10000000722

In re
UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE
Chapter 11
BACKYARD BURGERS, INC., et
a/.
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Case No. 12-12882 (PJW)
Debtors. (Jointly Administered)
Objection Deadline: November 30, 2012 at 4:00 p.m.
Hearing Date: December 5, 2012 at 2:00 p.m.
DEBTORS' MOTION FOR ENTRY OF ORDER (I) APPROVING THE
DISCLOSURE STATEMENT, (II) ESTABLISHING PROCEDURES
FOR THE SOLICITATION AND TABULATION OF VOTES TO ACCEPT
OR REJECT THE JOINT PLAN OF REORGANIZATION PROPOSED
BY THE DEBTORS, AND (III) SCHEDULING A HEARING TO CONSIDER
CONFIRMATION OF THE JOINT CHAPTER 11 PLAN OF REORGANIZATION AND
ESTABLISHING NOTICE AND OBJECTION PROCEDURES IN RESPECT THEREOF
The above-captioned debtors and debtors-in-possession (collectively, the "Debtors")
hereby submit this motion (the "Motion") for entry of an order, substantially in the form
attached hereto, pursuant to sections 105, 1125, 1126, and 1128 of title 11 of the United States
Code, 11 U.S.C. 101, et seq. (the "Bankruptcy Code"), Rules 2002, 3003, 3017, 3018, and
3020 ofthe Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), and Rule 3017-1
of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court
for the District of Delaware (the "Local Rules"), for entry of an order (i) approving the
Disclosure Statement (as defined below) as containing "adequate information," as defined in
section 1125(a)(i) of the Bankruptcy Code; (ii) establishing procedures for the solicitation and
tabulation of votes to accept or reject the Joint Plan of Reorganization for Back Yard Burgers,
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The Debtors in these chapter 11 Cases, along with the last four digits of each Debtor's federal tax identification
number, are Back Yard Burgers, Inc. (7163), BYB Properties, Inc .. (9046), Nashville BYB, LLC (6507), and Little
Rock Back Yard Burgers, Inc. (9133). The mailing address of the Debtors is: St. Clouds Building, 500 Church
Street, Suite 200, Nashville, TN 37219.
FTL 108957503v3
Inc., BYB Properties, Inc., Nashville BYB, LLC and Little Rock Back Yard Burgers, Inc., dated as
of October 31, 2012 (as it may be amended, supplemented or modified from time to time, the
"Plan")
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, including (a) fixing the voting record date for purposes of determining which Holders
of Claims against the Debtors are entitled to vote on the Plan, (b) approving solicitation packages
and procedures for distribution of the Disclosure Statement to those Holders of Claims against
the Debtors who are entitled to vote on the Plan, and (c) approving form of Ballot and
establishing procedures for the submission of votes on the Plan; (iii) scheduling the Confirmation
Hearing (defined below) and establishing certain notice and objection procedures in respect
thereof; and (iv) granting related relief, all as more fully set forth below. In support of this
Motion, the Debtors respectfully state as follows:
Status of the Case and Jurisdiction
1. On October 17, 2012, each of the Debtors filed a voluntary petition for relief
under chapter 11 of the Bankruptcy Code.
2. On October 19, 2012, the Bankruptcy Court granted joint administration of the
Debtors' cases for procedural purposes only.
3. The Debtors have continued in possession of their properties and are operating
and managing their business as debtors-in-possession pursuant to sections 1107(a) and 1108 of
the Bankruptcy Code.
4. No committee has been appointed in these Chapter 11 Cases and no request has
been made for the appointment of a trustee or examiner.
5. The Bankruptcy Court has jurisdiction over this Motion pursuant to 28 U.S.C.
157 and 1334. Venue is proper in this district pursuant to 28 U.S.C. 1408. This matter is core
within the meaning of28 U.S.C. 157(b)(2).
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Any capitalized tenn used herein but not otherwise defined shall have the meaning ascribed to it in the Plan.
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6. The statutory predicates for the relief sought herein are sections 105, 1125, 1126,
and 1128 of the Bankruptcy Code, Bankruptcy Rules 2002, 3003, 3017, 3018, and 3020, and
Local Rule 3017-1.
Background
7. The Debtors are an established quick-service restaurant chain with approximately
90 stores concentrated in the Southeast United States. The Debtors operate company owned
locations and maintain a franchise network of individually owned restaurants which collectively
employ approximately 512 employees. Back Yard Burgers began as a single restaurant in
Cleveland, Mississippi in 1987, and today, the Debtors pride themselves on having a strong
reputation for offering big and bold backyard tastes served straight from the grill at value prices.
The Debtors compete for business by offering black-angus hamburgers and chicken grilled on-
site on charcoal grills, providing savory flavors most usually found only in neighborhood back
yards. Meal offerings include chicken sandwiches, turkey burgers, hot dogs, salads, sides, and
desserts; however, the main focus of the menu is centered on the Debtors' premium Black Angus
burgers.
8. The Debtors own and operate approximately 25 restaurants (excluding franchised
locations), positioned as quick-service dining destinations where families and children can enjoy
a wide variety of freshly prepared meals and desserts for lunch and dinner. Restaurant
operations generated $18.4 million in revenue in the first eight (8) months of 2012 with a $2.4
million EBITDA loss.
9. The Debtors also have contracted with approximately forty-two (42) franchisees
to operate more than sixty-four (64) restaurants under franchise agreements. Franchisees are
offered the right to operate a Back Yard Burgers restaurant for an upfront fee, and franchised
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locations are operated under strict guidelines to present and preserve a unified brand image.
Franchising offers stable cash flows from the collection of royalties and product purchases,
accounting for approximately $1.3 million in revenue in the first eight (8) months of 2012.
10. In the first nine months of 2012, the Debtors reported a 0.8 percent decline and
1.8 percent incline in same store sales of franchise and company-operated stores, respectively.
In the same segments, the Debtors reported declines of 4.0 percent and 5.7 percent, respectively,
in 2011. These decreases were driven by a decline in guest traffic.
11. A more detailed factual background of the Debtors' business and operations, as
well as the events precipitating the commencement ofthese Chapter 11 Cases, is more fully set
forth in the Declaration of James E. Boyd, Jr. in Support of the Debtors' Chapter 11 Petitions
and Requests for First Day Relief (the "First Day Declaration"), filed on the Petition Date and
incorporated herein by reference.
12. On October 31, 2012, the Debtors filed (a) the Plan and (b) the Disclosure
Statement with Respect to the Joint Plan of Reorganization of Backyard Burgers, Inc., BYB
Properties, Inc., Nashville BYB, LLC and Little Rock Backyard Burgers, Inc. Under Chapter 11
of the Bankruptcy Code (as it may be amended, supplemented or modified from time to time, the
"Disclosure Statement"). In addition, contemporaneously with the filing of the Plan and
Disclosure Statement, the Debtors have filed the Notice of Hearing to Consider Approval of
Disclosure Statement with Respect to Joint Chapter 11 Plan of Reorganization of Back Yard
Burgers, Inc., BYB Properties, Inc., Nashville BYB, LLC and Little Rock Back Yard Burgers,
Inc., Under Chapter 11 of the Bankruptcy Code (the "Disclosure Statement Hearing Notice")
and served the Disclosure Statement Hearing Notice in accordance with the requirements of
Bankruptcy Rule 2002(b ).
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A. Classification of Claims Against and Equity Interests in the Debtors
13. In accordance with section 1122 of the Bankruptcy Code, the Plan classifies
Holders of Claims against and Equity Interests in the Debtors into certain Classes of Claims and
Equity Interests for all purposes, including with respect to voting on the Plan, as follows:
i. Other Priority Claims.
Class Designation Entitled to Vote
1-A BYBI Other Priority Claims Unimpaired No (deemed to accept)
1-B BYBP Other Priority Claims Unimpaired No (deemed to accept)
1-C NBYB Other Priority Claims Unimpaired No (deemed to accept)
1-D LRBYB Other Priority Claims Unimpaired No (deemed to accept)
ii. Senior Secured Claims.
2-A BYBI Senior Secured Claims Impaired Yes
2-B BYBP Senior Secured Claims Impaired Yes
2-C NBYB Senior Secured Claims Impaired Yes
2-D LRBYB Senior Secured Claims Impaired Yes
iii. Other Secured Claims
3-A BYBI Other Secured Claims Unimpaired No (deemed to accept)
3-B BYBP Other Secured Claims Unimpaired No (deemed to accept)
3-C NBYB Other Secured Claims Unimpaired No (deemed to accept)
3-D LRBYB Other Secured Claims Unimpaired No (deemed to accept)
iv. General Unsecured Claims.
4-A BYBI General Unsecured Claims Impaired No (deemed to reject)
4-B BYBP General Unsecured Claims Impaired No (deemed to reject)
4-C NBYB General Unsecured Claims Impaired No (deemed to reject)
4-D LRBYB General Unsecured Claims Impaired No (deemed to reject)
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v. Equity Interests.
5-A BYBI Equity Interests Impaired No (deemed to reject)
5-B BYBP Equity Interests Impaired No (deemed to reject)
5-C NBYB Equity Interests Impaired No (deemed to reject)
5-D LRBYB Equity Interests Impaired No (deemed to reject)
14. Based on the foregoing classification scheme, only the Holders of Claims in Class
2 (the "Voting Class") are Impaired and entitled to vote to accept or reject the Plan. Holders of
Claims in Classes 1 and 3 (collectively, the "Unimpaired Classes") are Unimpaired, are
conclusively deemed to have accepted the Plan pursuant to section 1126() of the Bankruptcy
Code, and thus are not entitled to vote to accept or reject the Plan. Holders of Claims in Class 4
and Holders of Equity Interests in Class 5 (the "Deemed Rejecting Classes" and together with
the Unimpaired Classes, and Unclassified Claims (as defined below), the "Non-Voting
Classes"), shall neither receive nor retain any property under the Plan and thus are deemed to
have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and are not entitled to
vote to accept or reject the Plan.
15. In addition, the Plan designates three categories of Claims that are entitled to
receive distributions under the Plan but are not classified for purposes of voting to accept or
reject the Plan. These categories of Claims include: (i) Administrative Claims (including
Professional Fee Claims and fees ofthe United States Trustee), (ii) Priority Tax Claims, and (iii)
DIP Claims (collectively, the "Unclassified Claims").
