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BUCHALTER NEMER
A P R O F E S S I ON A L C OR P OR A T I O N I R VIN E
JEFFREY K. GARFINKLE (SBN: 153496) BRIAN T. HARVEY (SBN: 238991) BUCHALTER NEMER A Professional Corporation 18400 Von Karman Avenue, Suite 800 Irvine, CA 92612-0514 Telephone: (949) 760-1121 Fax: (949) 720-0182 Email: jgarfinkle@buchalter.com Counsel to the Official Committee of Unsecured Creditors
UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re WESTCLIFFE MEDICAL LABORATORIES, INC., Debtor. Chapter 11 BIOLABS, INC. Debtor. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS OPPOSITION TO MOTION BY PARTHENON CAPITAL PARTNERS FOR ORDER: (1) DEEMING CLAIM ALLOWED, OR (2) GRANTING LEAVE TO FILE PROOF OF CLAIM Date: Time: Place.: April 25, 2012 10:00 a.m. 411 West Fourth Street Santa Ana, CA 92701 Courtroom 5B Case No. 8:10-bk-16743-TA Jointly Administered With Case No. 8:10-bk-16746-TA
Affects: All Debtors Westcliff Medical Laboratories, Inc. Biolabs, Inc. only
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION
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BUCHALTER NEMER
A PROFES SION AL CORPORAT ION IRVINE
TO THE HONORABLE THEODORE ALBERT, UNITED STATES BANKRUPTCY JUDGE; THE OFFICE OF THE UNITED STATES TRUSTEE; AND ALL OTHER INTERESTED PARTIES: Pursuant to Rule 201 of the Federal Rules of Evidence, made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 9017, the Official Committee of Unsecured Creditors (the Committee) requests that this Court take judicial notice of the following documents, appended hereto, respectively, as Exhibits A through I: 1. Exhibit A To Order Confirming Debtors First Amended Chapter 11 Liquidating
Plan of Reorganization (Docket #730), attached hereto as Exhibit A; 2. Westcliff Medical Laboratories Corporate Ownership Statements (Docket #92-1),
attached hereto as Exhibits B; 3. Exhibits C; 4. Westcliff Medical Laboratories Unanimous Board Resolution (Docket # 1) is BioLabs, Inc.s Corporate Ownership Statements (Docket #42), attached hereto as
attached hereto as Exhibits D; 5. Exhibits E; 6. Order Establishing Bar Date for Filing Proofs of Claim (Docket #178) is attached BioLabs, Inc.s Unanimous Board Resolution (Docket #1) is attached hereto as
hereto as Exhibit F; 7. The relevant sections of the Notice of Claims Bar Date (Docket #180) is attached
hereto as Exhibit G; 8. Application of Debtors and Debtors in Possession to Employ Kirkland & Ellis
LLP as Special Corporate Counsel Pursuant to 11 U.S.C. 327 (e) and 330 (Docket # 19) is attached hereto as Exhibit H; and 9. Amended Application of Debtors and Debtors in Possession to Employ Kirkland
& Ellis LLP as Special Corporate Counsel Pursuant to 11 U.S.C. 327 (e) and 330 (Docket # 272) is attached hereto as Exhibit I.
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BUCHALTER NEMER
A PROFES SION AL CORPORAT ION IRVINE
The above-referenced documents are properly the subject of judicial notice pursuant to Federal Rule of Evidence 201, which provides that a court may take judicial notice of facts not subject to reasonable dispute in that it iscapable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Further, it is generally accepted that a bankruptcy judge may take judicial notice of the bankruptcy courts records. It is not error . . . for a court to take judicial notice of related proceedings and records in cases before that court. State of Florida v. Charley Toppino & Sons, Inc., 514 F.2d 700, 704 (5th Cir. 1975); see also In re Earl, 140 B.R. 728, 730 (Bankr. N.D. Ind. 1992) (finding that judicial notice of four related bankruptcy cases of Debtor was proper). WHEREFORE, the Committee respectfully requests that this Court take judicial notice of the documents attached hereto as Exhibits A through I.
Respectfully submitted, Dated: April 11, 2012 BUCHALTER NEMER, A Professional Corporation
By
/s/ Jeffrey K. Garfinkle JEFFREY K. GARFINKLE BRIAN T. HARVEY Counsel to the Official Committee of Unsecured Creditors
BN 11381826v1
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RON BENDER (SBN 143364) TODD M. ARNOLD (SBN 221868) JOHN-PATRICK M. FRITZ (SBN 245240) LEVENE, NEALE, BENDER, YOO & BRILL L.L.P. 10250 Constellation Boulevard, Suite 1700 Los Angeles, California 90067 Telephone: (310) 229-1234; Facsimile: (310) 229-1244 Email: rb@LNBYB.com; tma@LNBYB.com; jpf@LNBYB.com Attorneys for Chapter 11 Debtors and Debtors in Possession
UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA (SANTA ANA DIVISION) In re: WESTCLIFF MEDICAL LABORATORIES, INC., Debtor. __________________________________ BIOLABS, INC., Debtor. __________________________________ Affects Both Debtors Affects WESTCLIFF MEDICAL LABORATORIES, INC. only Affects BIOLABS, INC. only Lead Case No. 8:10-bk-16743-TA Jointly Administered with Case No. 8:10-bk16746-TA Chapter 11 Cases EXHIBIT A TO ORDER CONFIRMING DEBTORS FIRST AMENDED CHAPTER 11 LIQUIDATING PLAN OF REORGANIZATION Plan Confirmation Hearing: Date: February 8, 2012 Time: 10:00 a.m. Place: Courtroom 5B 411 West Fourth Street Santa Ana, CA 92701-4593
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Exhibit A Page 000004
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EXHIBIT A
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RON BENDER (SBN 143364) TODD M. ARNOLD (SBN 221868) JOHN-PATRICK M. FRITZ (SBN 245240) LEVENE, NEALE, BENDER, YOO & BRILL L.L.P. 10250 Constellation Boulevard, Suite 1700 Los Angeles, California 90067 Telephone: (310) 229-1234; Facsimile: (310) 229-1244 Email: rb@LNBYB.com; tma@LNBYB.com; jpf@LNBYB.com Attorneys for Chapter 11 Debtors and Debtors in Possession
UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA (SANTA ANA DIVISION) In re: WESTCLIFF MEDICAL LABORATORIES, INC., Debtor. __________________________________ BIOLABS, INC., Debtor. __________________________________ Affects Both Debtors Affects WESTCLIFF MEDICAL LABORATORIES, INC. only Affects BIOLABS, INC. only Lead Case No. 8:10-bk-16743-TA Jointly Administered with Case No. 8:10-bk16746-TA Chapter 11 Cases FIRST AMENDED LIQUIDATING REORGANIZATION CHAPTER PLAN 11 OF
Disclosure Statement Hearing: Date: November 30, 2011 Time: 10:00 a.m. Plan Confirmation Hearing: Date: February 8, 2012 Time: 10:00 a.m. Place: Courtroom 5B 411 West Fourth Street Santa Ana, CA 92701-4593
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TABLE OF CONTENTS
I.
INTRODUCTION .............................................................................................................2 A. Purpose of this Document ...........................................................................................3 B. Deadlines for Voting and Objecting; Date of Plan Confirmation Hearing .................4 1. 2. 3. 4. Time and Place of the Confirmation Hearing........................................................4 Deadline For Voting For or Against the Plan ........................................................4 Deadline for Objecting to the Confirmation of the Plan .......................................5 Identity of Persons to Contact for More Information Regarding the Plan ............5
C. Disclaimer....................................................................................................................6 II. BACKGROUND ...............................................................................................................6 A. Description and History of the Debtors Business and Events Leading to the Debtors Chapter 11 Filings ................................................................6 B. The Present Status of the Debtors Chapter 11 Cases ...............................................10 III. SUMMARY OF THE PLAN OF REORGANIZATION ...............................................17 A. What Creditors and Interest Holders Will Receive Under The Plan .........................17
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B. Unclassified Claims ...................................................................................................17 1. Administrative Expenses .....................................................................................17 2. Priority Tax Claims .............................................................................................20 C. Classified Claims and Interests .................................................................................21
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1. 2. 3. 4.
Classes of Secured Claims...................................................................................21 Classes of Priority Unsecured Claims .................................................................23 Classes of General Unsecured Claims .................................................................24 Class of Interest Holders .....................................................................................29
D. Means of Effectuating the Plan and Implementation of the Plan ..............................29

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1. 2. 3. 4.
Funding for the Plan ............................................................................................29 Disbursing Agent and the Estate Representative.................................................30 Objections to Claims ...........................................................................................30 Investigation and Prosecution of Claims and Avoidance Actions ......................32
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5. Post-Confirmation Administration of these Chapter 11 Estates And Payment of Professional Fees and Expenses Incurred after the Effective Date ................................................................................................33 6. Post-Confirmation Committee.............................................................................34 7. Distributions to be Made Pursuant to the Plan ....................................................35 8. Exculpations and Releases ..................................................................................35 E. Risk Factors ...............................................................................................................36 F. Other Provisions of the Plan ......................................................................................36 1. Executory Contracts and Unexpired Leases ........................................................36
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a) Assumptions ..................................................................................................36 b) Rejections ......................................................................................................36 2. Changes in Rates Subject to Regulatory Commission Approval ........................37 3. Retention of Jurisdiction......................................................................................37 G. Tax Consequences of Plan.........................................................................................39 IV. CONFIRMATION REQUIREMENTS AND PROCEDURES ......................................40 A. Who May Vote or Object ..........................................................................................40 1. Who May Object to Confirmation of the Plan ....................................................40 2. Who May Vote to Accept/Reject the Plan ..........................................................40 a) What Is an Allowed Claim/Interest ...............................................................40 b) What Is an Impaired Claim/Interest ..............................................................41 3. 4. 5. 6. 7. 8. Who Is Not Entitled to Vote ................................................................................42 Who Can Vote in More Than One Class .............................................................42 Votes Necessary to Confirm the Plan ..................................................................42 Votes Necessary for a Class to Accept the Plan ..................................................43 Treatment of Non-Accepting Classes ..................................................................43 Request for Confirmation Despite Nonacceptance by Impaired Class(es) .........43
B. Liquidation Analysis .................................................................................................43 C. Feasibility ..................................................................................................................47 V. EFFECT OF CONFIRMATION OF PLAN ...................................................................47 A. No Discharge .............................................................................................................47
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B. Post-Confirmation Status Report ...............................................................................47 C. Post-Confirmation Conversion/Dismissal .................................................................48 D. Payment of United States Trustee Fees .....................................................................48
E. Final Decree...............................................................................................................49
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I.
INTRODUCTION
Westcliff Medical Laboratories, Inc. (Westcliff) and BioLabs, Inc. (BioLabs), (collectively, the Debtors) commenced their bankruptcy cases by filing voluntary petitions
for relief under Chapter 11 of Title 11, United States Code, 11 U.S.C. 101, et seq. (the
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Bankruptcy Code) on May 19, 2010 (the Petition Date). Chapter 11 allows the Debtors, and, under some circumstances, creditors and other parties in interest, to propose a plan of reorganization. A plan may provide for the Debtors to reorganize by continuing to operate, to liquidate by selling the assets of these estates, or a combination of both. The Debtors are the parties who are jointly proposing this First Amended Chapter 11 Liquidating Plan of Reorganization (the Plan).
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This Plan is a liquidating plan.

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In other words, the Debtors seek to accomplish
payments to creditors under this Plan by liquidating all of the remaining assets of these estates, if any, and distributing the proceeds from the liquidation of those assets coupled with the remaining net proceeds from the prior sale of substantially all of the assets of these estates and collections from outstanding accounts receivable in accordance with the priorities set forth in the Bankruptcy Code. The effective date of this Plan (the Effective Date) will be the first business day which is at least fifteen days following the date the Bankruptcy Court enters the
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order confirming this Plan (the Plan Confirmation Order), unless there is a stay in effect, in which case the Effective Date will be the first business day after the stay is no longer in effect with respect to the Plan Confirmation Order. For purposes of this Plan, the two Debtors are being treated as one consolidated legal entity as there is no practical way to separately allocate the assets (comprised almost entirely of cash) of the two estates between them. As a result, the holder of an allowed claim of a specific priority and amount against one of the Debtors will
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receive the identical treatment under this Plan as the holder of an allowed claim with the same priority and amount against the other Debtor, and duplicative claims filed against both estates will automatically be treated as one single claim against the substantively consolidated Debtor.
All defined terms which are not defined in this Plan but which are defined in the Disclosure
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Statement shall have the same meanings as such terms are provided in the Disclosure Statement. II. SUMMARY OF THIS PLAN OF REORGANIZATION A. What Creditors and Interest Holders Will Receive Under this Plan1
As required by the Bankruptcy Code, this Plan classifies claims and interests in various classes according to their right to priority. This Plan states whether each class of claims or
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interests is impaired or unimpaired. This Plan provides the treatment each class will receive. B. Unclassified Claims
Certain types of claims are not placed into voting classes; instead they are unclassified. They are not considered impaired and they do not vote on this Plan because they are automatically entitled to specific treatment provided for them in the Bankruptcy Code. As such, the Debtors have not placed the following claims in a class. 1. Administrative Expenses
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Administrative expenses are claims for costs or expenses of administering the Debtors Chapter 11 cases which are allowed under Bankruptcy Code Section 507(a)(1). The
Bankruptcy Code requires that all administrative claims be paid on the Effective Date, unless a
1 For purposes of this Plan, the Debtors are treating the two Chapter 11 Debtors and creditor claims against the two Chapter 11 Debtors as if the two Chapter 11 bankruptcy cases were substantively consolidated into one Chapter 11 bankruptcy case because it appears to the Debtors that this is effectively the manner in which the Debtors operated.
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particular claimant agrees to a different treatment. The administrative claims bar date in these cases other than for professional fees was October 31, 2011. The following chart lists all of the known 507(a)(1) administrative claims in these
cases and their treatment under this Plan. With respect to professionals, the amounts reflect all
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estimated post-petition professional fees which have been incurred and not paid or which are projected to be incurred prior to the Effective Date.
Name Clerk's Office Fees Amount Owed $0 Treatment Paid in full on the Effective Date out of the Estates Funds Paid in full on the Effective Date out of the Estates Funds Paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an order allowing such fees and expenses Paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an order allowing such fees and expenses Paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an order allowing such fees and expenses Paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an order allowing such fees and expenses Paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an order allowing such fees and expenses Paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an order allowing such fees and expenses Paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an
OUST Fees
$0
Levene, Neale, Bender, Yoo & Brill L.L.P., bankruptcy counsel to the Debtors Kirkland & Ellis LLP, special corporate counsel to the Debtors
$250,000 in excess of that which the firm has already been paid $50,000 in excess of that which the firm has already been paid
Garvey Schubert Barer, special healthcare counsel to the Debtors Callahan & Blaine, APLC, special litigation counsel to the Debtors MTS Health Partners L.P., investment banker and financial advisor to the Debtors FTI Consulting, Inc., which provided the CRO and various temporary employees to the Debtors Buchalter Nemer, A Professional Corporation, counsel to the Committee
$0 in excess of that which the firm has already been paid $11,828 in excess of that which the firm has already been paid $0 as MTS Health Partners L.P. has already been paid in full $0 in excess of that which the firm has already been paid (as payments are made on an ongoing basis) $100,000 in excess of that which the firm has already been paid
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Name
Amount Owed
Treatment order allowing such fees and expenses Paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an order allowing such administrative claim in the event of any timely objection having been filed to any such administrative claim prior to the Effective Date
Non-professional fees and expenses, comprised primarily or solely of reclamation claims. A list of all known administrative claims which are not for professional fees or expenses is set forth in the chart attached as Exhibit 3 to the Disclosure Statement. TOTAL
$914,217
$1,326,045 est.
Bankruptcy Court Approval of Fees Required: The Bankruptcy Court must approve all professional fees and expenses before
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they may be paid, as well as approving any previously allowed fees and expenses sought by
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professionals pursuant to applicable provisions of the Bankruptcy Code, the Bankruptcy Rules and the Guidelines of the Office of the United States Trustee (the OUST). For all fees except Clerk's Office fees and the fees owing to the OUST, the professional in question must file and serve a properly noticed fee application, and the Bankruptcy Court must rule on the application. Only the amount of fees and expenses allowed by the Bankruptcy Court will be required to be paid under this Plan.
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The administrative claim amounts set forth above simply represent the Debtors
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best estimate as to the amount of allowed administrative claims estimated to be incurred by professionals prior to the Effective Date and that will be paid on the Effective Date or as soon as they are allowed and to the extent allowed by the Bankruptcy Court. The actual
administrative claims may be higher or lower. By voting to accept this Plan, creditors are not acknowledging the validity of, or consenting to the amount of, any of these administrative claims, and creditors are not waiving any of their rights to object to the allowance of any of
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these administrative claims. By voting to accept this Plan, creditors also understand that the
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final amount of allowed fees and expenses of the professionals employed in these cases may be higher or lower than the figures set forth above, which again are just estimates. Deadline to File Objections to Non-Professional Fees/Expenses Administrative
Claims:
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Attached as Exhibit 3 to the Disclosure Statement is a chart (the "Administrative Claims Chart")2 that shows all known remaining administrative claims (excluding professional fees and expenses) and an estimate of the allowed amount of such claims totaling $914,217. Any party in interest who desires to dispute any of these
administrative claims must file their objection with the Bankruptcy Court prior to the Effective Date. If no such objection is timely filed, on the Effective Date all of the claims contained in
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exhibit 3 to the Disclosure Statement shall be deemed to be allowed administrative claims and shall be paid in full out of the Estates Funds on the Effective Date (or as soon thereafter as is practical). 2. Priority Tax Claims
Priority tax claims include certain unsecured income, employment and other taxes described by Section 507(a)(8) of the Bankruptcy Code. The Bankruptcy Code requires that each holder of such a Section 507(a)(8) priority tax claim receive the present value of such
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claim in deferred cash payments, over a period not exceeding five (5) years after the date of the order for relief under section 301, 302, or 303 of the Bankruptcy Code; or payments made in a manner not less favorable than the most favored non-priority unsecured claim provided for by this Plan. Attached as Exhibit 2 to the Disclosure Statement is a chart (the "Priority Claims
2 Notwithstanding any comments on claims in the Administrative Claims Chart, the Debtors reserve the right to object to any such claims within the deadline set forth herein.
