taxes and escrow expenses.


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1.93. Litigation Trust Funding means, (i) the Litigation Trust Minimum Funding, plus (ii) the Litigation Fees Amount, plus (iii) any other amounts funded to the Litigation Trust by express written agreement of the Liquidation Trustee and the Litigation Trustee.

1.94. Litigation Trust Minimum Funding means $500,000 in Cash funded by the Debtors from the Professional Fees Account into the Litigation Trust on the Effective Date of the Plan.

1.95. Litigation Trust Oversight Board means a board comprised of all the members of the Creditors’ Committee, whose responsibilities and duties are as set forth in the Litigation Trust Agreement and this Plan.

1.96. Litigation Trustee means William T. Reid, IV, who is to administer the Litigation Trust in accordance with the provisions of Section 5.5(f) of the Plan and pursuant to the Litigation Trust Agreement.

1.97. Non-Debtor Subsidiaries means (i) Brooks Brothers (Japan) Ltd; (ii) Brooks Brothers Greater China Limited; (iii) Brooks Brothers (Shanghai) Commercial Co. Ltd.; (iv) Brooks Brothers Hong Kong Limited; (v) Brooks Brothers Macau Limited; (vi) Brooks Brothers India Private Limited; (vii) Q.C Service Limited; (viii) Brooks Brothers Singapore Pte. Ltd; (ix) Brooks Brothers Malaysia SDN. BHD.; (x) Brooks Brothers UK Limited; (xi) Brooks Brothers Korea Ltd; (xii) Brooks Brothers Ireland Limited; (xiii) Brooks Brothers Australia Pty Limited; and (xiv) Brooks Brothers Austria GmbH.

1.98. Non-Debtor Subsidiary Claims means the Claims of the Non-Debtor Subsidiaries and the Former Non-Debtor Subsidiaries, which shall be Allowed in the amounts and priority set forth in the Plan Supplement.

1.99. Other Priority Claim means any Claim against any of the Debtors entitled to priority in payment as specified in section 507(a)(3), (4), (5), (6), (7) or (9) of the Bankruptcy Code, other than an Administrative Expense Claim or a Priority Tax Claim.

1.100. Original Debtors means BB Parent; Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; and 696 White Plains Road, LLC.

1.101. PBGC means the Pension Benefit Guaranty Corporation.

1.102. PBGC Claims means the Claims of the PBGC, which shall be Allowed as a prepetition unsecured claim in the amount of $62,000,000 in accordance with Section 5.3(a) herein.


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1.103. PBGC Claims Distribution Amount means, for the purpose of calculating any Distribution of Liquidation Trust Assets or proceeds of the Litigation Trust Assets, as applicable, to be received by the PBGC as holder of an Allowed Class 3 PBGC Claim on account Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, the amount determined based on the following formula:

[ a

x 2.25 x c ] – d b a = The Allowed amount of the PBGC Claims. b = The sum of (i) the aggregate amount of Allowed and Disputed General

Unsecured Claims against the Debtors and (ii) the Allowed amount of the PBGC Claims.

c = The sum of (i) the amount of the Distribution to be made by the Liquidation Trustee and the Litigation Trustee, as applicable, to holders of the Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, respectively, and (ii) the aggregate amount of all prior Distributions made by the Liquidation Trustee and the Litigation Trustee, as applicable, to holders of the Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, respectively.

d = The aggregate amount of all prior Distributions made to the PBGC.

1.104. PBGC Settlement means the settlement between the Debtors and the PBGC, to which the Creditors’ Committee has concurred, the agreed terms of which are incorporated in this Plan (including Section 5.3 hereof) and described in the Disclosure Statement.

1.105. Pension Plans means The Brooks Brothers Pension Plan (originally effective as of April 29, 1988) and the Retail Brand Alliance, Inc. Pension Plan (originally effective as of October 1, 1995), each as amended, restated, supplemented, or otherwise modified from time to time.

1.106. Person means an individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, limited liability partnership, trust, estate, unincorporated organization, Governmental Unit or other entity.

1.107. Petition Date means (i) July 8, 2020 with respect to the Original Debtors; and (ii) September 10, 2020 with respect to BB Canada.

1.108. Plan means this joint chapter 11 plan, including the exhibits hereto, as the same may be amended or modified from time to time in accordance with Section 8.5 herein.

1.109. Plan Supplement means the compilation of documents containing (i) information required to be disclosed in accordance with section 1129(a)(5) of the Bankruptcy Code; (ii) the Liquidation Trust Agreement; (iii) the Litigation Trust Agreement; (iv) the Schedule of Alternative Plan Debtors; (v) the Schedule of Retained Causes of Action; (vi) the identities of the members of the Litigation Trust Oversight Board; and (vii) the Schedule of Allowed Non-Debtor Subsidiary Claims, as each document may be amended from time to time.

1.110. Plan Trusts means the Liquidation Trust and the Litigation Trust.


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1.111. Plan Trustees means the Liquidation Trustee and the Litigation Trustee.

1.112. Prepetition ABL Agent shall have the meaning ascribed to such term in the Final DIP Order.

1.113. Prepetition ABL Lenders shall have the meaning ascribed to such term in the Final DIP Order.

1.114. Priority Tax Claim means any secured or unsecured Claim of a Governmental Unit of the kind entitled to priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.

1.115. Pro Rata means the proportion that an Allowed Claim in a particular Class bears to the aggregate amount of Allowed Claims and Disputed Claims within such Class, or the proportion that Allowed Claims in a particular Class bears to the aggregate amount of Allowed Claims in multiple Classes, as applicable.

1.116. Proof of Claim means a proof of Claim filed against any of the Debtors in the Chapter 11 Cases.

1.117. Professional means an Entity retained in the Chapter 11 Cases pursuant to and in accordance with sections 327, 363, or 1103 of the Bankruptcy Code and to be compensated for services rendered and expenses incurred pursuant to sections 327, 328, 329, 330, 331, or 363 of the Bankruptcy Code.

1.118. Professional Fee Escrow means an interest-bearing escrow account to be funded by the Debtors on the Effective Date in an amount equal to an estimate of all unpaid Fee Claims.

1.119. Professional Fees Account shall have the meaning ascribed to such term in the Final DIP Order.

1.120. Purchased Actions shall have the meaning ascribed to such term in the Sale Order.

1.121. Recognition Proceedings means the proceedings commenced by the Debtors under Part IV of the CCAA in the Canadian Court to recognize the Chapter 11 Cases as “foreign main proceedings” in Canada.

1.122. Released Parties means collectively: (i) the Debtors; (ii) the Creditors’ Committee and the members of the Creditors’ Committee solely in their capacities as such, and not individually; (iii) the DIP Lender; (iv) the DIP Agent; (v) the ABL Agent; (vi) the ABL Lenders; (vii) the Information Officer; (viii) with respect to any Person or Entity in the foregoing clauses (i) through (vii), such Person or Entity’s predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons’ respective heirs, executors, estates, servants and nominees each solely in its


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capacity as such; provided, however, that the (i) DV Entities, and (ii) Former D&Os and Shareholders shall not be Released Parties; provided, further that any holder of a Claim that opts out of the releases set forth in Section 10.5 of the Plan or files with the Bankruptcy Court an objection to the releases set forth Section 10.5 of this Plan by the deadline established to file objections to this Plan shall not be a Released Party.

1.123. Releasing Parties means collectively, and in each case, in their respective capacities as such: (i) the Released Parties; (ii) all holders of Claims and Interests that are deemed to accept this Plan; (iii) all holders of Claims who vote to accept the Plan; (iv) all holders of Claims that are entitled to vote on the Plan who abstain from voting on the Plan or who vote to reject the Plan, but in either case, do not opt out of granting the releases set forth in Section 10.5 of the Plan; (v) holders of Claims or Interests that are deemed to reject this Plan and do not timely file with the Bankruptcy Court an objection to the releases set forth in Section 10.5 of this Plan by the deadline established to file objections to this Plan; (vi) holders of Administrative Expense Claims and Priority Tax Claims that do not hold Claims or Interests in any Class and do not timely file with the Bankruptcy Court an objection to the releases set forth in Section 10.5 of this Plan by the deadline established to file objections to this Plan, and (vii) with respect to any Person or entity in the foregoing clauses (i) through (vi), such Person or Entities’ predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons’ respective heirs, executors, estates, servants and nominees, in their respective capacities as such.

1.124. Sale Order means the Order (I) Approving Asset Purchase Agreement, (II) Authorizing Sale to the Stalking Horse Bidder of the Acquired Assets Free and Clear of Liens, Claims, Encumbrances and Other Interests, (III) Authorizing Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection Therewith, and (IV) Granting Related Relief entered by the Bankruptcy Court in the Chapter 11 Cases on August 14, 2020 [D.I. 444].

1.125. Sale Transaction means the sale of substantially all of the Debtors’ assets pursuant to the Sale Order and the Canadian Sale Order.

1.126. Schedule of Allowed Non-Debtor Subsidiary Claims means the schedule of Allowed Non-Debtor Subsidiary Claims, which shall be included in the Plan Supplement and which shall be reasonably acceptable to the Creditors’ Committee.

1.127. Schedule of Alternative Plan Debtors means the list of Debtors, if any, who will be decoupled from this Plan in accordance with Section 5.2(c), which list which shall be filed with the Plan Supplement.

1.128. Schedule of Retained Causes of Action means the list of any Causes of Action to be retained by the Debtors, including the DV Claims, which list shall be filed with the Plan Supplement and shall be reasonably acceptable to the Creditors’ Committee.


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1.129. Schedules means the schedules of assets and liabilities and the statement of financial affairs filed by the Debtors under section 521 of the Bankruptcy Code, Bankruptcy Rule 1007, and the Official Bankruptcy Forms of the Bankruptcy Rules, as such schedules and statements have been or may be supplemented or amended from time to time.

1.130. Secured Claim means a Claim to the extent, under applicable non-bankruptcy law, it is (i) secured by property of the Estate, the amount of which is equal to or less than the value of such property (A) as agreed to by the holder of such Claim and the Debtors, or (B) as determined by a Final Order in accordance with section 506(a) of the Bankruptcy Code, or (ii) secured by the amount of any rights of setoff of the holder thereof under section 553 of the Bankruptcy Code, and includes any Claim against the Canadian Assets secured by (x) the Administration Charge, or (y) the Directors’ Charge.

1.131. Shareholders means the direct shareholders of BB Parent.

1.132. SPARC means SPARC GROUP LLC.

1.133. Subordinated Claim means a Claim that is subject to subordination in accordance with sections 510 of the Bankruptcy Code or otherwise.

1.134. Tax Code means the Internal Revenue Code of 1986, as amended from time to time.

1.135. Unexpired Lease means a lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.

1.136. Unimpaired means, with respect to a Claim, Interest or Class of Claims or Interests, not “impaired” within the meaning of section 1123(a)(4) and 1124 of the Bankruptcy Code.

1.137. Unsecured Claims means General Unsecured Claims and PBGC Claims.

1.138. Wind-Down Reserve means a cash reserve sufficient to fund the Liquidation Trust’s activities, including the Liquidation Trust Expenses, pursuant to a budget reasonably acceptable to the Debtors and the Creditors’ Committee, as may be amended from time to time by the Liquidation Trustee.

B. Interpretation; Application of Definitions and Rules of Construction.

Unless otherwise specified, all section or exhibit references in the Plan are to the respective section in, or exhibit to, the Plan, as the same may be amended, waived or modified from time to time. The words “herein,” “hereof,” “hereto,” “hereunder,” and other words of similar import refer to the Plan as a whole and not to any particular section, subsection or clause contained therein. The headings in the Plan are for convenience of reference only and shall not limit or otherwise affect the provisions hereof. For purposes herein: (i) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (ii) any reference herein to a contract, lease, instrument, release, indenture, or other


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agreement or document being in a particular form or on particular terms and conditions means that the referenced document shall be substantially in that form or substantially on those terms and conditions; (iii) unless otherwise specified, all references herein to “Sections” are references to Sections hereof or hereto; (iv) the rules of construction set forth in section 102 of the Bankruptcy Code shall apply; and (v) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be.

C. Controlling Document.

In the event of an inconsistency between the Plan and any other document, the terms of the Plan shall control (unless stated otherwise in such other document). The provisions of the Plan and of the Confirmation Order shall be construed in a manner consistent with each other so as to effect the purposes of each; provided that, if there is determined to be any inconsistency between any Plan provision and any provision of the Confirmation Order that cannot be so reconciled, then, solely to the extent of such inconsistency, the provisions of the Confirmation Order shall govern and any such provision of the Confirmation Order shall be deemed a modification of the Plan and shall control and take precedence.

SECTION 2. ADMINISTRATIVE EXPENSE AND PRIORITY CLAIMS.

2.1 Administrative Expense Claims.

Except to the extent that a holder of an Allowed Administrative Expense Claim and the Debtors or the Liquidation Trustee agree to different treatment, the Debtors (or the Liquidation Trustee, as the case may be) shall pay to each holder of an Allowed Administrative Expense Claim Cash in an amount equal to such Claim on, or as soon thereafter as is reasonably practicable, the later of (i) forty five (45) calendar days after the Effective Date (or as soon as reasonably practicable thereafter) and (ii) the first Business Day after the date that is thirty (30) calendar days after the date such Administrative Expense Claim is Allowed.

Holders of Administrative Expense Claims that were required to file and serve a request for payment of such Administrative Expense Claims and that did not file and serve such a request by the Administrative Expense Claims Bar Date shall be forever barred, estopped, and enjoined from asserting such Administrative Expense Claims against the Debtors or their property, or the Liquidation Trust or the Liquidation Trust Assets, or the Litigation Trust or the Litigation Trust Assets, and such Administrative Expense Claims shall be deemed compromised, settled, and released as of the Effective Date. The Debtors or the Liquidation Trustee, as applicable, may file and serve objections to Administrative Expense Claims on or before the Claims Objection Bar Date.

2.2 Fee Claims.

(a) Professional Fee Escrow. No later than five (5) days after the Effective Date, the Debtors or the Liquidation Trustee shall establish and fund the Professional Fee Escrow, and the Debtors shall be authorized to transfer custody of the Professional Fees Account to the Liquidation Trust for this purpose. Fee Claims shall be paid in Cash from funds held in the Professional Fee Escrow when such Claims are Allowed by a Final Order of the


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Bankruptcy Court. Neither the Debtors’ nor the Liquidation Trust’s obligations to pay Professional Fee Claims shall be limited nor be deemed limited to funds held in the Professional Fee Escrow.

(b) Estimation of Fee Claims. No later than five (5) days before the anticipated Effective Date, Professionals shall provide a good faith estimate of their Fee Claims projected to be outstanding as of the Effective Date and shall deliver such estimate to the Debtors. Such estimate shall not be considered an admission or limitation with respect to the fees and expenses of such Professional and such Professionals are not bound to any extent by the estimates. If a Professional does not provide an estimate, the Debtors may, after consulting with the Committee, estimate the unbilled fees and expenses of such Professional. The total amount so estimated shall be utilized by the Debtors to determine the amount to be funded to the Professional Fee Escrow. The Liquidation Trust shall use Cash on hand to increase the amount of the Professional Fee Escrow to the extent fee applications are filed after the Effective Date in excess of the amount held in the Professional Fee Escrow based on such estimates.

(c) Payment of Fee Claims. All entities seeking an award by the Bankruptcy Court of Fee Claims (i) shall file their respective final applications for allowance of compensation for services rendered and reimbursement of expenses incurred by the date that is thirty (30) days after the Effective Date, and (ii) shall be paid in full from the Professional Fees Account or the Professional Fee Escrow, as applicable, in such amounts as are Allowed by the Bankruptcy Court (A) in accordance with the Interim Compensation Order, (B) upon the later of the Effective Date and the date upon which the order relating to any such Allowed Fee Claim is entered or (C) upon such other terms as may be mutually agreed upon between the holder of such an Allowed Fee Claim and the Debtors or the Liquidation Trustee, as applicable. The Liquidation Trustee is authorized to pay compensation for services rendered or reimbursement of expenses incurred after the Effective Date in the ordinary course and without the need for Bankruptcy Court approval. When all Allowed Fee Claims have been paid in full, any remaining amount in the Professional Fee Escrow shall promptly be released from such escrow and revert to, and ownership thereof shall vest in, the Liquidation Trust without any further action or order of the Bankruptcy Court.