Relief Requested
16. By this Motion, the Debtors respectfully request entry of an order, in substantially
the form attached hereto (the "Solicitation Procedures Order"): (i) approving the Disclosure
Statement; (ii) establishing procedures for the solicitation and tabulation of votes to accept or
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reject the Plan, including (a) fixing the voting record date for purposes of determining which
Holders of Claims against the Debtors are entitled to vote on the Plan, (b) approving solicitation
packages and procedures for distribution of the Disclosure Statement to Holders of Claims
against the Debtors who are entitled to vote on the Plan, and (c) approving forms of Ballots and
establishing procedures for the submission of votes on the Plan; (iii) scheduling the Confirmation
Hearing and establishing certain notice and objection procedures in respect thereof; and (iv)
granting related relief.
17. In addition to the relief specifically requested pursuant to this Motion, the Debtors
also request that the Disclosure Statement be approved as containing "adequate information"
within the meaning of section 1125(a)(l). Section 1125 of the Bankruptcy Code requires the
Bankruptcy Court to approve a written disclosure statement prior to allowing a plan proponent to
solicit votes on a plan. The proposed Solicitation Procedures Order provides such relief. To
approve the Disclosure Statement, the Bankruptcy Court must find that it contains "adequate
information," which is defined as "information of a kind, and in sufficient detail ... that would
enable ... a hypothetical investor of the relevant class to make an informed judgment about the
plan." 11 U.S.C. 1125(a)(l). The Debtors submit that the Disclosure Statement contains
"adequate information" as that phrase is defined in section 1125(a)(1) of the Bankruptcy Code
and should therefore be approved.
A. Request for Establishment of Solicitation and Notice Procedures
(1) Fixing a Voting Record Date
18. Bankruptcy Rule 3017(d) provides that, for the purposes of soliciting votes to
approve a plan of reorganization, "creditors and equity security holders shall include holders of
stocks, bonds, debentures, notes, and other securities of record on the date the order approving
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the disclosure statement is entered or another date fixed by the Bankruptcy Court, for cause, after
notice and a hearing." Fed. R. Bankr P 3017(d). Bankruptcy Rule 3018(a) contains a similar
provision regarding the determination of the record date for voting purposes.
19. The Debtors propose that the Bankruptcy Court establish December 5, 2012 as the
record date (the "Record Date") for purposes of determining the Holders of Claims in the
Voting Class who are entitled to receive Solicitation Packages (as defined below) and vote to
accept or reject the Plan, and the Holders of Claims or Equity Interests in the Non-Voting
Classes that shall receive a Non-Voting Package (as defined below). Further, the Debtors
propose that the amount of each Holder's Claim be determined for solicitation and voting
purposes as of the Record Date.
1. Approval of Solicitation Packages and Procedures for Distribution Thereof
to Voting Class, Unimpaired Classes and the Deemed Rejecting Classes
(a) Solicitation Packages
20. Bankruptcy Rule 3017(d) sets forth the materials that must be provided to
creditors and equity security holders for the purpose of soliciting their votes and providing
adequate notice of a hearing to confirm a plan of reorganization, specifically providing that:
Upon approval of a disclosure statement - except to the extent that the
Bankruptcy Court orders otherwise with respect to one or more unimpaired
classes of creditors or equity security holders - the debtor in possession,
trustee, proponent of the plan, or clerk as the Bankruptcy Court orders shall
mail to all creditors and equity security holders, and in a chapter 11
reorganization case shall transmit to the United States trustee,
( 1) the plan or court-approved summary of the plan;
(2) the disclosure statement approved by the Bankruptcy Court;
(3) notice of the time within which acceptances and rejections ofthe plan
may be filed; and
( 4) any other information as the Bankruptcy Court may direct, including
any court opinion approving the disclosure statement or a court-
approved summary of the opinion.
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In addition, notice of the time fixed for filing objections and the hearing on
confirmation shall be mailed to all creditors and equity security holders in
accordance with Rule 2002(b ), and a form of ballot conforming to the
appropriate Official Form shall be mailed to creditors and equity security
holders entitled to vote on the plan.
Fed. Banlc R. P. 3017(d).
21. In accordance with the requirements of Bankruptcy Rule 3017(d), following the
Bankruptcy Court's approval of the Disclosure Statement as containing adequate information
pursuant to section 1125 of the Bankruptcy Code, the Debtors propose to distribute (or cause to
be distributed) to each Holder of a Claim in the Voting Class a solicitation package (the
"Solicitation Package") containing copies of:
a. the Disclosure Statement together with the Plan and all other exhibits
annexed thereto;
b. the Solicitation Procedures Order, excluding the exhibits annexed thereto;
c. the Confirmation Hearing Notice (as defined below);
d. a Ballot with a return envelope; and
e. such other materials as the Bankruptcy Court may direct or approve,
including any supplemental solicitation materials the Debtors may file
with the Bankruptcy Court.
22. Furthermore, the Debtors propose to distribute to all Holders of Claims and
Equity Interests in the Non-Voting Classes a "Non-Voting Package," which shall consist of the
applicable Non-Voting Notice (as defined below) and the Confirmation Hearing Notice, each as
approved by the Bankruptcy Court.
23. To the extent the Debtors anticipate distributing any supplemental solicitation
materials, the Debtors will file such materials with the Bankruptcy Court not less than two (2)
business days before the hearing to approve the Disclosure Statement.
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24. In addition, with respect to any transferred Claim in the Voting Class, the Debtors
propose that the transferee be entitled to receive a Solicitation Package and cast a Ballot on
account of such transferred Claim only if the parties have completed all actions necessary to
effect the transfer of the Claim pursuant to Bankruptcy Rule 3001 (e) by the Record Date. In the
event a Claim in the Voting Class is transferred after the transferor has executed and submitted a
Ballot to the Voting Agent (as defined below), the transferee of such Claim shall also be bound
by any such vote (and the consequences thereof) made by the Holder of such transferred Claim
as of the Record Date.
25. The Debtors expect that they will complete the distribution of the appropriate
Solicitation Packages and Non-Voting Packages no later than the date that is five calendar days
after the Record Date (the "Solicitation Commencement Date") to all Holders of Claims and
Equity Interests. To avoid duplication and reduce expenses to their estates, the Debtors propose
that each Holder of more than one non-duplicative Claim in the Voting Class should receive only
one Solicitation Package and one Ballot in the aggregate amount of all Claims within the Voting
Class held by such Holders, as necessary.
26. In addition, to the extent that the following parties have not otherwise received a
Solicitation Package, prior to the Solicitation Date, the Debtors will distribute (a) the Disclosure
Statement, together with the Plan and all other exhibits annexed thereto, (b) the Solicitation
Procedures Order, excluding the exhibits annexed thereto, and (c) the Confirmation Hearing
Notice to: (i) the Office of the U.S. Trustee; and (ii) those parties requesting notice pursuant to
Bankruptcy Rule 2002(i).
(b) Delivery of Notices to Holders of Unimpaired Claims and Unclassified
Claims
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27. As set forth above, Classes 1 and 3 are Unimpaired under the Plan and are
conclusively presumed to accept the Plan. Consistent with section 1126() of the Bankruptcy
Code, the Debtors propose that all Holders of such Claims in Classes 1 and 3, as well as the
Holders of Unclassified Claims, receive a Non-Voting Package consisting of: (a) the
Confirmation Hearing Notice and (b) a notice of non-voting status, in substantially the form of
the notice annexed to the Solicitation Procedures Order as Exhibit A (the "Notice of
Unimpaired Class Non-Voting Status").
(c) Delivery ofNotices to the Deemed Rejecting Classes
28. As set forth above, Holders of Claims in Class 4 and Holders of Equity Interests
in Class 5 shall neither receive nor retain any property on account of their Claims or Equity
Interests and thus are presumed to reject the Plan. See 11 U.S.C. 1126(g). Because sending a
Solicitation Package to such Holders of Class 4 Claims or Class 5 Equity Interests is unnecessary
and would represent an unnecessary cost to the Debtors' estates, the Debtors propose to mail, or
cause to be mailed, by the Solicitation Commencement Date to each Holder of a Claim or Equity
Interest in the Deemed Rejecting Classes, at the address to which notices are required to be sent
pursuant to Bankruptcy Rule 2002(g), a Non-Voting Package consisting of: (a) the Confirmation
Hearing Notice and (b) a notice of non-voting status in substantially the form annexed to the
Solicitation Procedures Order as Exhibit B (the "Notice of Deemed Rejecting Class Non-
Voting Status" and collectively with the Notice of Unimpaired Class Non-Voting Status, the
"Non-Voting Notices").
29. The Confirmation Hearing Notice also advises any party wishing to obtain a copy
of the Disclosure Statement and/or the Plan to do so by contacting the Voting Agent, Rust
Consulting/Omni Bankruptcy, (i) by first class mail, personal delivery, or overnight courier
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addressed to 5955 DeSoto Ave. Suite 100, Woodland Hills, CA, 91367; or (ii) by telephoning the
Voting Agent at (818)-906-8300 to obtain a copy of the documents. In addition, copies of the
Plan and the Disclosure Statement may be viewed on the internet at the Bankruptcy Court's
website (http://www.deb.uscourts.gov) by following the directions for accessing the ECF system
on such website or on the Voting Agent's website (www.omnimgt.com/backyardburgers).
(d) Undeliverable or Returned Notices and Solicitation Packages
30. The Debtors anticipate that certain Disclosure Statement Hearing Notices may be
returned by the United States Postal Service as undeliverable. The Debtors believe it would be
costly and wasteful to distribute Solicitation Packages, Confirmation Hearing Notices, or Non-
Voting Notices to the same addresses to which undeliverable Disclosure Statement Hearing
Notices were distributed. The Debtors therefore seek the Bankruptcy Court's approval for a
departure from the strict notice rule, excusing the Debtors from distributing Solicitation
Packages or Non-Voting Packages to those entities listed at such addresses if the Debtors are
unable to ascertain accurate addresses for such entities before the Solicitation Commencement
Date after exercising good faith efforts to locate a more current address. Further, if the Debtors
send Solicitation Packages or Non-Voting Packages which are deemed undeliverable, and in
good faith cannot obtain more current addresses, the Debtors seek to be excused from attempting
to re-deliver Solicitation Packages or Non-Voting Packages to such entities.