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Chart")3 that shows all priority claims, based on the Debtors bankruptcy schedules and the priority claims which have been asserted in timely filed proofs of claim. Priority tax claims are indicated with shaded boxes. As indicated in the Priority Claims Chart, the Debtors estimate
that the total amount of allowed priority tax claims will be approximately $14,486. Any party
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in interest who desires to dispute any of these tax claims must file their objection with the Bankruptcy Court prior to the Effective Date. If no such objection is timely filed, on the Effective Date all of the tax claims contained in the Priority Claims Chart shall be deemed to be allowed priority tax claims and shall be paid in full out of the Estates Funds on the Effective Date (or as soon thereafter as is practical). In the event that a timely objection is filed to any such tax claims, then those disputed tax claims will be paid in full out of the Estates Funds on
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the later of the Effective Date and the date the Bankruptcy Court enters an order allowing any such disputed priority tax claims (or as soon thereafter as is practical). C. Classified Claims and Interests 1. Classes of Secured Claims
Attached as Exhibit 4 to the Disclosure Statement is a chart (the "Secured Claims Chart")4 that shows all known remaining secured claims, exclusive of any remaining secured claim of the Senior Lenders, which is addressed below. All such secured claims
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identified in the Secured Claims Chart will be deemed to be collectively included in class 1 under this Plan. As indicated in the Secured Claims Chart, the Debtors estimate that the total amount of outstanding class 1 secured claims that will be allowed is approximately $79,053
3 Notwithstanding any comments on claims in the Priority Claims Chart, the Debtors reserve the right to object to any such claims within the deadline set forth herein. 4 Notwithstanding any comments on claims in the Secured Claims Chart, the Debtors reserve the right to object to any such claims within the deadline set forth herein.
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(comprised entirely of secured tax claims). Any party in interest who desires to dispute any of these class 1 secured claims must file their objection with the Bankruptcy Court prior to the Effective Date. If no such objection is timely filed, on the Effective Date all of the secured
claims contained in the Secured Claims Chart shall be deemed to be allowed class 1 secured
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claims and shall be paid in full out of the Estates Funds on the Effective Date (or as soon thereafter as is practical). In the event that a timely objection is filed to any such class 1 secured claims, then those disputed class 1 secured claims will be paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an order allowing any such disputed class 1 secured claims (or as soon thereafter as is practical). All class 1 secured claims will be considered to be not impaired under this Plan since they are
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being paid in full in cash on the Effective Date (or upon entry of a Bankruptcy Court order
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allowing such class 1 secured claims if a timely objection is filed to them). In accordance with the terms of the Asset Allocation Agreement, the Senior Lenders shall continue to retain their lien and security interest in all General Litigation (as defined in the Asset Allocation Agreement as any litigation rights owned by the Debtors other than litigation constituting avoidance actions under the Bankruptcy Code and litigation to collect any of the Debtors accounts receivable. Also in accordance with the terms of the Asset
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Allocation Agreement, the Senior Lenders shall continue to retain their lien and security interest in any of their collateral still in existence on the Effective Date (recognizing that the Debtors do not believe that any such collateral still exists). This secured claim of the Senior Lenders shall constitute the class 2 claim under this Plan. The Debtors do not have any pending General Litigation and do not currently intend to commence any General Litigation. As a result, the Debtors do not expect to receive any proceeds from any General Litigation.
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However, if the Debtors do receive any proceeds from any General Litigation, then in accordance with the terms of the Asset Allocation Agreement, 50% of such net proceeds (with net proceeds being defined as any gross proceeds less any litigation fees and expenses incurred
by the Debtors from the pursuit of such General Litigation) shall be disbursed to the Senior
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Loan Agent for the benefit of the Senior Lenders, and 50% of such proceeds shall be retained by the Debtors (with the 50% portion being retained by the Debtors to be defined herein the Debtors General Litigation Recoveries). The class 2 claim will be considered to be not impaired under this Plan because this Plan leaves unaltered the legal, equitable and contractual rights of the Senior Lenders with respect to the class 2 claim. 2. Classes of Priority Unsecured Claims
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Certain priority claims that are referred to in Bankruptcy Code Sections 507(a)
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(3), (4), (5), (6), and (7) are required to be placed in classes. These types of claims are entitled
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to priority treatment as follows: the Bankruptcy Code requires that each holder of such a claim receive cash on the Effective Date equal to the allowed amount of such claim. However, a class of unsecured priority claim holders may vote to accept deferred cash payments of a value, as of the Effective Date, equal to the allowed amount of such claim. Based upon the non-tax priority claims contained in the Debtors bankruptcy schedules and the non-tax priority claims which have been asserted in timely filed proofs of claim, as indicated in the Priority Claims
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Chart, the Debtors estimate that the total amount of allowed non-tax priority claims will be approximately $54,030. Any party in interest who desires to dispute any of these non-tax priority claims must file their objection with the Bankruptcy Court prior to the Effective Date. If no such objection is timely filed, on the Effective Date all of the non-tax priority claims contained in the Priority Claims Chart shall be deemed to be allowed non-tax priority claims and shall be paid in full out of the Estates Funds on the Effective Date (or as soon thereafter as 9
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is practical). In the event that a timely objection is filed to any such non-tax priority claims, then those disputed non-tax priority claims will be paid in full out of the Estates Funds on the later of the Effective Date and the date the Bankruptcy Court enters an order allowing any such
disputed non-tax priority claims (or as soon thereafter as is practical). All non-tax priority
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claims will be deemed to be collectively included in class 3 under this Plan and will be considered to be not impaired since they are being paid in full in cash on the Effective Date (or upon entry of a Bankruptcy Court order allowing such non-tax priority claims if a timely objection is filed to them). 3. Classes of General Unsecured Claims
General unsecured claims are unsecured claims not entitled to priority under
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Bankruptcy Code Section 507(a). The following chart identifies this Plan's treatment of the
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classes containing all of the non-priority general unsecured claims (see Exhibit 1 to the Disclosure Statement for detailed information about each class 4 general unsecured claim):
CLASS # 4
DESCRIPTION All general unsecured claims excluding the general unsecured deficiency claim of the Senior Lenders which is being separately classified in class 5 in accordance with the terms of the Asset Allocation Agreement. The Debtors have filed objections to most of their disputed general unsecured claims. Based upon the outcome of these claims objections and the Debtors analysis of
IMPAIRED (Y/N) Impaired; allowed claims in this class are entitled to vote on this Plan.
TREATMENT All Estates Funds remaining after all allowed secured claims, all allowed administrative claims, all allowed priority tax claims, and all allowed priority (non-tax) claims have been paid in full and the Administrative Reserve Fund has been funded (Net Estates Funds) will be distributed to holders of class 4 allowed claims on a pro rata basis based upon the allowed amount of their class 4 claims until each holder of a class 4 allowed claim has received payment equal to 10% of the amount of their class 4 allowed claim. The Net Estates Funds remaining after each holder of a class 4 allowed claim has received payment equal to 10% of the amount of their class 4 allowed claim (Remaining Net Estates Funds) will be distributed to holders
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their books and records and claims asserted, the Debtors currently estimate that there will be a total of approximately $13,087,870 of class 4 allowed claims, inclusive of the class 4 claims of any parties to rejected executory contracts and unexpired leases. All objections to any remaining disputed class 4 claims must be filed prior to the Effective Date.
of class 4 allowed claims and to the Senior Lenders on account of their class 5 allowed claim on a pro rata basis based upon the remaining allowed amounts of their respective class 4 and class 5 allowed claims after taking into account the 10% distribution received by holders of class 4 allowed claims as described immediately above. The Debtors estimate that holders of class 4 allowed claims will receive a total of approximately $4,679,745 of the Estates Funds under this Plan.5 This total represents the estimated portion of the Estates Funds for class 4 as of the Effective Date, after funding of the Administrative Reserve Fund, and payment of all allowed secured, administrative and priority claims. With an estimated $13,087,870 of class 4 allowed claims, the Debtors estimate that holders of class 4 allowed claims will receive a distribution equal to approximately 35.75% of the amount of their class 4 allowed claims before taking into account any Net Avoidance Action Recoveries (defined below) or the Debtors General Litigation Recoveries. The distribution to holders of class 4 allowed claims of their portion of the Net Estates Funds will be made within thirty days following the entry of a Bankruptcy Court order resolving the final remaining disputed claim, unless the Estate Representative obtains an order of the Bankruptcy Court following notice and a hearing authorizing the Estate Representative to make an interim distribution to holders of class 4 allowed claims because of the time delay that is expected to be incurred in resolving any outstanding disputed claims. The Debtors estimate that the initial distribution to holders of class 4 allowed claims will be made by
5 This figure is based on the following assumptions: (i) there will be total Estates Funds on the Effective Date of $8,600,000; (ii) there will be a total of $1,326,045 of allowed administrative claims; (iii) there will be a total of $14,486 of allowed priority tax claims; (iv) there will be a total of $79,053 of allowed class 1 secured claims; and (v) there will be a total of $54,030 of allowed non-tax priority claims. If any of these assumptions proves to be incorrect, then the total amount of Estates Funds that will be available for distribution to holders of class 4 allowed claims will be impacted (either up or down) accordingly.
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around March 31, 2012. The estimated percentage distribution to holders of class 4 allowed claims set forth above is just an estimate. The Debtors will not know the actual percentage distribution until the claims objection process has been completed and final applications for approval of the fees and expenses of the professionals employed in these cases have been ruled upon. By voting to accept this Plan, class 4 claim holders are acknowledging that their actual percentage recovery may be higher or lower than as estimated above. The foregoing estimated figures do not include any Net Avoidance Action Recoveries or the Debtors General Litigation Recoveries. All Net Avoidance Action Recoveries will be distributed to holders of class 4 allowed claims and to the Senior Lenders on account of their class 5 allowed claim on a pro rata basis based upon the remaining allowed amounts of their respective class 4 and class 5 allowed claims after taking into account the 10% distribution received by holders of class 4 allowed claims as described above. The Net Avoidance Action Recoveries will be disbursed by the Estate Representative to holders of class 4 and class 5 allowed claims once the pursuit of Avoidance Actions has been completed. The Estate Representative shall have the right at his discretion to make an interim distribution of Net Avoidance Action Recoveries to holders of class 4 and class 5 allowed claims if the Estate Representative concludes that the cost of doing so is reasonable compared to the amount of Net Avoidance Action Recoveries to be distributed. In accordance with the terms of the Asset Allocation Agreement, all of the Debtors General Litigation Recoveries will be distributed just to holders of class 4 allowed claims on a pro rata basis based upon the allowed amounts of their respective class 4 allowed claims. The Debtors do not believe
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that there will be any Debtors General Litigation Recoveries.
CLASS # 5
DESCRIPTION Class 5 consists of the deficiency claim of the Senior Lenders which is being separately classified in class 5 in accordance with the terms of the Asset Allocation Agreement. The Debtors believe that the class 5 claim of the Senior Lenders is in the amount of $7,675,801.66, after taking into account all of the post-petition payments the Debtors have made to the Senior Lenders.
IMPAIRED (Y/N) Impaired; allowed claim in this class is entitled to vote on this Plan.
TREATMENT As indicated above, the Remaining Net Estates Funds (which consists of the Net Estates Funds remaining after each holder of a class 4 allowed claim has received payment equal to 10% of the amount of their class 4 allowed claim) will be distributed to holders of class 4 allowed claims and to the Senior Lenders on account of their class 5 allowed claim on a pro rata basis based upon the remaining allowed amounts of their respective class 4 and class 5 allowed claims after taking into account the 10% distribution received by holders of class 4 allowed claims as described above. Since the Debtors estimate that there will be a total of approximately $13,087,870 of class 4 allowed claims, the Debtors estimate that there will be a total of approximately $11,779,083 of class 4 allowed claims after each holder of a class 4 allowed claim has received payment equal to 10% of the amount of their class 4 allowed claim. The Debtors therefore estimate that approximately 60.546% of the Remaining Net Estates Funds will be distributed to holders of class 4 allowed claims and that approximately 39.454% of the Remaining Net Estates Funds will be distributed to the Senior Lenders on account of their class 5 allowed claim. The Debtors estimate that Senior Lenders will receive a total of approximately $2,196,640
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of the Remaining Net Estates Funds under this Plan.6 With a class 5 allowed claim in the amount of $7,675,801.66, the Debtors estimate that the Senior Lenders will receive a distribution equal to approximately 28.6% of the amount of their class 5 allowed claim before taking into account any Net Avoidance Action Recoveries. The distribution to the Senior Lenders of their portion of the Remaining Net Estates Funds will be made within thirty days following the entry of a Bankruptcy Court order resolving the final remaining disputed claim, unless the Estate Representative obtains an order of the Bankruptcy Court following notice and a hearing authorizing the Estate Representative to make an interim distribution to the Senior Lenders on account of their class 5 allowed claim because of the time delay that is expected to be incurred in resolving any outstanding disputed claims. The Debtors estimate that the initial distribution to the Senior Lenders on account of their class 5 allowed claim will be made by around March 31, 2012. The estimated percentage distribution to the Senior Lenders on account of their class 5 allowed claim set forth above is just an estimate. The Debtors will not know the actual percentage distribution until the claims objection process has been completed and final applications for approval of the fees and expenses of the professionals employed in these cases have been ruled upon. By voting to accept this Plan, the Senior Lenders are acknowledging that their actual percentage recovery may be higher or lower than as estimated above.
6 This figure is based on the following assumptions: (i) there will be total Estates Funds on the Effective Date of $8,600,000; (ii) there will be a total of $1,326,045 of allowed administrative claims; (iii) there will be a total of $14,486 of allowed priority tax claims; (iv) there will be a total of $79,053 of allowed class 1 secured claims; and (v) there will be a total of $54,030 of allowed non-tax priority claims. If any of these assumptions proves to be incorrect, then the total amount of Remaining Net Estates Funds that will be available for distribution to the Senior Lenders on account of their class 5 allowed claim will be impacted (either up or down) accordingly.
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The foregoing estimated figures do not include any Net Avoidance Action Recoveries. All Net Avoidance Action Recoveries will be distributed to holders of class 4 allowed claims and to the Senior Lenders on account of their class 5 allowed claim on a pro rata basis based upon the remaining allowed amounts of their respective class 4 and class 5 allowed claims after taking into account the 10% distribution received by holders of class 4 allowed claims as described above. The Net Avoidance Action Recoveries will be disbursed by the Estate Representative to holders of class 4 and class 5 allowed claims once the pursuit of Avoidance Actions has been completed. The Estate Representative shall have the right at his discretion to make an interim distribution of Net Avoidance Action Recoveries to holders of class 4 and class 5 allowed claims if the Estate Representative concludes that the cost of doing so is reasonable compared to the amount of Net Avoidance Action Recoveries to be distributed.
4.
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Class of Interest Holders
Interest holders are the parties who hold an ownership interest (i.e., equity interest) in the Debtors. Since the Debtors are corporations, the interest holders are the owners of the stock of the Debtors. The following chart identifies this Plans treatment of the Debtors interest holders:
CLASS # 6
DESCRIPTION All equity interests in the Debtors, including all preferred stock, common stock, stock options, warrants, etc.
IMPAIRED (Y/N) Impaired; holders of Class 6 interests are not entitled to vote on this Plan because they are deemed to have not accepted this Plan pursuant to
TREATMENT Holders of class 6 interests will not receive any property under this Plan or any portion of the Estates Funds. Holders of class 6 interests will continue to own their equity interests in the Debtors following the Effective Date, but the Debtors will no longer own any assets of any
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Section 1126(g) of the Bankruptcy Code.
value as all of the Debtors tangible assets have been sold or liquidated and none of the Estates Funds will be paid to the holders of class 6 interests.
D.
Means of Effectuating this Plan and Implementation of this Plan 1. Funding for this Plan
This Plan will be funded entirely by the Estates Funds and the Net Avoidance
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Action Recoveries (on the assumption that there will not be any recoveries from the pursuit of any General Litigation, which the Debtors believe will be the case). The Debtors project that there will be a total of approximately $8,500,000 of Estates Funds on the Effective Date available to fund this Plan. This figure is just an estimate the actual figure could be higher or lower. 2. Disbursing Agent and the Estate Representative
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Matthew Pakkala, the Debtors current CRO, will serve as the representative of the Debtors bankruptcy estates (the Estate Representative) for purposes of administering this Plan. The Estate Representative will be compensated for serving as the Estate Representative at the hourly rate of $675, which is the same hourly rate he currently receives for serving as the CRO, with his compensation to be paid solely out of the Administrative Reserve Fund. The Debtors anticipate that the Estate Representative will utilize the services of Laura Contreras, the Debtors current CFO, to assist him in this process. Ms. Contreras will be compensated for
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any services she provides at the hourly rate of $125, which is the same hourly rate she currently receives for serving as the CFO, with her compensation to be paid solely out of the Administrative Reserve Fund. The Estate Representative will serve as the disbursing agent for purposes of making all distributions under this Plan and will do so without charging these 16
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estates any disbursing agent fee. 3. Objections to Claims
The pre-petition claims bar date in these cases was September 17, 2010, except
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for the rejection damage claims of other parties to executory contracts and unexpired leases,
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whose claims bar date was 30 days after the date of the Debtors rejection of their respective executory contract or unexpired lease. The administrative claims bar except for professional fees and expenses was October 31, 2011. The Debtors have filed objections to most of the disputed claims in these cases, and most of those claims objections have already been resolved. The Debtors anticipate that they will have filed objections to all remaining disputed claims prior to the Plan confirmation hearing, which is anticipated to occur by February 28, 2012.