(d) Professional Fee Escrow Not Property of the Liquidation Trust. Funds held in the Professional Fee Escrow shall not be considered Liquidation Trust Assets or Litigation Trust Assets or otherwise property of the Liquidation Trust or the Litigation Trust, the Debtors, or their Estates. The Professional Fee Escrow shall be treated as a trust account for the benefit of holders of Fee Claims and for no other parties until all Allowed Fee Claims have been paid in full in Cash. No Liens, claims, or interests shall encumber the Professional Fee Escrow or Cash held in the Professional Fee Escrow in any way.

2.3 Priority Tax Claims.

Except to the extent that a holder of an Allowed Priority Tax Claim agrees to a different treatment, each holder of an Allowed Priority Tax Claim shall receive, at the sole option of the Debtors or the Liquidation Trustee, as applicable, (i) Cash in an amount equal to such Allowed Priority Tax Claim on the later of (a) forty five (45) calendar days after the Effective Date (or as soon as reasonably practicable thereafter), (b) the first Business Day after the date that is thirty


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(30) days after the date such Priority Tax Claim becomes an Allowed Priority Tax Claim, and (c) the date such Allowed Priority Tax Claim is due and payable in the ordinary course, or as soon thereafter as is reasonably practicable, or (b) equal annual Cash payments in an aggregate amount equal to the amount of such Allowed Priority Tax Claim, together with interest at the applicable rate under section 511 of the Bankruptcy Code, over a period not exceeding five (5) years from and after the Petition Date. The holders of Allowed Priority Tax Claims shall retain their tax liens on their collateral to the same validity, extent and priority as existed on the Petition Date until all validly determined taxes and related interest, penalties, and fees (if any) have been paid in full. To the extent a holder of an Allowed Priority Tax Claim is not paid in the ordinary course of business, payment of the Allowed Priority Tax Claim shall include interest through the date of payment at the applicable state statutory rate, as set forth in sections 506(b), 511, and 1129 of the Bankruptcy Code.

SECTION 3. CLASSIFICATION OF CLAIMS AND INTERESTS.

3.1 Classification in General.

A Claim or Interest is placed in a particular Class for all purposes, including voting, confirmation, and distribution under this Plan and under sections 1122 and 1123(a)(1) of the Bankruptcy Code; provided that a Claim or Interest is placed in a particular Class for the purpose of receiving distributions pursuant to this Plan only to the extent that such Claim or Interest is an Allowed Claim or Allowed Interest in that Class and such Claim or Interest has not been satisfied, released, or otherwise settled prior to the Effective Date.

3.2 Formation of Debtor Groups for Convenience Only.

This Plan (including, but not limited to, Section 2 and Section 3 of the Plan) groups the Debtors together solely for the purpose of describing treatment under this Plan, confirmation of this Plan, and Plan Distributions to be made in respect of Claims against and Interests in the Debtors under this Plan. Except as provided in Section 5 of the Plan, such groupings shall not affect each Debtor’s status as a separate legal entity, change the organizational structure of the Debtors’ business enterprise, constitute a change of control of any Debtor for any purpose, cause a merger of consolidation of any legal entities, or cause the transfer of any assets.

3.3 Summary of Classification.

The following table designates the Classes of Claims against and Interests in each of the Debtors and specifies which of those Classes are (i) Impaired or Unimpaired by the Plan, (ii) entitled to vote to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code and (iii) deemed to reject the Plan. In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Expense Claims and Priority Tax Claims have not been classified and, thus, are excluded from the Classes of Claims and Interests set forth in this Section 3. All of the potential Classes for the Debtors are set forth herein. Certain of the Debtors may not have holders of Claims or Interests in a particular Class or Classes, and such Classes shall be treated as set forth in Section 3.5.


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Class Designation Treatment Entitled to Vote 1 Other Priority Claims Unimpaired No (Presumed to accept) 2 Secured Claims Unimpaired No (Presumed to accept) 3 PBGC Claims Impaired Yes 4 General Unsecured Claims Impaired Yes 5 Intercompany Claims Impaired No (Presumed to accept) 6 Debtor Interests Impaired No (Deemed to reject) 7 Subordinated Claims Impaired No (Deemed to reject)

3.4 Special Provision Governing Unimpaired Claims.

Except as otherwise provided in the Plan, nothing under the Plan shall affect the rights of the Debtors or the Liquidation Trustee, as applicable, in respect of any Unimpaired Claims, including all rights in respect of legal and equitable defenses to, or setoffs or recoupments against, any such Unimpaired Claims.

3.5 Elimination of Vacant Classes.

Any Class of Claims or Interests that, as of the commencement of the Confirmation Hearing, does not have at least one holder of a Claim or Interest that is Allowed in an amount greater than zero for voting purposes shall be considered vacant, deemed eliminated from the Plan for purposes of voting to accept or reject the Plan, and disregarded for purposes of determining whether the Plan satisfies section 1129(a)(8) of the Bankruptcy Code with respect to that Class.

3.6 Voting Classes; Presumed Acceptance by Non-Voting Classes.

If a Class contains Claims or Interests eligible to vote and no holders of Claims or Interests eligible to vote in such Class vote to accept or reject the Plan, the Debtors shall request the Bankruptcy Court at the Confirmation Hearing to deem the Plan accepted by the holders of such Claims or Interests in such Class.

3.7 Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code.

The Debtors shall seek Confirmation of the Plan pursuant to section 1129(b) of the Bankruptcy Code with respect to any rejecting Class of Claims or Interests. The Debtors reserve the right to modify the Plan in accordance with Section 12.5 hereof to the extent, if any, that Confirmation pursuant to section 1129(b) of the Bankruptcy Code requires modification, including by modifying the treatment applicable to a Class of Claims or Interests to render such Class of Claims or Interests Unimpaired to the extent permitted by the Bankruptcy Code and the Bankruptcy Rules.


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SECTION 4. TREATMENT OF CLAIMS AND INTERESTS.

4.1 Other Priority Claims (Class 1).

(a) Classification: Class 1 consists of Allowed Other Priority Claims against the Debtors.

(b) Treatment: Except to the extent that a holder of an Allowed Other Priority Claim against any of the Debtors has agreed to less favorable treatment of such Claim, each such holder shall receive, in full and final satisfaction of such Claim, Cash in an amount equal to such Claim, payable on the later of the (i) forty five (45) calendar days after the Effective Date (or as soon as reasonably practicable thereafter) and (ii) the first Business Day after thirty (30) days from the date on which such Other Priority Claim becomes and Allowed Priority Claim, or as soon as reasonably practical thereafter.

(c) Voting: Class 1 is Unimpaired, and the holders of Other Priority Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Other Priority Claims are not entitled to vote to accept or reject the Plan, and the votes of such holders will not be solicited with respect to Other Priority Claims.

4.2 Secured Claims (Class 2).

(a) Classification: Class 2 consists of the Secured Claims.

(b) Treatment: Except to the extent that a holder of an Allowed Secured Claim against any of the Debtors has agreed to less favorable treatment of such Claim, each such holder shall receive, at the option of the Debtors (after consultation with the Creditors’ Committee if prior to the Effective Date) or the Liquidation Trustee, (i) payment in full in Cash in full and final satisfaction of such Claim, payable on the later of (A) forty five (45) calendar days after the Effective Date (or as soon as reasonably practicable thereafter) and (B) the first Business Day after thirty (30) days from the date on which such Secured Claim becomes an Allowed Secured Claim, or as soon as reasonably practical thereafter, (ii) delivery of the collateral securing such Allowed Secured Claim and payment of any interest required under section 506(b) of the Bankruptcy Code, or (iii) such other treatment necessary to satisfy section 1129 of the Bankruptcy Code.

(c) Voting: Class 2 is Unimpaired, and the holders of Secured Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Secured Claims are not entitled to vote to accept or reject the Plan, and the votes of such holders will not be solicited with respect to Secured Claims.


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4.3 PBGC Claims (Class 3).

(a) Classification: Class 3 consists of the PBGC Claims.

(b) Treatment: The PBGC Claims shall be Allowed as a prepetition general unsecured claim in the amount of $62,000,000. In full and final satisfaction of the PBGC Claims, holders of the Allowed PBGC Claims shall receive (i) a Pro Rata Share of the Liquidation Trust Beneficial Interests and (ii) a Pro Rata Share of the Litigation Trust Beneficial Interests. With respect to any Distribution of Liquidation Trust Assets or Litigation Trust Assets to be made by the Liquidation Trustee or the Litigation Trustee (as applicable), holders of the Allowed PBGC Claims shall receive the PBGC Claims Distribution Amount. For the avoidance of doubt, the PBGC Claims shall be the only Claims on which the PBGC shall be entitled to any Distribution in connection with the Debtors or this Plan.

(c) Voting: Class 3 is Impaired and the PBGC, as holder of the PBGC Claims in Class 3, is entitled to vote to accept or reject the Plan.

4.4 General Unsecured Claims (Class 4).

(a) Classification: Class 4 consists of General Unsecured Claims against the Debtors.

(b) Treatment: Except to the extent that a holder of an Allowed General Unsecured Claim against the Debtors has agreed to less favorable treatment of such Claim, and except as provided in section 5.11 of the APA with respect to the Claims of Former Non-Debtor Subsidiaries, each such holder shall receive, in full and final satisfaction of such Claim, (i) a Pro Rata Share of the Liquidation Trust Beneficial Interests and (ii) a Pro Rata Share of the Litigation Trust Beneficial Interests. With respect to any Distribution of Liquidation Trust Assets or proceeds of the Litigation Trust Assets to be made by the Liquidation Trustee or the Litigation Trustee (as applicable), holders of Allowed General Unsecured Claims shall receive their Pro Rata share of the Allowed General Unsecured Claims Distribution Amount.

(c) Voting: Class 4 is Impaired, and the holders of General Unsecured Claims are entitled to vote to accept or reject the Plan.

4.5 Intercompany Claims (Class 5).

(a) Classification: Class 5 consists of Intercompany Claims against the Debtors.

(b) Treatment: On or after the Effective Date, all Allowed Intercompany Claims shall be adjusted, continued, settled, reinstated, discharged, or eliminated, in each case to the extent determined to be appropriate by the Debtors or the Liquidation Trustee (as applicable).

(c) Voting: Class 5 is Impaired. The holders of Intercompany Claims are plan proponents and are conclusively presumed to accept the Plan. Therefore, holders


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of Intercompany Claims are not entitled to vote to accept or reject this Plan, and the votes of such holders will not be solicited with respect to Intercompany Claims.

4.6 Debtor Interests (Class 6).

(a) Classification: Class 6 consists of all Interests in the Debtors.

(b) Treatment: The Debtor Interests shall be cancelled when merged or dissolved pursuant to the terms of the Plan. Each holder of a Debtor Interest shall neither receive nor retain any property of the Debtors’ estates or direct interest in property of the Debtors’ estates.

(c) Voting: Class 6 is Impaired, and the holders of Debtor Interests are conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, the holders of Debtor Interests are not entitled to vote to accept or reject the Plan, and the votes of such holders will not be solicited with respect to such Interests.

4.7 Subordinated Claims (Class 7).

(a) Classification: Class 7 consists of all Subordinated Claims.

(b) Treatment: All Subordinated Claims, if any, shall be discharged, cancelled, released, and extinguished as of the Effective Date, and will be of no further force or effect. Each holder of Allowed Subordinated Claims shall neither receive nor retain any property of the Debtors’ estates or any interest in property of the Debtors’ estates.

(c) Voting: Class 7 is Impaired, and the holders of Subordinated Claims are conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, the holders of Subordinated Claims are not entitled to vote to accept or reject the Plan, and the votes of such holders will not be solicited with respect to such Subordinated Claims.

SECTION 5. MEANS FOR IMPLEMENTATION.

5.1 Joint Chapter 11 Plan.

The Plan is a joint chapter 11 plan for each of the Debtors, with the Plan for each Debtor being non-severable and mutually dependent on the Plan for each other Debtor.

5.2 Limited Substantive Consolidation.

(a) Limited Substantive Consolidation. The Plan shall serve as a motion by the Debtors seeking entry of a Bankruptcy Court order deeming the substantive consolidation of the Debtors’ Estates into a single Estate for certain limited purposes related to the Plan, including voting, confirmation, and distribution and the Bankruptcy Court’s findings that the substantive consolidation of the Estates to the extent set forth herein is (i) in exchange for good and valuable consideration provided by each of the Estates (including, without limitation, performance of the terms of the Plan), and a good-faith settlement and compromise of the released


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claims, (ii) in the best interests of the Debtors, the Estates and all holders of Claims, (iii) fair, equitable, and reasonable, and (iv) effected after due notice and opportunity for hearing. As a result of the limited substantive consolidation of the Estates, each Class of Claims and Interests shall be treated as against a single consolidated Estate without regard to the separate legal existence of the Debtors. The Plan shall not result in the merger or otherwise affect the separate legal existence of each Debtor, other than with respect to voting and distribution rights under the Plan, and otherwise in satisfying the applicable requirements of section 1129 of the Bankruptcy Code. The limited substantive consolidation of the Debtors under the Plan shall not (other than for purposes related to funding Distributions under the Plan) affect (u) the legal and organizational structure of the Debtors, (v) executory contracts or unexpired leases that were entered into during the Chapter 11 Cases or that have been or will be assumed or rejected, (w) any agreements entered into by the Liquidation Trust on or after the Effective Date, (x) the Debtors’ or the Liquidation Trust’s ability to subordinate or otherwise challenge Claims on an entity-by-entity basis, (y) any causes of action or Avoidance Actions or defenses thereto, which in each case shall survive entry of the Confirmation Order and the Confirmation Recognition Order as if there had been no substantive consolidation of the Estates of the Debtors, and (z) distributions to the Debtors or the Liquidation Trust from any insurance policies or the proceeds thereof.

(b) Effect on Distributions. On and after the Effective Date, solely for Distribution purposes (i) all assets and liabilities of the Debtors shall be treated as though they were pooled; (ii) each Claim filed or to be filed against any Debtor shall be deemed filed as a single Claim against, and a single obligation of, the Debtors; (iii) all Intercompany Claims shall be reinstated, settled, offset, cancelled, extinguished or eliminated in accordance with Section 4.5 herein; (iv) no Distributions shall be made under the Plan on account of any Intercompany Interest; (v) any Claims on account of a guarantee provided by a Debtor of the obligations of another Debtor shall be eliminated so that any Claim against any Debtor and any Claim based upon a guarantee thereof by any other Debtor shall be treated as one consolidated Claim against the substantively-consolidated Debtors, and (vi) any joint or several liability of any of the Debtors shall be one obligation of the substantively-consolidated Debtors and any Claims based upon such joint or several liability shall be treated as one consolidated Claim against the substantively-consolidated Debtors.

(c) Alternative Plan Debtors. Notwithstanding the foregoing in this Section 5.2, the Debtors, after consulting with the Creditors’ Committee, reserve the right to examine the Claims asserted against the various Entities and to withdraw the Plan with respect to any particular Debtor Entity if the total dollar amount of the Administrative Expense Claims against such Entity would result in the Debtors not being able to satisfy all Allowed Administrative Expense Claims, Secured Claims, Priority Tax Claims and Other Priority Claims against such Debtor in full. In the event that the Debtors elect to withdraw the Plan with respect to any Entity, such Entity shall be listed on the Schedule of Alternative Plan Debtors included in the Plan Supplement and the Debtors, after consulting with the Creditors’ Committee, may proceed to seek confirmation of this Plan as to the remaining Debtors on a limited substantively consolidated basis in accordance with Section 5.2(a) above; provided, however, that to the extent the Creditors’ Committee does not agree with the withdrawal of the Plan with respect to any Debtor, the Creditors’ Committee reserves all rights to object to confirmation on the basis of such withdrawal.