31. The Debtors believe that the proposed solicitation procedures described herein
comport with due process and the requirements of Bankruptcy Rule 3017 and section 1125 of the
Bankruptcy Code. Under such procedures, all parties entitled to vote to accept or reject the Plan
will receive the Solicitation Packages, which will include a complete copy of the Disclosure
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Statement and the Plan. As such, the Debtors submit that good cause exists for implementing the
aforementioned notice and service procedures.
2. Approval of Ballot and Procedures for Voting on the Plan
(a) Ballot
32. Bankruptcy Rule 3017(d) requires the Debtors to mail a form of Ballot to all
"creditors and equity security holders entitled to vote on the plan." Fed. R. Bankr. P. 3017(d).
The Debtors propose to distribute to Holders of Claims in the Voting Class, as described below,
a Ballot (and instructions attached thereto) in substantially the form annexed to the Solicitation
Procedures Order as Exhibit C (the "Ballot"). The Ballot is based on Official Form No. 14 but
has been modified to address the particular aspects of these Chapter 11 Cases and to include
certain additional information the Debtors believe is relevant and appropriate to provide the
Class of Claims entitled to vote to accept or reject the Plan. The Debtors will distribute the
Ballot to Holders of Claims in the Voting Class as part of the Solicitation Packages. The Holders
of Claims in the Non-Voting Classes are not entitled to vote on the Plan and will not receive a
Ballot.
(b) Establishment of the Voting Deadline
33. Bankruptcy Rule 3017(c) provides that, on or before approval of a disclosure
statement, the Bankruptcy Court shall fix a time within which the Holders of Claims may vote to
accept or reject a plan. The Debtors will use their reasonable efforts to mail all Solicitation
Packages no later than the Solicitation Commencement Date, which shall be five calendar days
after the Record Date. Based on this schedule, the Debtors respectfully request that the
Bankruptcy Court establish January 7, 2013 at 4:00p.m. (Eastern Time) as the deadline by which
all Ballots must be properly executed, completed, delivered to, and received by the Voting Agent
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(the "Voting Deadline"). Ballots must be returned to the Voting Agent by first class mail
postage prepaid, personal delivery, or by overnight courier.
34. The proposed Voting Deadline is approximately 33 days after the anticipated
entry of the Solicitation Procedures Order approving the Disclosure Statement and the Record
Date, and approximately 28 days after the Solicitation Commencement Date. The Debtors
believe this solicitation period is sufficient to allow Holders of Claims in the Voting Class to
make an informed decision to accept or reject the Plan.
(c) Approval of Procedures for Vote Tabulation
35. On October 19, 2012 [Docket No. 18], the Debtors filed an application to retain
the services of Rust/Omni to, among other things, assist the Debtors as their Voting Agent. The
Debtors expect that the Voting Agent (or its agents) will perform all services relating to the
solicitation of votes on the Plan (the "Balloting Services"), including, without limitation:
a. identifying voting and non-voting creditors;
b. printing Ballots specific to each Holder of a Claim in the Voting Class that
indicates each Holder's voting Class, voting amount of the Claim, where
applicable, and other relevant information;
c. coordinating the mailing of Ballots and providing an affidavit verifying
the mailing of Ballots;
d. mailing the Confirmation Hearing Notices, Solicitation Packages and
Non-Voting Packages;
e. receiving Ballots and tabulating the votes on the Plan and providing an
affidavit verifying the results of such tabulation; and providing any other
balloting-related services the Debtors may request from time to time
including, without limitation, providing testimony at the Confirmation
Hearing regarding the Balloting Services and the tabulation of votes on the
Plan; and
f. preparing voting reports for the Voting Class, including voting amount
and number, and maintaining such information in a database.
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(d) Ballot Tabulation
36. The Debtors propose that each Holder of a Claim within the Voting Class be
entitled to vote the amount of such Claim as of the Record Date.
37. The Debtors further request that creditors with multiple Claims within the Voting
Class be required to vote all such Claims in such Voting Class to either accept or reject the Plan
and may not split their vote(s). Accordingly, as noted below, an individual Ballot that partially
rejects and partially accepts the Plan on account of multiple Claims within the Voting Class will
not be counted. For purposes of the numerosity requirement of section 1126(c) of the
Bankruptcy Code, separate Claims held by a single creditor in the Voting Class will be
aggregated as if such creditor held a single Claim in such Voting Class, and the votes related to
those Claims shall be treated as a single vote on the Plan.
38. In addition, to the extent a creditor has filed or purchased duplicative Claims that
are classified under the Plan in the Voting Class, the Debtors propose to provide such creditor
with only one Solicitation Package and one Ballot for voting a single Claim in the Voting Class,
regardless of whether the Debtors have objected to the allowance of such duplicate Claims.
39. The Debtors further request that if any Holder casts more than one Ballot voting
the same Claim(s) before the Voting Deadline, the last dated valid Ballot received before the
Voting Deadline be deemed to reflect such Holder's intent and supersede any prior dated Ballot.
If a Holder of Claims casts multiple Ballots dated with the same date, but which are voted
inconsistently, the Debtors request such Ballots not be counted.
40. The following types of Ballots will not be counted in determining whether the
Plan has been accepted or rejected:
a. any Ballot that is otherwise properly completed, executed, and timely
returned to the Voting Agent, but does not indicate an acceptance or
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rejection of the Plan or indicates both an acceptance and a rejection of the
Plan;
b. any Ballot received after the Voting Deadline, except in the Debtors' sole
discretion;
c. any Ballot containing a vote that the Bankruptcy Court determines, after
notice and a hearing, was not solicited or procured in good faith or in
accordance with the applicable provisions of the Bankruptcy Code;
d. any Ballot that is illegible or contains insufficient information to permit
the identification of the claimant;
e. any Ballot that partially accepts and partially rejects the Plan;
f. any Ballot cast by a person or entity that does not hold a Claim in the
Voting Class;
g. any unsigned Ballot or Ballot without an original signature, except in the
Debtors' sole discretion; and
h. any Ballot transmitted to the Voting Agent by facsimile or other electronic
means, except in the Debtors' sole discretion.
41. In addition, the Debtors propose that the following voting procedures and
standard assumptions be used in tabulating the Ballots:
a. The method of delivery of Ballots to the Voting Agent is at the election
and risk of each voting Holder, but such delivery will be deemed made
only when the Voting Agent has actually received the original, executed
Ballot.
b. If a Holder of Claim(s) casts multiple Ballots on account of the same
Claim or Class of Claims, which are received by the Voting Agent on the
same day, but which are voted inconsistently, such Ballots shall not be
counted.
c. The Debtors, in their sole discretion, subject to contrary order of the
Bankruptcy Court, may waive any defect in any Ballot at any time,
including failure to timely file such Ballot, either before or after the close
of voting, and without notice.
d. After the Voting Deadline, no vote may be withdrawn without the prior
consent of the Debtors.
e. Subject to any contrary order of the Bankruptcy Court, the Debtors reserve
the right to reject any and all Ballots not proper in form.
f. Subject to any contrary order of the Bankruptcy Court, the Debtors further
reserve the right to waive any defects or irregularities or conditions of
delivery as to any particular Ballot.
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g. Unless otherwise ordered by the Bankruptcy Court, any defects or
irregularities in connection with deliveries of Ballots must be cured within
such time as the Debtors (or the Bankruptcy Court) determine, and
delivery of such Ballots will not be deemed to have been made until such
irregularities have been cured or waived.
h. Neither the Debtors, nor any other person or entity, will be under any duty
to provide notification of defects or irregularities with respect to deliveries
of Ballots, nor will any such party incur any liability for failure to provide
such notification. Ballots previously furnished (and as to which any
irregularities have not theretofore been cured or waived) will not be
counted.
42. Each Holder of a Claim entitled to vote on the Plan will receive a Ballot. The
Debtors further propose that each Claim within the Voting Class entitled to vote to accept or
reject the Plan will be temporarily allowed for purposes of voting on the Plan in accordance with
the following:
a. A Claim will be temporarily allowed for voting purposes as listed in the
Debtors' schedules of liabilities, provided that (i) such Claim is not
scheduled as contingent, unliquidated, undetermined or disputed or in the
amount of $0.00, (ii) no Proof of Claim has been timely filed (or otherwise
deemed timely filed under applicable law), or (iii) such Claim has not
been satisfied by the Debtors;
b. Unless a Proof of Claim has been filed for such a Claim, contingent,
unliquidated or disputed Claims listed on the Debtors' schedules of
liabilities will be temporarily allowed for voting purposes in the amount
allowed by the Bankruptcy Court, pursuant to Bankruptcy Rule 3018(a);
c. Except as provided in subsection (e) below, Ballots for timely filed Claims
(or Claims that are deemed timely filed by the Bankruptcy Court under
applicable law) that are the subject of an objection filed on or before the
Voting Deadline shall be provisionally allowed by the Bankruptcy Court
for voting purposes in the amount of $1; provided, however, that if the
Holder of any such Claim timely responds to the objection, their vote will
ultimately be allowed in the amount set by the Bankruptcy Court after a
hearing is held and order entered by the Bankruptcy Court on the
objection;
d. If the Debtors have requested that a Claim be reclassified and/or allowed
in a fixed, reduced amount pursuant to an objection to such Claim, such
Holder's Ballot shall be counted in the reduced amount requested by the
Debtors and/or in the requested category, subject to any order entered
pursuant to a motion filed by that Holder; and
17
e. Ballots for timely filed Claims (i) that are listed as contingent,
unliquidated and/or disputed on the face of the Claim or (ii) that the
Debtors determine, after reasonable review of the Claim (including any
supporting documentation contained therewith) and notice to the Holder of
such Claim is a contingent, unliquidated and/or disputed Claim and is not
the subject of an objection filed before the Voting Deadline, shall vote in
the amount of $1.00, unless otherwise allowed by Court order after a
timely filed motion filed by the Holder of such Claim.
43. The Debtors further request that the date that is two (2) business days prior to the
Confirmation Hearing be set as the deadline for the Voting Agent to file its voting tabulations
reflecting the votes cast to accept or reject the Plan.
44. Courts have approved similar voting and tabulation procedures in other chapter 11
cases in this District. The Debtors believe such procedures provide for a fair and equitable voting
process.