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Attached as Exhibit 1 to the Disclosure Statement is a claims chart, which identifies all of the
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Debtors scheduled general claims and all proofs of claim which have been timely filed against the Debtors asserting general unsecured claims. The Debtors will file before the Plan
confirmation hearing objections to all remaining claims which are inconsistent with the Debtors books and records if the Debtors conclude that the discrepancy is sufficiently large enough to justify incurring the fees associated with filing and prosecuting objections to those claims. As provided by Section 502(c) of the Bankruptcy Code, the Bankruptcy Court may,
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upon required notice and motion, estimate any contingent or unliquidated disputed claim for purposes of Plan confirmation. The Estate Representative will have the authority to file any objections to claims following the confirmation of this Plan. The Estate Representative will also have the authority to continue after confirmation of this Plan with the prosecution of claims objections commenced by the Debtors prior to the confirmation of this Plan but which are not resolved by the time of Plan confirmation. The Bankruptcy Court shall retain
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jurisdiction over the Debtors estates to resolve such claims objections following Plan confirmation and the Effective Date. Nothing contained in this Plan shall constitute a waiver or release by the Debtors or these estates of any rights of setoff or recoupment, or of any defense,
the Debtors or these estates may have with respect to any claim. Under this Plan and pursuant
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to the Plan Confirmation Order, the Debtors are being treated as one consolidated legal entity. As a result of such substantive consolidation, to the extent any creditor filed similar claims against each of the Debtors, only one such claim will be allowed and used for distribution purposes under this Plan. Following the Effective Date, the Estate Representative is excused from any obligation, and not required, to object to any such duplicative claims. 4. Investigation and Prosecution of Avoidance Actions
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The Debtors are not aware of any fraudulent conveyances which should be
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pursued, and the Debtors are not aware of any other litigation claims which should be pursued other than preference lawsuits pursuant to Sections 547 and 550 of the Bankruptcy Code. Attached as Exhibit 5 to the Disclosure Statement is a chart which identifies all known payments the Debtors made on account of antecedent debt to non-insiders within the ninety-day preference period and all known payments the Debtors made on account of antecedent debt to insiders within the one-year preference period. The Debtors believe that the payments
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identified in Exhibit 5 to the Disclosure Statement likely constitute the universe of potential preference payments which may possibly be recovered by the Debtors estates, recognizing that at least some of these payments may be subject to defenses which are identified in Section 547 of the Bankruptcy Code or are prohibited, waived or released by prior Court order and/or agreement by the Debtors. The Estate Representative will serve as the representative of the Debtors estates for the purposes of pursuing preference lawsuits which are commenced after
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the Effective Date or which are commenced by the Debtors before the Effective Date but not completed by the time of the Effective Date. The Bankruptcy Court shall retain jurisdiction over these estates and all such preference lawsuits to enable all such preference lawsuits to be
prosecuted before the Bankruptcy Court following the Effective Date. All preference lawsuits
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will be pursued by LNBYB, the Debtors bankruptcy counsel, solely on a contingency basis so that none of the Estates Funds will be used for this purpose and so that creditors of these estates do not incur any risk from the unsuccessful pursuit of any preference lawsuits. The
compensation terms for LNBYB for the pursuit of preferences are set forth in Exhibit 6 to the Disclosure Statement. Recoveries obtained from the pursuit of preference actions net of all contingency fees and expenses are referred to herein as Net Avoidance Action Recoveries.
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The Estate Representative will distribute all Net Avoidance Action Recoveries to holders of
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class 4 allowed claims and to the Senior Lenders on account of their class 5 allowed claim on a pro rata basis in the manner described above. The Estate Representative will be compensated for serving as the representative of the Debtors estates for the purposes of pursuing preference lawsuits which are commenced after the Effective Date or which are commenced by the Debtors before the Effective Date but not completed by the Effective Date at his same hourly rate of $675, with his compensation to be paid solely out of the Administrative Reserve Fund.
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5.
Post-Confirmation Administration of these Chapter 11 Estates and
Payment of Professional Fees and Expenses Incurred after the Effective Date Following the Effective Date, the Estate Representative shall continue to serve as the representative of the Debtors estates for all purposes necessary to implement the terms of this Plan including, but not limited to, (i) maintaining and distributing the Estates Funds, (ii) commencing and prosecuting objections to claims which were not completed by the Effective
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Date, (iii) commencing and continuing with the prosecution of preference actions or lawsuits which were not completed by the Effective Date, (iv) maintaining and distributing the Net Avoidance Action Recoveries; (v) monitoring and implementing this Plan, and (vi) preparing
and filing post-confirmation reports with the OUST and paying any post-confirmation fees
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owing to the OUST.
On the Effective Date, the Debtors shall establish a reserve (the
Administrative Reserve Fund) of $250,000 out of the Estates Funds out of which the Estate Representative shall have the authority to pay his fees and expenses, the fees and expenses of any additional employees whom the Estate Representative determines are necessary and appropriate to enable him to carry out his duties, the fees and expenses of professionals incurred after the Effective Date which the Estate Representative determines are necessary and
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appropriate to enable him to continue with the administration of the Debtors estates and
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ultimately to close out the Debtors Chapter 11 cases through the entry of final decrees. The Estate Representative shall have the authority to pay all such fees and expenses out of the Administrative Reserve Fund without any further order of the Bankruptcy Court. To the extent any funds remain in the Administrative Reserve Fund upon the entry of final decrees closing the Debtors Chapter 11 cases, the Estate Representative will distribute those funds to holders of class 4 allowed claims and to the Senior Lenders on account of their class 5 allowed claim
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on a pro rata basis in the manner described above unless the amount is less than $10,000, in which case the Estate Representative will pay such funds to the Clerk of the Bankruptcy Court. 6. Post-Confirmation Committee
Some or all of the members of the Committee shall have the right, but not the obligation, to form a post-confirmation committee (the Post-Confirmation Committee) for purposes of monitoring the post-confirmation activities of the Estate Representative and these
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estates. The Post-Confirmation Committee will have the right to employ counsel to assist the Post-Confirmation Committee. The fees and expenses of any such counsel will be paid by the Estate Representative out of the Administrative Reserve Fund. If members of the Committee
elect to form a Post-Confirmation Committee, then the settlement process involving pre-lawsuit
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preference demands and preference lawsuits will be accomplished in accordance with the Preference Settlement Protocol attached as Exhibit 6 to the Disclosure Statement. If
members of the Committee do not elect to form a Post-Confirmation Committee, then the settlement process involving pre-lawsuit preference demands and preference lawsuits will be accomplished in accordance with the Preference Settlement Protocol attached as Exhibit 6 to the Disclosure Statement except that there will be no involvement by a Post-Confirmation
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Committee.
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7.
Distributions to be Made Pursuant to this Plan
Except as otherwise agreed to by the Estate Representative in writing, distributions to be made to holders of allowed claims pursuant to this Plan may be delivered by regular mail, postage prepaid, to the address shown in the Debtors schedules, as they may from time to time be amended in accordance with Bankruptcy Rule 1000, or, if a different address is stated in a proof of claim duly filed with the Bankruptcy Court, to such address. Checks issued
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to pay allowed claims shall be null and void if not negotiated within sixty (60) days after the date of issuance. The Estate Representative, at his discretion, has the authority to delay the distribution of funds to the holder of an allowed claim who is also the possible target of preference action, except to the extent that the distribution to which the claim holder is entitled is greater than the maximum preference exposure by the claim holder. 8. Exculpations and Releases
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To the maximum extent permitted by law, neither the Debtors nor the Committee, nor any of their representatives, officers, directors, employees or professionals retained by them to assist them in the administration of the Debtors Chapter 11 cases shall have or incur any
liability to any person or entity, including the Debtors estates, for any act taken or omission
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made in connection with or related to the administration of the Debtors Chapter 11 estates, the formulation and implementation of this Plan, or a contract, instrument, release, or other agreement or document created in connection therewith, the solicitation of acceptances for or confirmation of this Plan, or the consummation and implementation of this Plan and the transactions contemplated herein. All creditors and other parties in interest shall be
permanently enjoined from initiating or prosecuting any claim or cause of action against the
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Debtors or the Committee, or any of their representatives, officers, directors, employees or

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professionals retained by them to assist them in the administration of the Debtors Chapter 11 cases for any actions described herein. E. Risk Factors
The Debtors do not believe that there is any risk of non-performance of this Plan since this Plan consists of the distribution of the Estates Funds, and the Debtors are already in possession of the Estates Funds. While the Debtors have no way of knowing how much Net
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Avoidance Action Recoveries there will be, the Debtors do not believe that there is any risk to these estates from the pursuit of preference actions since that is all being done on a contingency basis, meaning that there is only upside to holders of class 4 and class 5 allowed claims from the pursuit of preference actions. F. Other Provisions of this Plan 1. Executory Contracts and Unexpired Leases
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a)
Assumptions
The Debtors will not be assuming any executory contracts or unexpired leases under this Plan.
b)
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Rejections
All of the Debtors executory contracts and unexpired leases which have not been previously rejected will be deemed rejected on the Effective Date. THE BAR DATE FOR FILING A PROOF OF CLAIM BASED ON A CLAIM ARISING FROM THE REJECTION OF AN UNEXPIRED LEASE OR EXECUTORY CONTRACT WHICH IS REJECTED ON THE EFFECTIVE DATE WILL BE THIRTY (30) DAYS AFTER THE DATE OF ENTRY OF THE PLAN CONFIRMATION ORDER. Any claim based on the
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rejection of an unexpired lease or executory contract must be timely filed and served on the
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Debtors or will otherwise be barred. To the extent any claims are filed based on the rejection of executory contracts or unexpired leases, such claims shall constitute and be treated as class 4 claims. The Debtors believe that all of their executory contracts and unexpired leases have already been assumed or rejected so that no additional rejections will be occurring under this Plan. 2. Changes in Rates Subject to Regulatory Commission Approval.
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The Debtors do not believe that this provision is applicable to this Plan as the Debtors are not aware of governmental regulatory commission approval of rates which would be applicable to the Debtors as the Debtors no longer have any operating business. 3. Retention of Jurisdiction.
After confirmation of this Plan and occurrence of the Effective Date, in addition to jurisdiction which exists in any other court, the Bankruptcy Court will retain such
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jurisdiction as is legally permissible, including for the following purposes: a. to resolve any and all disputes regarding the operation and interpretation
of this Plan and the Plan Confirmation Order;

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b.
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to determine the allowability, classification, or priority of claims and
interests upon objection by the Estate Representative or any other party in interest; c. to determine the extent, validity and priority of any lien asserted against
property of these estates; d. to adjudicate any preference lawsuits and any collection efforts made by
the Estate Representative resulting from judgments obtained by the Estate Representative from the pursuit of preference lawsuits;
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e.
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to construe and take any action to enforce this Plan, the Plan
Confirmation Order, and any other Bankruptcy Court order, issue such orders as may be necessary for the implementation, execution, performance, and consummation of this Plan, the Plan Confirmation Order, and all matters referred to in this Plan and the Plan Confirmation Order, and to determine all matters that may be pending before the Bankruptcy Court; f. to determine any and all applications for allowance of compensation and
reimbursement of expenses of professionals for the period on or before the Effective Date;
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g. h.
to determine any request for payment of administrative expenses; to determine motions for the rejection, assumption or assignment of
executory contracts or unexpired leases filed before the Effective Date and the allowance of any claims resulting therefrom; i. to determine all applications, motions, adversary proceedings, contested
matters, and any other litigated matters instituted during the pendency of these cases whether
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before, on or after the Effective Date; j. to determine such other matters and for such other purposes as may be
provided in the Plan Confirmation Order;

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k.
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to modify this Plan under Section 1127 of the Bankruptcy Code in order
to remedy any apparent defect or omission in this Plan or to reconcile any inconsistency in this Plan so as to carry out its intent and purpose; l. except as otherwise provided in this Plan or the Plan Confirmation
Order, to issue injunctions, or to take such other actions or make such other orders, as may be necessary or appropriate to restrain interference with this Plan or the Plan Confirmation Order, or the execution or implementation by any person or entity of this Plan or the Plan
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Confirmation Order;
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m.
to issue such orders in aid of consummation of this Plan or the Plan
Confirmation Order, including approval of distributions under this Plan, notwithstanding any applicable nonbankruptcy law, with respect to any person or entity, to the fullest extent authorized by the Bankruptcy Code or Bankruptcy Rules; and n. to enter final decrees closing these Chapter 11 cases. III. EFFECT OF CONFIRMATION OF PLAN
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A.
No Discharge
Since this is a liquidating plan, the Debtors will not be receiving a discharge following confirmation of this Plan pursuant to 11 U.S.C. 1141. B. Post-Confirmation Status Report
Within 120 days following the entry of the Plan Confirmation Order, unless a final decree closing the Debtors Chapter 11 cases is first entered, the Estate Representative will file
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a status report with the Bankruptcy Court explaining what progress has been made toward consummation of the confirmed Plan. The status report shall be served on the OUST, those parties who have requested special notice and any Post-Confirmation Committee. Further
status reports shall be filed every 120 days and served on the same entities until a final decree is
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entered closing the Debtors Chapter 11 cases, unless otherwise ordered by the Bankruptcy Court. C. Post-Confirmation Conversion/Dismissal
A creditor or any other party in interest may bring a motion to convert or dismiss these cases under Section 1112(b) of the Bankruptcy Code after this Plan is confirmed if there is a default in performing this Plan. If the Bankruptcy Court orders these cases converted to
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Chapter 7 after this Plan is confirmed, then all property that had been property of the Chapter
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11 estates, and that has not been disbursed pursuant to this Plan, will revest in the Chapter 7 estates, and the automatic stay will be reimposed upon the revested property, but only to the extent that relief from stay was not previously authorized by the Bankruptcy Court during these cases. The Plan Confirmation Order may also be revoked under very limited circumstances. The Bankruptcy Court may revoke the Plan Confirmation Order if it was procured by fraud and if a party in interest brings an adversary proceeding to revoke confirmation within 180 days
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after the entry of the Plan Confirmation Order. D. Payment of United States Trustee Fees
The Estate Representative shall be responsible for the timely payment of fees incurred pursuant to 28 U.S.C. 1930(a)(6) until a final decree is entered closing the Debtors Chapter 11 cases. After the Effective Date, the Estate Representative will file with the Bankruptcy Court and serve on the OUST and any Post-Confirmation Committee quarterly financial reports
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regarding all income and disbursements, including all Plan payments, for each quarter (or portion thereof) that these cases remains open. E. Final Decree
Once the Debtors estates have been substantially consummated as referred to in 11

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U.S.C. 1101(2), the Estate Representative will file a motion with the Bankruptcy Court to obtain final decrees to close these cases. Dated: November 28, 2011 LEVENE, NEALE, BENDER, YOO & BRILL L.L.P.
By:
/s/ Ron Bender Ron Bender Todd M. Arnold John-Patrick M. Fritz Attorneys for Chapter 11 Debtors and Debtors in Possession
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NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in Category I. Proposed orders do not generate an NEF because only orders that have been entered are placed on the CM/ECF docket.
PROOF OF SERVICE OF DOCUMENT

I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 10250 Constellation Boulevard, Suite 1700, Los Angeles, CA 90067 A true and correct copy of the foregoing document described as EXHIBIT A TO ORDER CONFIRMING DEBTORS FIRST AMENDED CHAPTER 11 LIQUIDATING PLAN OF REORGANIZATION will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner indicated below: I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) (LBR), the foregoing document will be served by the court via NEF and hyperlink to the document. On March 26, 2012, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email address(es) indicated below: Raymond G Alvarado ralvarado@alvaradosmith.com Todd M Arnold tma@lnbrb.com Phillip Ashman mgolod@mcqueenashman.com, pashman@mcqueenashman.com;bkumamoto@mcqueenashman.com Richard L Barnett rick@barnettrubin.com, rlbsec@barnettrubin.com Ron Bender rb@lnbrb.com Eric S Bershatski ericbershatski@tilemlaw.com Ronald K Brown rkbgwhw@aol.com Jennifer Witherell Crastz jcrastz@hemar-rousso.com Carol J Fogleman mfrost@bwslaw.com Anthony A Friedman aaf@lnbrb.com John-patrick M Fritz jpf@lnbrb.com Jeffrey K Garfinkle bkgroup@buchalter.com, jgarfinkle@buchalter.com;jmealeyhatch@buchalter.com;docket@buchalter.com Fredric Glass fglass@fairharborcapital.com Nancy S Goldenberg nancy.goldenberg@usdoj.gov D Edward Hays ehays@marshackhays.com Michael J Heyman michael.heyman@klgates.com Mark D Houle mark.houle@pillsburylaw.com Jacqueline L James jlj@lnbyb.com Jeff D Kahane jkahane@duanemorris.com Andy Kong Kong.Andy@ArentFox.com Rodger M Landau rlandau@lgbfirm.com, kmoss@lgbfirm.com Matthew A Lesnick matt@lesnicklaw.com Michael B Lubic michael.lubic@klgates.com Frank F McGinn ffm@bostonbusinesslaw.com Elissa Miller emiller@sulmeyerlaw.com, asokolowski@sulmeyerlaw.com Aram Ordubegian ordubegian.aram@arentfox.com Ernie Zachary Park ernie.park@bewleylaw.com Richard Park Richard.Park@usdoj.gov Justin E Rawlins jrawlins@winston.com, docketla@winston.com Benjamin Seigel bseigel@buchalter.com, IFS_filing@buchalter.com David B Shemano dshemano@pwkllp.com Philip E Strok pstrok@wgllp.com United States Trustee (SA) ustpregion16.sa.ecf@usdoj.gov Howard J Weg hweg@pwkllp.com
2
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1 2
Sharon Z Weiss sharon.weiss@hro.com, raul.morales@hro.com Joseph M Welch jwelch@buchalter.com, jmealeyhatch@buchalter.com;docket@buchalter.com Johnny White , seb@blakeleyllp.com;bblakeley@blakeleyllp.com;rclifford@blakeleyllp.com Service information continued on attached page
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 March 26, 2012 Date Lourdes Cruz Type Name /s/ Lourdes Cruz Signature II. SERVED BY OVERNIGHT MAIL OR U.S. MAIL(indicate method for each person or entity served): On March 26, 2012, I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. Service by Overnight Mail The Hon. Theodor C. Albert United States Bankruptcy Court 411 West Fourth Street Santa Ana, CA 92701 Service by U.S. Mail Counsel for Phadia US, Inc. Phillip Ashman/Brian Kumamoto McQueen & Ashman LLP 19900 MacArthur Blvd., Suite 1150 Irvine, CA 92612 Service information continued on attached page III. SERVED BY PERSONAL DELIVERY (indicate method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on March 26, 2012, I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on the judge will be completed no later than 24 hours after the document is filed. Service information continued on attached page I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. August 2010
F 9013-3.1.PROOF.SERVICE
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Attorney or Party Name, Address, Telephone & FAX Number, and California State Bar Number FOR COURT USE ONLY
Desc
Ron Bender 10250 Constellation Blvd. Suite 1700 Los Angeles, CA 90067 California State Bar Number: 143364 Attorney for Debtor
UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA

In re: CASE NO.: 8:10-bk-16743-TA Westcliff Medical Laboratories, Inc. ADV. NO.: CHAPTER: Debtor(s), Plaintiff(s), Defendant(s). 11
Corporate Ownership Statement Pursuant to F.R.B.P. 1007(a)(1) and 7007.1, and Local Bankruptcy Rule 1002-5
Pursuant to F.R.B.P. 1007(a)(1) and 7007.1, and Local Bankruptcy Rule 1002-5, any corporation, other than a governmental unit, that is a debtor in a voluntary case or a party to an adversary proceeding or a contested matter shall file this statement identifying all its parent corporations and listing any publicly held company, other than a governmental unit, that directly or indirectly own 10% or more of any class of the corporations equity interest, or state that there are no entities to report. This Corporate Ownership Statement must be filed with the initial pleading filed by a corporate entity in a case or adversary proceeding. A supplemental statement must promptly be filed upon any change in circumstances that renders this Corporate Ownership Statement inaccurate. I, Matthew Pakkala
(Print Name of Attorney or Declarant)
, the undersigned in the above-captioned case, hereby declare
under penalty of perjury under the laws of the United States of America that the following is true and correct: [Check the appropriate boxes and, if applicable, provide the required information.] 1. I have personal knowledge of the matters set forth in this Statement because: I am the president or other officer or an authorized agent of the debtor corporation I am a party to an adversary proceeding I am a party to a contested matter I am the attorney for the debtor corporation 2.a. The following entities, other than the debtor or a governmental unit, directly or indirectly own 10% or more of any class of the corporations(s) equity interests: See Addendum b. There are no entities that directly or indirectly own 10% or more of any class of the corporations equity interest. June 2, 2010 Date
/s/ Matthew Pakkala Signature of Attorney or Declarant Matthew Pakkala Printed Name of Attorney or Declarant
________________________________________________________________________________
This form is optional. It has been approved for use by the United States Bankruptcy Court for the Central District of California. April 2007
Software Copyright (c) 1996-2009 Best Case Solutions - Evanston, IL - (800) 492-8037 Best Case Bankruptcy
Exhibit B Page 000038
In re
Case 8:10-bk-16743-TA Doc 92-1 Filed 04/11/12 Entered 04/11/12 22:24:22 Case 8:10-bk-16743-TA Doc 780 06/02/10 06/02/10 19:50:54 Schedules and SOFA - Part 2 Page 180 of 250 Main Document Page 41 of 246
CHAPTER 11 Westcliff Medical Laboratories, Inc. CASE NUMBER Debtor.