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5.3 PBGC Settlement.

This Plan includes a settlement of the PBGC Claims pursuant to the PBGC Settlement, which provides for the following:

(a) Allowance and Treatment of the PBGC Claims. The PBGC Claims shall be Allowed as general unsecured claims against the Debtors in the Amount of $62,000,000, and classified in accordance with and entitled to the treatment provided for in Section 4.3 of this Plan. The PBGC Claims shall be treated as against a single consolidated estate without regard to the separate legal existence of the Debtors and the PBGC Claims shall be deemed as a single Claim against, and a single obligation of, the Debtors. For the avoidance of doubt, the PBGC Claims shall be the only Claims on which the PBGC shall be entitled to any distribution in connection with the Debtors or this Plan.

(b) Preservation of Pension Plan Records. If the PBGC is not the trustee of the Pension Plans (or has not completed the transition of the Pension Plans to the PBGC) by the Effective Date, the Debtors will transfer the documents and records necessary for the administration of the Pension Plans to the Liquidation Trustee on the Effective Date or as soon as reasonably practicable thereafter. With respect to any records transferred in accordance with this Section 5.3(b), the Liquidation Trustee shall (i) store and preserve such records for twelve (12) months after the Effective Date, and (ii) make such documents available to the PBGC for inspection and copying upon reasonable notice.

5.4 Liquidation Trust.

(a) Liquidation Trust Generally. On or prior to the Effective Date, the Liquidation Trust shall be established in accordance with the Liquidation Trust Agreement for the purpose of being vested with and liquidating the Liquidation Trust Assets, reconciling Claims and making Distributions to Holders of Allowed Claims in accordance with the terms of this Plan and the Liquidation Trust Agreement. Subject to and to the extent set forth in this Plan, the Confirmation Order, the Liquidation Trust Agreement or any other order of the Bankruptcy Court entered in connection therewith, the Liquidation Trust and the Liquidation Trustee shall be empowered, without the need for Bankruptcy Court Approval or Canadian Court approval, to:

(i) perform all actions and execute all agreements, instruments and other documents necessary to effectuate the purpose of the Liquidation Trust;

(ii) establish, maintain and administer trust accounts, which shall be segregated to the extent appropriate in accordance with this Plan;

(iii) accept, preserve, receive, collect, manage, invest, sell, liquidate, transfer, abandon, supervise, prosecute, settle and protect, as applicable, the Liquidation Trust Assets in accordance with this Plan;

(iv) except to the extent any other Claims have already been Allowed, control and effectuate the Claims reconciliation process with


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respect to all Claims that are not Claims of the DV Entities or of any of the Former D&Os or Shareholders, including to object to, seek to subordinate, recharacterize, compromise or settle any and all such Claims against the Debtors, including the Disputed Claims (except for the Claims of the DV Entities or of any of the Former D&Os or Shareholders), pursuant to the procedures prescribed in this Plan;

(v) pursue Causes of Action that are Liquidation Trust Assets, elect not to pursue any such Causes of Action, and determine whether and when to compromise, settle, abandon, dismiss, or otherwise dispose of any such Causes of Action, as is in the best interests of the Liquidation Trust Beneficiaries;

(vi) calculate and make Distributions of the proceeds of the Liquidation Trust Assets to holders of Allowed Claims;

(vii) prepare and file appropriate tax returns and other reports on behalf of the Liquidation Trust and pay taxes or other obligations owed by the Debtors or the Liquidation Trust;

(viii) retain, compensate and employ professionals to represent the Liquidation Trust;

(ix) direct and control the wind down, liquidation, sale or abandonment of the remaining assets of the Debtors under the Plan and in accordance with applicable law as necessary to maximize Distributions to holders of Allowed Claims;

(x) exercise such other powers as may be vested in the Liquidation Trust under the Liquidation Trust Agreement and this Plan, or as are deemed by the Debtors or the Liquidation Trustee to be necessary and proper to implement the provisions of the Liquidation Trust Agreement and effectuate the purpose of the Liquidation Trust; and

(xi) dissolve the Liquidation Trust in accordance with the terms of the Liquidation Trust Agreement;

(xii) wind up the affairs of the Debtors, if and to the extent necessary, including taking any steps to dissolve, liquidate, bankrupt or take other similar action with respect to each Debtor, including by terminating the corporate or organizational existence of each such Debtor; and

(xiii) perform all actions and execute all agreements, instruments and other documents necessary to effectuate the PBGC Settlement as provided in Section 5.3 of the Plan.

Notwithstanding anything to the contrary in this Section 5.4, the Liquidation Trust’s primary purpose is liquidating the Liquidation Trust Assets, with no objective to continue or


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engage in the conduct of a trade or business except to the extent reasonably necessary to, and consistent with, the Liquidation Trust’s liquidating purpose and reasonably necessary to conserve and protect the Liquidation Trust Assets and provide for the orderly liquidation thereof.

(b) Funding of and Transfer of Assets into the Liquidation Trust. Except as otherwise provided in this Plan, the Confirmation Order, or the Confirmation Recognition Order, on the Effective Date, the Debtors shall transfer the Liquidation Trust Assets to the Liquidation Trust, and all such assets shall vest in the Liquidation Trust on such date, to be administered by the Liquidation Trustee, in accordance with this Plan and the Liquidation Trust Agreement; provided, that until final dissolution of BB Canada (i) the shares of BB Canada shall be owned by the Liquidation Trust, (ii) any remaining Canadian Collateral Proceeds in the possession of BB Canada pursuant to the Canadian Sale Order to support the Administration Charge and the Directors’ Charge shall be retained by BB Canada until repaid to BB Parent (or paid as directed by BB Parent) in accordance with the Debtors’ Stipulation and Agreement with Wells Fargo, N.A. Regarding Sale Order and Release of Liens and Claims dated August 30, 2020, and (iii) any remaining Canadian Assets shall be continued to be owned by BB Canada until recovered by the Liquidation Trust and shall be distributed by BB Canada to the Liquidation Trust in respect of such shares as part of any dissolution of BB Canada, subject to any withholding requirements in accordance with Section 5.12 of the Plan. The Liquidation Trustee shall have the authority to create additional sub-accounts in trust accounts established pursuant to Section 5.4(f) and sub-trusts within the Liquidation Trust, which may have a separate legal existence, but which shall be considered sub-accounts or sub-trusts of the Liquidation Trust. The act of transferring the Liquidation Trust Assets, as authorized by this Plan, shall not be construed to destroy or limit any such assets or rights or be construed as a waiver of any right, and such rights may be asserted by the Liquidation Trust as if the asset or right was still held by the applicable Debtor.

(c) Liquidation Trustee. The Liquidation Trustee shall serve as the initial trustee of the Liquidation Trust. Except as otherwise provided in this Plan, the Liquidation Trustee (i) shall be the successor to and representative of the Estate of each of the Debtors within the meaning of section 1123(b)(3)(B) of the Bankruptcy Code and (ii) shall be the sole representative of, and shall act for, the Debtors, and shall assume any such outstanding responsibility of the Debtors under the Plan. The powers, rights and responsibilities of the Liquidation Trustee shall be as specified in the Liquidation Trust Agreement and Plan and shall include the authority and responsibility to fulfill the items identified in this Section 5.4 of the Plan. Other rights and duties of the Liquidation Trustee and the Liquidation Trust Beneficiaries shall be as set forth in the Liquidation Trust Agreement.

(d) Functions of the Liquidation Trustee. On and after the Effective Date, the Liquidation Trustee and/or the Liquidation Trust, as applicable, shall carry out the functions set forth in this Section 5.4 and may take such actions without supervision or approval by the Bankruptcy Court or the Canadian Court and free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules, CCAA or BIA, other than any restrictions expressly imposed by the Plan, the Confirmation Order or the Liquidation Trust Agreement. Such functions shall include any and all powers and authority to:


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(i) effectuate the Plan, including the prosecution and any other disposition of all litigation related to any appeals in respect to the approval and/or implementation of the Plan;

(ii) wind up the affairs of the Debtors, if and to the extent necessary, including taking any steps to dissolve, liquidate, bankrupt, or take other similar action with respect to each Debtor, including by terminating the corporate or organizational existence of each such Debtor;

(iii) serve as the initial director or manager, as applicable, and sole officer of each Debtor after the Effective Date until such time as such Debtor is merged into BB Parent or dissolved, as applicable, and take any actions necessary to effectuate the terms of the Plan and the Liquidation Trust Agreement in such capacities;

(iv) serve on the board of directors of any subsidiary of the Liquidation Trust, provided the subsidiary’s objective is consistent with that of the Liquidation Trust (i.e., to sell its assets and distribute the proceeds in liquidation);

(v) take any actions necessary to (A) resolve all matters related to the Liquidation Trust Assets and (B) vest such assets in the Liquidation Trust;

(vi) fund the Wind-Down Reserve;

(vii) pay all (A) Allowed Administrative Expense Claims (including payment of Professional Fee Claims as set forth in Section 2.2 of the Plan), (B) Allowed Priority Tax Claims, (C) Allowed Other Priority Claims, and (D) Allowed Secured Claims pursuant to the Plan;

(viii) prepare and file appropriate Tax returns and other reports on behalf of the Debtors and pay Taxes or other obligations owed by the Debtors (including, without limitation, any Allowed Administrative Expense Claims and Allowed Priority Tax Claims asserted by taxing authorities);

(ix) provide reporting to the Litigation Trust Oversight Board, as set forth in the Liquidation Trust Agreement and Litigation Trust Agreement;

(x) file, prosecute, settle or dispose of any and all objections to asserted (A) Administrative Expense Claims, (B) Priority Tax Claims, (C) Other Priority Claims, (D) Secured Claims, and (E) General Unsecured Claims;

(xi) enter into and consummate any transactions for the purpose of dissolving the Debtors;


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(xii) make Distributions of the Liquidation Trust Assets and any proceeds thereof, in excess of any amounts necessary to pay Liquidation Trust Expenses, to holders of Allowed Unsecured Claims;

(xiii) take such actions as are necessary or appropriate to close any of the Debtors’ Chapter 11 Cases; or the Recognition Proceedings ;

(xiv) retain, compensate and employ professionals to represent the Liquidation Trust or the Liquidation Trustee, as applicable;

(xv) pay the reasonable fees and disbursements of the Information Officer and its counsel upon the submission of invoices on a monthly basis to the Liquidation Trustee, subject to the approval of the Canadian Court in the Recognition Proceedings;

(xvi) maintain the books and records and accounts of the Debtors;

(xvii) transfer any additional Litigation Trust Assets to the Litigation Trust after the Effective Date;

(xviii) consult with the Information Officer in respect of any matters set forth in Section 5.4 as such matters also relate to Canada, including by responding to any reasonable information requests of the Information Officer; and

(xix) take any other actions not inconsistent with the provisions hereof that the Liquidation Trustee deems reasonably necessary or desirable in connection with the foregoing functions.

After the Effective Date, the Liquidation Trustee shall file with the Bankruptcy Court quarterly reports when they become due, in a form reasonably acceptable to the U.S. Trustee, which reports shall include a separate schedule of disbursements made by the Debtors or the Liquidation Trustee during the applicable period, attested to by the Liquidation Trustee. Quarterly reports, including a separate schedule of disbursements, shall also be provided to the Information Officer and the Litigation Trust Oversight Board as soon as practicable following their preparation and upon filing.

(e) Liquidation Trust Agreement. Prior to the Effective Date, the Debtors shall execute and deliver the Liquidation Trust Agreement. The Liquidation Trust Agreement may include reasonable and customary indemnification provisions for the benefit of the Liquidation Trustee. Any such indemnification shall be the sole responsibility of the Liquidation Trust and payable solely from the Liquidation Trust Assets.

(f) Fees and Expenses of the Liquidation Trust. From and after the Effective Date, Liquidation Trust Expenses shall be paid from the Liquidation Trust Assets in the ordinary course of business, in accordance with the Plan and the Liquidation Trust Agreement. Without any further notice to any party or action, order or approval of the Bankruptcy Court, the


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Liquidation Trustee, on behalf of the Liquidation Trust, may employ and pay in the ordinary course of business, the reasonable fees of any professional (including professionals previously employed by the Debtors) for services rendered or expenses incurred on and after the Effective Date that, in the discretion of the Liquidation Trustee, are necessary to assist the Liquidation Trustee in the performance of the Liquidation Trustee’s duties under the Plan and the Liquidation Trust Agreement, subject to any limitations and procedures established by the Liquidation Trust Agreement.

(g) Creation and Maintenance of Trust Accounts. On or prior to the Effective Date, appropriate trust accounts will be established and maintained in one or more federally insured domestic banks in the name of the Liquidation Trust. Cash deposited in the trust accounts will be invested, held and used solely as provided in the Liquidation Trust Agreement. The Liquidation Trustee is authorized to establish additional trust accounts after the Effective Date, consistent with the terms of the Liquidation Trust Agreement, as applicable. After the funding of the trust accounts on the Effective Date, the trust accounts will be funded, as applicable, by Cash proceeds obtained through litigation or the disposition of Liquidation Trust Assets or the proceeds of the Litigation Trust. Upon obtaining an order of the Bankruptcy Court authorizing final Distribution or closure of the Debtors’ Chapter 11 Cases, any funds remaining in the trust accounts shall be distributed in accordance with this Plan and the Liquidation Trust Agreement, and the trust accounts may be closed.

(h) Limitation of Liability. Neither the Liquidation Trustee, nor its firms, companies, affiliates, partners, officers, directors, members, employees, designees, professionals, advisors, attorneys, representatives, disbursing agents or agents, and any of such Person's successors and assigns, shall incur any liability by reason of any error of law or fact or of any matter or thing done or suffered or omitted to be done under or in connection with the Plan or Liquidation Trust Agreement, other than for specific actions or omissions resulting from its willful misconduct, gross negligence or fraud found by a Final Order (not subject to further appeal or review) of a court of competent jurisdiction to be the direct and primary cause of loss, liability, damage or expense suffered by the Liquidation Trust. The Liquidation Trustee shall enjoy all of the rights, powers, immunities and privileges applicable to a chapter 7 trustee or any other analogous trustee, except with respect to the DV Claims, Claims of the DV Entities or any of the Former D&Os or Shareholders, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are Litigation Trust Assets. The Liquidation Trustee may, in connection with the performance of his, her or its functions, in the Liquidation Trustee’s sole and absolute discretion, consult with his, her or its attorneys, accountants, advisors and agents, and shall not be liable for any act taken, or omitted to be taken, or suggested to be done in accordance with advice or opinions rendered by such persons, regardless of whether such advice or opinions are in writing. Notwithstanding such authority, the Liquidation Trustee shall be under no obligation to consult with any such attorneys, accountants, advisors or agents, and any determination not to do so shall not result in the imposition of liability on the Liquidation Trustee or its members unless such determination is based on willful misconduct, gross negligence or fraud. Persons dealing with the Liquidation Trustee shall look only to the Liquidation Trust Assets to satisfy any liability incurred by the Liquidation Trustee to such person in carrying out the terms of the Plan or the Liquidation Trust Agreement, and the Liquidation Trustee shall have no personal obligation to satisfy such liability.


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(i) Indemnification. The Liquidation Trust shall indemnify the Liquidation Trustee for, and shall hold them harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of their respective professionals) incurred without fraud, gross negligence or willful misconduct on the part of the Liquidation Trustee (which fraud, gross negligence or willful misconduct, if any, must be determined by a Final Order of a court of competent jurisdiction) for any action taken, suffered or omitted to be taken by the Liquidation Trustee in connection with the acceptance, administration, exercise and performance of their duties under the Plan or the Liquidation Trust Agreement, as applicable. An act or omission taken with the approval of the Bankruptcy Court or the Canadian Court, and not inconsistent therewith, will be conclusively deemed not to constitute fraud, gross negligence or willful misconduct. In addition, the Liquidation Trust shall, to the fullest extent permitted by law, indemnify and hold harmless the Liquidation Trustee, from and against and with respect to any and all liabilities, losses, damages, claims, costs and expenses, including attorneys’ fees arising out of or due to their actions or omissions, or consequences of such actions or omissions, with respect to the Liquidation Trust or the implementation or administration of the Plan if the Liquidation Trustee acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the Liquidation Trust. To the extent the Liquidation Trust indemnifies and holds the Liquidation Trustee harmless as provided above, the reasonable legal fees and related costs incurred by counsel to the Liquidation Trustee in monitoring or participating in the defense of such claims giving rise to the right of indemnification shall be paid as Liquidation Trust Expenses. The costs and expenses incurred in enforcing the right of indemnification in this Section 5.4(i) shall be paid by the Liquidation Trust. This provision shall survive the termination of the Liquidation Trust Agreement and the death, dissolution, liquidation, resignation, replacement or removal of the Liquidation Trustee.