B. Request to Schedule the Confirmation Hearing, Establish Notice Procedures and
Objection Deadlines with Respect Thereto
(1) Scheduling the Confirmation Hearing
45. In accordance with Bankruptcy Rule 3017(c),
3
and in light of the Debtors'
proposed solicitation schedule outlined herein, subject to the Bankruptcy Court's availability, the
Debtors propose that January 16, 2013 be fixed by the Bankruptcy Court as the date for a hearing
to consider Confirmation of the Plan (the "Confirmation Hearing"). Such date will give the
Debtors sufficient time to solicit votes on the Plan and to provide adequate notice of the
Confirmation Hearing to all parties-in-interest. The Debtors also request that the Bankruptcy
Court order that the Confirmation Hearing may be continued by the Debtors from time to time
without further notice to creditors or other parties in interest.
3
The Bankruptcy Code provides: "On or before approval of the disclosure statement, the Bankruptcy Court shall fix
a time within which the holders of claims and interests may accept or reject the plan and may fix a date for the
hearing on confirmation." Fed. R. Bankr P 3017(c).
18
(2) Establishing Procedures for Notice of the Confirmation Hearing
46. Bankruptcy Rules 2002(b) and (d) require not less than 28 days' notice to all
holders of claims and equity interests of the time fixed for filing objections to confirmation of a
plan of reorganization and the hearing to consider confirmation of a plan of reorganization. In
accordance with the foregoing Bankruptcy Rules, the Debtors propose to provide all known
creditors, parties filing a notice of appearance in these cases, governmental units having an
interest in these cases, indenture trustees, and interest holders, each as of the Record Date, with a
copy of the notice of the confirmation hearing (the "Confirmation Hearing Notice") in
substantially the form attached to the Solicitation Procedures Order as Exhibit D. The Debtors
will send such notice contemporaneously with the Solicitation Packages and Non-Voting
Packages.
4 7. Furthermore, the Debtors seek permission, pursuant to Bankruptcy Rule 2002(1 ),
which permits the Bankruptcy Court to "order notice by publication if it finds that notice by mail
is impracticable or that it is desirable to supplement the notice," to supplement the foregoing
notice procedures by publishing a notice of the Confirmation Hearing (the "Publication
Notice"), in the national edition of The USA Today at least ten calendar days before the
Objection Deadline (as defined below). The Debtors believe that the Publication Notice will
provide adequate notice of the Objection Deadline and the Confirmation Hearing to all creditors
of the Debtors and other parties in interest who will not otherwise receive service by mail.
48. The Debtors believe the foregoing procedures will provide adequate notice of the
Confirmation Hearing and the Objection Deadline and, accordingly, request the Bankruptcy
Court approve the procedures as adequate and appropriate under the circumstances.
19
(3) Establishing Procedures for Filing Objections to Confirmation of the Plan
49. Bankruptcy Rule 3020(b) provides that objections to confirmation of a proposed
plan of reorganization must be filed with the Bankruptcy Court and served on the debtor, the
trustee, any committee appointed under the Bankruptcy Code, and on any other entity designated
by the Bankruptcy Court, within a time specified by the Bankruptcy Court.
50. To permit the Debtors adequate time to respond to objections prior to the
Confirmation Hearing, the Debtors request that January 7, 2013 at 4:00p.m. (Eastern Time) be
fixed by the Bankruptcy Court as the last date for filing and serving written objections to
confirmation of the Plan (including any supporting memoranda) (the "Objection Deadline").
The Debtors request that the Bankruptcy Court direct that objections to confirmation of the Plan,
if any, (i) be made in writing; (ii) state the name and address of the objecting party and the nature
of the Claim or Equity Interest of such party; (iii) state with particularity the legal and factual
basis and nature of any objection to the Plan; and (iv) be filed with the Bankruptcy Court,
together with proof of service, and served so that they are received on or before the Objection
Deadline by the following parties: (a) Debtors' counsel, Greenberg Traurig, LLP, The Nemours
Building, 1007 North Orange Street, Suite 1200, Wilmington, Delaware 19801, Attn: Dennis A.
Meloro, Esq. and Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue, New York, New
York 10166, Attn: Maria J. DiConza, Esq. and Matthew L. Hinker, Esq.; (b) Office ofthe U.S.
Trustee, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn: Juliet
Sarkessian, Esq and (c) counsel for any statutory committee appointed in these Chapter 11 Cases.
51. The Debtors further propose that they, or any other party supporting confirmation
of the Plan, be afforded an opportunity to file a response to any objections to confirmation of the
20
Plan by no later than 12:00 p.m. (Eastern Time) two (2) Business Days prior to the date of the
Confirmation Hearing. At that time, the Debtors will also file their proposed findings of fact and
conclusions of law and form of order confirming the Plan, and a memorandum of law in support
of Confirmation of the Plan.
52. The Debtors request authorization to make non-substantive changes to the
Disclosure Statement, Plan, Ballots, Confirmation Hearing Notice, Publication Notice, Notice of
Non-Voting Status, and related documents without further order of the Bankruptcy Court,
including, without. limitation, changes to correct typographical and grammatical errors and to
make conforming changes among the Disclosure Statement, the Plan, and any other materials in
the Solicitation Package and/or Non-Voting Packages prior to their distribution of such
materials.
Notice
53. Notice of this Motion has been given to the following parties or, in lieu thereof, to
their counsel, if known: a) the Office of the United States Trustee for the District of Delaware;
(b) counsel to Harbert Mezzanine Partners, L.P., as the Debtors' prepetition lender; (c) counsel to
Pharos Capital Partners II, L.P. and Pharos Capital Partners II-A, L.P., as the Debtors'
postpetition lenders; (d) creditors holding the thirty (30) largest unsecured claims as set forth in
the consolidated list filed with the Debtors' petitions; and (e) those parties requesting notice
pursuant to Rule 2002. The Debtors submit that, in light of the nature of the relief requested, no
other or further notice need be given.
No Prior Request
54. No previous motion for the relief sought herein has been made to this or any other
court.
21
Conclusion
WHEREFORE, the Debtors respectfully request that this Court enter an order,
substantially in the form attached hereto, granting the relief requested herein and such other and
further relief as is just and proper.
Dated: October 31, 2012 GREENBERG TRAURIG, LLP
Is/ Dennis A. Meloro
Dennis A. Meloro (DE Bar No. 4435)
1007 North Orange Street, Suite 1200
Wilmington, Delaware 19801
Telephone: 302-661-7000
Facsimile: 302-661-7360
Email: melorod@gtlaw.com
-and-
Nancy A. Mitchell
Maria J. DiConza
Matthew L. Hinker
GREENBERG TRAURIG, LLP
200 Park A venue
New York, New York
Telephone: (212) 801-9200
Facsimile: (212) 6400
Email: mitchelln@gtlaw.com
diconzam@gtlaw.com
hinkerm@gtlaw.com
Proposed Counsel for Debtors and Debtors-in-
Possession
22
In re
IN THE UNITED STATES BANKRUPTCY COURT
Chapter 11
BACK YARD BURGERS, INC., et al.
1
Case No. 12-12882 (PJW)
Debtors.
(Jointly Administered)
Objection Deadline: November 30, 2012 at 4:00p.m
Hearing Date: December 5, 2012 at 2:00p.m.
NOTICE OF DEBTORS' MOTION FOR ENTRY OF ORDER (I) APPROVING THE
DISCLOSURE STATEMENT, (II) ESTABLISHING PROCEDURES
FOR THE SOLICITATION AND TABULATION OF VOTES TO ACCEPT
OR REJECT THE JOINT PLAN OF REORGANIZATION PROPOSED
BY THE DEBTORS, AND (III) SCHEDULING A HEARING TO CONSIDER
CONFIRMATION OF THE JOINT CHAPTER 11 PLAN OF REORGANIZATION AND
ESTABLISHING NOTICE AND OBJECTION PROCEDURES IN RESPECT THEREOF
PLEASE TAKE NOTICE that on the above-captioned debtors and debtors-in-
possession (the "Debtors") filed the Motion for Entry of an Order (I) Approving the Disclosure
Statement, (II) Establishing Procedures for the Solicitation and Tabulation of Votes to Accept or
Reject the Joint Plan of Reorganization Proposed by the Debtors, and (III) Scheduling a Hearing
to Consider Confirmation of the Joint Chapter 11 Plan of Reorganization and Establishing
Notice and Objection Procedures in Respect Thereof (the "Motion") with the United States
Bankruptcy Court for the District of Delaware (the "Court").
PLEASE TAKE FURTHER NOTICE that any response or objection to the relief
sought in the Motion must be filed with the Court at 824 North Market Street, 3rd Floor,
Wilmington, DE 19801 on or before November 30, 2012 at 4:00 p.m. (prevailing Eastern
Time).
PLEASE TAKE FURTHER NOTICE that at the same time, you must also serve a
copy of the response or objection upon: (a) proposed Debtors' counsel, Greenberg Traurig, LLP,
The Nemours Building, 1007 North Orange Street, Suite 1200, Wilmington, Delaware 19801,
The Debtors in these chapter II Cases, along with the last four digits of each Debtor's federal tax identification number, are: Back
Yard Burgers, Inc. (7163), BYB Properties, Inc. (9046), Nashville BYB, LLC (6507) and Little Rock Back Yard Burgers, Inc. (9133). The
mailing address of the Debtors is: St. Clouds Building, 500 Church Street, Suite 200, Nashville, TN 37219.
DEL 86420603v2
Attn: Dennis A. Meloro, Esq. and Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue,
New York, New York 10166, Attn: Nancy A. Mitchell, Esq. and Matthew L. Rinker, Esq.; (b)
Office of the U.S. Trustee, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware
19801, Attn: Juliet Sarkessian, Esq.; and (c) counsel to any official committee of unsecured
creditors appointed in these cases.
PLEASE TAKE FURTHER NOTICE THAT A HEARING TO CONSIDER THE
RELIEF SOUGHT IN THE MOTION WILL BE HELD ON DECEMBER 5, 2012 AT 2:00
P.M. PREVAILING EASTERN TIME BEFORE THE HONORABLE PETER J. WALSH AT
THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE,
824 MARKET STREET, 6TH FLOOR, COURTROOM NO. 2, WILMINGTON, DELAWARE
19801.