Desc
Addendum to Corporate Ownership Statement Pursuant to F.R.B.P. 1007(a)(1) and 7007.1, and Local Bankruptcy Rule 1002-5
The following entities, other than the debtor or a governmental unit, directly or indirectly own 10% or more of any class of the corporations(s) equity interests: BioLabs, Inc. c/o Parthenon Capital, LLC 75 State St., 26th Floor Boston, MA 02109
________________________________________________________________________________
This form is optional. It has been approved for use by the United States Bankruptcy Court for the Central District of California. April 2007
Software Copyright (c) 1996-2009 Best Case Solutions - Evanston, IL - (800) 492-8037 Best Case Bankruptcy
Exhibit B Page 000039
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Exhibit C Page 000040
Exhibit C Page 000041
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Exhibit D Page 000042
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Exhibit E Page 000045
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EXHIBIT F
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RON BENDER (SBN 143364) JACQUELINE L. RODRIGUEZ (SBN 198838) TODD M. ARNOLD (SBN 221868) JOHN-PATRICK M. FRITZ (SBN 245240) LEVENE, NEALE, BENDER, YOO & BRILL L.L.P. 10250 Constellation Boulevard, Suite 1700 Los Angeles, California 90067 Telephone: (310) 229-1234; Facsimile: (310) 229-1244
Email: rb@lnbyb.com; jlr@lnbyb.com; tma@lnbyb.com; jpf@lnbyb.com
FILED & ENTERED JUL 19 2010

CLERK U.S. BANKRUPTCY COURT Central District of California BY ngo DEPUTY CLERK
Attorneys for Chapter 11 Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA (SANTA ANA DIVISION) In re: WESTCLIFF MEDICAL LABORATORIES, INC., Debtor. ____________________________ BIOLABS, INC., Debtor. ____________________________ Affects Both Debtors Affects WESTCLIFF MEDICAL LABORATORIES, INC. only Affects BIOLABS, INC. only Lead Case No. 8:10-bk-16743-TA Jointly Administered with Case No. 8:10-bk-16746-TA Chapter 11 Cases ORDER ESTABLISHING BAR DATE FOR FILING PROOFS OF CLAIM
The
Court,
having
considered
the
Notice
of
Motion
and
Motion for an Order Establishing Bar Date for Filing Proofs of
Exhibit F Page 000048
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Claim (the Motion) filed by Westcliff Medical Laboratories, Inc. (Westcliff) and BioLabs, Inc. (BioLabs), the chapter 11 debtors and debtors in possession herein (collectively, the Debtors), notice of the Motion having been appropriate, no oppositions having been filed, and with good cause appearing, it is hereby ORDERED that, except as otherwise set forth hereinbelow, the last day for creditors to file proofs of claims and for equity holders to file proofs of interest against the Debtors bankruptcy estates shall be, and hereby is, the date 60 days from the date that the Debtors gives notice (the Bar Date), provided that the Debtors serve notice of the Bar Date within three (3) business days of entry of this Order; and it is further ORDERED that, for claims arising from rejection of
executory contracts or unexpired leases pursuant to 11 U.S.C. 365, the last day to file a proof of claim shall be, and hereby is, (a) 30 days after the date of the entry of the order authorizing the rejection, or (b) the Bar Date, provided that the Debtors serve notice of the Bar Date within three (3) business days of entry of this Order, whichever is later; and it is further ORDERED that, for claims of governmental units, as that term is defined in 11 U.S.C. 101(27), the last day to file a
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proof of claim shall be, and hereby is, (a) before 180 days after the date of the order for relief in these cases for each of the respective Debtors, or (b) the Bar Date, provided that the Debtors serve notice of the Bar Date within three (3) business days of entry of this Order, whichever is later; and it is further ORDERED that, for claims arising from avoidance of a
transfer under chapter 5 of the Bankruptcy Code, the last day to file a proof of claim shall be, and hereby is, (a) 30 days after the entry of judgment avoiding the transfer, or (b) the Bar Date, provided that the Debtors serve notice of the Bar Date within three (3) business days of the date of entry of this Order, whichever is later; and it is further ORDERED that any party that fails to timely file a proof of claim or proof of interest with the Court and serve such proof of claim or proof of interest upon counsel for the
Debtors is hereby precluded from asserting a proof of claim or proof of interest against the Debtors or the Debtors estates thereafter; and it is further
/// ///
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ORDERED
that
the
proposed
notice
of
Bar
Date
attached
hereto is hereby approved. IT IS SO ORDERED. ###
DATED: July 19, 2010
United States Bankruptcy Judge
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RON BENDER (SBN 143364) JACQUELINE L. RODRIGUEZ (SBN 198838) TODD M. ARNOLD (SBN 221868) JOHN-PATRICK M. FRITZ (SBN 245240) LEVENE, NEALE, BENDER, YOO & BRILL L.L.P. 10250 Constellation Boulevard, Suite 1700 Los Angeles, California 90067 Telephone: (310) 229-1234; Facsimile: (310) 229-1244
Email: rb@lnbyb.com; jlr@lnbyb.com; tma@lnbyb.com; jpf@lnbyb.com
Attorneys for Chapter 11 Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA (SANTA ANA DIVISION) In re: WESTCLIFF MEDICAL LABORATORIES, INC., Debtor. ____________________________ BIOLABS, INC., Debtor. ____________________________ Affects Both Debtors Affects WESTCLIFF MEDICAL LABORATORIES, INC. only Affects BIOLABS, INC. only NOTICE OF CLAIMS BAR DATE LAST DAY TO FILE CLAIMS ____________, 2010 Lead Case No. 8:10-bk-16743-TA Jointly Administered with Case No. 8:10-bk-16746-TA Chapter 11 Cases
TO ALL CREDITORS, EQUITY HOLDERS AND PARTIES IN INTEREST: 24 NOTICE OF CLAIMS DEADLINE 25 The Bankruptcy Court has set a deadline of _____________, 26 2010 27 interests in Westcliff Medical Laboratories, Inc. (Westcliff) 28
(Bar
Date),
for
creditors
and
holders
of
ownership
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and BioLabs, Inc. (BioLabs), the chapter 11 debtors and debtors in possession herein (collectively, the Debtors), to file
proofs of claim against or proofs of interest in the Debtors estates. The exceptions to this deadline for filing proofs of claims or interest are: (1) claims arising from rejection of executory contracts or unexpired leases, (2) claims of governmental units, and (3) claims arising as the result of transfer avoidance
pursuant to chapter 5 of the Bankruptcy Code. For claims arising from rejection of executory contracts or unexpired leases pursuant to 11 U.S.C. 365, the last day to file a proof of claim is: (a) 30 days after the date of entry of the order authorizing the rejection, or (b) _________________, 2010, whichever is later. For claims of governmental units, as that term is defined in 11 U.S.C. 101(27), proofs of claim are timely filed: (a) before 180 days after the date of the order for relief in this case, or (b) ______________, 2010, whichever is later. 11 U.S.C. 502(b)(9). For claims arising from the avoidance of a transfer under chapter 5 of the Bankruptcy Code, the last day to file a proof of claim is: (a) 30 days after the entry of judgment avoiding the transfer, or (b) ______________, 2010, whichever is later. If you are listed on the Debtors Schedules of Assets and Liabilities disputed, interest and your claim or interest or is not scheduled your forth claim in as or the
contingent, is deemed
unliquidated filed in the
unknown, set
amount
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Schedules,
and
filing
of
proof
of
claim
or
interest
is
unnecessary if you agree that the amount scheduled is correct and that the category in which your claim or interest is scheduled (secured, unsecured, preferred stock, common stock, etc.) is
correct. 11 U.S.C. 1111(a). If your claim or interest is not listed on the Schedules or is scheduled as disputed, contingent, unliquidated or unknown, or you disagree with the amount or description scheduled for your claim or interest, you must file a proof of claim or interest. Failure of a creditor or interest holder to file timely a proof of claim or interest on or before the deadline may result in disallowance of the claim or interest or subordination under the terms of a plan of reorganization without further notice or hearing. 11 U.S.C. 502(b)(9). Creditors and interest holders The
may wish to consult an attorney to protect their rights.
Debtors reserve the right to object to any and all proof of claim or interest on any and all grounds. Dated: July ___, 2010 WESTCLIFF MEDICAL LABORATORIES, INC. -andBIOLABS, INC. /s/ Ron Bender RON BENDER JACQUELINE L. RODRIGUEZ TODD M. ARNOLD JOHN-PATRICK M. FRITZ LEVENE, NEALE, BENDER, YOO & BRILL L.L.P. Attorneys for Chapter 11 Debtors and Debtors in Possession
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In re: WESTCLIFF MEDICAL LABORATORIES, INC., Debtor(s). BIOLABS, INC.,
Debtor.
CHAPTER 11 Case No. 8:10-bk-16743-TA Jointly Administered with Case No. 8:10-bk-16746-TA
I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 10250 Constellation Boulevard, Suite 1700, Los Angeles, California 90067
PROOF OF SERVICE OF DOCUMENT
A true and correct copy of the foregoing document described as ORDER ESTABLISHING BAR DATE FOR FILING PROOFS OF CLAIM will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner indicated below: I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) (LBR), the foregoing document will be served by the court via NEF and hyperlink to the document. On ___________, 2010, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email address(es) indicated below: Service information continued on attached page II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL(indicate method for each person or entity served): On July 12, 2010, I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. Via Overnight Mail Hon. Theodor Albert United States Bankruptcy Court 411 West Fourth Street Santa Ana, CA 92701 Service information continued on attached page III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on July 8, 2010, I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on the judge will be completed no later than 24 hours after the document is filed. Service information continued on attached page I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. July 12, 2010 Date
January 2009
Lourdes Cruz Type Name
/s/ Lourdes Cruz Signature
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
F 9013-3.1
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In re: WESTCLIFF MEDICAL LABORATORIES, INC., Debtor(s). BIOLABS, INC., Debtor. CHAPTER 11 Case No. 8:10-bk-16743-TA Jointly Administered with Case No. 8:10-bk-16746-TA
NOTE TO USERS OF THIS FORM:

1) Attach this form to the last page of a proposed Order or Judgment. Do not file as a separate document. 2) The title of the judgment or order and all service information must be filled in by the party lodging the order. 3) Category I. below: The United States trustee and case trustee (if any) will always be in this category. 4) Category II. below: List ONLY addresses for debtor (and attorney), movant (or attorney) and person/entity (or attorney) who filed an opposition to the requested relief. DO NOT list an address if person/entity is listed in category I.
NOTICE OF ENTERED ORDER AND SERVICE LIST

Notice is given by the court that a judgment or order entitled ORDER ESTABLISHING BAR DATE FOR FILING PROOFS OF CLAIM was entered on the date indicated as Entered on the first page of this judgment or order and will be served in the manner indicated below: I. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s), the foregoing document was served on the following person(s) by the court via NEF and hyperlink to the judgment or order. As of July 12, 2010, the following person(s) are currently on the Electronic Mail Notice List for this bankruptcy case or adversary proceeding to receive NEF transmission at the email address(es) indicated below. Todd M Arnold tma@lnbrb.com Richard L Barnett rick@barnettrubin.com, rlbsec@barnettrubin.com Ron Bender rb@lnbrb.com Jennifer Witherell Crastz jcrastz@hemar-rousso.com Carol J Fogleman mfrost@bwslaw.com John-patrick M Fritz jpf@lnbrb.com Jeffrey K Garfinkle bkgroup@buchalter.com, jgarfinkle@buchalter.com Nancy S Goldenberg nancy.goldenberg@usdoj.gov Michael J Heyman michael.heyman@klgates.com Mark D Houle mark.houle@pillsburylaw.com Andy Kong Kong.Andy@ArentFox.com Rodger M Landau rlandau@lgbfirm.com, kmoss@lgbfirm.com Michael B Lubic michael.lubic@klgates.com Aram Ordubegian ordubegian.aram@arentfox.com Justin E Rawlins jrawlins@winston.com, docketla@winston.com Jacqueline L Rodriguez jlr@lnbrb.com Benjamin Seigel bseigel@buchalter.com, IFS_filing@buchalter.com David B Shemano dshemano@pwkllp.com United States Trustee (SA) ustpregion16.sa.ecf@usdoj.gov Howard J Weg hweg@pwkllp.com Sharon Z Weiss sharon.weiss@hro.com Service information continued on attached page II. SERVED BY THE COURT VIA U.S. MAIL: A copy of this notice and a true copy of this judgment or order was sent by United States Mail, first class, postage prepaid, to the following person(s) and/or entity(ies) at the address(es) indicated below:
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Debtors Westcliff Medical Laboratories, Inc. BioLabs, Inc. 1821 E. Dyer Road, #100 Santa Ana, CA 92705-0000 Service information continued on attached page III. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment or order which bears an Entered stamp, the party lodging the judgment or order will serve a complete copy bearing an Entered stamp by U.S. Mail, overnight mail, facsimile transmission or email and file a proof of service of the entered order on the following person(s) and/or entity(ies) at the address(es), facsimile transmission number(s) and/or email address(es) indicated below: Service information continued on attached page
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
January 2009
F 9021-1.1
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Desc
EXHIBIT G
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Desc
Exhibit G Page 000058
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Case 8:10-bk-16743-TA
Desc
Case 8:10-bk-16743-TA
Desc
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Doc 180 Filed 07/21/10 Entered 07/21/10 13:17:30 780 04/11/12 04/11/12 22:24:22 Main Document Page 86 of 153 70 180
Desc
Case 8:10-bk-16743-TA
Desc
Case 8:10-bk-16743-TA
Desc
Case 8:10-bk-16743-TA Doc 780 Filed 05/20/10 Entered 05/20/10 20:14:42 Desc Case 8:10-bk-16743-TA Doc 19 Filed 04/11/12 Entered 04/11/12 22:24:22 Desc Main Document Main Document Page 73 of 180 Page 1 90
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
RON BENDER (SBN 143364) JACQUELINE L. RODRIGUEZ (SBN 198838) TODD M. ARNOLD (SBN 221868) JOHN-PATRICK M. FRITZ (SBN 245240) LEVENE, NEALE, BENDER, RANKIN & BRILL L.L.P. 10250 Constellation Boulevard, Suite 1700 Los Angeles, California 90067 Telephone: (310) 229-1234; Facsimile: (310) 229-1244
Email: rb@lnbrb.com; jlr@lnbrb.com; tma@lnbrb.com; jpf@lnbrb.com
Proposed Attorneys for Chapter 11 Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA (SANTA ANA DIVISION) In re: WESTCLIFF MEDICAL LABORATORIES, INC., Debtor. ____________________________ BIOLABS, INC., Debtor. ____________________________ Affects Both Debtors Affects WESTCLIFF MEDICAL LABORATORIES, INC. only Affects BIOLABS, INC. only [Proposed] Lead Case No. 8:10-bk16743-RK [Proposed] Jointly Administered with Case No. 8:10-bk-16746-RK1 Chapter 11 Cases
APPLICATION OF DEBTORS AND DEBTORS IN POSSESSION TO EMPLOY KIRKLAND & ELLIS LLP AS SPECIAL CORPORATE COUNSEL PURSUANT TO 11 U.S.C. 327(e) AND 330; DECLARATION OF RYAN BENNETT IN SUPPORT THEREOF
[No Hearing Required Bankruptcy Rule 2014-1(b)]
Local
20 21 22 23 24 25 26 27
Exhibit H Page 000065
1
Motion for Joint Administration pending.
1 2 3 4 5 6 7 8
In support of this application (the Application) to employ Kirkland & Ellis LLP (K&E) as special corporate counsel pursuant to 11 U.S.C. 327(e) and 330, Westcliff Medical Laboratories, Inc. (Westcliff) and BioLabs, Inc. (BioLabs), chapter 11 Debtors and Debtors-in-Possession (collectively, the Debtors), hereby respectfully represent as follows: A. BACKGROUND. 1. On May 19, 2010 (the Petition Date), the Debtors
9 commenced their bankruptcy cases by filing voluntary petitions 10 under chapter 11 of 11 U.S.C. 101 et seq. (the Bankruptcy 11 Code). 12 13 14 15 16 17 18 19 20 21 22 23 24 alone, patient service center laboratories and STAT labs that 25 provide various services, including clinical testing, pathology, 26 27
The Debtors continue to operate their business, manage
their financial affairs, and operate their bankruptcy estates as debtors in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code. 2. BioLabs is the parent company to Westcliff, which is Biolabs was organized for the purposes of
the operating company.
acquiring 100% of the capital stock and other equity interests of Westcliff. The only material asset owned by BioLabs is its stock
interest in the Debtor. 3. Westcliff was founded in 1964 as a community-based
laboratory and is headquartered in Santa Ana, California. Westcliff is the operator of approximately 170 branded, stand-
1 2 3 4 5 6 7
reporting and support services for the benefit of thousands of out-patients throughout California. 1,000 employees. 4. The Debtors main clinical hub is an 80,000 square foot The Debtors have nearly
facility located in Santa Ana, California that opened in 2006. The Debtors primary anatomical pathology lab is a 12,800 square foot facility located in Monrovia, California that opened in
8 2008. 9 5. 10 payors, including United Health, Aetna, Cigna, Blue Cross, Medi11 Cal and Medicare, Westcliff has grown and become a leading out12 13 14 15 16 17 18 19 20 21 22 23 24 the largest in the nation, with estimated revenues of 25 approximately $2 billion. 26 27
Working directly with patients and with contracted
patient laboratory service company.