(j) Insurance. The Liquidation Trustee shall be authorized, but not required, to obtain any reasonably necessary insurance coverage, at the Liquidation Trust’s sole expense, for itself and its respective agents, including coverage with respect to the liabilities, duties and obligations of the Liquidation Trustee, which insurance coverage may, at the sole option of the Liquidation Trustee, be extended for a reasonable period after the termination of the Liquidation Trust Agreement.

(k) Dissolution of the Liquidation Trust. In no event shall the Liquidation Trust be dissolved later than five (5) years from the Effective Date unless the Bankruptcy Court, upon motion made within the six month period before such fifth anniversary (and, in the event of further extension, by order of the Bankruptcy Court, upon motion made at least six months before the end of the preceding extension), determines that a fixed period extension (not to exceed three years, together with any prior extensions, without a favorable private letter ruling from the IRS or an opinion of counsel satisfactory to the Liquidation Trustee that any further extension would not adversely affect the status of the trust as a liquidating trust for U.S. federal income tax purposes) is necessary to facilitate or complete the recovery on, and liquidation of, the Liquidation Trust Assets.

(l) Records. The Liquidation Trustee shall be provided with originals or copies of or access to all documents and business records of the Debtors necessary for the disposition of Liquidation Trust Assets and objections to Disputed Claims.


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(m) Non-Transferability of Liquidation Trust Interests. The Liquidation Trust Beneficial Interests shall be non-transferable other than if transferred by will, intestate succession or otherwise by operation of law.

5.5 Litigation Trust.

(a) Litigation Trust Generally. The Litigation Trust shall be established on the Effective Date, in accordance with the terms of the Plan and the Litigation Trust Agreement and shall be governed by the terms of the Litigation Trust Agreement and shall liquidate the Litigation Trust Assets, including by, among other things, prosecuting, settling, compromising, abandoning, or otherwise assessing and, if possible, realizing the value of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action assigned to the Litigation Trust in accordance with the terms of the Plan, from time to time in accordance with the terms of the Plan for the benefit of the Litigation Trust Beneficiaries. At such time as the Litigation Trustee determines the Litigation Trust has, pursuant to Section 5.5 of the Plan and the Litigation Trust Agreement, (i) resolved, settled, compromised, or otherwise liquidated the DV Claims, Former D&O and Shareholder Causes of Action, and all other Causes of Action assigned to the Litigation Trust from time to time in accordance with the terms of the Plan and the Litigation Trust Agreement, and (ii) paid all Litigation Trust Expenses, the Litigation Trustee shall transfer any and all remaining Litigation Trust Assets to the Liquidation Trust; provided that, if the Liquidation Trust has been dissolved pursuant to the terms of the Plan and the Liquidation Trust Agreement before such time as the Litigation Trustee has acted in accordance with the foregoing clauses (i) and (ii), the Litigation Trustee shall make a Distribution of the remaining Litigation Trust Assets to the Litigation Trust Beneficiaries in accordance with the terms of the Plan. From time to time, and after paying or appropriately reserving for Litigation Trust Expenses, the Litigation Trust may distribute proceeds of the Litigation Trust Assets to the Liquidation Trust for Distribution to Litigation Trust Beneficiaries.

(b) Subject to and to the extent set forth in this Plan, the Confirmation Order, the Liquidation Trust Agreement or any other order of the Bankruptcy Court entered in connection therewith, the Litigation Trust and the Litigation Trustee shall be empowered to:

(i) conduct investigations of the DV Claims, the Former D&O and Shareholder Causes of Action and other Causes of Action that are Litigation Trust Assets pursuant to Bankruptcy Rule 2004;

(ii) perform all actions and execute all agreements, instruments and other documents necessary to effectuate the purpose of the Litigation Trust;

(iii) establish, maintain and administer trust accounts, which shall be segregated to the extent appropriate in accordance with this Plan;

(iv) manage, liquidate, supervise, prosecute, and protect, as applicable, the Litigation Trust Assets;


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(v) settle Claims that are Litigation Trust Assets, including the DV Claims, the Former D&O and Shareholder Causes of Action, and Claims of the Former D&Os and Shareholders, without further order of the Bankruptcy Court;

(vi) control and effectuate the Claims reconciliation process for Claims of any of the DV Entities or any of the Former D&Os or Shareholders, including to object to, seek to subordinate, recharacterize, compromise or settle any and all such Claims, pursuant to the procedures prescribed in this Plan;

(vii) pursue, prosecute, abandon or otherwise resolve the DV Claims, the Former D&O and Shareholder Causes of Action, and other Causes of Action that are Litigation Trust Assets;

(viii) retain, compensate and employ professionals to represent the Litigation Trust;

(ix) prepare and file appropriate tax returns and other reports on behalf of the Litigation Trust and pay taxes or other obligations owed by the Litigation Trust;

(x) exercise such other powers as may be vested in the Litigation Trust under the Litigation Trust Agreement and this Plan, or as are deemed by the Litigation Trustee to be necessary and proper to implement the provisions of the Litigation Trust Agreement and effectuate the purpose of the Litigation Trust; and

(xi) dissolve the Litigation Trust in accordance with the terms of the Litigation Trust Agreement.

Notwithstanding anything to the contrary in this Section 5, the Litigation Trust’s primary purpose is liquidating the Litigation Trust Assets, with no objective to continue or engage in the conduct of a trade or business except to the extent reasonably necessary to, and consistent with, the Litigation Trust’s liquidating purpose and reasonably necessary to conserve and protect the Litigation Trust Assets and provide for the orderly liquidation thereof.

(c) Litigation Trust Funding. The Litigation Trust shall be funded with the Litigation Trust Minimum Funding on the Effective Date of the Plan and as a condition to the Effective Date of the Plan (subject to waiver in accordance with Section 9.2). The Litigation Fees Amount will be funded after the Debtors or the Liquidation Trustee, as applicable, have paid or reserved for any amounts necessary to fund the Wind-Down Reserve and to pay all Administrative Expense Claims, Fee Claims, Secured Claims, Priority Tax Claims and Other Priority Claims after consulting with the Litigation Trustee as to any amounts to be reserved. The total amount of the Litigation Trust Funding shall be subject to the adjustments set forth in this Section 5.5(c) of the Plan, but in any event shall not be less than the Litigation Trust Minimum Funding (subject to waiver in accordance with Section 9.2). To the extent the Debtors or the Liquidation Trustee, as applicable, determine in a good faith exercise of their business judgment


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consistent with their fiduciary duties that not funding all or a portion of the Litigation Fees Amount is necessary to allow the Debtors to fund or administer their chapter 11 cases (including to fund the Wind-Down Reserve and satisfy Administrative Expense Claims (including Fee Claims), Secured Claims, Priority Tax Claims and Other Priority Claims), the Debtors or the Liquidation Trustee, as applicable, are authorized to make such adjustment after consultation with the Litigation Trustee; provided that (i) in no event shall the Debtors or the Liquidation Trustee fund the Litigation Trust with an amount less than the Litigation Trust Minimum Funding, and (ii)(A) to the extent that the Debtors or the Liquidation Trustee, as applicable, make any such adjustment to the amount of the Litigation Fees Amount, and (B) the Debtors or the Liquidation Trustee, as applicable, is satisfied at a later date that the Debtors, or the Liquidation Trust, as applicable, have sufficient funds to satisfy all Allowed Administrative Expense Claims (including Fee Claims), Secured Claims, and Priority Tax Claims and Other Priority Claims, and be able to transfer some or all of such withheld amounts to the Litigation Trust, the Debtors or the Liquidation Trustee, as applicable, shall do so in accordance with the terms of the Plan.

(d) Transfer of Assets Into the Litigation Trust. Upon the Effective Date, (i) the DV Claims; (ii) Former D&O and Shareholder Causes of Action and (iii) the Litigation Trust Minimum Funding, shall vest in and be transferred to the Litigation Trust. Upon the Debtors or the Liquidation Trustee, as applicable having paid or reserved for any amounts necessary to fund the Wind-Down Reserve and pay all Administrative Expense Claims, Fee Claims, Secured Claims, Priority Tax Claims and Other Priority Claims in accordance with Section 5.4(c), the Debtors or the Liquidation Trustee, as applicable, shall transfer the Litigation Fees Amount to the Litigation Trust, and such assets shall vest in the Litigation Trust on the date of such transfer and shall be administered by the Litigation Trustee in accordance with this Plan and the Litigation Trust Agreement. The act of transferring the Litigation Trust Assets, as authorized by this Plan, shall not be construed to destroy or limit any such assets or rights or be construed as a waiver of any right, and such rights may be asserted by the Litigation Trust as if the asset or right was still held by the applicable Debtor.

(e) Litigation Trustee. The Litigation Trustee will serve as the initial trustee of the Litigation Trust. Except as otherwise provided in this Plan, the powers, rights and responsibilities of the Litigation Trustee shall be specified in the Litigation Trust Agreement. Other rights and duties of the Litigation Trustee and the Litigation Trust Beneficiaries shall be as set forth in the Litigation Trust Agreement.

(f) Functions of the Litigation Trustee. On and after the Effective Date, the Litigation Trustee and/or the Litigation Trust, as applicable, shall carry out the functions set forth in this Section 5.5(f) and may take such actions without supervision or approval by the Bankruptcy Court or the Canadian Court and free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules, CCAA or BIA, other than any restrictions expressly imposed by the Plan, the Confirmation Order or the Litigation Trust Agreement. Such functions shall include any and all powers and authority to:

(i) take any actions necessary to resolve all matters related to the Litigation Trust Assets;


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(ii) retain, compensate and employ professionals to represent the Litigation Trust or the Litigation Trustee, as applicable;

(iii) transfer all Cash proceeds of the DV Claims, the Former D&O and Shareholder Causes of Action, and of other Causes of Action assigned to the Litigation Trust, after payment of the Litigation Trust Expenses to the Liquidation Trust, unless the Liquidation Trust has been dissolved;

(iv) consult with the Information Officer in respect of any matters set forth in this Section 5.5 as such matters also relate to Canada; and

(v) take any other actions not inconsistent with the provisions hereof that the Litigation Trustee deems reasonably necessary or desirable in connection with the foregoing functions.

(g) Litigation Trust Agreement. On or prior to the Effective Date, the Debtors shall execute and deliver the Litigation Trust Agreement, which Litigation Trust Agreement shall be, in form and substance, reasonably acceptable to the Debtors and the Creditors’ Committee.

(h) Litigation Trust Oversight Board. On the Effective Date, the Litigation Trust Oversight Board shall be established. The initial Litigation Trust Oversight Board members shall consist of all the members of the Creditors’ Committee. Upon its formation, the duties of the Litigation Trust Oversight Board shall be set forth in the Litigation Trust Agreement, including but not limited to: (i) overseeing the Claims reconciliation and settlement process related to the Claims of the DV Entities, Former D&Os, and Shareholders conducted by or on behalf of the Litigation Trustee; (ii) overseeing the Litigation Trustee’s investigation into, and, if applicable, prosecution of, the DV Claims and Former D&O and Shareholder Causes of Action; (iii) formulating with the Litigation Trustee appropriate procedures for the settlement of DV Claims, Former D&O and Shareholder Causes of Action, and Claims of the DV Entities; (iv) overseeing the distributions to the Litigation Trust Beneficiaries as provided for under the Plan; (v) appearing before and being heard by the Bankruptcy Court and other courts of competent jurisdiction in connection with the above limited duties; and (vi) such other matters specified in the Plan or the Litigation Trust Agreement. For so long as the Claims reconciliation and investigation and/or prosecution of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets shall continue, the Litigation Trustee shall make regular reports to the Litigation Trust Oversight Board as and when the Litigation Trustee and the Litigation Trust Oversight Board may reasonably agree upon.

(i) Fees and Expenses of the Litigation Trust. From and after the Effective Date, Litigation Trust Expenses shall be paid from the Litigation Trust Assets in the ordinary course of business, in accordance with the Plan and the Litigation Trust Agreement. Without any further notice to any party or action, order or approval of the Bankruptcy Court, the Litigation Trustee, on behalf of the Litigation Trust, may employ and pay in the ordinary course of business, any professional for services rendered or expenses incurred on and after the Effective Date, in accordance with the terms of any agreement entered into between the Litigation Trust and such professional, in the discretion of the Litigation Trustee, that are necessary


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to assist the Litigation Trustee in the performance of the Litigation Trustee’s duties under the Plan and the Litigation Trust Agreement, subject to any limitations and procedures established by the Litigation Trust Agreement.

(j) Limitation of Liability. Neither the Litigation Trustee, nor its firms, companies, affiliates, partners, officers, directors, members, employees, designees, professionals, advisors, attorneys, representatives, disbursing agents or agents, and any of such Person's successors and assigns, shall incur any liability by reason of any error of law or fact or of any matter or thing done or suffered or omitted to be done under or in connection with the Litigation Trust Agreement, other than for specific actions or omissions resulting from its willful misconduct, gross negligence or fraud found by a Final Order (not subject to further appeal or review) of a court of competent jurisdiction to be the direct and primary cause of loss, liability, damage or expense suffered by the Litigation Trust. The Litigation Trustee shall enjoy all of the rights, powers, immunities and privileges applicable to a chapter 7 trustee or any other analogous trustee with respect to the DV Claims, Claims of the DV Entities, any of the Former D&Os or Shareholders, the Former D&O and Shareholder Causes of Action, and other Causes of Action that are Litigation Trust Assets. The Litigation Trustee may, in connection with the performance of his, her or its functions, in the Litigation Trustee’s sole and absolute discretion, consult with his, her or its attorneys, accountants, advisors and agents, and shall not be liable for any act taken, or omitted to be taken, or suggested to be done in accordance with advice or opinions rendered by such persons, regardless of whether such advice or opinions are in writing. Notwithstanding such authority, the Litigation Trustee shall be under no obligation to consult with any such attorneys, accountants, advisors or agents, and any determination not to do so shall not result in the imposition of liability on the Litigation Trustee or its members unless such determination is based on willful misconduct, gross negligence or fraud. Persons dealing with the Litigation Trustee shall look only to the Litigation Trust Assets to satisfy any liability incurred by the Litigation Trustee to such person in carrying out the terms of the Litigation Trust Agreement, and the Litigation Trustee shall have no personal obligation to satisfy such liability.

(k) Indemnification. The Litigation Trust shall indemnify the Litigation Trustee for, and shall hold them harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including the reasonable fees and expenses of their respective professionals) incurred without fraud, gross negligence or willful misconduct on the part of the Litigation Trustee (which fraud, gross negligence or willful misconduct, if any, must be determined by a Final Order of a court of competent jurisdiction) for any action taken, suffered or omitted to be taken by the Litigation Trustee in connection with the acceptance, administration, exercise and performance of their duties under the Plan or the Litigation Trust Agreement, as applicable. An act or omission taken with the approval of the Bankruptcy Court or the Canadian Court, and not inconsistent therewith, will be conclusively deemed not to constitute fraud, gross negligence or willful misconduct. In addition, the Litigation Trust shall, to the fullest extent permitted by law, indemnify and hold harmless the Litigation Trustee, from and against and with respect to any and all liabilities, losses, damages, claims, costs and expenses, including attorneys’ fees arising out of or due to their actions or omissions, or consequences of such actions or omissions, with respect to the Litigation Trust or the implementation or administration of the Plan if the Litigation Trustee acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the Litigation Trust. To the extent the Litigation Trust indemnifies and holds the Litigation Trustee harmless as


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provided above, the reasonable legal fees and related costs incurred by counsel to the Litigation Trustee in monitoring or participating in the defense of such claims giving rise to the right of indemnification shall be paid as Litigation Trust Expenses. The costs and expenses incurred in enforcing the right of indemnification in this Section 5.5(k) shall be paid by the Litigation Trust. This provision shall survive the termination of the Litigation Trust Agreement and the death, dissolution, liquidation, resignation, replacement or removal of the Litigation Trustee.