Dated: October 31, 2012
DEL 86420603v2
Is/ Dennis A. Meloro
Telephone: (302) 661-7000
Facsimile: (302) 661-7360
-and-
Nancy A. Mitchell (pro hac vice pending)
Maria J. DiConza (pro hac vice pending)
Matthew L. Rinker (DE Bar No. 5348)
200 Park A venue
New York, New York
Telephone: (212) 801-9200
Facsimile: (212) 801-6400
diconzam@gtlaw.com
hinkerm@gtlaw.com
Proposed Counsel for the Debtors and Debtors-
in-Possession
2
In re
Chapter 11
BACK YARD BURGERS, INC., et
a/.
1
Case No. 12-12882 (PJW)
Ref. Docket No.
ORDER (I) APPROVING THE DISCLOSURE STATEMENT,
(II) ESTABLISHING PROCEDURES FOR THE SOLICITATION AND
TABULATION OF VOTES TO ACCEPT OR REJECT THE PLAN OF
REORGANIZATION PROPOSED BY THE DEBTORS, AND (Ill) SCHEDULING A
HEARING TO CONSIDER CONFIRMATION OF THE PLAN OF
REORGANIZATION OF THE DEBTORS AND ESTABLISHING NOTICE AND
OBJECTION PROCEDURES IN RESPECT THEREOF
Upon the motion, dated October 31, 2012 (the "Motion"), of the above-captioned
debtors and debtors-in-possession (collectively, the "Debtors"), for entry of an order pursuant to
sections 105, 1125, 1126 and 1128 of title 11 of the United States Code (the "Bankruptcy
Code"), Rules 2002, 3003, 3017, 3018 and 3020 ofthe Federal Rules of Bankruptcy Procedure
(the "Bankruptcy Rules"), and Rule 3017-1 of the Local Rules of Bankruptcy Practice and
Procedure of the United States Bankruptcy Court for the District of Delaware (the "Local
Rules"), (i) approving the Disclosure Statemene as containing "adequate information" within the
meaning of section 1125(a)(l) of the Bankruptcy Code; (ii) establishing procedures for the
solicitation and tabulation of votes to accept or reject the Plan, including (a) fixing the voting
record date for purposes of determining which Holders of Claims against the Debtors are entitled
1
The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor's federal tax identification
2
Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Motion and/or the
Plan, as applicable.
FTL 108957503v3
to vote on the Plan, (b) approving solicitation packages and procedures for distribution of the
Disclosure Statement to those Holders of Claims against the Debtors who are entitled to vote on
the Plan, and (c) approving form of Ballot and establishing procedures for the submission of
votes on the Plan; (iii) scheduling the Confirmation Hearing and establishing certain notice and
objection procedures in respect thereof; and (iv) granting related relief; and it appearing that
adequate and sufficient notice of the Motion has been given under the circumstances; and the
Bankruptcy Court having jurisdiction over this matter; and it further appearing that adequate and
sufficient notice, pursuant to Bankruptcy Rule 2002(b ), of the hearing to approve the Disclosure
Statement has been given; and after due deliberation and upon the Bankruptcy Court's
determination that the relief requested in the Motion is in the best interests of the Debtors, their
estates, creditors, and other parties in interest, and sufficient cause appearing therefor,
THE BANKRUPTCY COURT HEREBY FINDS AND DETERMINES THAT:
A. The Ballot attached to this Order as Exhibit C, is sufficiently consistent with
Official Form No. 14, adequately addresses the particular needs of the Debtors' Chapter 11
Cases, and is appropriate for the Class of Claims entitled under the Plan to vote to accept or
reject the Plan.
B. Ballots need not be provided to the Holders of Unimpaired Claims in Classes 1
and 3 because the Plan provides that Holders in such Classes are Unimpaired and are
conclusively deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy
Code, and thus are not entitled to vote to accept or reject the Plan.
C. Ballots need not be provided to the Holders of Impaired Claims in Class 4 and
Equity Interests in Class 5 because the Plan provides that Holders of Claims and Equity Interests
in such Classes are Impaired under the Plan and shall neither receive nor retain any property
2
under the Plan, and thus are deemed to have rejected the Plan and are not entitled to vote to
accept or reject the Plan.
D. The voting instructions and procedures attached to the Ballot provide for a fair
and equitable voting process and are consistent with section 1126 of the Bankruptcy Code and
the applicable Bankruptcy Rules.
E. The procedures associated with the Ballot with respect to a party's right to
voluntarily grant the releases contained in Article XI of the Plan and the related injunction are
fair and reasonable.
F. The contents of the Solicitation Packages and Non-Voting Packages, as set forth
in the Motion, comply with Bankruptcy Rules 2002 and 3017 and constitute sufficient notice to
all interested parties including, without limitation, Holders of Claims against and Equity Interests
in the Debtors.
G. The combination of direct and published notice of the Plan and Confirmation
Hearing, as set forth in the Motion, satisfies the requirements of due process with respect to all
known and unknown creditors of the Debtors.
NOW THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Motion is granted.
2. The Disclosure Statement is approved as containing adequate information within
the meaning of section 1125 of the Bankruptcy Code. Any objections that have not previously
been withdrawn or resolved are hereby overruled.
3. Record Date. December 5, 2012, is established as the record date (the "Record
Date") for purposes of determining the Holders of Claims in the Voting Class entitled to receive
Solicitation Packages and vote to accept or reject the Plan, and the Holders of Claims and Equity
3
Interests in the Non-Voting Classes that shall receive a Non-Voting Package. In addition, the
amount of each Holder's Claim shall be determined as of the Record Date.
4. Solicitation Packages. The Debtors are authorized and empowered to distribute or
cause to be distributed to each Holder of a Claim in the Voting Class, on or prior to the
Solicitation Commencement Date, a Solicitation Package, by first class mail, containing copies
of:
a.
b.
c.
d.
e.
the Disclosure Statement together with the Plan and all other exhibits annexed
thereto;
the Solicitation Procedures Order, excluding the exhibits annexed thereto;
the Confirmation Hearing Notice;
a Ballot with a return envelope; and
such other materials as the Bankruptcy Court may direct or approve, including
any supplemental solicitation materials the Debtors may file with the Bankruptcy
Court.
5. Non-Voting Packages. The Debtors are authorized and empowered to distribute,
or cause to be distributed, on or prior to the Solicitation Commencement Date, the Non-Voting
Packages, by first class mail, containing copies of: (a) the Confirmation Hearing Notice and (b)
the appropriate Non-Voting Notice.
6. To the extent the Debtors anticipate distributing any supplemental solicitation
materials, the Debtors shall file such materials with the Bankruptcy Court not less than two (2)
business days before the hearing to approve the Disclosure Statement.
7. To the extent the following parties have not otherwise received a Solicitation
Package, as of the Solicitation Commencement Date, the Debtors are authorized and empowered
to commence distribution of (a) the Disclosure Statement, together with the Plan and all other
exhibits annexed thereto, and (b) the Solicitation Procedures Order, excluding the exhibits
4
annexed thereto, and (c) the Confirmation Hearing Notice to: (i) the Office of the U.S. Trustee;
and (ii) those parties requesting notice pursuant to Bankruptcy Rule 2002(i).
8. A transferee of a scheduled or filed Claim in the Voting Class shall be entitled to
receive a Solicitation Package and cast a Ballot on account of such transferred Claim only if all
actions necessary to effect the transfer of the Claim pursuant to Bankruptcy Rule 3001(e) have
been completed by the Record Date.
9. When a Claim in the Voting Class is transferred after the transferor has executed
and submitted a Ballot, the transferee of such Claim shall be bound by any vote (and the
consequences thereof) made on the Ballot by the Holder of such transferred Claim as of the
Record Date.
10. The Debtors are not required to mail Solicitation Packages or other solicitation
materials to Holders of Claims that have already been paid in full during the Debtors' chapter 11
cases or that are authorized to be paid in full in the ordinary course of business pursuant to an
order previously entered by this Court.
11. Delivery of Notices to Holders of Unimpaired Claims and Unclassified Claims.
The Notice of Unimpaired Class Non-Voting Status, substantially in the form attached hereto as
Exhibit A, is hereby approved. The Debtors shall mail or cause to be mailed on or prior to the
Solicitation Commencement Date by first class mail to all Holders of Claims in Classes 1 and 3
and to all Holders of an Unclassified Claim a Non-Voting Package consisting of: (a) the
Confirmation Hearing Notice and (b) a Notice of Unimpaired Class Non-Voting Status.
12. Delivery of Notices to Deemed Rejecting Classes. The Notice of Deemed
Rejecting Class Non-Voting Status, substantially in the form of the notice attached hereto as
Exhibit B, is hereby approved. The Debtors shall mail or cause to be mailed on or prior to the
5
Solicitation Commencement Date by first class mail to each Holder of Claims in Class 4 and
Holders of Equity Interests in Class 5, a Non-Voting Package consisting of: (a) the Confirmation
Hearing Notice; and (b) a Notice of Deemed Rejecting Class Non-Voting Status.
13. Undeliverable or Returned Notices and Solicitation Packages. The Debtors are
excused from distributing Solicitation Packages or Non-Voting Packages to entities to whom
undeliverable Disclosure Statement Hearing Notices were distributed where the Debtors are
unable to obtain accurate addresses for such entities before the Solicitation Commencement Date
after having exercised good faith efforts to locate a more current address.
14. Further, if the Debtors send Solicitation Packages or Non-Voting Packages, which
are deemed undeliverable and, in good faith, cannot obtain more current addresses, the Debtors
are excused from attempting to re-deliver Solicitation Packages or Non- Voting Packages to such
entities.
15. Approval of Ballot and Procedures for Voting on the Plan. The Ballot,
substantially in the form of the ballot attached hereto as Exhibit C is hereby approved.
16. Holders of Claims who have more than one non-duplicative Claim in the Voting
Class shall receive only one Solicitation Package and one Ballot in the aggregate amount of all
Claims held by such Holders within the Voting Class, as necessary.
17. Solicitation Packages shall be distributed to Holders of Claims as of the Record
Date in the Voting Class, which is Class 2.
18. In the event that no Holder of a Claim in the Voting Class votes to accept or reject
the Plan by the Voting Deadline, such Class 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 ofthe Plan pursuant to section 1129(a)(8) ofthe Bankruptcy Code.
6
19. Voting Deadline. January 7, 2013 at 4:00p.m. (Eastern Time) is established as
the deadline by which all Ballots must be properly executed, completed, delivered to and
received by the Voting Agent (the "Voting Deadline").
20. Voting Agent. Rust/Omni (the "Voting Agent") is authorized to, among other
things, perform all Balloting Services.