Westcliffs lab operations
demonstrate industry-leading results, with low testing turnaround times, high quality control scores, and a strong and experienced sales and marketing team. 6. Westcliff averages approximately 8,500 clinical
requests per day and approximately 1,200 pathology requests per day, and performs approximately 250,000 cytology and 70,000 biopsy tests on an annual basis. Based on this performance, the
Debtors had approximately $97 million in net revenue in 2009 and are the third largest clinical laboratory in California. 7. The California clinical laboratory testing market is
Approximately 8% of the nations tests
1 2 3 4 5 6 7
are performed in California, and over 200 million of Californias tests are conducted by independent labs (excluding hospital based labs). Based on current volume, the Debtors account for
approximately 5% of the California market. 8. Much of the Debtors growth has come from the
acquisition of other labs, which caused the Debtors to incur a substantial amount of debt. The Debtors owe approximately $56
8 million to GE Business Financial Services, Inc. (GE), which is 9 secured by a senior priority lien against all or substantially 10 all of the Debtors assets. 11 Debtors is relatively small in nature and relates to liens 12 13 14 15 16 17 18 19 20 21 22 23 24 million. 25 million in 2009 (including expenses and write offs of 26 27
Any other secured debt of the
against only certain of the Debtors equipment. have a substantial amount of unsecured debt. B. THE NECESSITY FOR FILING BANKRUPTCY. 9.
The Debtors also
While the Debtors revenue is significant, due to the
small profit margins in this business, despite significant and continuing cost cutting measures undertaken by the Debtors, the Debtors are simply not able to operate sufficiently profitably to enable the Debtors to repay their debts. 10. The Debtors suffered a net loss of approximately $87
million in 2008 (including expenses and write offs of approximately $171 million) on net revenue of approximately $84 The Debtors suffered a net loss of approximately $13
1 2 3 4 5 6 7
approximately $110 million) on net revenue of approximately $97 million. 11. While the Debtors instituted as many expense reductions
as were reasonably possible, the Debtors losses continued. Since the beginning of 2009, the Debtors have been unable to make any debt service payments to GE, and the Debtors have been unable to remain current with their other debt obligations, including
8 payments owing to former owners of companies the Debtors 9 previously purchased as part of the Debtors overall growth 10 strategy. 11 financially over the past approximately seventeen months because 12 13 14 15 16 17 18 19 20 21 22 23 24 option available to the Debtors to avoid a shut down of their 25 business and the loss of employment by all of the Debtors 26 27
Indeed, the Debtors were only able to survive
GE agreed to provide the Debtors with additional funding. 12. The only way the Debtors can survive as a stand alone
going concern business would be for the Debtors to raise many millions of dollars of additional equity which is not possible given the Debtors debt structure. 13. While the Debtors anticipate growth in Westcliffs
business operations and reducing per patient costs and increasing profits in the years to come, the Debtors realized that they needed additional time and funding to accomplish such results. The Debtors were not able to obtain such funding. It therefore
became clear to the Debtors in early 2009 that the only viable
1 2 3 4 5 6 7
employees would be for the Debtors to sell their business as a going concern to the highest bidder. Therefore, as set forth in
numerous concurrently filed pleadings, the Debtors determined that an expedited sale of substantially all of the Debtors assets in bankruptcy followed by a liquidating plan was in the overwhelming best interests of the Debtors estates and their creditors.
8 C. 9 14. 10 been engaged in an active sale process since early 2009. 11 assist the Debtors with this sale process, the Debtors engaged 12 13 14 15 16 17 18 19 20 21 22 23 24 the optimal buyer of the Debtors business for three primary 25 26 27
THE PROPOSED SALE. In consideration of the foregoing, the Debtors have To
MTS Health Partners, LP (MTS) in October 2009 as a financial advisor to assist the Debtors with their sale process.2 MTS,
working closely with the Debtors, conducted an exhaustive sale process, having prepared detailed sale materials and having had extensive discussions and interactions with numerous prospective buyers, both strategic buyers and financial buyers. 15. After having engaged in substantial due diligence and
negotiations with a number of different prospective buyers over the past many months, MTS and the Debtors collectively concluded that Laboratory Corporation of America (Lab Corp) and its wholly-owned subsidiary Wave Newco, Inc. (the Purchaser) was
The Debtors had used other professionals for this same purpose in the past.
1 2 3 4 5 6 7
reasons.
First, Lab Corp, which is in the same business as
Westcliff but is a much larger company, expressed the greatest interest in purchasing the Debtors business. Second, it was
clear that Lab Corp as a strategic buyer was willing to pay a substantially higher price for the Debtors business than any other prospective buyer. Third, Lab Corp clearly has the
financial means to consummate its purchase of the Debtors 8 business.3 9 16. 10 multiple drafts of asset purchase agreements over an extended 11 period of time, the Debtors and the Purchaser entered into an 12 13 14 15 16 17 18 19 20 21 22 23 24 and the APA, as well as the drafting of the APA. 25 26 27
After arms-length negotiations, including exchanges of
Asset Purchase Agreement (the APA) to effectuate a sale (the Sale) of substantially all of the Debtors assets to Purchaser, or an overbidder. Motions to approve the bidding procedures and
sale contemplated by the APA have already been, or soon will be, filed with the Court. The purchase price under the APA is $57.5
million, subject to certain adjustments. D. THE EMPLOYMENT OF K&E. 17. K&E has served as the Debtors general corporate
counsel since 2008, and is familiar with the Debtors businesses, including their capital and debt structure. K&E also was
extensively involved in the negotiation of the terms of the Sale
3 Lab Corp has established Purchaser as a wholly-owned subsidiary of Lab Corp solely for the purpose of acquiring the Purchased Assets.
1 2 3 4 5 6 7
18.
Based on the foregoing, and after taking into account
firm size, experience, skill level and cost, the Debtors have determined that K&E is the ideal special corporate counsel to continue representing the Debtors in corporate matters in their bankruptcy cases. Therefore, the Debtors seek to employ K&E as
their special corporate counsel pursuant to Sections 327(e) and 330 of the Bankruptcy Code, at the expense of the Debtors
8 bankruptcy estates, and to have the Debtors employment of K&E be 9 deemed effective as of the Petition Date. 10 19. 11 special corporate counsel to render, among others, the following 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
In particular, the Debtors seek to employ K&E as their
types of professional services: a. Rankin & to assist the Debtors and Levene, Neale, Bender, Brill L.L.P. (LNBRB), the Debtors proposed
general bankruptcy counsel, in drafting documents and taking actions that may be necessary to consummate the Sale; b. to assist the Debtors preparing all documents and
taking all actions necessary for the Debtors to maintain their Corporate status in good standing; c. to assist and advise the Debtors and LNBRB
regarding corporate matters that arose prior to the Petition Date and that arise after the Petition Date;
1 2 3 4 5 6 7
d.
to provide corporate information to LNBRB that may
be required to move the Debtors bankruptcy cases forward; and e. to perform any other services which may be
appropriate in K&Es representation of the Debtors as their special cases. corporate counsel during the Debtors bankruptcy
8 20. 9 services in which rates are driven by multiple factors relating 10 to the individual lawyer, his or her area of specialization, the 11 firms expertise, performance, and reputation, the nature of the 12 13 14 15 16 17 18 19 20 21 22 23 24 21. 25 compensate K&E fairly for the work of its attorneys and 26 27
K&E operates in a national marketplace for legal
work involved, and other factors.
A copy of K&Es general firm
resume is attached as Exhibit 2 to the Declaration of Ryan Bennett, Esq. (the Bennett Declaration) annexed hereto. Because the sub-markets for legal services are fragmented and are affected by a variety of individualized and interdependent factors, K&E has no one rate for an individual biller that applies to all matters for all clients. K&Es rates for an
individual biller may vary as a function of the type of matter, geographic factors, the nature of certain long term client relationships, and various other factors, including those stated above. K&Es hourly rates are set at a level designed to
1 2 3 4 5 6 7
paralegals and to cover fixed and routine overhead expenses. Hourly rates vary with the experience and seniority of the individuals assigned. These hourly rates are subject to periodic
adjustments to reflect economic and other conditions and are consistent with the rates charged elsewhere. In particular,
K&Es current hourly rates for matters related to these chapter 11 cases range as follows:
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 actually incurred by K&E in connection with such items. 26 27

Billing Category Partners Associates Paraprofessionals 22.
Range $550-$995 $320-$660 $155-$280
The following professionals presently are expected to
have primary responsibility for providing services to the Debtors: Jason Osborn ($590) and Ryan Bennett ($690). In
addition, as necessary, other K&E professionals and paraprofessionals will provide services to the Debtors. Copies
of the professional rsums for the foregoing professionals are attached as Exhibit 3 to the Bennett Declaration. 23. It is K&Es policy to charge its clients in all areas
of practice for identifiable, non overhead expenses incurred in connection with the clients case that would not have been incurred except for representation of that particular client. is also K&Es policy to charge its clients only the amount Examples It
10
1 2 3 4 5 6 7
of such expenses include postage, overnight mail, courier delivery, transportation, overtime expenses, computer-assisted legal research, photocopying, outgoing facsimile transmissions, airfare, meals, and lodging. 24. To ensure compliance with all applicable deadlines in
these chapter 11 cases, from time to time K&E may utilize the services of overtime secretaries. In addition, K&E professionals
8 also may charge their overtime meals and overtime transportation 9 to the Debtors consistent with pre-petition practices. 10 25. 11 duplication in its offices in the United States. 12 13 14 15 16 17 18 19 20 21 22 23 24 Rules, the Guidelines of the Office of the United States 25 26 27
K&E currently charges $0.15 per page for standard K&E does not K&E has
charge its clients for facsimile transmissions.
negotiated a discounted rate for Westlaw computer-assisted legal research. Computer-assisted legal research is used whenever the
researcher determines that using Westlaw is more cost effective than using traditional (non-computer-assisted legal research) techniques. 26. K&E intends to apply for compensation for professional
services rendered and reimbursement of expenses incurred in connection with these chapter 11 cases, subject to the Courts approval and in compliance with applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy
11
1 2 3 4 5 6 7
Trustee, and any other applicable procedures and orders of the Court, on an hourly basis. 27. During the one-year period prior to the Petition Date,
the Debtors paid the total sum of $369,588.02 to K&E, including a retainer in the amount of $50,000 (the Retainer). As of the
Petition Date, the balance of the Retainer was approximately $45,000. The Debtors advised K&E that the source of these
8 payments was the Debtors funds. 9 28. 10 retainer payment as defined in In re Production Assocs., Ltd., 11 264 B.R. 180, 18485 (Bankr. N.D. Ill. 2001), and In re McDonald 12 13 14 15 16 17 18 19 20 21 22 23 24 29. 25 authority to be paid from the Debtors estates for any and all 26 27
The foregoing Retainer payment constitutes a classic
Bros. Construction, Inc., 114 B.R. 989, 99799 (Bankr. N.D. Ill. 1990). As such, K&E earned the classic retainer upon receipt
and, consequently, K&E placed the amounts into its general cash account. To assist K&E with its own cash flow needs, K&E
requests Court authority to apply the remaining Retainer balance on a post-petition basis for any fees and expenses incurred during the Debtors chapter 11 cases. For efficiency purposes,
K&E will bill all of its post-petition fees and expenses to Westcliff. If it subsequently becomes necessary to do so, K&E
can reallocate its fees and expenses for any work which was done solely for the bankruptcy estate of BioLabs. In addition to the Retainer, K&E will seek Court
12
1 2 3 4 5 6 7
fees incurred and expenses advanced by K&E in excess of the Retainer. K&E recognizes that the payment of any such additional
fees and expenses will be subject to further Court order after notice and a hearing. 30. K&E has not received any lien or other interest in
property of the Debtors or of any third party to secure payment of K&E fees or expenses.
8 31. 9 for representing the Debtors with any other person or entity, 10 except among its members. 11 32. 12 13 14 15 16 17 18 19 20 21 22 23 24 respect to the matter on which K&E is to be employed, as required 25 by section 327(e) of the Bankruptcy Code, or for any other 26 27
K&E has not shared or agreed to share its compensation
K&E will provide monthly billing statements to the
Debtors that will set forth the amount of fees incurred and expenses advanced by LNBRB during the previous month. 33. K&E understands the provisions of 11 U.S.C. 327, 330
and 331 which require, among other things, Court approval of the Debtors employment of K&E as special corporate counsel and of all legal fees and reimbursement of expenses that K&E will receive from the Debtors and the Debtors estates. 34. 35. K&E is not a creditor or an insider of the Debtors. To the best of the Debtors knowledge and as otherwise
disclosed herein and in the Bennett Declaration, (a) K&E does not hold an interest adverse to the interests of the estates with
13
1 2 3 4 5 6 7
reason, and (b) K&E has no connection to the Debtors, their creditors, any other party in interest, their respective attorneys or accountants, the United States Trustee, or any person employed in the Office of the United States Trustee except as may be disclosed above or in the Bennett Declaration. 36. K&E will review its files periodically during the
pendency of these chapter 11 cases to ensure that no conflicts or 8 other disqualifying circumstances exist or arise. 9 relevant facts or relationships are discovered or arise, K&E will 10 use reasonable efforts to identify such further developments and 11 will file promptly a supplemental declaration, as required by 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
If any new
Bankruptcy Rule 2014(a). 37. Neither K&E nor any member of K&E is, nor was, within
two years before the Petition Date, a director, officer or employee of the Debtors. 38. The Debtors believe that their employment of K&E upon
the terms and conditions set forth above is in the best interest of the Debtors estates.
14
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DECLARATION OF RYAN BENNETT, ESQ. I, RYAN BENNETT, hereby declare as follows: 1. I am over 18 years of age. Except where otherwise
stated, I have personal knowledge of the facts set forth below and, if called to testify, I could and would testify competently thereto. 2. I am duly licensed to practice law in the state of
Illinois, in the United States District Courts for the Northern 9 District of Illinois and Western District of Michigan, and before 10 the United States Courts of Appeals for the Seventh and Federal 11 Circuits, and the Supreme Court of the United States. 12 3. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
I am a partner in the law firm of Kirkland & Ellis, LLP
(K&E), proposed special corporate counsel to Levene, Neale, Bender, Rankin & Brill L.L.P. (LNBRB), counsel to Westcliff Medical Laboratories, Inc. (Westcliff) and BioLabs, Inc. (BioLabs), chapter 11 Debtors and Debtors-in-Possession (collectively, the Debtors). 4. I make this declaration in support of the Application
(the Application) to which this declaration is attached. Unless otherwise stated, all capitalized terms herein have the same meanings as in the Application. Except as otherwise noted, I have personal knowledge of the matters set forth herein.
1 2 3 4 5 6 7 8 5.
K&Es Qualifications K&E has served as the Debtors general corporate More recently, K&E was extensively involved
counsel since 2008.
in the negotiation of the terms of the Sale and APA, as well as the drafting of the APA. 6. K&E has been actively involved in many chapter 11 cases
and has represented debtors in many such cases, including, among others, In re Citadel Broadcasting Corp., No. 09-17442 (BRL)
9 (Bankr. S.D.N.Y. Feb. 3, 2010); In re Stallion Oilfield Servs. 10 Ltd., No. 09-13562 (BLS) (Bankr. D. Del. Nov. 16, 2009); In re 11 Readers Digest Assoc., No. 09-23529 (RDD) (Bankr. S.D.N.Y. Sept. 12 17, 2009); In re Lear Corp., No. 09-14326 (ALG) (Bankr. S.D.N.Y. 13 14 15 16 17 18 19 20 21 22 23 24 25 chapter 11 cases in an efficient and timely manner. 26 27
July 31, 2009); In re ION Media Networks, Inc., No. 09-13125 (JMP) (Bankr. S.D.N.Y. June 23, 2009); In re Visteon Corp., No. 09-11786 (CSS) (Bankr. D. Del. June 19, 2009). 7. K&E began representing the Debtors in 2008 with respect
to general corporate and refinancing matters, and more recently with respect to the pending sale. In preparing for its
representation of the Debtors in these bankruptcy cases, K&E has become familiar with the Debtors businesses and many of the potential legal issues that may arise or be relevant in the context of the proposed sale transaction. K&E is both well-
qualified and uniquely able to represent the Debtors in these
1 2 3 4 5 6 7 8 9 8.
Services to Be Provided Based on the foregoing, and after taking into account
firm size, experience, skill level and cost, the Debtors have determined that K&E is the ideal special corporate counsel to continue representing the Debtors in corporate matters in their bankruptcy cases. Therefore, the Debtors seek to employ K&E as
their special corporate counsel pursuant to Sections 327(e) and 330 of the Bankruptcy Code, at the expense of the Debtors bankruptcy estates, and to have the Debtors employment of K&E be
10 deemed effective as of the Petition Date. 11 9. 12 with that certain engagement letter (the Engagement Letter), 13 dated May 18, 2010, a copy of which is attached to this 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Subject to further order of the Court and consistent
declaration as Exhibit 1, the Debtors seek to retain K&E to render the following types of professional services: a. Rankin & to assist the Debtors and Levene, Neale, Bender, Brill L.L.P. (LNBRB), the Debtors proposed
general bankruptcy counsel, in drafting documents and taking actions that may be necessary to consummate the Sale; b. to assist the Debtors in preparing all documents
and taking all actions necessary for the Debtors to maintain their corporate status in good standing;
1 2 3 4 5 6 7
c.
to
assist
and
advise
the
Debtors
and
LNBRB
regarding corporate matters that arose prior to the Petition Date and that arise after the Petition Date; d. to provide corporate information to LNBRB that may
be required to move the Debtors bankruptcy cases forward; and e. to perform in K&Es any other services of which the may be as
8 appropriate 9 special 10 cases. 11 10. 12 13 14 15 16 17 18 19 20 21 22 23 24 relationships, and various other factors, including those stated 25 above. 26 27
representation during the
Debtors
corporate
counsel
Debtors
bankruptcy
K&E operates in a national marketplace for legal
services in which rates are driven by multiple factors relating to the individual lawyer, his or her area of specialization, the firms expertise, performance, and reputation, the nature of the work involved, and other factors. A copy of K&Es general firm Because
resume is attached as Exhibit 2 to this declaration.
the sub-markets for legal services are fragmented and are affected by a variety of individualized and interdependent factors, K&E has no one rate for an individual biller that applies to all matters for all clients. K&Es rates for an
individual biller may vary as a function of the type of matter, geographic factors, the nature of certain long term client
1 2 3 4 5 6 7
11.
K&Es hourly rates are set at a level designed to
compensate K&E fairly for the work of its attorneys and paralegals and to cover fixed and routine overhead expenses. Hourly rates vary with the experience and seniority of the individuals assigned. These hourly rates are subject to periodic
adjustments to reflect economic and other conditions and are consistent with the rates charged elsewhere. In particular,
8 K&Es current hourly rates for matters related to these chapter 9 11 cases range as follows: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 incurred except for representation of that particular client. 26 27
Billing Category Partners Associates Paraprofessionals 12.