(l) Insurance. The Litigation Trustee shall be authorized, but not required, to obtain any reasonably necessary insurance coverage, at the Litigation Trust’s sole expense, for itself and its respective agents, including coverage with respect to the liabilities, duties and obligations of the Litigation Trustee, which insurance coverage may, at the sole option of the Litigation Trustee, be extended for a reasonable period after the termination of the Litigation Trust Agreement.

(m) Dissolution of the Litigation Trust. In no event shall the Litigation Trust be dissolved later than five (5) years from the Effective Date unless the Bankruptcy Court, upon motion made within the six month period before such fifth anniversary (and, in the event of further extension, by order of the Bankruptcy Court, upon motion made at least six months before the end of the preceding extension), determines that a fixed period extension (not to exceed three years, together with any prior extensions, without a favorable private letter ruling from the IRS or an opinion of counsel satisfactory to the Litigation Trustee that any further extension would not adversely affect the status of the trust as a liquidating trust for U.S. federal income tax purposes) is necessary to facilitate or complete the recovery on, and liquidation of, the Litigation Trust Assets. Upon the dissolution of the Litigation Trust, the Litigation Trustee shall transfer any remaining Litigation Trust Assets to the Liquidation Trust, provided that if the Liquidation Trust is dissolved before the dissolution of the Litigation Trust, the Litigation Trustee shall distribute the Litigation Trust Assets directly to Litigation Trust Beneficiaries pursuant to the terms of the Plan.

(n) Records. The Litigation Trustee shall be provided with originals or copies of or access to all documents and business records accessible to or retained by the Debtors or the Liquidation Trustee necessary for the disposition and liquidation of Litigation Trust Assets; provided that the Litigation Trustee or the Litigation Trust shall reimburse the Liquidation Trust and/or the Liquidation Trustee, as applicable, for any reasonable out-of-pocket fees or expenses incurred in assisting the Litigation Trustee in the procurement of records that were not retained by the Debtors after the Sale Transaction.

(o) Non-Transferability of Litigation Trust Interests. The Litigation Trust Beneficial Interests shall be non-transferable other than if transferred by will, intestate succession or otherwise by operation of law.


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5.6 Plan Trusts Tax Matters.

(a) Tax Treatment; No Successor in Interest. The Plan Trusts are intended to be treated for U.S. federal income tax purposes as liquidating trusts described in Treasury Regulation section 301.7701-4(d) and, to the extent applicable, as one or more Disputed Claims Reserves treated as disputed ownership funds described in Treasury Regulation section l.468B-9. For U.S. federal income tax purposes, the transfer of assets by the Debtors to the Plan Trusts will be treated (i) as the transfer of assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Liquidation Trust Assets or the Litigation Trust Assets, as applicable, subject to any liabilities of the Debtors or the Plan Trusts payable from the proceeds of such assets, followed by the transfer of such assets (subject to such liabilities) by such holders to the applicable Plan Trust in exchange for the beneficial interests in the Plan Trusts, and (ii) to the extent applicable, as the transfer of assets by the Debtors to one more Disputed Claims Reserves.

(b) Liquidation Purpose of the Plan Trusts. The Plan Trusts shall be established for the primary purpose of liquidating and distributing the assets transferred to it, in accordance with Treasury Regulation section 301.7701-4(d), with no objective to continue or engage in the conduct of a trade or business, except to the extent reasonably necessary to, and consistent with, the liquidating purpose of the Plan Trusts. Accordingly, the Plan Trustees shall, in an expeditious but orderly manner, liquidate and convert to Cash the Liquidation Trust Assets and the Litigation Trust Assets, as applicable, make timely distributions to the Liquidation Trust Beneficiaries and the Litigation Trust Beneficiaries, as applicable, and not unduly prolong their duration. The Plan Trusts shall not be deemed a successor-in-interest of the Debtors for any purpose other than as specifically set forth in this Plan, the Liquidation Trust Agreement or the Litigation Trust Agreement. The record holders of beneficial interests shall be recorded and set forth in a register maintained by the Plan Trustees expressly for such purpose.

(c) Cash Investments. The right and power of the Plan Trustees to invest the Liquidation Trust Assets and the Litigation Trust Assets, as applicable, the proceeds thereof or any income earned by the applicable Plan Trust, shall be limited to the right and power that a liquidating trust, within the meaning of section 301.7701-4(d) of the Treasury Regulations, is permitted to hold, pursuant to the Treasury Regulations, or any modification in the IRS guidelines, including Revenue Procedure 94-45, whether set forth in IRS rulings or other IRS pronouncements, and to the investment guidelines of section 345 of the Bankruptcy Code. The Plan Trustees may expend the Cash of the Plan Trusts (i) as reasonably necessary to meet contingent liabilities and to maintain the value of the respective assets of the Plan Trusts during liquidation, (ii) to pay the respective reasonable administrative expenses (including, but not limited to, any taxes imposed on the Plan Trusts) and (iii) to satisfy other respective liabilities incurred by the Plan Trusts in accordance with this Plan and the Liquidation Trust Agreement or the Litigation Trust Agreement, as applicable (including, without limitation, the payment of any taxes).

(d) Liquidation Trust as Grantor Trust. The Liquidation Trust is intended to qualify as a “grantor trust” for U.S. federal income tax purposes with the Liquidation Trust Beneficiaries treated as grantors and owners of the Liquidation Trust. For all U.S. federal income tax purposes, all parties (including the Debtors, the Liquidation Trustee and the Liquidation Trust Beneficiaries) shall treat the transfer of the Liquidation Trust Assets by the Debtors to the Liquidation Trust, as set forth in the Liquidation Trust Agreement, as a transfer of


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such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Liquidation Trust Assets, followed by a transfer by such holders to the Liquidation Trust. Thus, the Liquidation Trust Beneficiaries shall be treated as the grantors and owners of a grantor trust for U.S. federal income tax purposes.

(e) Litigation Trust as Grantor Trust. The Litigation Trust is intended to qualify as a “grantor trust” for U.S. federal income tax purposes with the Litigation Trust Beneficiaries treated as grantors and owners of the Litigation Trust. For all U.S. federal income tax purposes, all parties (including the Debtors, the Litigation Trustee and the Litigation Trust Beneficiaries) shall treat the transfer of the Litigation Trust Assets by the Debtors to the Litigation Trust, as set forth in the Litigation Trust Agreement, as a transfer of such assets by the Debtors to the holders of Allowed Claims entitled to distributions from the Litigation Trust Assets, followed by a transfer by such holders to the Litigation Trust. Thus, the Litigation Trust Beneficiaries shall be treated as the grantors and owners of a grantor trust for U.S. federal income tax purposes.

As soon as practicable after the Effective Date, the Plan Trustees shall make a good faith determination of the fair market value of the Liquidation Trust Assets and the Litigation Trust Assets, as applicable, as of the Effective Date. This valuation shall be used consistently by all parties for all U.S. federal income tax purposes. The Bankruptcy Court shall resolve any dispute regarding the valuation of the assets of the Plan Trusts.

(f) Tax Reporting and Tax Payments.

(i) The Plan Trustees shall file tax returns for the Plan Trusts treating the Plan Trusts as a grantor trusts pursuant to Treas. Reg. § 1.671-4(a) and in accordance with this Section 5.5(f). The Plan Trustees also shall annually send to each holder of a Liquidation Trust Beneficial Interest and Litigation Trust Beneficial Interest, as applicable, a separate statement regarding the receipts and expenditures of the applicable Plan Trust as relevant for U.S. federal income tax purposes and will instruct all such holders to use such information in preparing their U.S. federal income tax returns or to forward the appropriate information to such holders’ underlying beneficial holders with instructions to utilize such information in preparing their U.S. federal income tax returns.

(ii) As soon as practicable after the Effective Date, the Plan Trustees shall make a good faith determination of the fair market value of the Liquidation Trust Assets and the Litigation Trust Assets, as applicable, as of the Effective Date. This valuation shall be used consistently by all parties for all U.S. federal income tax purposes. The Bankruptcy Court shall resolve any dispute regarding the valuation of the assets of the Plan Trusts.

(iii) The Plan Trustees may elect to treat any such Disputed Claims Reserve as a “disputed ownership fund” governed by Treasury Regulation section 1.468B-9 (and make any appropriate elections consistent with such tax treatment). The Plan Trustees shall be the administrators of any


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such applicable Disputed Claims Reserves within the meaning of Treasury Regulation section 1.468B-9(b)(2) and shall be responsible for all tax reporting and withholding required by any such Disputed Claims Reserve.

(iv) The Plan Trusts shall be responsible for payment, out of Liquidation Trust Assets and the Litigation Trust Assets, of any taxes imposed on the Plan Trusts (including any Disputed Claims Reserve) or the Liquidation Trust Assets and the Litigation Trust Assets. More particularly, any taxes imposed on any Disputed Claims Reserve or its assets (including, for this purpose, any Liquidating Trust Assets allocable to Disputed Claims even if not held in the Disputed Claims Reserve) will be paid out of the assets of the Disputed Claims Reserve, and netted against any subsequent distributions in respect of the allowance or disallowance of such Claims. In the event, and to the extent, any Cash in any Disputed Claims Reserve is insufficient to pay the portion of any taxes attributable to taxable income arising from assets of the Disputed Claims Reserve (including any income that may arise upon an actual or constructive distribution of the assets of the reserve in respect of the resolution of Disputed Claims), assets of the Disputed Claims Reserve (including those otherwise distributable) may be sold to pay such taxes.

(v) Each Plan Trustee may request an expedited determination of taxes of its Plan Trust, including any Disputed Claims Reserve, and, in the case of the Liquidation Trustee, of the Debtors, under section 505(b) of the Bankruptcy Code for all tax returns filed for, or on behalf of, such Plan Trust or the Debtors for all taxable periods through the dissolution of such Plan Trust.

5.7 Merger of Debtors.

On or after the Effective Date, at the Liquidation Trustee’s direction: (i) any of the Debtor Affiliates may be merged into BB Parent and the Liquidation Trustee may complete the winding up of such Debtor Affiliates without the necessity for any other or further actions to be taken by or on behalf of such dissolving Debtor or its shareholders or any payments to be made in connection therewith, other than the filing of a certificate of dissolution and/or merger with the appropriate governmental authorities, and any such certificate of dissolution and/or merger may be filed by the Liquidation Trustee without need for any authorization, signature or other act of any Person or Entity, including without limitation any holder of any Claim or Interest; and (ii) all Claims filed or scheduled in the Affiliated Debtors’ cases shall be deemed to have been filed in the Chapter 11 Case of BB Parent. In the discretion of the Debtors or the Liquidation Trustee, as applicable, after the Effective Date, BB Parent and the Liquidation Trustee may engage in any other transaction in furtherance of the Plan. Any such transactions may be effective as of the Effective Date without any further action by the stockholders, members, general or limited partners, or directors of any of the Debtors. On or after the Effective Date, as determined by the Liquidation Trustee, BB Canada shall be dissolved in accordance with the Confirmation Recognition Order and applicable Canadian Law.


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5.8 Elimination of Duplicate Claims.

Any Proof of Claim filed against one or more of the Debtors shall be deemed to be a single Claim, and all duplicate Proofs of Claim for the same Claim filed against more than one Debtor shall be deemed disallowed and expunged.

5.9 Dissolution of BB Parent.

After the Effective Date, the Liquidation Trustee or his designee shall, subject to applicable non-bankruptcy law and consistent with the implementation of this Plan, dissolve, liquidate, or take such other similar action with respect BB Parent and complete the winding up of BB Parent as expeditiously as practicable without the necessity for any other or further actions to be taken by or on behalf of BB parent or its shareholders or members, as applicable, or any payments to be made in connection therewith, other than the filing of a certificate of dissolution with the appropriate governmental authorities.

5.10 Corporate Action.

Upon the Effective Date all actions contemplated by the Plan (including any action to be undertaken by the Liquidation Trustee or the Debtors) shall be deemed authorized, approved, and, to the extent taken prior to the Effective Date, ratified without any requirement for further action by holders of Claims or Interests, the Debtors, or any other Entity or Person. All matters provided for in the Plan involving the corporate structure of the Debtors, and any corporate action required by the Debtors in connection therewith, shall be deemed to have occurred and shall be in effect, without any requirement of further action by the Debtors or the Debtors’ Estates.

5.11 Directors, Officers, Managers, Members and Authorized Persons of the Debtor.


5.12 Withholding and Reporting Requirements.

(a) Withholding Rights. In connection with the Plan, any party issuing any instrument or making any distribution described in the Plan shall comply with all applicable withholding and reporting requirements imposed by any federal, state, provincial or local taxing authority, and all distributions pursuant to the Plan and all related agreements shall be subject to any such withholding or reporting requirements. Notwithstanding the foregoing, each holder of an Allowed Claim or any other Person that receives a distribution pursuant to the Plan shall have responsibility for any taxes imposed by any Governmental Unit, including, without limitation, income, withholding, and other taxes, on account of such distribution. Any party issuing any instrument or making any distribution pursuant to the Plan has the right, but not the


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obligation, to not make a distribution until such holder has made arrangements satisfactory to such issuing or disbursing party for payment of any such tax obligations.

(b) Forms. Any party entitled to receive any property as an issuance or distribution under the Plan shall, upon request, deliver to, as applicable, the Liquidation Trustee, the Litigation Trustee, or such other Person designated by the Liquidation Trustee or the Litigation Trustee (which entity shall subsequently deliver to the applicable Trustee any applicable IRS Form W-8 or Form W-9 received) an appropriate Form W-9 or (if the payee is a foreign Person) Form W-8, unless such Person is exempt under the Tax Code and so notifies the Liquidation Trustee or the Litigation Trustee, as applicable. If such request is made by the Liquidation Trustee, the Litigation Trustee or such other Person designated by the applicable Trustee and the holder fails to comply before the date that is 150 days after the request is made, the amount of such distribution shall irrevocably revert to the Liquidation Trust or Litigation Trust, as applicable, and any Claim in respect of such Distribution shall be discharged and forever barred from assertion against any Debtor and its respective property.

5.13 Exemption From Certain Transfer Taxes.

To the maximum extent provided by section 1146(a) of the Bankruptcy Code, any post-Confirmation sale by any Debtor, or any transfer from any Entity pursuant to, in contemplation of, or in connection with the Plan or pursuant to: (i) the issuance, distribution, transfer, or exchange of any debt, equity security, or other interest in the Debtors; or (ii) the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including any deeds, bills of sale, assignments, or other instruments of transfer executed in connection with any transaction arising out of, contemplated by, or in any way related to the Plan, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, Uniform Commercial Code or similar filing or recording fee, or other similar tax or governmental assessment, in each case to the extent permitted by applicable bankruptcy law, and the appropriate federal, state, provincial or local government officials or agents shall forego collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment.

5.14 Effectuating Documents; Further Transactions.

On and after the Effective Date, the Liquidation Trustee and the Debtors are authorized to and may issue, execute, deliver, file or record such contracts, securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement and further evidence the terms and conditions of the Plan in the name of and on behalf of the Debtors, without the need for any approvals, authorization, or consents except for those expressly required pursuant to the Plan.