21. Ballot Tabulation. The Ballots must be properly executed, completed and the
original thereof shall be delivered to the Voting Agent so as to be received on or before the
Voting Deadline by first-class mail, overnight mail, or hand-delivery to the Voting Agent.
22. Except as otherwise provided by the express terms of this Order, each Holder of a
Claim within the Voting Class shall be entitled to vote the amount of such Claim as of the
Record Date.
23. If a Holder of Claims casts multiple Ballots dated with the same date, but which
are voted inconsistently, such Ballots will not be counted.
24. Creditors with multiple Claims within the Voting Class under the Plan, must vote
all of their Claims within the Voting Class to either accept or reject the Plan and may not split
their votes.
25. For purposes of the numerosity requirement of section 1126( c) of the Bankruptcy
Code, separate Claims held by a single creditor in the Voting Class will be aggregated as if such
creditor held a single Claim in such Class, and the votes related to those Claims shall be treated
as a single vote on the Plan.
26. Any creditor who has filed or purchased duplicative Claims that are classified
under the Plan in the Voting Class, shall be provided with only one Solicitation Package and one
7
Ballot for voting a single Claim in such Class, regardless of whether the Debtors have objected
to such duplicate Claims.
27. The following types of Ballots will not be counted in determining whether the
Plan has been accepted or rejected:
a. any Ballot that is otherwise properly completed, executed and timely returned to
the Voting Agent, but does not indicate an acceptance or rejection of the Plan or
that indicates both an acceptance and a rejection of the Plan;
b. any Ballot received after the Voting Deadline except in the Debtors' sole
discretion;
c. any Ballot containing a vote that this Court determines, after notice and a hearing,
was not solicited or procured in good faith or in accordance with the applicable
provisions of the Bankruptcy Code;
d. any Ballot that is illegible or contains insufficient information to permit the
identification of the claimant;
e. any Ballot that partially accepts and partially rejects the Plan;
f. any Ballot cast by a person or entity that does not hold a Claim in the Voting
Class;
g. any unsigned Ballot or a Ballot without an original signature, except in the
Debtors' sole discretion; and
h. any Ballot transmitted to the Voting Agent by facsimile or other electronic means,
except in the Debtors' sole discretion.
28. In addition, the following voting procedures and standard assumptions will be
used in tabulating the Ballots:
a. The method of delivery of Ballots to the Voting Agent is at the election and risk
of each voting Holder, but such delivery will be deemed made only when the
original, executed Ballot is actually received by the Voting Agent.
b. If multiple Ballots are received from an individual voting Holder with respect to
the same Claim prior to the Voting Deadline, the last dated valid Ballot timely
received will be deemed to reflect such Holder's intent and shall supersede and
revoke any prior dated Ballot.
c. If a Holder of Claim(s) casts multiple Ballots on account of the same Claim or
Class of Claims, which are received by the Voting Agent on the same day, but
which are voted inconsistently, such Ballots shall not be counted.
8
d. The Debtors, in their sole discretion, subject to contrary order of the Bankruptcy
Court, may waive any defect in any Ballot at any time, including failure to timely
file such Ballot, either before or after the close of voting, and without notice.
e. After the Voting Deadline, no vote may be withdrawn without the prior consent of
the Debtors.
f. Subject to any contrary order of the Bankruptcy Court, the Debtors reserve the
right to reject any and all Ballots not proper in form.
g. Subject to any contrary order of the Bankruptcy Court, the Debtors further reserve
the right to waive any defects or irregularities or conditions of delivery as to any
particular Ballot.
h. Unless otherwise ordered by the Bankruptcy Court, any defects or irregularities in
connection with deliveries of Ballots must be cured within such time as the
Debtors (or the Bankruptcy Court) determine, and delivery of such Ballots will
not be deemed to have been made until such irregularities have been cured or
waived.
1. Neither the Debtors, nor any other person or entity, will be under any duty to
provide notification of defects or irregularities with respect to deliveries of
Ballots, nor will any such party incur any liability for failure to provide such
notification. Ballots previously furnished (and as to which any irregularities have
not theretofore been cured or waived) will not be counted.
29. Each Claim within the Voting Class entitled to vote to accept or reject the Plan
will be temporarily allowed for purposes of voting on the Plan in accordance with the following:
a. a Claim will be temporarily allowed for voting purposes as listed in the Debtors'
schedules of liabilities, provided that (i) such Claim is not scheduled as
contingent, unliquidated, undetermined or disputed or in the amount of $0.00, (ii)
no Proof of Claim has been timely filed (or otherwise deemed timely filed under
applicable law), or (iii) such Claim has not been satisfied by the Debtors;
b. unless a Proof of Claim has been filed for such a Claim, contingent, unliquidated
or disputed Claims listed on the Debtors' schedules of liabilities will be
temporarily allowed for voting purposes in the amount allowed by the Bankruptcy
Court, pursuant to Bankruptcy Rule 3018(a);
c. except as provided in subsection (e) below, Ballots for timely filed Claims (or
Claims that are deemed timely filed by the Bankruptcy Court under applicable
law) that are the subject of an objection filed on or before the Voting Deadline
shall be provisionally allowed by the Bankruptcy Court for voting purposes in the
amount of $1; provided, however, that if the Holder of any such Claim timely
responds to the objection, their vote will ultimately be allowed in the amount set
by the Bankruptcy Court after a hearing is held and order entered by the
Bankruptcy Court on the objection;
9
d. if the Debtors have requested that a Claim be reclassified and/or allowed in a
fixed, reduced amount pursuant to an objection to such Claim, such Holder's
Ballot shall be counted in the reduced amount requested by the Debtors and/or in
the requested category, subject to any order entered pursuant to a motion filed by
that Holder;
e. Ballots for timely filed Claims (i) that are listed as contingent, unliquidated and/or
disputed on the face of the Claim or (ii) that the Debtors determine, after
reasonable review of the Claim (including any supporting documentation
contained therewith) and notice to the Holder of such Claim is a contingent,
unliquidated and/or disputed Claim and is not the subject of an objection filed
before the Voting Deadline, shall vote in the amount of $1.00, unless otherwise
allowed by Court order after a timely filed motion filed by the Holder of such
Claim;
f. for purposes of the numerosity requirement of section 1126( c) of the Bankruptcy
Code, separate Claims held by a single creditor in a particular Class will be
aggregated as if such creditor held one Claim against the Debtors in such Class,
and the votes related to such Claims will be treated as a single vote to accept or
reject the Plan.
30. Plan Confirmation. A hearing shall be held before this Court on
at . (Eastern Time) (the "Confirmation Hearing"), to
consider confirmation of the Plan. The Confirmation Hearing may be continued from time to
time by the Debtors without further notice to creditors or other parties in interest.
31. Objection Deadline. Any objection to the Confirmation of the Plan (including any
supporting memoranda) must: (i) be made in writing; (ii) state the name and address of the
objecting party and the nature of the Claim or Equity Interest of such party; (iii) state with
particularity the legal and factual basis and nature of any objection to the Plan; and (iv) be filed
with the Bankruptcy Court, together with proof of service, and served so that they are received
on or before January 7, 2013 at 4:00 p.m. (Eastern Time) (the "Objection Deadline") by the
following parties: (a) Debtors' counsel, Greenberg Traurig, LLP, The Nemours Building, 1007
North Orange Street, Suite 1200, Wilmington, Delaware 19801, Attn: Dennis A. Meloro, Esq.
and Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue, New York, New York 10166,
Attn: Maria J. DiConza, Esq. and Matthew L. Hinker, Esq.; (b) Office of the U.S. Trustee, 844
10
King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn: Juliet Sarkessian,
Esq.; and (c) counsel for any statutory committee appointed in these Chapter 11 Cases.
32. The Bankruptcy Court shall consider only timely filed written objections. All
objections not timely filed and served in accordance herewith by the Objection Deadline shall be
deemed overruled.
33. The form of mailed and published notice of the Confirmation Hearing,
substantially in the form attached hereto as Exhibit D, is approved in all respects. The scope of
mailed and published notice of the Confirmation Hearing is adequate and provides known and
unknown claimants with good and sufficient notice of the Confirmation Hearing.
34. Service of the Solicitation Packages, Non-Voting Packages and other notices and
documents described in the Motion is adequate and sufficient and no further notice is necessary.
35. The Debtors are authorized to make non-substantive changes to the Disclosure
Statement, Plan, Ballots, Confirmation Hearing Notice, Notice of Deemed Rejecting Class Non-
Voting Status, Notice of Unimpaired Class Non-Voting Status, and related documents without
further order of the Bankruptcy Court, including, without limitation, changes to correct
typographical and grammatical errors and to make conforming changes among the Disclosure
Statement, the Plan, and any other materials in the Solicitation Package and/or Non-Voting
Packages prior to their distribution.
36. The Debtors and any party supporting the Plan are granted an opportunity to file a
response to any objections to confirmation of the Plan by no later than 12:00 p.m. (Eastern Time)
two (2) business days prior to the date of the Confirmation Hearing. At that time, the Debtors
will also file their proposed findings of fact and conclusions of law and form of order confirming
the Plan, and a memorandum of law in support of confirmation of the Plan.
11
3 7. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation of this Order.
38. The Debtors are authorized to take or refrain from taking any action necessary or
appropriate to implement the terms of and the relief granted in this Order without seeking further
order of the Bankruptcy Court.
Dated: , 2012
-----
HONORABLE PETER J. WALSH
UNITED STATES BANKRUPTCY JUDGE
12
EXHIBIT A
In re
Chapter 11
al.
7
Case No. 12-12882 (PJW)
NOTICE OF NON-VOTING STATUS WITH RESPECT TO
UNIMPAIRED CLASSES DEEMED TO ACCEPT THE CHAPTER 11
PLAN OF REORGANIZATION PROPOSED BY THE DEBTORS
TO: ALL HOLDERS OF CLAIMS IN CLASSES 1 AND 3
On October 31, 2012, the Debtors filed a Disclosure Statement (the "Disclosure
Statement") with respect to the Joint Plan of Reorganization for Back Yard Burgers, Inc., BYB
Properties, Inc., Nashville BYB, LLC and Little Rock Back Yard Burgers, Inc. (as may be further
amended from time to time and including all exhibits and supplements, the "Plan"). The
Bankruptcy Court has approved the Disclosure Statement with respect to the Plan. If you do not
have a Disclosure Statement and Plan, you may obtain copies from the Debtors' Claims,
Noticing and Balloting Agent, Rust/Omni (the "Voting Agent") at
www.omnimgt.com/backyardburgers; (b) calling the Voting Agent at (818)-906-8300; or (c)
sending a written request sent to the Voting Agent at 5955 DeSoto Ave. Suite 100, Woodland
Hills, CA, 91367. Court approval ofthe Disclosure Statement does not indicate approval of the
Plan by the Bankruptcy Court.