Range $550-$995 $320-$660 $155-$280
The following professionals presently are expected to
have primary responsibility for providing services to the Debtors: Jason Osborn ($590) and Ryan Bennett ($690). In
addition, as necessary, other K&E professionals and paraprofessionals will provide services to the Debtors. Copies
of the professional rsums for the foregoing professionals are attached as Exhibit 3 to this declaration. 13. It is K&Es policy to charge its clients in all areas
of practice for identifiable, non overhead expenses incurred in connection with the clients case that would not have been It
1 2 3 4 5 6 7
is also K&Es policy to charge its clients only the amount actually incurred by K&E in connection with such items. of such expenses include postage, overnight mail, courier delivery, transportation, overtime expenses, computer-assisted legal research, photocopying, outgoing facsimile transmissions, airfare, meals, and lodging. 14. To ensure compliance with all applicable deadlines in Examples
8 these chapter 11 cases, from time to time K&E may utilize the 9 services of overtime secretaries. 10 also may charge their overtime meals and overtime transportation 11 to the Debtors consistent with pre-petition practices. 12 13 14 15 16 17 18 19 20 21 22 23 24 approval and in compliance with applicable provisions of the 25 Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy 26 27
In addition, K&E professionals
15.
K&E currently charges $0.15 per page for standard K&E does not K&E has
duplication in its offices in the United States. charge its clients for facsimile transmissions.
negotiated a discounted rate for Westlaw computer-assisted legal research. Computer-assisted legal research is used whenever the
researcher determines that using Westlaw is more cost effective than using traditional (non-computer-assisted legal research) techniques. 16. K&E intends to apply for compensation for professional
services rendered and reimbursement of expenses incurred in connection with these chapter 11 cases, subject to the Courts
1 2 3 4 5 6 7
Rules, the Guidelines of the Office of the United States Trustee, and any other applicable procedures and orders of the Court, on an hourly basis. 17. During the one-year period prior to the Petition Date,
the Debtors paid the total sum of $369,588.02 to K&E, including a retainer in the amount of $50,000 (the Retainer). As of the
Petition Date, the balance of the Retainer was approximately 8 $45,000. 9 payments was the Debtors funds. 10 No Adverse Interest 11 18. 12 Debtors in these chapter 11 cases, K&E undertook to determine 13 14 15 16 17 18 19 20 21 22 23 24 25 able to ascertain that K&E has been retained within the last 26 27
The Debtors advised K&E that the source of these
In connection with its proposed retention by the
whether it had any conflicts or other relationships that might cause it to hold or represent an interest adverse to the Debtors with respect to the scope of K&Es proposed services as special corporate counsel. Specifically, K&E obtained from the Debtors
and/or their representatives the names of individuals and entities that may be parties in interest in these chapter 11 cases (the Potential Parties in Interest), and such Potential Parties in Interest are listed on Exhibit 4 to this declaration. 19. K&E has searched on its electronic database for its
connections to the entities, and to the extent that I have been
1 2 3 4 5 6 7
three years to represent any of the Potential Parties in Interest (or their affiliates, as the case may be) in matters unrelated to these cases, such facts are disclosed on Exhibit 5 attached hereto. Although not relevant in concluding that K&E has no
adverse interest to the Debtors with respect to K&Es role as special corporate counsel, out of an abundance of caution, listed on Exhibit 5 to this declaration are the results of K&Es
8 9
conflicts searches of the above-listed entities.1 20. K&E and certain of its partners and associates may have
10 in the past represented, may currently represent, and likely in 11 the future will represent, parties in interest in these 12 13 14 15 16 17 18 19 20 21
1
chapter 11 cases in connection with matters unrelated (except as otherwise disclosed herein) to the Debtors and these chapter 11 cases. K&E has searched on its electronic database for its
connection to the entities listed on Exhibit 4 attached hereto. The information listed on Exhibit 4 may have changed without our knowledge and may change during the pendency of these chapter 11 cases. Accordingly, K&E will update this declaration as
necessary and when K&E becomes aware of additional material

As referenced in Exhibit 5, the term current client means a client to whom time was posted in the 12 months preceding the Petition Date. As referenced in Exhibit 5, the term former client means a client to whom time was posted between 12 and 36 months preceding the Petition Date. As referenced in Exhibit 5, the term closed client means a client to whom time was posted in the 36 months preceding the Petition Date, but for which the client representation has been closed. As a general matter, K&E discloses connections with former clients or closed clients for whom time was posted in the last 36 months, but does not disclose connections if time was billed more than 36 months before the Petition Date.
22 23 24 25 26 27
1 2 3 4 5 6 7 8 9 10 11
information. has searched: Exhibit 4(a) 4(b) 4(c) 4(d) 4(e) 4(f) 4(g) 4(h) 4(i) 4(j) 4(k)
The following is a list of the categories that K&E
Category Current and Recent Former Debtor Affiliates Current and Recent Former Directors and Officers Equity Holders Insurers Landlords Litigation Parties Professionals Purchaser Secured Lenders Top 20 Unsecured Creditors United States Trustee and Court Personnel for the Central District of California Based on the conflicts search conducted to date and
21. 12 13 14 15 16 17 18 19 20 21 22 23 24 25
described herein, to the best of my knowledge, neither I, K&E, nor any partner or associate thereof, insofar as I have been able to ascertain, have any connection with the Debtors, its creditors, or any other parties in interest, their respective attorneys and accountants, the Office of the United States Trustee for the Central District of California (the U.S. Trustee), or any person employed in the Office of the U.S. Trustee, any Bankruptcy Judge currently serving on the United States Bankruptcy Court for the Central District of California, except as disclosed or otherwise described herein. 22. K&E will review its files periodically during the
pendency of these chapter 11 cases to ensure that no conflicts or other disqualifying circumstances exist or arise. If any new
26 27
1 2 3 4 5 6 7
relevant facts or relationships are discovered or arise, K&E will use reasonable efforts to identify such further developments and will file promptly a supplemental declaration, as required by Bankruptcy Rule 2014(a). 23. Generally, it is K&Es policy to disclose clients in For
the capacity that they first appear in a conflicts search. example, if a client already has been disclosed in this
8 declaration in one capacity (e.g., a customer), and the client 9 appears in a subsequent conflicts search in a different capacity 10 (e.g., a vendor), K&E does not disclose the same client again in 11 supplemental declarations, unless the circumstances are such in 12 13 14 15 16 17 18 19 20 21 22 23 24 25 equity security holders, or other parties in interest in ongoing 26 27
the latter capacity that additional disclosure is required. 24. From time to time, K&E has referred work to other
professionals to be retained in these chapter 11 cases. Likewise, certain such professionals have referred work to K&E. 25. clients. Certain insurance companies pay the legal bills of K&E Some of these insurance companies may be involved in None of these insurance companies,
these chapter 11 cases.
however, are K&E clients as a result of the fact that they pay legal fees on behalf of K&E clients. Specific Disclosures 26. As specifically set forth below and in the attached
exhibits, K&E represents certain of the Debtors creditors,
10
1 2 3 4 5 6 7
matters unrelated to the Debtors proposed engagement of K&E as special corporate counsel. Indeed, none of the representations
described herein are materially adverse to the interests of the Debtors estates. A. Equity Security Holder Relationships. 27. As disclosed in Exhibit 5 attached hereto, K&E
currently represents, and formerly has represented, certain 8 equity security holders of the Debtors. 9 below, all prior and current K&E representations of these equity 10 security holders have been in matters unrelated to the Debtors 11 and these chapter 11 cases. 12 13 14 15 16 17 18 19 20 21 22 23 24 caution. 25 Debtors and Parthenon with respect to K&Es role as special 26 27
Except as set forth
28.
K&E currently or has formerly represented Parthenon
Capital and its affiliated funds (Parthenon) in matters that do not create an adverse interest between K&E and the Debtors with regards to K&Es proposed role as special corporate counsel to the Debtors. Parthenon is the portfolio parent of the Debtors.
Pursuant to the terms of the Engagement Letter, the Debtors have provided a waiver with respect to K&Es representation of Parthenon in matters unrelated to K&Es proposed role as special corporate counsel to the Debtors. K&Es representation of
Parthenon does not constitute a conflict of interest in these chapter 11 cases, but K&E has disclosed it out of an abundance of If a matter arises that creates adversity between the
11
1 2 3 4 5 6 7
corporate counsel to the Debtors, the Debtors will use LNBRB for such matter. B. Connections to Significant Counterparties. 29. K&E represents Madison Dearborn Partners (Madison
Dearborn) in matters unrelated to the Debtors and these chapter 11 cases. K&Es representations of Madison Dearborn accounted
for 1.05% of K&Es fee receipts for the twelve month period 8 ending April 30, 2010. 9 of VWR International, one of the Debtors 20 largest unsecured 10 creditors. 11 with these chapter 11 cases. 12 13 14 15 16 17 18 19 20 21 22 23 24 has not represented and will not represent any such professionals 25 26 27
Madison Dearborn is the portfolio parent
K&E will not represent Madison Dearborn in connection K&E does not believe that its
representation of Madison Dearborn presents a conflict, but has disclosed it out an abundance of caution. C. Relationships with Other Professionals. 30. As disclosed in Exhibit 5 attached hereto, K&E
currently represents, and formerly has represented, certain affiliates, subsidiaries, and entities associated with various professionals that the Debtors seek to retain in connection with these chapter 11 cases. All prior and current K&E
representations of these professionals have been in matters unrelated to the Debtors, these chapter 11 cases, and K&Es proposed role as special corporate counsel to the Debtors. K&E
12
1 2 3 4 5 6 7
in connection with any matter in these chapter 11 cases or K&Es proposed role as special corporate counsel to the Debtors. D. K&E Attorney and Employee Investments. 31. From time to time, K&E partners, of counsel,
associates, and employees personally invest in mutual funds, retirement funds, private equity funds, venture capital funds, hedge funds, and other types of investment funds (the Investment
8 Funds), through which such individuals indirectly acquire a debt 9 or equity security of many companies, one of which may be the 10 Debtors, often without K&Es knowledge. 11 person(s) generally own substantially less than 1% of such 12 13 14 15 16 17 18 19 20 21 22 23 24 Such Passive-Intermediary Entity is composed only of persons who 25 were K&E partners and of counsel at the time of the Passive26 27
The investing K&E
Investment Fund, do not manage or otherwise control such Investment Fund, and have no influence over the Investment Funds decision to buy, sell, or vote any particular security. The
Investment Fund is generally operated as a blind pool, meaning that when the K&E person(s) make an investment in the Investment Fund, he, she, or they do not know what securities the blind pool Investment Fund will purchase or sell, and have no control over such purchases or sales. 32. From time to time one or more K&E partners and of
counsel voluntarily choose to form an entity (a PassiveIntermediary Entity) to invest in one or more Investment Funds.
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Intermediary Entitys formation (although some are now former K&E partners and of counsel). Participation in such a Passive-
Intermediary Entity is wholly voluntary and only a portion of K&Es partners and of counsel choose to participate. The
Passive-Intermediary Entity generally owns substantially less than 1% of any such Investment Fund, does not manage or otherwise control such Investment Fund, and has no influence over the
8 Investment Funds decision to buy, sell, or vote any particular 9 security. Each Investment Fund in which a Passive-Intermediary 10 Entity invests is operated as a blind pool, so that the 11 Passive-Intermediary Entity does not know what securities the 12 13 14 15 16 17 18 19 20 21 22 23 24 equity security of a company which may be the Debtors. K&E has a 25 long-standing policy prohibiting attorneys and employees from 26 27
blind pool Investment Funds will purchase or sell, and has no control over such purchases or sales. And, indeed, the
Passive-Intermediary Entity often arranges for statements and communications from the Investment Funds to be sent solely to a blind administrator who edits out all information regarding the identity of the Investment Funds underlying investments, so that the Passive-Intermediary Entity does not learn (even after the fact) identity of the securities purchased, sold, or held by the Investment Fund. 33. From time to time, K&E partners, of counsel,
associates, and employees personally directly acquire a debt or
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using confidential information that may come to their attention in the course of their work. In this regard, all K&E attorneys
and employees are barred from trading in securities with respect to which they possess confidential information. E. Other Disclosures 34. Intercompany Relationships. Certain interrelationships
exist among the Debtor entities. 8
Nevertheless, the Debtors have
advised K&E that the Debtors entities relationships to each 9 other do not pose any conflict of interest because of the general 10 unity of interest among the Debtor entities. 11 been able to ascertain, I know of no conflict of interest that 12 13 14 15 16 17 18 19 20 21 22 23 24 employed by K&E between 1986 and 1999, and Mr. Tresnowski briefly 25 returned to K&E for a period of time in 2004. 26 27
Insofar as I have
would preclude K&Es joint representation of the Debtors in these chapter 11 cases. 35. Ethical Wall. Prior to joining the firm, K&E partner
Albert Cho represented numerous clients adverse to K&Es current and former restructuring clients, including debtors in chapter 11. Out of an abundance of caution, K&E has instituted formal
screening procedures to screen Mr. Cho from all K&E restructuring matters. 36. Former Employee Relationship. A former K&E partner,
Mark Tresnowski, is currently Managing Director and General Counsel of Madison Dearborn. Mr. Tresnowski was previously
As noted above,
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Madison Dearborn is the portfolio parent of VWR International, one of the Debtors 20 largest unsecured creditors. Mr. Tresnowskis work at K&E was unrelated to the Debtors or these chapter 11 cases, but K&E has disclosed it out of an abundance of caution. 37. Outside Director Relationship. George Stamas, a
partner with K&E in its Washington, D.C. office, is an outside 8 director of FTI Consulting, Inc. ("FTI"), a New York stock 9 exchange listed company and restructuring advisors to the 10 Debtors. 11 minimis percentage (less than 1/10 of one percent) of the 12 13 14 15 16 17 18 19 20 21 22 23 24 K&Es representation of the Debtors in a manner that avoids 25 contact with the screened K&E attorneys; (c) to take all measures 26 27
Mr. Stamas owns 12,357 shares of FTI, which is a de
company's ownership.
This includes 4,938 shares of FTI's common
stock over which Mr. Stamas and his spouse share voting and investment power and 7,419 shares of FTI's common stock issuable upon exercise of stock options. Mr. Stamas will have no role in
the representation of the Debtors in these chapter 11 cases. 38. K&E Screening Procedures. Under K&Es screening
procedures, K&Es conflicts department distributes a memorandum to all K&E attorneys and legal assistants directing them as follows: (a) not to discuss any aspects of K&Es representation
of the Debtors with the screened K&E attorneys; (b) to conduct meetings, phone conferences, and other communications regarding
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necessary or appropriate to prevent access by the screened K&E attorneys to the files or other information related to K&Es representation of the Debtors; and (d) to avoid contact between the screened K&E attorneys and all K&E personnel working on the representation of the Debtors unless there is a clear understanding that there will be no discussion of any aspects of K&E's representation of the Debtors. Furthermore, K&E already
8 has implemented procedures to block the screened K&E attorneys 9 from accessing files and documents related to the Debtors that 10 are stored in K&Es electronic document managing system. 11 39. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Accordingly, and to the best of my knowledge, K&E does
not hold or represent an interest adverse to the scope of its proposed retention as the Debtors special corporate counsel.
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I declare under penalty of perjury that the foregoing is true and correct. Executed this 20th day of May 2010, at Chicago, Illinois. _/s/ Ryan Bennett__________ RYAN BENNETT
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EXHIBIT 1 Engagement Letter
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
EXHIBIT 2 General Firm Resume
Firmwide Introduction
Founded more than 100 years ago, Kirkland & Ellis has been called upon to handle complicated corporate, litigation, intellectual property, restructuring, tax and counseling matters for global clients. Today, Kirkland continues to work with a long-standing base of clients engaged in industries as varied as manufacturing, transportation, telecommunications, private equity, pharmaceutical, technology, energy, health care, real estate, chemicals, food products, finance, insurance, e-commerce, advertising, sales and marketing, and accounting. In every year since 1995, Kirkland has ranked as one of the most frequently used firms by Fortune 100 companies in The National Law Journal survey, Who Represents Corporate America. In recognition of the Firms superior service across practice areas, Chambers & Partners, a respected international rating firm, named Kirkland the 2006 USA Law Firm of the Year.
Representative Clients
3M The AES Corporation Abbott Laboratories Agere Systems Alcon Laboratories Alpharma Amazon.com, Inc. Aon Corporation Apple B. Braun Medical BP America Inc. Bain Capital Bank of America Barr Laboratories Biomet Boehringer Ingelheim Boeing Boston Scientific Calpine Corporation CIVC Partners Code Hennessy & Simmons Constellation Energy Collins & Aikman DIRECTV Dow Chemical Ernst & Young Forstmann Little GTCR General Motors Golden Gate Capital Gryphon Investors Honeywell International Infineon Technologies AG International Game Technology Kellogg Company Konica Minolta Group Kraft Lucent Technologies Madison Dearborn Partners MidOcean Partners Molson Coors Brewing Company Morgan Stanley Motorola NRG Energy Nationwide Insurance Oaktree Capital Oracle PricewaterhouseCoopers R.J. Reynolds Tobacco Company Raytheon Repsol YPF S.A. S.C. Johnson & Son Samsung Sara Lee Schering-Plough ServiceMaster Siemens Solutia Starwood Hotels & Resorts Worldwide Sun Capital Partners Tenet Healthcare Terra Industries Time Warner United Airlines Verizon Vestar Capital Partners William Blair & Company Willis Stein & Partners
Chicago
Hong Kong
London
Los Angeles
Munich
New York
Palo Alto
San Francisco
Shanghai
Washington D.C.