5.15 Preservation of Rights of Action.

Other than Causes of Action against an Entity that are waived, relinquished, exculpated, released, compromised, or settled in the Plan or by a Bankruptcy Court order, the Debtors reserve any and all Causes of Action. On and after the Effective Date, the Litigation Trustee, under the


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supervision of the Litigation Trust Oversight Board, shall have sole and exclusive discretion to pursue and dispose of the DV Claims, Former D&O and Shareholder Causes of Action, and any other Causes of Action that are or become Litigation Trust Assets, and the Liquidation Trustee shall have sole and exclusive discretion to pursue or dispose of any and all other Causes of Action. All Causes of Action that are or become Litigation Trust Assets shall vest in the Litigation Trust as provided for herein and the Litigation Trustee may pursue any Causes of Action that are or become Litigation Trust Assets in its sole discretion. No Entity may rely on the absence of a specific reference in the Plan or the Disclosure Statement to any Cause of Action against them as any indication that the Debtors, the Liquidation Trustee or the Litigation Trustee will not pursue any and all available Causes of Action against them. No preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion (judicial, equitable, or otherwise), or laches, shall apply to such Causes of Action upon, after, or as a consequence of the Confirmation or Consummation. Prior to the Effective Date, the Debtors (and on and after the Effective Date, the Liquidation Trustee or the Litigation Trustee under the supervision of the Litigation Trust Oversight Board, as applicable) shall retain and shall have, including through its authorized agents or representatives, the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action and to decline to do any of the foregoing without the consent or approval of any third party (except for, on and after the Effective Date, the Liquidation Trustee or the Litigation Trustee under the supervision of the Litigation Trust Oversight Board, as applicable) or further notice to or action, order, or approval of the Bankruptcy Court.

5.16 Stock Restrictions.

The restrictions imposed by the Final Order Establishing Notification Procedures and Approving Restrictions on Certain Transfers of Interests in the Debtors, Claims Against the Debtor, and Claiming a Worthless Stock Deduction, entered on August 7, 2020 [D.I. 331], as the same may be amended from time to time, shall remain effective and binding through the closing of all of the Chapter 11 Cases.

5.17 Closing of the Chapter 11 Cases.

The Liquidation Trustee shall seek authority from the Bankruptcy Court to close the applicable Chapter 11 Cases in accordance with the Bankruptcy Code and the Bankruptcy Rules.

SECTION 6. DISTRIBUTIONS.

6.1 Distributions Generally.

(a) Except as otherwise provided herein, the Debtors or the Liquidation Trustee, as applicable, shall direct the Initial Distribution (including the Distribution of the Liquidation Trust Beneficial Interests and Litigation Trust Beneficial Interests as set forth in Sections 4.3(b) and 4.4(b)) to holders of Allowed Claims no later than the Initial Distribution Date. After the Initial Distribution Date, the Liquidation Trustee or the Litigation Trustee, as applicable, shall, from time to time, determine the subsequent Distribution Dates.

(b) Upon any Distribution Date after the Initial Distribution Date, the Liquidation Trustee, or the Litigation Trustee, as applicable, shall pay, in Cash, (i) a Pro


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Rata portion of the Allowed General Unsecured Claims Distribution Amount to holders of Allowed General Unsecured Claims, and (ii) the PBGC Claims Distribution Amount to holders of the Allowed PBGC Claims.

6.2 Distribution Record Date.

The Debtors and the Liquidation Trustee shall have no obligation to recognize any transfer of the Claims or Interests (i) occurring on or after the Effective Date, or (ii) that does not comply with Bankruptcy Rule 3001(e) or otherwise does not comply with the Bankruptcy Code or Bankruptcy Rules.

6.3 Delivery of Distributions.

In the event that any Distribution to any holder is returned as undeliverable, no Distribution to such holder shall be made unless and until the Debtors or the Liquidation Trustee, as applicable, has determined the then current address of such holder, at which time such Distribution shall be made to such holder without interest; provided, however, such Distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of six months from the date such Distribution was made. After such date, all unclaimed property or interests in property shall revert (notwithstanding any applicable federal or state escheat, abandoned, or unclaimed property laws to the contrary) to the Liquidation Trust automatically and without need for a further order by the Bankruptcy Court for Distribution in accordance with the Plan and the Claim of any such holder to such property or interest in property shall be released, settled, compromised, and forever barred.

6.4 Disputed Administrative Claims Holdback.

From and after the Effective Date, and until such time as all Disputed Administrative Claims have been compromised and settled or determined by Final Order, the Debtors or the Liquidation Trustee, as applicable, shall, consistent with and subject to section 1123(a)(4) of the Bankruptcy Code, retain Cash in an aggregate amount equal to the Pro Rata share of the Distributions that would have been made to each holder of a Disputed Administrative Expense Claim if such Disputed Administrative Expense Claim were an Allowed Claim against such Debtor in an amount equal to the lesser of (i) the filed amount of such Disputed Administrative Expense Claim, (ii) the amount determined, to the extent permitted by the Bankruptcy Code and Bankruptcy Rules, by the Bankruptcy Court for purposes of fixing the amount to be retained for such Disputed Administrative Expense Claim, and (iii) such other amount as may be agreed upon by the holder of such Disputed Administrative Expense Claim and the Debtors or the Liquidation Trustee, as applicable; provided, that the Debtors (or the Liquidation Trustee, as the case may be) may, in their sole discretion, choose to not reserve amounts necessary to satisfy Administrative Expense Claims that SPARC is irrevocably liable or obligated to pay under the terms of the APA or the Sale Order; provided, further that, prior to the Effective Date, the Debtors shall consult with the Creditors’ Committee in establishing the initial amount of the Disputed Administrative Claims holdback. On the first Business Day after the date that is thirty (30) calendar days (or such fewer days as may be agreed between the Debtor or the Liquidation Trustee, as applicable, and the holder of the applicable Disputed Administrative Expense Claim) after the date on which a Disputed Administrative Expense Claim becomes an Allowed Claim


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against a Debtor, the Liquidation Trustee shall remit to the holder of such Administrative Expense Claim Cash equal to the amount that would have been distributed from the Effective Date through and including the date of such Distribution on account of such Allowed Claim had such Claim been Allowed as of the Effective Date. To the extent that a Disputed Administrative Expense Claim against a Debtor is disallowed by Final Order or becomes an Allowed Claim in an amount less than the amount retained with respect to such Claim pursuant to this provision, the amount that would have been distributed on account of such Disputed Administrative Expense Claim, or the excess of the amount of Cash that would have been distributed on account of such Disputed Administrative Expense Claim over the amount of Cash actually distributed on account of such Disputed Administrative Expense Claim, shall become available Cash for Distributions to the holders of Allowed Claims by the Liquidation Trust.

6.5 Manner of Payment Under Plan.

At the option of the Debtors or the Liquidation Trustee, as applicable, any Cash payment to be made hereunder may be made by a check or wire transfer. Any wire transfer fees incurred by the Debtors or the Liquidation Trust (as applicable) in connection with the transmission of a wire transfer shall be deducted from the amount of the recipient holder’s Distribution. The Debtors or the Liquidation Trustee, as applicable, will, to the extent practicable, make aggregate Distributions on account of all the Allowed Claims held by a particular holder.

6.6 Minimum Cash Distributions.

The Debtors and the Liquidation Trust shall not be required to make any payment to any holder of an Allowed Claim on any Distribution Date of Cash less than $100; provided, however, that if any Distribution is not made pursuant to this Section 6.6, such Distribution shall be added to any subsequent Distribution to be made on behalf of the holder’s Allowed Claim. The Debtors and the Liquidation Trust shall not be required to make any final Distributions of Cash less than $50 to any holder of an Allowed Claim.

6.7 Setoffs.

The Debtors, the Liquidation Trustee, and the Litigation Trustee may, but shall not be required to, set off against any Claim, any Claims of any nature whatsoever that the Debtors, the Liquidation Trustee, or the Litigation Trustee may have against the holder of such Claim; provided that neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtors, the Liquidation Trustee, or the Litigation Trustee of any such Claim the Debtors, the Liquidation Trustee, or the Litigation Trustee may have against the holder of such Claim.

6.8 Distributions After Effective Date.

Distributions made after the Effective Date to holders of Disputed Claims that are not Allowed Claims as of the Effective Date but which later become Allowed Claims shall be deemed to have been made on the Effective Date.


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6.9 Allocation of Distributions Between Principal and Interest.

Except as otherwise provided in this Plan, to the extent that any Allowed Claim entitled to a Distribution under the Plan is comprised of indebtedness and accrued but unpaid interest thereon, such Distribution shall be allocated to the principal amount (as determined for U.S. federal income tax purposes) of the Claim first, and then to accrued but unpaid interest.

6.10 No Postpetition Interest on Claims.

Except as otherwise provided in the Plan, the Confirmation Order, or another order of the Bankruptcy Court, or required by the Bankruptcy Code, postpetition interest shall not accrue or be paid on any Claims and no holder of a Claim shall be entitled to interest accruing on or after the Petition Date.

6.11 No Distribution in Excess of Amount of Allowed Claim.

Notwithstanding anything to the contrary in the Plan, no holder of an Allowed Claim shall, on account of such Allowed Claim, receive a Distribution in excess of the Allowed amount of such Claim.

6.12 Securities Registration Exemption.

The Debtors intend that the Litigation Trust Beneficial Interests and the Liquidation Trust Beneficial Interests shall not be “securities” under applicable laws and believe the Litigation Trust Beneficial Interests and Liquidation Trust Beneficial Interests should not be deemed to be “securities,” but to the extent such units are deemed to be “securities,” the Debtors believe the issuance of such units under the Plan is exempt, pursuant to section 1145 of the Bankruptcy Code (except with respect to an entity that is an “underwriter” as defined in subsection (b) of section 1145 of the Bankruptcy Code).

SECTION 7. PROCEDURES FOR DISPUTED CLAIMS.

7.1 Objections to Claims.

As of the Effective Date, objections to, and requests for estimation of Claims against the Debtors may only be interposed and prosecuted by the Liquidation Trustee; provided that the Litigation Trustee shall have the exclusive authority to object to, recharacterize, seek to subordinate or request estimation of Claims of any of the DV Entities or any of the Former D&Os or Shareholders and to prosecute the DV Claims and Former D&O and Shareholder Causes of Action. Such objections and requests for estimation shall be served and filed on or before the Claims Objection Bar Date.

7.2 Allowance of Claims.

After the Effective Date, the Liquidation Trust and the Litigation Trust, as applicable, shall have and shall retain any and all rights and defenses that the Debtors had with respect to any Claim against a Debtor, except with respect to any Claim deemed Allowed under this Plan. As of the Effective Date of the Plan, all Claims of the DV Entities, Former D&Os and


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Shareholders are Disputed. Except as expressly provided in this Plan or in any order entered in the Chapter 11 Cases prior to the Effective Date (including, without limitation, the Confirmation Order), no Claim shall become an Allowed Claim unless and until such Claim is deemed Allowed under this Plan or the Bankruptcy Code or the Bankruptcy Court has entered a Final Order, including, without limitation, the Confirmation Order, in the Chapter 11 Cases allowing such Claim.

7.3 Estimation of Claims.

The (i) Debtors (after consulting with the Creditors’ Committee if prior to the Effective Date) or the Liquidation Trustee, as applicable, may at any time request that the Bankruptcy Court estimate any contingent, unliquidated, or Disputed Claim, other than the Claims of any of the DV Entities or any of the Former D&Os or Shareholders, and (ii) the Litigation Trustee may at any time request that the Bankruptcy Court estimate any contingent, unliquidated, or Disputed Claim of any of the DV Entities or any of the Former D&Os or Shareholders, pursuant to section 502(c) of the Bankruptcy Code regardless of whether any party in interest previously objected to such Claim or whether the Bankruptcy Court has ruled on any such objection. In the event that the Bankruptcy Court estimates any contingent, unliquidated, or Disputed Claim, the amount so estimated shall constitute either the Allowed amount of such Claim or the maximum limit of such Claim, as determined by the Bankruptcy Court. If the estimated amount constitutes a maximum limitation on the amount of such Claim, the Liquidation Trustee or the Litigation Trustee, as applicable, may pursue supplementary proceedings to object to the allowance of such Claim. All of the aforementioned objection, estimation and resolution procedures are intended to be cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn, or resolved by any mechanism approved by the Bankruptcy Court.

7.4 No Distributions Pending Allowance.

No payment or Distribution provided under the Plan shall be made on account of a Disputed Claim unless and until such Disputed Claim becomes an Allowed Claim.

7.5 Reserve on Account of Disputed Claims.

From and after the Effective Date, and until such time as each Disputed Claim has been compromised and settled, estimated by the Bankruptcy Court in an amount constituting the Allowed amount, or Allowed or Disallowed by Final Order, the Liquidation Trustee or the Litigation Trustee, as applicable, shall establish, for the benefit of each holder of a Disputed Claim, a Disputed Claims Reserve consisting of Cash and any dividends, gains or income attributable to the Liquidation Trust Assets or Litigation Trust Assets, as applicable, in an amount equal to the Pro Rata share of Distributions that would have been made to the holder of such Disputed Claim if it were an Allowed Claim in an amount equal to the lesser of (i) the liquidated amount set forth in the filed Proof of Claim relating to such Disputed Claim, (ii) the amount in which the Disputed Claim has been estimated by the Bankruptcy Court pursuant to section 502 of the Bankruptcy Code as constituting and representing the maximum amount in which such Claim may ultimately become an Allowed Claim or (iii) such other amount as may be agreed upon by the holder of such Disputed Claim and the Liquidation Trustee or the Litigation Trustee, as applicable. Prior to the


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Effective Date, the Debtors shall consult with the Creditors’ Committee in establishing the initial amount of the Liquidation Trust’s Disputed Claims Reserve. For the avoidance of doubt, any Cash retained and held for the benefit of a holder of a Disputed Claim as part of a Disputed Claims Reserve shall be treated as a payment and reduction on account of such Disputed Claim for purposes of computing any additional amounts to be paid in Cash in the event the Disputed Claim ultimately becomes an Allowed Claim. Cash held in a Disputed Claims Reserve (including any earnings that have accrued thereon, net of any expenses, allocable to the Disputed Claims Reserve, including any taxes imposed with respect to Liquidating Trust Assets retained on account of, or otherwise allocable to, Disputed Claims) shall be retained by the Liquidation Trust or the Litigation Trust, as applicable for the benefit of holders of Disputed Claims pending determination of their entitlement thereto under the terms of the Plan. Any Cash and proceeds of the Liquidation Trust Assets or the Litigation Trust Assets shall be either (x) held by the Liquidation Trust or the Litigation Trust, as applicable, in an interest-bearing account or (y) invested in interest-bearing obligations issued by the United States government and guaranteed by the United States government, and having (in either case) a maturity of not more than 30 days. No payments or Distributions shall be made with respect to all or any portion of any Disputed Claim pending the entire resolution thereof by Final Order. For the avoidance of doubt, Cash held in a Disputed Claims Reserve will (i) be deposited in an interest-bearing account and held in trust, pending distribution by the Liquidation Trustee, or the Litigation Trustee, as applicable, for the benefit of holders of Allowed Claims, (ii) be accounted for separately and (iii) not constitute property of the Liquidation Trust or the Litigation Trust; provided that the Disputed Claims Reserve shall be responsible for any expenses allocable to the Disputed Claims Reserve, including any taxes imposed with respect to Liquidating Trust Assets retained on account of, or otherwise allocable to, Disputed Claims. See Section 5.6(f) hereof regarding the tax treatment of the Disputed Claims Reserve.

If a Disputed Claim is Disallowed, in whole or in part, the Liquidation Trustee or Litigation Trustee, as applicable shall distribute any amounts that were reserved for such Disallowed Disputed Claims to the holders of the Liquidation Trust Beneficial Interests or the Litigation Trust Beneficial Interests, as applicable and as provided for under the terms of this Plan.

7.6 Resolution of Claims.

Except as otherwise provided herein (including the release provisions hereof) or in the Confirmation Order, or in any contract, instrument, release, or other agreement or document entered into in connection with this Plan, in accordance with section 1123(b) of the Bankruptcy Code, on and after the Effective Date, the Liquidation Trustee may enforce, sue on, settle, or compromise (or decline to do any of the foregoing) all Claims, Disputed Claims, rights, Causes of Action, suits and proceedings, whether in law or in equity, whether known or unknown, that the Liquidation Trust may hold against any Person, and any contract, instrument, release, indenture, or other agreement entered into in connection herewith; provided, however, that on and after the Effective Date the Litigation Trustee shall have the sole authority to enforce, sue on, settle, or compromise (or decline to do any of the foregoing) the DV Claims, the Claims of any DV Entities, Former D&O and Shareholder Causes of Action, the Claims of any of the Former D&Os or Shareholders and any other Causes of Action that are or become Litigation Trust Assets.