In accordance with the terms of the Plan and the Bankruptcy Code, Holders of Claims in
Classes 1 and 3 are Unimpaired under section 1124 of the Bankruptcy Code and, therefore,
pursuant to section 1126() of the Bankruptcy Code, are conclusively presumed to have accepted
the Plan and are not entitled to vote on the Plan. You have been sent this notice because you have
been identified as a Holder of a Claim in Classes 1 or 3. This notice and Non-Voting Package are
provided to you for informational purposes only. If you have any questions regarding the status
of your Claim or wish to obtain additional information, you may contact the Voting Agent at
sending a written request sent to the Voting Agent at Rust/Omni, 5955 DeSoto Ave. Suite 100,
Woodland Hills, CA, 91367.
7
FTL 108957503v3
Dated: _____ , 2012 GREENBERG TRAURIG, LLP
1 007 North Orange Street, Suite 1200
Telephone: 302-661-7000
Facsimile: 302-661-7360
-and-
Nancy A. Mitchell
Maria J. Di Conza
Matthew L. Hinker
200 Park A venue
New York, New York
Telephone: (212) 801-9200
diconzam@gtlaw.com
hinkerm@gtlaw.com
Counsel for Debtors and Debtors-in-Possession
2
EXHIBIT B
In re
Chapter 11
al.
8
Case No. 12-12882 (PJW)
NOTICE OF NON-VOTING STATUS WITH RESPECT TO
IMPAIRED CLASS DEEMED TO REJECT THE CHAPTER 11
TO: ALL HOLDERS OF CLAIMS AND EQUITY INTERESTS IN CLASSES 4 AND 5
Bankruptcy Court has approved the Disclosure Statement with respect to the Plan. If you do not
have a Disclosure Statement and Plan, you may obtain copies from the Debtors' Claims,
Noticing and Balloting Agent, Rust/Omni (the "Voting Agent") at
Hills, CA, 91367. Court approval ofthe Disclosure Statement does not indicate approval of the
In accordance with the terms of the Plan and section 1126(g) of the Bankruptcy Code,
Holders of Claims in Class 4 and Holders of Equity Interests in Class 5 are neither receiving nor
retaining any property on account of their Claims or Equity Interests and, therefore, are
conclusively presumed to have rejected the Plan and are not entitled to vote on the Plan. You
have been sent this notice because you have been identified as a Holder of a Claim in Class 4 or
a Holder of an Equity Interest in Class 5. This notice and the Confirmation Hearing Notice are
provided to you for informational purposes only. If you have any questions regarding the status
of your Claim or Equity Interest or wish to obtain additional information, you may contact the
Debtors' Voting Agent at www.omnimgt.com/backyardburgers; (b) calling the Voting Agent at
(818)-906-8300; or (c) sending a written request sent to the Voting Agent at Rust/Omni, 5955
DeSoto Ave. Suite 100, Woodland Hills, CA, 91367.
8
FTL 108957503v3
Dated: December_, 2012 GREENBERG TRAURlG, LLP
Telephone: 302-661-7000
Facsimile: 302-661-7360
-and-
Nancy A. Mitchell
Maria J. DiConza
Matthew L. Hinker
GREENBERG TRAURlG, LLP
200 Park A venue
New York, New York
Telephone: (212) 801-9200
diconzam@gtlaw.com
hinkerm@gtlaw.com
Counsel for Debtors and Debtors-in-Possession
2
EXHIBIT C
In re
Chapter 11
al.
6
Case No. 12-12882 (PJW)
BALLOT FOR ACCEPTING OR REJECTING THE CHAPTER 11 PLAN OF
REORGANIZATION PROPOSED BY THE DEBTORS
Bankruptcy Court has approved the Disclosure Statement with respect to the Plan. The
Disclosure Statement provides information to assist you in deciding how to vote your Ballot. If
you do not have a Disclosure Statement, you may obtain a copy from the Debtors' Claims,
Noticing and Balloting Agent, Rust Consulting/Omni Bankruptcy (the "Voting Agent") at
Hills, CA, 91367. Court approval of the Disclosure Statement does not indicate approval of the
You should review the Disclosure Statement and the Plan before you vote. You may
wish to seek legal advice concerning the Plan and your classification and treatment under
the Plan.
If your ballot is not received by mail, overnight mail or hand delivery by the Voting
Agent at 5955 DeSoto Ave. Suite 100, Woodland Hills, CA, 91367, so that, in each case, it is
actually received no later than 4:00p.m. (Prevailing Eastern Time) on January 7, 2013 (the
"Voting Deadline"), your vote will not count as either an acceptance or rejection of the
Plan. Delivery of a Ballot by facsimile, e-mail or any other electronic means will not be
accepted or counted.
If the Plan is confirmed by the Bankruptcy Court it will be binding on you whether
or not you vote.
6
FTL 108957503v3
Item 1.
Item 2.
Item 3:
Item 4:
ACCEPTANCE OR REJECTION OF THE PLAN
The name of Debtor against which the Claim is asserted:
Amount of Claim $
------
VOTE ON THE PLAN (Check one box only)
[ ] ACCEPTS THE PLAN [ ] REJECTS THE PLAN
OPTIONAL RELEASE ELECTION. Check this box if you elect not to grant the
releases contained in Article XI of the Plan and elect not to consent to the related
injunction. Election to withhold consent is at your option. If you submit your
Ballot without this box checked, you will be deemed to consent to the releases set
forth in Article XI of the Plan and the related injunction to the fullest extent
permitted by applicable law.
[ ] The undersigned elects not to grant the releases contained in Article XI of the
Plan and elects not to consent to the related injunction.
Dated: ______ _ Print or Type Name: ________ _
Signature: ____________ _
Title:
-----------------
(if Creditor is Corporation or Partnership)
Name of Corporation: ________ _
Address:
RETURN THIS BALLOT TO:
By First Class Mail, Overnight or Hand-Delivery:
Rust/Omni
5955 DeSoto Ave. Suite 100
Woodland Hills, CA, 91367
2
VOTING INSTRUCTIONS
1. All capitalized terms used in the Ballot or Voting Instructions but not otherwise defined therein shall
have the meaning ascribed to them in the Plan.
2. The Plan can be confirmed by the Bankruptcy Court, and therefore made binding on you, if it is
accepted by the holders of two-thirds in amount and more than one-half to number of debt claims in each
impaired debt class voting on the Plan. Please review the Disclosure Statement for more information.
3. To ensure that your vote is counted, you must (i) complete the Ballot, (ii) indicate your decision either to
accept or reject the Plan, and (iii) sign and return the Ballot to the address set forth herein on or before the
Voting Deadline. Your Ballot must be received by the Voting Deadline.
4. If a Ballot is received after the Voting Deadline, it will not be counted. The method of delivery of
Ballots is at the election and risk of each holder of a Claim. Except as otherwise provided herein, such
delivery will be deemed made only when the original executed Ballot is actually received, either by mail,
overnight or personal delivery at Rust/Omni 5955 DeSoto Ave. Suite 100, Woodland Hills, CA, 91367, on or
before the Voting Deadline. Instead of effecting delivery by mail, it is recommended, though not required, that
such Holders of Claims use an overnight or hand delivery service. In all cases, sufficient time should be
allowed to assure timely delivery. Delivery of a Ballot by facsimile, e-mail or any other electronic means
will not be accepted.
5. If multiple Ballots are received from an individual Holder of Claims with respect to the same Claims
prior to the Voting Deadline, the last Ballot timely received will supersede and revoke any earlier received
Ballot.
6. This Ballot does not constitute, and shall not deemed to be, a proof of claim or equity interest or an
assertion or admission of a claim or equity interest.
7. Please be sure to sign and date your Ballot. If you are completing the Ballot on behalf of an Entity,
indicate your relationship with such Entity and the capacity in which you are signing. In addition, please
provide your name and mailing address if different from that set forth on the attached mailing label or if no such
mailing label is attached to the Ballot.
8. THE DEBTORS EXPRESSLY RESERVE THE RIGHT TO OBJECT AT A LATER DATE TO
THE AMOUNT ALLEGED HEREIN TO BE DUE TO THE CREDITOR HOLDER BY THE
DEBTORS OR THE INDEBTEDNESS ASSERTED IN A TIMELY FILED PROOF OF CLAIM.
PLEASE RETURN YOUR BALLOT PROMPTLY
3
EXHIBITD
In re
BACK YARD BURGERS, INC., et
al.
9
Debtors.
Chapter 11
Case No. 12-12882 (PJW)
(Jointly Administered)
NOTICE OF HEARING TO CONSIDER CONFIRMATION OF THE CHAPTER 11
PLEASE TAKE NOTICE THAT on October 31,2012, the Debtors filed a Disclosure
Statement (the "Disclosure Statement") with respect to the Joint Plan of Reorganization for
Back Yard Burgers, Inc., BYB Properties, Inc., Nashville BYB, LLC and Little Rock Back Yard
Burgers, Inc. Under Chapter 11 ofthe Bankruptcy Code (as may be further amended from time
to time and including all exhibits and supplements, the "Plan"). The Bankruptcy Court has
approved the Disclosure Statement with respect to the Plan. If you do not have a Disclosure
Statement and Plan, you may obtain copies from Debtors' Claims, Noticing and Balloting Agent,
Rust/Omni (the "Voting Agent") at (a) at www.omnimgt.com/backyardburgers (b) calling the
Voting Agent at (818)-906-8300; or (c) sending a written request sent to the Voting Agent at
5955 DeSoto Ave. Suite 100, Woodland Hills, CA, 91367.
PLEASE TAKE FURTHER NOTICE THAT on December 5, 2012, the United States
Bankruptcy Court for the District of Delaware (the "Court") entered an order (the "Solicitation
Procedures Order") approving the Disclosure Statement and the Debtors' procedures for
soliciting votes on the Plan.