Corporate
Kirklands corporate practice covers the full spectrum of corporate transactions important to businesses in todays global marketplace and is known for its ability to negotiate and close highly sophisticated transactions. Kirklands extensive experience in the areas of private equity, finance, real estate, tax, labor and ERISA, environmental and intellectual property law, among other specialty areas, gives the Firm an aptitude for developing novel, creative and constructive solutions to assist its corporate clients myriad transactional needs. Kirkland is consistently ranked as one of the law firms most often selected to represent public and private companies and private equity investors. Called a leading light in the buyout arena by Chambers & Partners in 2008, Kirkland received top tier ratings for both Private Equity and Fund Formation in the United States in Chambers Global 2008. For the past several years, Kirkland has been ranked as the top law firm by number of private equity transactions in Mergermarkets annual league tables. Kirkland also ranks as the top law firm representing borrowers in both leveraged and M&A loan transactions in Reuters Loan Pricing Corporations 2008 league tables. The following are a few significant matters handled by our corporate group. Kirkland represented: Clearwire Corporation in its $14.5 billion joint venture with Sprint Nextel Corporation to combine the companies WiMAX businesses in 2008. Madison Dearborn Partners, LLC in its $7.3 billion leveraged buyout of CDW Corporation in 2007. Dade Behring Holdings, Inc. in its $7.0 billion sale to Siemens Medical Solutions in 2007. Community Health Systems, Inc. in its $6.8 billion acquisition of Triad Hospitals, Inc. in 2007. Molson Coors Brewing Company in its $6.6 billion joint venture with Miller Brewing Company, forming MillerCoors LLC, in 2008. NRG Energy in connection with Exelon Corporations approximately $6.2 billion unsolicited bid for the company (pending). Management of The ServiceMaster Company in its $5.5 billion leveraged buyout by Clayton, Dubilier & Rice in 2007. Constellation Energy Group in the $4.5 billion sale of half of its nuclear power business to EdF Development (pending). Bain Capital, LLC in its R25 billion leveraged buyout of Edgars Consolidated Stores, Ltd. in 2007. Apax Partners, Barclays Capital and The Tchenguiz Group, as part of a private equity consortium, in their 1.6 billion sale of Somerfield to The Co-operative Group in 2009.
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Litigation
Kirkland has earned a reputation as trial lawyers (not just litigators) by successfully representing companies involved in business-critical lawsuits and class actions in such diverse legal areas as securities, defamation, antitrust, mass torts, product liability, insurance coverage, construction, environmental and commercial, handling the trial, appellate and Supreme Court phases. This trial-ready reputation has been the impetus for favorable and prompt results for our clients through settlements, as well as the various alternative dispute resolution mechanisms we employ whenever practicable and desired by the client. Kirkland was chosen as The American Lawyers 2008 Litigation Department of the Year. According to the publication, What sets Kirkland apart and the reason the firm is this years winner is the number of high-stakes, high-impact trials its lawyers have won since the start of 2006. Kirkland tried 30 cases to verdict, winning more significant trials than any other firm in our contest. Kirkland was also chosen as a finalist for this award in The American Lawyers 2010 survey. In 2009, Kirkland was named a go-to firm for litigation in the Corporate Counsel survey, Who Represents Americas Biggest Companies? for the eighth consecutive year. The following matters highlight the diversity of cases and challenges faced by the Firms litigation practice: Kirkland successfully defended Honeywell International Inc. in a case brought against its predecessor, AlliedSignal, by Breed Technologies Inc. The dispute arose from Breeds 1997 purchase of a safety restraint business from AlliedSignal. Breed claimed that AlliedSignal had misrepresented the fiscal health of the division, and that its subsequent underperformance was to blame for Breeds current financial woes. Breed sought hundreds of millions of dollars plus punitive damages in the civil suit, accusing AlliedSignal of fraud, misrepresentation and fraudulent transfer. The suit was filed and tried near Breeds base of operations. Faced with the difficulty of representing a large corporate client against a major hometown employer, Kirkland decided on a strategy that would put a human face on AlliedSignal and present the case as clearly as possible, helping the jury keep its focus on the facts. Kirkland represented Buckeye Check Cashing Co. at the U.S. Supreme Court in a case related to the enforceability of an arbitration clause under the Federal Arbitration Act. Three months after oral arguments, the Court ruled in favor of Buckeye and reversed an adverse Florida Supreme Court decision. Kirkland obtained a $147 million jury verdict on behalf of SC Johnson in Wisconsin State Court. After a four-week trial, the jury found that eight defendants had conspired to commit fraud and engaged in racketeering activity in connection with transportation services that had been provided to SC Johnson since 1997. SC Johnson had been seeking a $101 million in damages. Under Wisconsin racketeering law, this verdict is automatically doubled. This is the largest jury verdict in Wisconsin history. Kirkland successfully defended NL Industries in the second-ever personal injury trial against a former lead paint manufacturer. Plaintiffs alleged that brain damage, an increased risk of cardiovascular and kidney disease, as well as peripheral neuropathy, were the byproducts of lead poisoning at the hands of NL Industries lead paint in their Jackson, Mississippi
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apartments. Plaintiffs sought more than $125 million in damages. A federal jury returned a unanimous verdict for NL Industries, rejecting plaintiffs negligence claims and awarding no damages. Kirkland obtained a significant trial victory for Price Waterhouse LLP in an accountant liability case brought by Arlin Adams, Trustee for Coram Healthcare Corporation. The plaintiff asserted accounting negligence claims against Price Waterhouse and sought damages in excess of $300 million, claiming Price Waterhouse auditors failed to detect a significant overstatement in assets, which led to a disputed sales transaction with Coram. Within hours of closing arguments, the jury returned a complete defense verdict. Plaintiff Boca Raton Community Hospital, Inc. brought claims under the federal RICO statute and Californias unfair competition law alleging that Kirkland client Tenet hospitals, through their charging practices, received too many outlier payments from Medicare, and thereby stole outlier payments from the plaintiff and other hospitals. The U.S. District Court for the Southern District of Florida denied the plaintiffs motion to certify a nationwide class of acute care hospitals. The plaintiff sought to appeal the District Courts ruling to the U.S. Court of Appeals for the Eleventh Circuit, but was denied. Kirkland represented General Motors against claims by the United Auto Workers and retirees in response to GMs announcement that, due to its financial challenges, it was going to reduce its retiree health care obligations. Kirkland helped GM reach a settlement with the plaintiffs and withstand a challenge to the settlement in the U.S. District Court of the Eastern District of Michigan. The court approved the settlement, enabling GM to reduce its harddollar retiree health care obligations by in excess of $15 billion in total. Kirkland secured a major victory for Morgan Stanley in an arbitration against Sears, Roebuck & Co. The dispute centered around the allocation of tax refunds and liabilities under a tax sharing agreement entered into between Sears and Dean Witter, one of Morgan Stanleys predecessor companies. At arbitration, the panel of three former federal judges ruled in favor of Morgan Stanley and awarded it damages of roughly $20 million. Sears filed a post-hearing application to reverse the award, which the panel denied. Sears then filed a motion to vacate the panels award, which was rejected by the New York Supreme Court. A federal judge ruled in favor of Kirkland client Nationwide Mutual Insurance Company in the first Hurricane Katrina insurance coverage case to go to trial. The U.S. District Court for the Southern District of Mississippi upheld the validity and enforceability of the water damage exclusion in Nationwides homeowners insurance policy and ruled that Nationwide was not obligated to pay for any storm surge damage to the property of plaintiffs, who were Pascagoula, Mississippi residents. Kirkland recognizes the terrible hardships inflicted by Hurricane Katrina and has made substantial contributions to the victims recovery efforts, including pro bono service and monetary aid. After hearing seven weeks of testimony and deliberating for three days, a New Jersey jury decided that Lyondell Chemical Company must pay Kirkland client BASF $170 million due to overcharging BASF for propylene oxide, a chemical used in products ranging from mattresses to gym floors, over a period of eight years. Throughout the case, Lyondell denied
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any liability. BASF sought damages between $110 million and $286 million. The jury ultimately awarded damages of $170 million. Kirkland successfully defended Abbott Laboratories against a class action lawsuit alleging that the weight-loss drug Meridia caused increases in blood pressure, strokes, heart attacks and other injuries. Focusing on key weaknesses in the plaintiffs claim, Kirkland pushed for an early and comprehensive resolution of the key causation issues in the case. Abbott was granted summary judgment on all of the plaintiffs claims, and the decision was affirmed on appeal. The Firm handled Chiquitas libel and slander claims against the Gannett Company, Inc. and The Cincinnati Enquirer, which resulted in repeated front-page apologies to Chiquita, the payment of more than $10 million in damages and termination of the investigative reporter in charge of the story.
Intellectual Property
Our lawyers are recognized for their ability to understand the value, nature and importance of all forms of intellectual property rights and how those rights impact the businesses of our clients. In Chambers Global 2010, Kirkland was listed as a first-tier firm for the fifth consecutive year in the area of intellectual property. In the September 2009 IP Law & Business survey, A Little Less Buzz, Kirkland placed first for the most defense cases filed and second for total district court cases filed in 2008. And, in June 2009, the group was honored with the Award for Excellence in IP Litigation from international legal rating firm Chambers & Partners. Chambers said, The huge commitment [Kirkland] has made to its national IP litigation practice is very much in evidence. The following are cases exemplifying Kirklands intellectual property litigation capabilities. Kirkland represents The Associated Press in the highly publicized declaratory judgment suit brought by graphic artist and merchandiser Shepard Fairey arising out of Mr. Faireys unauthorized use of the APs photo of President Barack Obama to create a poster and related commercial merchandise, including t-shirts, sweatshirts and tote bags. In January 2010, Fairey was denied a motion for a protective order postponing his deposition pending the outcome of an investigation by the U.S. Attorneys Office into Faireys admitted spoliation and fabrication in the case. Fairey was also denied of his request to seal the courtroom during the hearing on Faireys motion, which led to the first public disclosure of the fact that Faireys admitted conduct was the subject of a criminal investigation. In a case watched closely by the pharmaceutical industry, a Kirkland-led team secured victories for client Amgen and affiliated companies at both the trial and appellate levels in a case involving a patent on the intracellular transcription factor NF-B. Amgen and affiliated companies filed suit against ARIAD in 2006, seeking a declaratory judgment that Amgens ENBREL (etanercept), FDA-approved to treat rheumatoid arthritis, psoriasis, ankylosing spondylitis, psoriatic arthritis, and juvenile rheumatoid arthritis, did not infringe U.S. Patent No. 6,410,516, and that the patent was invalid and unenforceable. Kirkland secured a victory in 2008 in the District of Delaware, in which the Court held on summary judgment that Enbrel did not infringe ARIADs patent. In June 2009, Kirkland argued the appeal before the
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U.S. Court of Appeals for the Federal Circuit, and the Court of Appeals affirmed the trial courts ruling. In January 2009, a team of Kirkland lawyers won a hard-fought victory for Limelight Networks. The case was tried to a 10-person jury before recently appointed Judge Mark Davis. Level 3 had filed the case in December 2007, asserting that Limelight, the secondlargest content delivery service provider in the world, infringed more than 200 claims in three patents. Kirkland succeeded in knocking out one of the three patents before trial, but two patents remained. The jury returned a verdict that found that those patents did not cover any services Limelight provides. The verdict eliminated the threat of an injunction and the more than $100 million in past damages Level 3 sought. Kirkland represents Cisco Systems, Inc., Scientific-Atlanta, Inc., Motorola, Inc., Thomson, Inc., NETGEAR, Inc., and Ambit Microsystems -- major manufacturers of cable modems and cable modem termination systems used for high speed Internet -- in an antitrust, unfair competition and declaratory judgment patent action against Rembrandt. In more than a dozen different lawsuits spanning Texas, New York and Delaware, Rembrandt alleged that the entire cable industry infringed eight patents Rembrandt acquired from Paradyne. The matters against our clients customers were consolidated as MDL proceedings in the U.S. District Court for the District of Delaware, where our clients then sued Rembrandt. In August 2009, after discovery finished and the Delaware Court had granted our clients requests for permission to file summary judgment and sanctions motions against Rembrandt, Rembrandt moved to dismiss all of its lawsuits against our clients and the cable industry and granted Kirklands clients and their customers covenants not to sue any of their current or former products or services under the eight patents. We obtained a supplemental covenant not to sue that broadened the scope of the covenant, and the case was in turn dismissed. Our clients are now pursuing a motion for an exceptional case attorneys fees award against Rembrandt. In October 2008, the Court of Appeals for the Federal Circuit for issued a decision in favor of our clients Motorola and Samsung. Broadcom filed a patent infringement action against Qualcomm at the International Trade Commission, alleging that Qualcomm induced infringement of the Broadcom patents by selling semiconductor chips to cell phone manufacturers, including Motorola and Samsung, and that the cell phone manufacturers were direct infringers. The Initial Determination at the ITC found that Broadcoms patents were both valid and infringed, but the judge refused to provide Broadcom with a downstream product exclusion order covering the Samsung or Motorola phones. Later, the full ITC reversed the ALJ finding and imposed a broad LEO that included downstream product relief and that would have barred our clients from importing cell phones with the infringing Qualcomm chips. Before the Order could go into effect, Kirkland successfully obtained a stay of the LEO from the Federal Circuit. The Federal Circuit then issued its decision on the merits, reversing the ITC and securing a complete victory for our clients. In September 2007, Kirkland won the battle for Biedermann Motech with a favorable federal jury verdict. Concluding that Medtronic Sofamor Danek infringed, the jury ordered it to pay $226.3 million to Biedermann and Johnson & Johnsons DePuy unit. The suit was first filed in 2001 by Biedermann and Johnson & Johnson, and involves Medtronics Vertex screw which is used to correct spinal defects. The verdict was reportedly the largest jury award in
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Massachusetts history. Following the trial, the court entered a permanent injunction against Medtronic and later sanctioned Medtronic in the amount of $10 million plus part of plaintiffs attorneys fees for litigation misconduct. Kirkland lawyers successfully represented Dr. David Goldfarb and medical device manufacturer C.R. Bard in the latest chapter in their 36-year patent dispute against W.L. Gore & Associates, Inc. After 28 years of litigation, the PTO awarded the patent related to vascular grafts made from expanded Teflon to Dr. Goldfarb in 2002. During that time Bard took an exclusive license from Dr. Goldfarb and became involved in the interference. Following the issuance of the patent to Dr. Goldfarb, Gore refused to pay to license the technology from Bard and claimed that the patent it had sought for 28 years was invalid and not infringed. Dr. Goldfarb and Bard sued for patent infringement in 2003. Four years later, a jury found that Gore had willfully infringed and awarded damages of $185 million. Kirkland represented Bard during the post-trial motions before the U.S. District Court for the District of Arizona in 2009. Gores motion for a new trial and its claim that the jury award was excessive and contradictory to the evidence were denied and the court doubled the damages plus attorneys fees and pre-judgment interest. In 2009, Kirkland obtained the dismissal of W.L. Gores appeal to the U.S. Court of Appeals for the Federal Circuit after Bard won its patent infringement case (and a verdict and enhanced damages of hundreds of millions), W.L. Gore attempted to take an interlocutory appeal under 28 U.S.C. 1292(c)(2), while a post-trial motion for a compulsory license was still pending. The Federal Circuit dismissed the appeal in its entirety. Kirkland won more than $580 million in compensatory and punitive damages for clients Karlin Technology and Dr. Gary K. Michelson against Memphis-based Medtronic Sofamor Danek. The federal court jury in Memphis, Tennessee, found that Medtronic Sofamor Danek materially breached purchase and license agreements between the parties, engaged in wrongful conduct, infringed the six asserted patents owned by Dr. Michelson, and intentionally underpaid royalties. The case settled for $1.35 billion. In October 2007, a preliminary injunction was granted in favor of Kirkland client GlaxoSmithKline, enjoining the PTOs sweeping changes to the regulations governing patent prosecution from going into effect on November 1, 2007. The rule changes would have drastically altered prosecution practice, including limiting the number of continuing applications and requests for continued examination and the number of claims an applicant can seek. Shortly after hearing argument on the familiar preliminary injunction factors, the court granted GSK its requested relief from the bench enjoining the rules until final resolution on the merits. In the opinion, the court found that all four factors favored granting the preliminary injunction and denied the PTOs motion to strike. Kirklands intellectual property transactional lawyers have been involved in many transactions of major significance. Kirklands experience includes acting for clients in the following matters: Assisted service provider with a 10-year business process outsourcing transaction. According to the terms of the deal, the client, as a subcontractor, will provide customer contact services, sales services and billing and remittance activities to a large U.S. utility company. This is the client's first deal in the United States.
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Kirkland represented the world's largest derivatives exchange operator, CME Group Inc., in a transaction in which CME will acquire a 90 percent stake in the Dow Jones indexes business valued at $675 million. The transaction also involved the contribution by CME of a $600 million market data business to the joint venture, resulting in an overall valuation of more than $1.2 billion. The venture creates and licenses more than 130,000 indexes that investors and analysts use to measure the performance of such markets as stocks, bonds and real estate. Kirkland represented a leading wireless and wireline communications service provider in Virginia, West Virginia and other states, in connection with an outsourcing and resale agreement valued at approximately $1 billion. Kirkland has represented Sun Microsystems in a number of outsourcings, including a worldwide outsourcing of logistics functions to DHL and a worldwide outsourcing of real estate and project management covering Suns real estate portfolio in more than 70 countries. Kirkland represented an energy firm with more than a million residential, commercial and industrial natural gas customers, in a multiyear BPO and technology enhancement services agreement. It was projected that this transaction will result in savings of approximately $170 million over the 10-year term for our client. The Firm represented a major automotive manufacturer in the development of its form agreements for all types of IT outsourcing and the negotiation of agreements for several such transactions, including two of the largest outsourcing transactions in history. A Kirkland team represented Myogen, Inc. in its $2.5 billion acquisition by Gilead Sciences, Inc., a San Francisco-based biotechnology company. At the time of the transaction, Coloradobased Myogen did not have any drugs on the market, but had a well-regarded experimental drug in an advanced stage of development. The Firm represented a world-class entertainment and resort complex under construction in China, in connection with a joint venture and license agreement with a major U.S. brand. For a leading Internet research portal, Kirkland negotiated a multiyear, multimillion-dollar partnership with a major investment bank to co-develop global research and information systems for transmission of real-time investment strategy and securities research across multiple delivery platforms.