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7.7 Late Filed Claims.

Except as otherwise provided herein or as agreed to by the Debtors (with the consent of the Creditors’ Committee if prior to the Effective Date) or Liquidation Trustee, any Proof of Claim filed after the Bar Date with respect to such Claim shall be deemed Disallowed and expunged as of the Effective Date without any further notice to or action, order, or approval of the Bankruptcy Court, and holders of such Claims may not receive any Distributions on account of such Claims, unless such late Proof of Claim has been deemed timely filed by a Final Order.

7.8 Amendments to Claims.

A Claim may not be filed, amended, or supplemented without the prior written authorization of the Bankruptcy Court or the Liquidation Trustee, and any such new, amended, or supplemented Claim filed without such written authorization shall be deemed Disallowed in full and expunged without any further notice to or action, order, or approval of the Bankruptcy Court to the maximum extent provided by applicable law.

7.9 Insured Claims.

If any portion of an Allowed Claim is an Insured Claim, no distributions under the Plan shall be made on account of such Allowed Claim until the holder of such Allowed Claim has exhausted all remedies with respect to any applicable insurance policies. To the extent that the Debtors’ insurers agree to satisfy a Claim in whole or in part, then immediately upon such agreement, the portion of such Claim so satisfied may be expunged without an objection to such Claim having to be filed and without any further notice to or action, order or approval of the Court.

SECTION 8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES.

8.1 Assumption and Assignment of Executory Contracts and Unexpired Leases.

On the Effective Date, except as otherwise provided in the Plan, each Executory Contract and Unexpired Lease not previously rejected, assumed, or assumed and assigned shall be deemed automatically rejected pursuant to sections 365 and 1123 of the Bankruptcy Code, unless such Executory Contract or Unexpired Lease: (i) as of the Effective Date is subject to a pending motion to assume such Unexpired Lease or Executory Contract; (ii) is a contract, release, or other agreement or document entered into in connection with the Plan; (iii) is a D&O Policy or an insurance policy; or (iv) is identified for assumption on the Assumption Schedule included in the Plan Supplement.

8.2 Indemnification Obligations.

Notwithstanding anything in the Plan to the contrary, each Indemnification Obligation shall be assumed by the applicable Debtor effective as of the Effective Date, pursuant to sections 365 and 1123 of the Bankruptcy Code or otherwise. Each Indemnification Obligation shall remain in full force and effect, shall not be modified, reduced, discharged, impaired, or otherwise affected in any way, and shall survive Unimpaired and unaffected, irrespective of when such obligation arose.


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8.3 Claims Based on Rejection of Executory Contracts and Unexpired Leases.

Unless otherwise provided by an order of the Bankruptcy Court, any Proofs of Claim based on the rejection of the Debtors’ Executory Contracts or Unexpired Leases pursuant to the Plan or otherwise, must be filed with Bankruptcy Court and served on the Liquidation Trustee no later than thirty (30) days after the earlier of the Effective Date or the effective date of rejection of such Executory Contract or Unexpired Lease.

Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not filed with the Bankruptcy Court within such time will be automatically disallowed, forever barred from assertion, and shall not be enforceable against the Debtors, the Liquidation Trust, the Litigation Trust, the Debtors’ Estates, or the property for any of the foregoing without the need for any objection by the Liquidation Trustee or the Litigation Trustee or further notice to, or action, order, or approval of the Bankruptcy Court or any other Entity, and any Claim arising out of the rejection of the Executory Contract or Unexpired Lease shall be deemed fully compromised, settled, and released, notwithstanding anything in the Schedules or a Proof of Claim to the contrary. All Allowed Claims arising from the rejection of the Debtors’ prepetition Executory Contracts or prepetition Unexpired Leases shall be classified as General Unsecured Claims, except as otherwise provided by order of the Bankruptcy Court.

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

Any Cure Obligation due under each Executory Contract and Unexpired Lease to be assumed or assumed and assigned pursuant to the Plan shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment in Cash on the Effective Date (or as soon as reasonably practicable thereafter), subject to the limitation described below, by the Debtors or the Liquidation Trust, as applicable, or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree.

In the event of a dispute regarding (i) the amount of the Cure Obligation, (ii) the ability of the Liquidation Trust or any other applicable assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the Executory Contract or Unexpired Lease, or (iii) any other matter pertaining to assumption or assumption and assignment (as applicable), the obligations of section 365 of the Bankruptcy Code shall be deemed satisfied following the entry of a Final Order or orders resolving the dispute and approving the assumption or assumption and assignment (as applicable); provided, that the Debtors or the Liquidation Trust (as applicable) may settle any dispute regarding the amount of any Cure Obligation without any further notice to any party or any action, order, or approval of the Bankruptcy Court.

Assumption or assumption and assignment of any Executory Contract or Unexpired Lease pursuant to the Plan, or otherwise, shall result in the full release and satisfaction of any defaults, subject to satisfaction of the Cure Obligations, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition


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or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time before the Effective Date of assumption and/or assignment. Any prepetition default amount set forth in the Schedules and/or any Proofs of Claim filed with respect to an Executory Contract or Unexpired Lease that has been assumed or assumed and assigned shall be deemed Disallowed and expunged, without further notice to or action, order, or approval of the Bankruptcy Court or any other Entity.

8.5 Modifications, Amendments, Supplements, Restatements, or Other Agreements.

Unless otherwise provided in the Plan, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, and all Executory Contracts and Unexpired Leases related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously rejected or repudiated or is rejected or repudiated under the Plan.

Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease, or the validity, priority, or amount of any Claims that may arise in connection therewith.

8.6 Reservation of Rights.

Neither the exclusion nor inclusion of any contract or lease in the Assumption Schedule or the Sale Order, nor anything contained in the Plan, shall constitute an admission by the Debtors that any such contract or lease is in fact an Executory Contract or Unexpired Lease or that the Debtors’ Estates have any liability thereunder. In the event of a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption or rejection, the Debtors or the Liquidation Trustee, as applicable, shall have sixty 60 days following entry of a Final Order resolving such dispute to alter the treatment of such contract or lease as otherwise provided in the Plan.

SECTION 9. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE.

9.1 Conditions Precedent to the Effective Date.

The occurrence of the Effective Date of the Plan is subject to the following conditions precedent:

(a) the Bankruptcy Court shall have entered the Confirmation Order, the Confirmation Date shall have occurred and the Confirmation Order shall not be subject to any stay, modification, vacation on appeal, and shall have become a Final Order;

(b) all funding, actions, documents and agreements necessary to implement and consummate the Plan and the transactions and other matters contemplated thereby,


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shall have been effected or executed, including the funding of (i) the Wind-Down Reserve, and (ii) the Litigation Trust Minimum Funding as provided for in Section 5.5(c) of this Plan; and

(c) all documents and agreements necessary to implement the Plan shall have (i) been tendered for delivery and (ii) been effected or executed by all Entities party thereto, and all conditions precedent to the effectiveness of such documents and agreements shall have been satisfied or waived pursuant to the terms of such documents or agreements.

9.2 Waiver of Conditions Precedent.

Each of the conditions precedent in Section 9.1 other than the condition set forth in Section 9.1(a) may be waived in writing by the Debtors with the consent of the Creditors’ Committee, which shall not be unreasonably withheld. Any such waivers may be effected at any time, without notice, without leave or order of the Bankruptcy Court and without any formal action.

9.3 Substantial Consummation.

On the Effective Date, the Plan shall be deemed to be substantially consummated under sections 1101 and 1127(b) of the Bankruptcy Code.

9.4 Effect of Vacatur of Confirmation Order.

If the Confirmation Order is vacated, (i) no distributions under the Plan shall be made, (ii) the Debtors and all holders of Claims and Interests shall be restored to the status quo ante as of the day immediately preceding the Confirmation Date as though the Confirmation Date never occurred, and (iii) all the Debtors’ obligations with respect to the Claims and the Interests shall remain unchanged and nothing contained herein shall be deemed to constitute a waiver or release of any Claims by or against the Debtors or any other entity or to prejudice in any manner the rights of the Debtors or any other entity in any further proceedings involving the Debtors or otherwise.

SECTION 10. SETTLEMENT, RELEASES, INJUNCTIONS, AND RELATED PROVISIONS.

10.1 Release of Liens.

Except as otherwise provided in the Plan or in any contract, instrument, release, or other agreement or document created pursuant to the Plan, on the Effective Date, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released, settled, and compromised and all rights, titles, and interests of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall revert to the Debtors.

10.2 Binding Effect.

(a) Confirmation of the Plan does not provide the Debtors with a discharge under section 1141 of the Bankruptcy Code because the Plan is a liquidating chapter 11 plan. Except as otherwise provided in section 1141(d)(3) of the Bankruptcy Code and subject to the occurrence of the Effective Date, on and after the Effective Date, the provisions of the Plan


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shall bind any holder of a Claim against, or Interest in, the Debtors, and such holder’s respective successors and assigns, whether or not the Claim or Interest of such holder is Impaired under the Plan and whether or not such holder has accepted the Plan.

(b) By participating in the Plan by voting (as contemplated in Section 4 above) or by accepting Distributions pursuant to the Plan (in whatever sum), each holder of an Allowed Claim or Interest extinguished, discharged, or released pursuant to the Plan shall be deemed to have affirmatively and specifically consented to and accepted the terms of the Plan, and each such holder acknowledges and accepts that the Plan is a binding compromise of an Allowed Claim or an Interest extinguished and releases all rights in respect of such Allowed Claim or Interest extinguished such that such holders of Claims agree to waive any right (if any) to object to or otherwise challenge the Plan and its effect on Claims or any other matter whatsoever in the Courts of the Special Administrative Region of Hong Kong or any other tribunal, whether in Hong Kong or elsewhere, and that such release and waiver shall be effective irrespective of which law governs the rights of the said holder as against a Debtor.

10.3 Term of Injunctions or Stays.

Unless otherwise provided, all injunctions or stays arising under or entered during the Chapter 11 Cases under section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect until the later of the closing of all of the Debtors’ Chapter 11 Cases and the date indicated in the order providing for such injunction or stay.

10.4 Releases by the Debtors.

As of the Effective Date, except (i) for the rights that remain in effect from and after the Effective Date to enforce the Plan; and (ii) as otherwise provided in the Plan or in the Confirmation Order, for good and valuable consideration, including their cooperation and contributions to the Chapter 11 Cases, the Released Parties will be deemed conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged, to the maximum extent permitted by law, by the Debtors and the Estates, in each case, on behalf of themselves and their respective successors (including the Liquidation Trust and the Litigation Trust), assigns, and representatives, and any and all other persons that may purport to assert any Cause of Action derivatively, by, through or on behalf of the foregoing Persons and Entities, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise that the Debtors or the Estates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre- and post-petition marketing and sale process, the Sale Transaction, the APA, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests


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before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including the Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or the Sale Transaction; provided, further, that nothing in this Section 10.4 shall constitute a release of any of the DV Claims or the Former D&O and Shareholder Causes of Action.

10.5 Releases By Holders of Claims and Interests.

As of the Effective Date, except (i) for the right to enforce the Plan; and (ii) as otherwise expressly provided in the Plan or in the Confirmation Order, in exchange for good and valuable consideration, including the obligations of the Debtors under the Plan, to the fullest extent permissible under applicable law, as such law may be extended or integrated after the Effective Date, the Released Parties shall be deemed conclusively, absolutely, unconditionally, irrevocably and forever, released, and discharged by the Releasing Parties in each case, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, asserted or unasserted, accrued or unaccrued, existing or hereinafter arising, in law or equity, whether arising under federal or state statutory or common law, or any other applicable international, foreign, or domestic law, rule, statute, regulation, treaty, right, duty, requirement or otherwise, that such entity would have been legally entitled to assert in their own right (whether individually, derivatively, or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, or in any manner arising prior to the Effective Date, from, in whole or in part, the Debtors, the Chapter 11 Cases, the Recognition Proceedings, the pre-and post-petition marketing and sale process, the Sale Transaction, the APA, the DIP Credit Agreement or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any security of the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, the Recognition Proceedings, the Disclosure Statement, the Plan (including any Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date; provided, that nothing herein shall be construed to release any obligation of any party under the Plan, the Sale Transaction, or any document, instrument, or agreement executed to implement the Plan or Sale Transaction. The Releasing Parties shall be permanently enjoined from prosecuting any of the foregoing Claims or Causes of Action released under this Section 10.5 against each of the Released Parties.


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10.6 Exculpation.

To the maximum extent permitted by applicable law, no Exculpated Party will have or incur, and each of the Exculpated Parties are hereby released and exculpated from, any claim, obligation, suit, judgment, damage, demand, debt, right, cause of action, remedy, loss, and liability for any claim arising on or after the Petition Date in connection with or arising out of the filing or administration of the Chapter 11 Cases, the administration of the Recognition Proceedings, the postpetition marketing and sale process, the postpetition purchase, sale, or rescission of the purchase or sale of any security or asset of the Debtors; the negotiation and pursuit of the Disclosure Statement, the APA, the Sale Transaction, the Plan, or the solicitation of votes for, or confirmation of, the Plan; the funding or consummation of the Plan; the occurrence of the Effective Date; the DIP Credit Agreement; the post-Effective Date administration of the Plan or the property to be distributed under the Plan; or the transactions in furtherance of any of the foregoing; except for fraud, gross negligence, or willful misconduct, as determined by a Final Order. This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities, exculpations and any other applicable law or rules protecting such Exculpated Parties from liability. Notwithstanding anything to the contrary in the foregoing, the exculpation set forth herein does not release any post-Effective Date obligation or liability of any Entity under the Plan, the Sale Transaction, or any document, instrument, or agreement (including those set forth in the Plan Supplement) executed to implement the Plan or the Sale Transaction.

10.7 Injunction.


(b) Except as expressly provided in the Plan, the Confirmation Order, or a separate order of the Bankruptcy Court or as agreed to by the Debtors and a holder of a Claim against or Interest in the Debtors, all Entities who have held, hold, or may hold Claims against or Interests in the Debtors (whether or not proof of such Claims or Interests has been filed and whether or not such Entities vote in favor of, against or abstain from voting on the Plan or are presumed to have accepted or deemed to have rejected the Plan) and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates are permanently enjoined, on and after the Effective Date, solely with respect to any Claims, Interests, and Causes of Action that will be or are extinguished, discharged, or released pursuant to the Plan from (i) commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral, administrative or other forum) against or affecting the Debtors, the Liquidation Trust, and the Litigation Trust, or the property of any of the Debtors, the Liquidation Trust, the Litigation Trust; (ii) enforcing, levying, attaching (including, without limitation, any prejudgment attachment), collecting, or otherwise recovering by any manner or means, whether directly or indirectly, any judgment, award, decree, or order against the Debtors, and the Liquidation Trust; or the property of any of the Debtors, the Liquidation


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Trust, and the Litigation Trust; (iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any encumbrance of any kind against the Debtors, the Liquidation Trust, and the Litigation Trust or the property of any of the Debtors, the Liquidation Trust, and the Litigation Trust; (iv) asserting any right of setoff, directly or indirectly, against any obligation due from the Debtors, the Liquidation Trust, and the Litigation Trust, or against property or interests in property of any of the Debtors, the Liquidation Trust, and the Litigation Trust except as contemplated or allowed by the Plan; and (v) acting or proceeding in any manner, in any place whatsoever, that does not conform to or comply with the provisions of the Plan.

(c) By accepting distributions pursuant to the Plan, each holder of an Allowed Claim or Interest extinguished, discharged, or released pursuant to the Plan shall be deemed to have affirmatively and specifically consented to be bound by the Plan, including, without limitation, the injunctions set forth in this Section 10.7.