PLEASE TAKE FURTHER NOTICE THAT a hearing (the "Confirmation
Hearing") will be held on , 2013, at (Eastern Time), before the
Honorable Peter J. Walsh, United States Bankruptcy Judge, convened at the United States
Bankruptcy Court for the District of Delaware, 824 Market Street, Sixth Floor, Wilmington,
Delaware 19801, to consider confirmation of the Plan, as the same may be further amended or
modified, and for such other and further relief as may be just and proper. The Confirmation
Hearing may be continued from time to time without further notice to creditors or other parties in
interest, and the Plan may be modified, if necessary, in accordance with the Bankruptcy Code,
9
FTL 108957503v3
the Federal Rules of Bankruptcy Procedure and other applicable law, before, during, or as a
result ofthe Confirmation Hearing; without further notice to creditors or other parties in interest.
PLEASE TAKE FURTHER NOTICE THAT if you hold a Claim or Equity Interest
against one of the Debtors as of December 5, 2012 (the "Record Date") and are entitled to vote
to accept or reject the Plan, you have received with this Confirmation Hearing Notice a Ballot
and voting instructions appropriate for your Claim. You should carefully read the Disclosure
Statement and Plan and all documents attendant thereto. For your vote to accept or reject the
Plan to be counted, you must complete all required information on the Ballot, execute the Ballot,
and return the completed Ballot to the address indicated on the Ballot so as to be received by
Rust/Omni, the Voting Agent, either by first class mail, overnight mail or hand-delivery at 5955
DeSoto Ave. Suite 100, Woodland Hills, CA, 91367, no later than 4:00 p.m. Eastern Time on
January 7, 2013, unless such time is extended by the Debtors (the "Voting Deadline"). Any
failure to follow the voting instructions included with the Ballot may disqualify your Ballot and
your vote.
PLEASE TAKE FURTHER NOTICE THAT ifyou have not received a Ballot and are
entitled to vote on the Plan, you may request a Ballot and voting instructions appropriate for your
Claim from the Voting Agent, either by (a) at www.omnimgt.com/backyardburgers; (b) calling
the Voting Agent at (818)-906-8300; or (c) sending a written request sent to the Voting Agent at
5955 DeSoto Ave. Suite 100, Woodland Hills, CA, 91367 and submit your Ballot as set forth
above by the Voting Deadline. All submitted Ballots will be tabulated according to the rules set
forth in the Solicitation Procedures Order approving the Disclosure Statement.
PLEASE TAKE FURTHER NOTICE THAT objections, if any, to the confirmation of
the Plan must: (a) be in writing; (b) state the name and address of the objecting party and the
nature of the Claim of such party; (c) state with particularity the legal and factual basis and
nature of any objection to the Plan; and (d) be filed with the United States Bankruptcy Court for
the District of Delaware, 824 North Market Street, Wilmington, Delaware 19801 together with
proof of service, and served so as to be received on or before 4:00 p.m. Eastern Time on
January 7, 2013 by the following: (a) Debtors' counsel, Greenberg Traurig, LLP, The Nemours
Building, 1007 North Orange Street, Suite 1200, Wilmington, Delaware 19801, Attn: Dennis A.
Meloro, Esq. and Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue, New York, New
York 10166, Attn: Maria J. DiConza and Matthew L. Hinker, Esq.; and (b) Office of the U.S.
Trustee, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn: Juliet
Sarkessian, Esq.; and (c) counsel for any statutory committee appointed in these Chapter 11
Cases. Objections not timely filed and served in the manner set forth in the Solicitation
Procedures Order shall not be considered and shall be deemed overruled.
PLEASE TAKE FURTHER NOTICE THAT any party in interest wishing to obtain
copies of the Disclosure Statement, the Plan, or the Solicitation Procedures Order or other
infonnation about the solicitation procedures may request such information by contacting the
Voting Agent, either (a) at www.omnimgt.com/backyardburgers; (b) calling the Voting Agent at
(818)-906-8300; or (c) sending a written request sent to the Voting Agent at 5955 DeSoto Ave.
Suite 100, Woodland Hills, CA, 91367. Copies of the Plan, the Disclosure Statement, and the
Solicitation Procedures Order are available for inspection during regular business hours at the
2
office of the clerk of the Bankruptcy Court, 3rd Floor, 824 N. Market Street, Wilmington,
Delaware 19801. In addition, copies of the Plan and the Disclosure Statement may be obtained
at or viewed on the internet at the Bankruptcy Court's website (http://www.deb.uscourts.gov) by
following the directions for accessing the ECF system on such website.
PLEASE TAKE FURTHER NOTICE THAT pursuant to the terms of the Plan, the
Debtors seek the following exculpation, releases and injunctions:
Releases by Holders of Claims and Equity Interests
As of the Effective Date, for good and valuable consideration, the adequacy of which is
hereby confirmed, the Holders of Claims against and Equity Interests in the Debtors and
the Reorganized Debtor: (1) who either vote to accept the Plan or are presumed to have
voted for the Plan under section 1126(f) of the Bankruptcy Code, or (2) are entitled to vote
on the plan and who reject the Plan or abstain from voting and do not return their Ballot to
indicate their refusal to grant the releases provided in this sub-paragraph, shall be deemed
to forever release, waive, and discharge each of the Exculpated Parties from any and all
claims, obligations, suits, judgments, damages, demands, debts, rights, Causes of Action
(including Avoidance Actions), and liabilities whatsoever in connection with or in any way
relating to, or in any manner arising from, in whole or in part, the Debtor, the Debtor's
restructuring, the conduct of the Debtor's business, these Chapter 11 Cases, the subject
matter of, or the transactions or events giving rise to, any Claim or Equity Interest that is
treated in the Plan, the business or contractual arrangements between any Exculpated
Party and the Debtor, the restructuring of Claims and Equity Interests prior to or in these
Chapter 11 Cases, the negotiation, formulation or preparation of the Plan and Disclosure
Statement, or related agreements, instruments, or other documents, upon any other act or
omission, transaction, agreement, event or other occurrence taking place on or before the
Effective Date, other than Claims or liabilities arising out of or relating to any act or
omission of the Debtor, the Reorganized Debtor, or an Exculpated Party that constitutes a
failure to perform the duty to act in good faith, with the care of an ordinarily prudent
person and in a manner the Debtor, the Reorganized Debtor, or the Exculpated Party
reasonably believed to be in the best interests of the Debtors (to the extent such duty is
imposed by applicable non-bankruptcy law) where such failure to perform constitutes
willful misconduct or gross negligence; provided, however, that nothing in the Plan shall be
deemed to prohibit any party from asserting or enforcing any direct contractual obligation
against any Exculpated Party, with all rights and defenses to such claims being reserved by
the Exculpated Party or enforcing any obligations to such party under the Confirmation
Order, the Plan, or any contract, instrument, release or other document delivered
therewith.
Injunction
(a) Except as provided in the Plan or the Confirmation Order, as of the
Effective Date, all Persons that have held, currently hold, may hold, or allege that
they hold, a Claim, Equity Interest or other debt or liability that is discharged
pursuant to Section 11.11 of the Plan, released pursuant to Section 11.10 of the
Plan, or are subject to exculpation pursuant to Section 11.13 of the Plan are
3
permanently enjoined from taking any of the following actions against the Debtor,
the Reorganized Debtor, and their respective affiliates or their property on
account of any such discharged Claims, debts, or liabilities or terminated Equity
Interests or rights: (i) commencing or continuing, in any manner or in any place,
any action or other proceeding of any kind; (ii) enforcing, attaching, collecting, or
recovering in any manner any judgment, award, decree, or order against the
Debtors, the Reorganized Debtor or its property; (iii) creating, perfecting, or
enforcing any Lien or encumbrance; (iv) asserting a right of setoff, recoupment or
subrogation of any kind against any debt, liability, or obligation due to the
Debtors or the Reorganized Debtor; or (v) commencing or continuing any action,
in each such case in any manner, in any place, or against any Person that does not
comply with or is inconsistent with the provisions of the Plan.
(b) Without limiting the effect of the foregoing provisions of upon any
Person, by accepting Distributions pursuant to the Plan, each Holder of an
Allowed Claim or Equity Interest receiving a Distribution pursuant to the Plan
shall be deemed to have specifically consented to the injunctions set forth in this
Section 11.05.
(c) Nothing in the Plan shall impair (i) the rights of any Holder of a
Disputed Claim to establish its Claim in response to an objection Filed by the
Debtors or the Reorganized Debtor, (ii) the rights of any defendant in an
A voidance Action Filed by the Debtors to assert defenses in such action, or (iii) the
rights of any party to an Executory Contract or Unexpired Lease that has been
assumed by the Debtors pursuant to an order of the Bankruptcy Court or the
provisions of the Plan to enforce such assumed contract or lease
Exculpation and Limitations of Liability
On the Effective Date, the Exculpated Parties shall neither have, nor incur any liability to
any Holder of a Claim or an Equity Interest, the Debtor, the Reorganized Debtor, or any
other party-in-interest, or any of their respective agents, employees, representatives,
advisors, attorneys, or affiliates, or any of their successors or assigns, for any prepetition or
postpetition act or omission in connection with, relating to, or arising out of, these Chapter
11 Cases, the formulation, negotiation, or implementation of the Plan, the solicitation of
acceptances of the Plan, the pursuit of Confirmation of the Plan, the Confirmation of the
Plan, the consummation of the Plan, or the administration of the Plan or the property to be
distributed under the Plan, except for acts or omissions that are the result of fraud, gross
negligence, or willful misconduct; provided further, however, that the foregoing is not
intended to limit or otherwise impact any defense of qualified immunity that may be
available under applicable law; provided further, that each Exculpated Party shall be
entitled to rely upon the advice of counsel concerning his, her or its duties pursuant to, or
in connection with, the Plan; provided still further, that the foregoing exculpation shall not
be deemed to, release, affect, or limit any of the rights and obligations of the Exculpated
Parties from, or exculpate the Exculpated Parties with respect to, any of the Exculpated
Parties' obligations or covenants arising pursuant to the Plan or the Confirmation Order.
4
Nancy A. Mitchell
Matthew L. Hinker
200 Park A venue
New York, New York
Telephone: (212) 801-9200
diconzam@gtlaw .com
hinkerm@gtlaw.com
5
Telephone: 302-661-7000
Facsimile: 302-661-7360
Counsel for Debtors and Debtors-in-
Possession

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