(d) The injunctions in this Section 10.7 shall extend to any successors of the Debtors, the Liquidation Trust, and the Litigation Trust and their respective property and interests in property.

10.8 Waiver of Statutory Limitation on Releases.

EACH RELEASING PARTY IN EACH OF THE RELEASES CONTAINED IN THE PLAN (INCLUDING UNDER SECTION 10 OF THE PLAN) EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE PARTY RELEASED, IT HAS CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT IN DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE OF SUCH UNKNOWN LOSSES OR CLAIMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES THAT A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE RELEASED PARTY, INCLUDING THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542. THE RELEASES CONTAINED IN SECTION 10 OF THE PLAN ARE EFFECTIVE REGARDLESS OF WHETHER THOSE RELEASED MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEN OR UNFORESEEN.

10.9 Solicitation of the Plan.

Pursuant to the terms of the Plan, the only holders of Claims or Interests who are entitled to vote are Class 3 PBGC Claims and Class 4 General Unsecured Claims. As of and subject to the occurrence of the Confirmation Date: (i) the Debtors shall be deemed to have previously solicited acceptances of the Plan in good faith and in compliance with the applicable provisions of the Bankruptcy Code, including without limitation, sections 1125(a) and (e) of the Bankruptcy Code,


56 RLF1 24703901v.1

and any applicable non-bankruptcy law, rule or regulation governing the adequacy of disclosure in connection with such solicitation, and (ii) the Debtors and each of their respective directors, officers, employees, Affiliates, agents, financial advisors, investment bankers, professionals, accountants, and attorneys shall be deemed to have participated in good faith and in compliance with the applicable provisions of the Bankruptcy Code in the offer and issuance of any securities under the Plan, and therefore, are not, and on account of such offer, issuance and solicitation will not be, liable at any time for any violation of any applicable law, rule or regulation governing the solicitation of acceptances or rejections of the Plan or the offer and issuance of any securities under the Plan.

10.10 PBGC Release.

As of the Effective Date, to the maximum extent permitted by applicable law, other than the Debtors with respect to the Allowed PBGC Claims, the Released Parties, for good and valuable consideration, shall be deemed to be released and discharged by the PBGC and the Pension Plans from any Causes of Action based on or relating to the Pension Plans; provided, however, that nothing in the Plan, the Confirmation Order, or any other document filed in the Debtors’ Chapter 11 Cases without notice to the PBGC shall be construed to release (i) non-Debtor members of the controlled group of the Pension Plans’ sponsors (within the meaning of Section 4001 of ERISA or Section 414 of the Internal Revenue Code of 1986, as amended) as of the Pension Plan Termination Date from Causes of Action or any other obligations based on or relating to the Pension Plans, or (ii) any fiduciary breaches or prohibited transactions (in each case within the meaning of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended) relating to the Pension Plans. The Debtors shall use commercially reasonable efforts to provide notice to the PBGC of any pleading filed in the Debtors’ Chapter 11 Cases seeking relief that is contradictory to this Section 10.10.

SECTION 11. RETENTION OF JURISDICTION.

On and after the Effective Date, the Bankruptcy Court shall retain jurisdiction over all matters arising in, arising under, and related to the Chapter 11 Cases for, among other things, the following purposes:

(a) to hear and determine motions and/or applications for the assumption or rejection of Executory Contracts or Unexpired Leases and the allowance, classification, priority, compromise, estimation or payment of Claims resulting therefrom;

(b) to determine any motion, adversary proceeding, application, contested matter, or other litigated matter pending on or commenced after the Confirmation Date, including any such motions, adversary proceeding, application, contested matter or other litigated matter brought by the Litigation Trustee;

(c) to ensure that distributions to holders of Allowed Claims are accomplished as provided herein;

(d) to consider Claims or the allowance, classification, priority, compromise, estimation or payment of any Claim;


57 RLF1 24703901v.1

(e) to enter, implement or enforce such orders as may be appropriate in the event the Confirmation Order is for any reason stayed, reversed, revoked, modified or vacated;

(f) to issue injunctions, enter and implement other orders, and take such other actions as may be necessary or appropriate to restrain interference by any Person with the Consummation, implementation or enforcement of the Plan, the Confirmation Order, or any other order of the Bankruptcy Court;

(g) to hear and determine any application to modify the Plan in accordance with section 1127 of the Bankruptcy Code, to remedy any defect or omission or reconcile any inconsistency in the Plan, or any order of the Bankruptcy Court, including the Confirmation Order, in such a manner as may be necessary to carry out the purposes and effects thereof;

(h) to hear and determine all applications under sections 330, 331, and 503(b) of the Bankruptcy Code for awards of compensation for services rendered and reimbursement of expenses incurred before the Confirmation Date;

(i) to hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan, the Confirmation Order, the APA, the Sale Order, the Liquidation Trust Agreement, the Litigation Trust Agreement, or any agreement, instrument, or other document governing or relating to any of the foregoing;

(j) to take any action and issue such orders as may be necessary to construe, interpret, enforce, implement, execute, and consummate the Plan or to maintain the integrity of the Plan following Consummation;

(k) to hear any disputes arising out of, and to enforce, any order approving alternative dispute resolution procedures to resolve personal injury, employment litigation and similar Claims pursuant to section 105(a) of the Bankruptcy Code;

(l) to determine such other matters and for such other purposes as may be provided in the Confirmation Order;

(m) to hear and determine matters concerning state, local and federal taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy Code (including any requests for expedited determinations under section 505(b) of the Bankruptcy Code);

(n) to adjudicate, decide or resolve any and all matters related to section 1141 of the Bankruptcy Code;

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

(p) to hear and determine any other matters related hereto and not inconsistent with the Bankruptcy Code and title 28 of the United States Code;


58 RLF1 24703901v.1

(q) to enter one or more final decrees closing the Chapter 11 Cases;

(r) to enforce all orders previously entered by the Bankruptcy Court;

(s) to recover all assets of the Debtors and property of the Debtors’ Estates, wherever located; and

(t) to hear and determine any rights, Claims or Causes of Action held by or accruing to the Debtors pursuant to the Bankruptcy Code or pursuant to any federal statute or legal theory.

SECTION 12. MISCELLANEOUS PROVISIONS.

12.1 No Revesting of Assets.

To the extent not otherwise distributed in accordance with this Plan, the property of the Debtors’ Estates shall not revest in the Debtors on or after the Effective Date but shall instead vest in the Liquidation Trust or the Litigation Trust, as applicable, to be administered by the Liquidation Trustee or the Litigation Trustee in accordance with this Plan, the Liquidation Trust Agreement and the Litigation Trust Agreement. For the avoidance of doubt, the Litigation Trust Funding shall be subject to the adjustments set forth in Section 5.5(c) of the Plan.

12.2 Subordinated Claims.

The allowance, classification, and treatment of all Allowed Claims and Interests and the respective distributions and treatments under the Plan take into account and conform to the relative priority and rights of the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, section 510(b) of the Bankruptcy Code, or otherwise. Pursuant to section 510 of the Bankruptcy Code, the Debtors reserve the right for the Liquidation Trustee (or the Litigation Trustee solely with respect to any Claims of any of the DV Entities or the Former D&Os or Shareholders) to re-classify any Allowed Claim or Interest in accordance with any contractual, legal, or equitable subordination relating thereto.

12.3 Payment of Statutory Fees.

All fees due and payable pursuant to 28 U.S.C. § 1930(a) prior to the Effective Date shall be paid by the Debtors in full in Cash on the Effective Date or as soon as is reasonably practicable thereafter. On and after the Effective Date, the Debtors (or the Liquidation Trustee) shall pay any and all such fees in full in Cash when due and payable, and shall file with the Bankruptcy Court quarterly reports in a form reasonably acceptable to the U.S. Trustee. Each Debtor (or the Liquidation Trustee) shall remain obligated to pay quarterly fees to the U.S. Trustee until the earliest of that particular Debtor’s case being closed, dismissed, or converted to a case under chapter 7 of the Bankruptcy Code.


59 RLF1 24703901v.1

12.4 Dissolution of Creditors’ Committee.

On the Effective Date, the Creditors’ Committee shall dissolve, and the members thereof shall be released and discharged from all rights and duties arising from, or related to, the Chapter 11 Cases; provided, however, that after the Effective Date, the Creditors’ Committee shall continue to exist solely to prosecute applications filed pursuant to sections 330 and 331 of the Bankruptcy Code or to prosecute any appeals ongoing as of the Effective Date or for which the appeal period has not yet run as of the Effective Date.

12.5 Amendments.

(a) Plan Modifications. The Plan may be amended, modified or supplemented by the Debtors, with the consent of the Creditors Committee (not to be unreasonably withheld) prior to the Effective Date, in the manner provided for by section 1127 of the Bankruptcy Code or as otherwise permitted by law without additional disclosure pursuant to section 1125 of the Bankruptcy Code; provided that such amendments, modifications or supplements shall be reasonably satisfactory in all respects to the Debtors and the Creditors’ Committee. In addition, after the Confirmation Date, the Debtors may, after consulting with the Creditors’ Committee, institute proceedings in the Bankruptcy Court to remedy any defect or omission or reconcile any inconsistencies in the Plan or the Confirmation Order, with respect to such matters as may be necessary to carry out the purposes and effects of the Plan.

(b) Other Amendments. Before the Effective Date, the Debtors may, with the consent of the Creditors’ Committee (not to be unreasonably withheld), make appropriate technical adjustments and modifications to the Plan and any of the documents prepared in connection herewith without further order or approval of the Bankruptcy Court.

12.6 Revocation or Withdrawal of the Plan.

The Debtors reserve the right, after consulting with the Creditors’ Committee, to revoke or withdraw the Plan, including the right to revoke or withdraw the Plan for any Debtor or all Debtors, prior to the Confirmation Date. If the Debtors, after consulting with the Creditors’ Committee, revoke or withdraw the Plan, or if Confirmation or Consummation does not occur, then: (i) the Plan shall be null and void in all respects; (ii) any settlement or compromise embodied in the Plan (including the fixing or limiting to an amount certain of any Claim or Interest or Class of Claims or Interests), assumption or rejection of Executory Contracts or Unexpired Leases effected by the Plan, and any document or agreement executed pursuant to the Plan, shall be deemed null and void; and (ii) nothing contained in the Plan shall: (A) constitute a waiver or release of any Claims or Interests; (B) prejudice in any manner the rights of the Debtors, the Debtors’ Estates, or any other Entity; or (C) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtors, the Debtors’ Estates, or any other Entity.

12.7 Severability of Plan Provisions upon Confirmation.

If, before the entry of the Confirmation Order, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court, at the request of the Debtors, after consulting with the Creditors’ Committee, shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable,


60 RLF1 24703901v.1

consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is (i) valid and enforceable pursuant to its terms; (ii) integral to the Plan and may not be deleted or modified without the consent of the Debtors or the Liquidation Trustee (as the case may be); and (iii) nonseverable and mutually dependent.

12.8 Governing Law.

Except to the extent that the Bankruptcy Code or other federal law is applicable, or to the extent an exhibit hereto provides otherwise, the rights, duties and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to the principles of conflict of laws thereof.

12.9 Time.

In computing any period of time prescribed or allowed by the Plan, unless otherwise set forth herein or determined by the Bankruptcy Court, the provisions of Bankruptcy Rule 9006 shall apply.

12.10 Additional Documents.

On or before the Effective Date, the Debtors may, after consulting with the Creditors’ Committee, file with the Bankruptcy Court or the Canadian Court such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan. The Debtors and all holders of Claims or Interests receiving distributions pursuant to the Plan and all other parties in interest shall, prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan.

12.11 Immediate Binding Effect.

Notwithstanding Bankruptcy Rules 3020(e), 6004(h), or 7062 or otherwise, upon the occurrence of the Effective Date, the terms of the Plan shall be immediately effective and enforceable and deemed binding upon and inure to the benefit of the Debtors, the holders of Claims and Interests, the Released Parties, the Exculpated Parties, and each of their respective successors and assigns, including, without limitation, the Liquidation Trustee.


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12.12 Successor and Assigns.

The rights, benefits and obligations of any Person named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or permitted assign, if any, of each Entity.

12.13 Entire Agreement.

On the Effective Date, the Plan and the Confirmation Order shall supersede all previous and contemporaneous negotiations, promises, covenants, agreements, understandings and representations on such subjects, all of which have become merged and integrated into the Plan.

12.14 Notices.

All notices, requests and demands to or upon the Debtors to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:

(i) if to the Debtors or the Liquidation Trustee:

Ankura Consulting Group, LLC 485 Lexington Avenue 10th Floor New York, NY 10017 Attn: Adrian Frankum Telephone: (646) 968-3655 Facsimile: (212) 818-1551 – and –

Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 Attn: Garrett A. Fail David J. Cohen Telephone: (212) 310-8000 Facsimile: (212) 310-8007

– with copies to –

Richards, Layton & Finger, P.A. One Rodney Square 920 N. King Street Wilmington, DE 19801 Attn: Mark D. Collins Zachary I. Shapiro Christopher M. De Lillo


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Telephone: (302) 651-7700 Facsimile: (302) 651-7701

– and, if it relates to BB Canada or the Recognition Proceedings –

Osler, Hoskin & Harcourt LLP 100 King Street West 1 First Canadian Place Suite 6200, P.O. Box 50 Toronto ON M5X 1B8 Attn: Tracy Sandler Martino Calvaruso Telephone: (416) 362-2111 Facsimile: (416) 862-6666

(ii) if to the Creditors’ Committee:

Akin Gump Strauss Hauer & Feld LLP One Bryant Park Bank of America Tower New York, NY 10036 Attn: Meredith A. Lahaie Abid Qureshi Telephone: (212) 872-1000 Facsimile: (212) 872-1002

– and –

2001 K Street NW Washington, DC 20006 Attn: Kate Doorley Julie Thompson Telephone: (202) 877-4000 Facsimile: (202) 872-4288

– and –

Troutman Pepper Hamilton Sanders LLP Hercules Plaza, Suite 5100 1313 N. Market Street, P.O. Box 1709 Wilmington, DE 19899 Attn: David B. Stratton David M. Fournier Evelyn J. Meltzer Marcy J. McLaughlin Smith Telephone: (302) 777-6500 Facsimile: (302) 421-8390


63 RLF1 24703901v.1

After the Effective Date, the Debtors have authority to send a notice to Entities that to continue to receive documents pursuant to Bankruptcy Rule 2002, they must file a renewed request to receive documents pursuant to Bankruptcy Rule 2002. After the Effective Date, the Liquidation Trust is authorized to limit the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to those Entities who have filed such renewed requests.


Respectfully submitted,

By: Name: Stephen Marotta Title: Chief Restructuring Officer

/s/ Stephen Marotta


IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED

Court File No: CV-20-00647463-00CL

AND IN THE MATTER OF BBGI US, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BBGI INTERNATIONAL, LLC, BBGI RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BBGI CANADA LTD. APPLICATION OF BBGI US, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED ONTARIO

SUPERIOR COURT OF JUSTICE COMMERCIAL LIST

Proceeding commenced at Toronto

SIXTH AFFIDAVIT OF STEPHEN MAROTTA


Tracy Sandler (LSO# 32443N) Tel: 416.862.5890 [email protected]

Shawn Irving (LSO# 50035U) Tel: 416.862.4733 [email protected]

Martino Calvaruso (LSO# 57359Q) Tel: 416.862.6665 [email protected]

Fax: 416.862.6666


899




IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED Court File No: CV-20-00647463-00CL


APPLICATION OF BBGI US, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED

Applicant

Ontario SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST Proceeding commenced at Toronto

MOTION RECORD (Recognition of Plan Confirmation Order and

Termination of CCAA Proceeding) Vol. 3 of 3


Tracy Sandler (LSO# 32443N) Tel: 416.862.5890 Email: [email protected]

Shawn Irving (LSO# 50035U) Tel: 416.862.4733 Email: [email protected]

Martino Calvaruso (LSO# 57359Q) Tel: 416.862.6665 Email: [email protected]

Fax: 416.862.6666


900