Restructuring
In the restructuring area, Kirkland provides a broad range of business advisory and crisis management skills with extensive experience in U.S. and international insolvency matters to navigate clients through the turmoil of situations involving financially troubled companies. In the 2008 and 2009 editions of Chambers Global, an independent review of international legal talent, Kirkland received a first-tier global ranking in the area of bankruptcy/restructuring. Additionally, in June 2008, Kirklands Restructuring Group was selected for an Award for Excellence by Chambers & Partners, a highly respected international rating firm, in the Bankruptcy Team category for providing superior service to its clients. Some of Kirklands recent headline-making representations include:
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Kirkland represented Calpine Corporation in its chapter 11 case. Calpine is the worlds largest producer of geothermal electricity, operates the largest fleet of natural gas-fired power plants in North America, and supplies approximately 3.5 percent of the electricity consumed in the United States. With more than 270 debtors and approximately $18 billion of funded debt, Calpines chapter 11 filing was the second largest case filed in 2005. Calpines restructuring involved the unique and complex intersection of bankruptcy, financing, energy, regulatory, labor and benefits, cross-border and other legal issues. Calpine emerged from bankruptcy in January 2008. Kirkland represented United Airlines and 27 of its affiliates and subsidiaries in its chapter 11 cases. These cases are among the largest ever filed, with assets and liabilities in excess of $20 billion. Kirkland attorneys assisted the company to restructure every aspect of its business, including its labor, retiree medical and pension costs, aircraft financing arrangements, airport and off airport leases, express carrier operations and thousands of supply contracts. United successfully emerged from bankruptcy in February 2006. Kirkland represented Sea Containers Ltd. and certain of its affiliates in its chapter 11 cases which were filed in October 2006. Sea Containers, a Bermuda company with headquarters in London, is a leading marine container leasing company that has engaged in a variety of other businesses, including passenger transport, container manufacturing and repairing facilities, fruit farming, and perishable freight forwarding and logistics. Kirkland represented Visteon Corporation, a Fortune 500 global automotive supplier that designs and manufactures climate, interior, electronic and lighting products for vehicle manufacturers, in its chapter 11 reorganization. Located in 27 countries, Visteon reported $9.5 billion in revenue in 2008 with approximately 31,000 employees. Kirkland represented Charter Communications, Inc., the fourth largest cable operator in the United States, with approximately $21.7 billion in debt, in its prearranged bankruptcy that reduced debt by approximately $8 billion. Kirkland represented Hawaiian Telcom Communications, Inc., the state of Hawaii's incumbent telecommunications provider, which filed for chapter 11 protection in December 2008. Hawaiian Telcom offers a variety of telecommunications products and services, including local and long distance services, managed services, highspeed Internet, and wireless services. Kirkland represented Tropicana Entertainment, LLC and 33 of its affiliated entities in their chapter 11 cases in the United States Bankruptcy Court for the District of Delaware. Tropicana and its non-debtor affiliates are a leading domestic casino operator, with approximately 540,000 square feet of gaming space and more than 8,300 hotel rooms, and employ more than 11,000 individuals on a full- or part-time basis. Tropicana and its nondebtor affiliates operate eleven casinos across five states, including the Tropicana Resort and Casino Las Vegas, located on the "Strip" in Las Vegas, Nevada, and the Tropicana in Atlantic City, New Jersey. Kirkland represented Masonite Corporation and its affiliates, one of the largest manufacturers of interior doors and entry door systems in the world with 11,000 employees and annual revenue of approximately $1.8 billion, in its chapter 11 cases. Masonite operates in 70 locations throughout North America, South America, Europe, and Asia.
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Kirkland represents Readers Digest Association, Inc., publisher of books, magazines, and entertainment products with more than 130 million customers in 78 countries, in its prearranged chapter 11 cases. Readers Digest has more than 3,000 employees and annual sales of approximately $2.2 billion. Kirkland represented Conseco, Inc. and certain of its subsidiaries in the seventh largest bankruptcy filing in history. Conseco operated in the heavily regulated finance, banking, and insurance industries. As part of the restructuring process, and after a lengthy and spirited auction, Kirkland gained court approval for Conseco to sell the assets of its finance subsidiaries for a cash purchase price of more than $1 billion (reportedly the largest ever cash sale in a chapter 11 case). Kirkland then went on to negotiate the restructuring of the remaining Conseco assets (comprised predominantly of Consecos insurance business), gaining confirmation of a plan of reorganization in just nine months.
Real Estate
Kirklands Real Estate Practice Group offers clients focused, multidisciplinary counsel on a wide range of real estate transactions. Kirklands ever-expanding real estate client base includes major corporations, real estate private equity funds, real estate operating companies, Real Estate Investment Trusts (REITs) and hotels. As an integrated part of the Firms renowned fund formation practice, the real estate practice regularly advises clients on cross-border and domestic real estate private equity investments and fund formations. The real estate practice served as counsel on the formation of LaSalle Asia Opportunity Fund III and Japan Logistics Fund II, real estate private equity investment funds with total capital commitments of over $3.5 billion. Kirkland also represented Red Fort Capital LLC in connection with the formation of Red Fort India Real Estate Fund I, a real estate private equity investment fund targeting investor commitments of $425 million focusing on the development of multi-family housing throughout India. Our fund formation experience also lends itself to advising on real estate operating company formations and investments including drafting and negotiation of joint ventures. We recently represented CenterPoint Properties Trust in the creation of two joint ventures between CenterPoint and Infinity Intermodal Services, LLC to acquire, develop and manage container storage facilities throughout the United States. While our hospitality practice focuses on hotel acquisitions and dispositions, development transactions and management agreements, it is also home to much of our joint venture activity. Kirkland represented Kimpton Hotels in connection with the formation of a joint venture with The John Buck Company for the acquisition and development of a high rise hotel in downtown Chicago, IL and Global Hyatt Corporation in formation of joint venture with affiliates of Goldman Sachs & Co., and the resulting joint venture in the $445 million acquisition from bankruptcy of Hyatt Regency Waikiki. Kirkland also represented Starwood Hotels & Resorts Worldwide, Inc. in connection with the formation of a strategic alliance with Istithmar Hotels, the hospitality investment arm of the Government of Dubai, and Jones Lang LaSalle Hotels to create a leasing vehicle to develop Starwood-branded hotels throughout Europe, covering more than 50 countries. Kirklands real estate practice maintains its relationships with its fund and real estate operating clients by skillfully handling their single asset and portfolio acquisitions and dispositions. Kirkland represented CenterPoint Properties Trust in the disposition of a premier portfolio of industrial buildings located at OHare International Airport to CalEast Air Cargo, LLC. We also represented Lazard Freres Strategic Real Estate Fund in $728 million sale of its portfolio company Intown Suites Management, Inc. and
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related portfolio of 125 extended stay hotels. Kirkland also represented a joint venture composed of affiliates of GEM Realty Capital and Whitehall Street Global Real Estate Limited Partnership 2005 in acquiring a majority interest in three Sofitel hotels located in Los Angeles, New York and Philadelphia, adding to a portfolio already including Sofitels located in the Chicago, Miami, Minneapolis, San Francisco and Washington, D.C., markets. On the corporate side of the real estate spectrum, Kirkland lawyers are skilled in all aspects of the representation of corporate real estate users. In addition to our participation in corporate acquisition and disposition transactions frequently involving multi-state real estate assets and related acquisition and financing issues, we are regularly involved in a wide variety of leasing, build-to-suit and other transactions for corporate real estate users of office, manufacturing and industrial properties. For example, Kirkland represents Whirlpool Corporation in conjunction with a structured build-to-suit program for multiple warehouse and distribution centers throughout the United States, Mexico and Canada.
Tax
Kirklands Tax Practice provides its clients the most creative tax planning available in a responsive and cost-efficient manner. Kirklands Tax Practice is divided broadly into two areas: (i) tax planning in connection with mergers, acquisitions, buyouts, restructurings, financings, executive compensation plans, and other sophisticated transactions; and (ii) contested tax matters. Kirklands goal in both types of matters is the same: to achieve the best possible tax results in the most efficient manner. Our tax practice has achieved national and international acclaim, and has been consistently ranked by Chambers USA and Chambers Global. Mergers and Acquisitions: Kirklands Tax Practice represents numerous corporations involved in acquisitions and divestitures, as well as private equity and investment banking firms. We are frequently involved in the formation and syndication of entities created to make capital investments in leveraged buyouts, start-up companies, workout transactions, real estate interests, or other types of transactions. Spin-Offs and Split-Offs: The Tax Practice has broad experience in advising on and effecting tax-free spin-offs and split-offs. Among successful representations are the multibillion-dollar split-offs of DirecTV, Delphi Corporation, Hughes Defense by General Motors. IRS Private Rulings: The Tax Practice has been very successful in recent years in obtaining IRS rulings for clients who desired certainty regarding the tax consequences of their transactions. For example, we have obtained favorable IRS rulings for United Airlines, Conseco, General Motors, Chicago Board of Trade, Bcom3, Pioneer Telephone, and KanOkla Telephone Association. Restructuring: Kirkland is one of the premier firms in the country in representing debtors in restructuring situations. The Tax Practice has represented many troubled companies or their creditors in planning the tax aspects of these restructurings. For example, the Tax Practice helped develop the restructuring plan for United Airlines, Calpine, Collins & Aikman, Charter Communications, Wellman, Movie Gallery, Solutia, Dura Automotive, Conseco, NRG Energy, TWA, Chiquita Brands, and AmeriServe.
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Contested Tax Matters: Kirkland has long had a nationwide reputation as a premier litigation law firm. The Tax Practice has enhanced that reputation by achieving a remarkable level of success in trying and winning complex and high-profile tax disputes. The Tax Practice has acted as lead counsel in recent tax disputes for companies such as United Airlines, AT&T, American Airlines, Qwest Communications, General Motors, Bayer, Pactiv, W.R. Grace and many others. Kirklands Tax Practice has always been diversified in the types of cases it handles, believing that the most sophisticated tax advice is based on a full understanding of applicable tax laws and the interaction and analogies that exist between different taxing schemes.
Office Locations
As client needs have expanded geographically, so has Kirkland, with approximately 1,500 lawyers in office locations throughout the United States in Chicago, Los Angeles, New York, Palo Alto, San Francisco, Washington, D.C., and abroad in Hong Kong, London, Munich and Shanghai. Chicago: Kirklands oldest and largest office is in Chicago, where approximately 650 lawyers provide a full spectrum of litigation, corporate, intellectual property, restructuring, real estate and tax services to publicly and privately held companies and financial service institutions. Hong Kong: Kirklands Hong Kong office is in the Gloucester Tower of The Landmark building, in the heart of Hong Kongs Central financial district. The Hong Kong team, consisting of 10 attorneys, concentrates in the Firms internationally recognized private equity and mergers and acquisitions practice in Greater China and the rest of Asia. London: The London office assists international clients with their U.S. operations and investments and helps U.S.-based clients in European transactions. Kirklands London office has approximately 80 lawyers practicing U.S., English and international law. The office is active in cross-border transactions, private equity, international arbitration and litigation, intellectual property, corporate restructuring and insolvency, and tax. Los Angeles: Kirklands Los Angeles office was established to meet the legal service needs of the Firms national and international clients on the West Coast. Today, Kirklands Los Angeles office has approximately 75 lawyers handling a wide range of complex commercial and intellectual property litigation, restructuring, corporate transactions and financings, and white collar criminal defense. Munich: Kirklands Munich office, opened in January 2005, enhances our service to existing and prospective clients in Germany and across Europe. Established with a core group of approximately 20 attorneys, the Munich office focuses on private equity and mergers and acquisitions work, and tax and restructuring matters. New York: The New York office opened in 1990 with a team of Kirkland-trained legal professionals and has expanded to approximately 335 lawyers, with special competence in complex U.S.-based and international corporate and risk capital transactions, financings, real estate, commercial litigation, intellectual property, restructuring and tax services. Palo Alto: In August 2008, to enhance our ability to serve our expanding Northern California
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client base, Kirkland established its ninth office in Palo Alto, the heart of Silicon Valley and home to the most vibrant and growing technology sector. Our Palo Alto office will initially focus on intellectual property and private equity representations with a team of approximately 15 attorneys. San Francisco: The San Francisco office opened in January 2003. This location, which includes approximately 90 lawyers, focuses on corporate transactions, particularly in the private equity area, complex commercial litigation, intellectual property litigation and transactions, and corporate reorganizations and restructurings. Shanghai: Kirkland's Shanghai office, opened in January 2010, is the Firm's tenth worldwide and second in Asia. The Shanghai office focuses on complex mergers and acquisitions, fund formation, and restructuring transactions for global and regional private equity funds and corporations, and also represents Chinese companies active abroad. The office is located in the International Financial Center complex in the Pudong business district of Shanghai. Washington, D.C.: Established in 1930, the Washington, D.C. office, located one block from the White House, and with easy access to Capitol Hill, has approximately 180 lawyers. These professionals have a diverse corporate counseling, white collar criminal defense, environmental transactions, energy, defamation, antitrust and trial practice, with a special focus on legislative, regulatory and administrative law, and issues of public policy.
Integrated Teams
Lawyers in all of Kirklands offices work together as integrated, multidisciplinary teams to provide the full service capabilities our clients need for the complex litigation, corporate, intellectual property, restructuring, and tax as well as other interdisciplinary matters they retain Kirkland to handle.
Training
Effective training is critical to the professional development of Kirkland lawyers. For this reason, Kirkland emphasizes attorney training that combines a cutting-edge legal practice with a year-round series of training programs including mock exercises, lectures and presentations. From their first days at our Firm, junior Kirkland lawyers typically have front-line opportunities to take and defend depositions, draft transaction documents, argue motions in court and draft securities filings. By performing such work under the guidance of senior colleagues, Kirkland lawyers learn through hands-on experience. Formal programs covering all of the Firms practice areas ensure that each of the Firms lawyers have the opportunity to develop a broad set of basic skills that are critical to his or her practice.
Diversity
Recognizing that talent comes from all backgrounds, Kirkland is committed to recruiting diverse attorneys and ensuring that the work environment is conducive to their retention and promotion. Diversity is an issue of prime importance to Kirkland and is evident in various programs and initiatives. Initiatives include the Kirkland & Ellis LLP Diversity Fellowship Program, the Womens Leadership Initiative, and various pipelining programs. The Kirkland & Ellis Foundations contributions to various nonprofit organizations, foundations and programs that directly or indirectly benefit diversity-related initiatives
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totaled more than $1.6 million in 2008.
Pro Bono
To help contribute to their communities, Kirkland attorneys pursue pro bono matters ranging from child welfare to protecting the rights of Americans with disabilities. In 2009, Kirkland received the Pro Bono Initiative award from the Public Interest Law Initiative at the organizations annual awards luncheon in Chicago. The award acknowledges a single entity for its significant pro bono work in the community. Kirkland also received the first ever Equality for Kids Community Service Award at the organizations annual benefit. Kirkland has partnered with Equip for Equality for 24 years through pro bono representation and financial support.
Results-Oriented
Kirkland stresses and its clients rightly expect results. To that end, Kirkland employs innovative, pragmatic strategies and hard work. Kirkland recognizes that its success depends upon close coordination with and the satisfaction of its clients. Kirkland initiates periodic review sessions with its clients to measure progress against objectives and to ensure that the clients objectives and needs are being met. Kirkland works with clients to develop mutually beneficial alternatives to the standard hourly rate system that most of the Firms clients historically have preferred.
The Firm seeks long-term, partnering relationships with clients, to the end of providing the best total solution to the clients multidisciplined and industry-specific legal service needs. The Firms goal is to be an instrumental part of each clients success.
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Founded over 100 years ago, Kirkland & Ellis has been called upon to handle complicated litigation, corporate, intellectual property, restructuring, tax, and counseling matters for global clients.
Chicago
300 North LaSalle Street Chicago, IL 60654 t: +1 (312) 862-2000 f: +1 (312) 862-2200
Hong Kong
26th Floor, Gloucester Tower The Landmark 15 Queens Road Central Hong Kong t: +852-3761-3300 f: +852-3761-3301
London
30 St Mary Axe London EC3A 8AF United Kingdom t: +44 20 7469 2000 f: +44 20 7469 2001
Los Angeles
777 South Figueroa Street Los Angeles, CA 90017 t: +1 (213) 680-8400 f: +1 (213) 680-8500
Munich
Maximilianstrasse 11 80539 Munich Germany t: +49 89 2030 6000 f: +49 89 2030 6100
New York
Citigroup Center 153 East 53rd Street New York, NY 10022-4611 t: +1 (212) 446-4800 f: +1 (212) 446-4900
Palo Alto
950 Page Mill Road Palo Alto, CA 94304 t: +1 (650) 859-7000 f: +1 (650) 859-7500 Mailing Address: P.O. Box 51827 Palo Alto, CA 94303
San Francisco
555 California Street San Francisco, CA 94104 t: +1 (415) 439-1400 f: +1 (415) 439-1500
Shanghai
11th Floor, HSBC Building Shanghai IFC 8 Century Avenue Pudong New District Shanghai 200120 Peoples Republic of China t: +8621-3857-6300 f: +8621-3857-6301
Washington, D.C.
655 Fifteenth Street, N.W. Washington, D.C. 20005 t: +1 (202) 879-5000 f: +1 (202) 879-5200
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
EXHIBIT 3 Osborn & Bennett Resumes
Jason D. Osborn
Partner, Corporate
Chicago, Illinois t: +1 312-862-2491 f: +1 312-862-2200 jason.osborn@kirkland.com Education University of Michigan School of Law, J.D. (2002) cum laude New York University, B.A., Politics & History (1999) Professional Profile Jason Osborn is a partner in the corporate department of Kirkland & Ellis LLPs Chicago office. Admissions/Qualifications 2003, New York 2004, Illinois Memberships And Affiliations New York State Bar Association Prior Employment Experience 2003-2004, Linklaters, London
Chicago
Hong Kong
London
Los Angeles
Munich
New York
Palo Alto
San Francisco
Shanghai
Washington D.C.
Ryan Blaine Bennett

Partner, Restructuring
Chicago, Illinois t: +1 312-862-2074 f: +1 312-862-2200 ryan.bennett@kirkland.com Professional Profile Ryan Blaine Bennett is a partner in Kirkland & Ellis' Restructuring Group. Mr. Bennett focuses his practice on protecting and advancing the financial interests of corporate debtors and secured and unsecured creditors in the various transactional and litigationrelated aspects of the debtor-creditor relationship. Mr. Bennett also frequently represents both strategic and financial investors with respect to purchasing and investing in distressed businesses, both in and out of court. On the transactional side, Mr. Bennett has a broad range of experience, including advising clients with respect to distressed mergers and acquisitions, negotiating assetbased lending agreements, structuring out of court workouts, DIP financing, and drafting and implementing Chapter 11 plans of reorganization. Mr. Bennett's related litigation experience includes aggressively defending his clients various interests in numerous contested matters involving Chapter 11 plan confirmation, preference actions, fraudulent transfers, involuntary Chapter 11 proceedings, executory contract rejection and assumption disputes, and several complex matters involving highrisk litigation tactics of oppositional creditors and bondholders committees. Representative Matters Automotive: Lear Corporation - Representing Lear Corporation, a leading global supplier of seating and electrical systems to the automotive industry, in achieving the first successful prearranged Chapter 11 restructuring of a tier 1 automotive supplier. Both prior to and during Lear's Chapter 11 filing, Mr. Bennett worked closely with Lear's senior management and major creditor constituents to achieve consensus, while preserving the goodwill of Lear's customers, suppliers and employees. In just four months after filing for bankruptcy in the U.S. Bankruptcy Court for the Southern District of New York, Lear and its 23 U.S. and Canadian subsidiaries emerged from Chapter 11, having eliminated approximately $3 billion in debt, preserved the supply base and positioned the Company as a highly competitive player in its market.
Chicago
Hong Kong
London
Los Angeles
Munich
New York
Palo Alto
San Francisco
Shanghai
Washington D.C.
DURA Automotive Systems, Inc. - Representing DURA Automotive, an international tier 1 automotive supplier, and forty-one of its domestic and Canadian subsidiaries, in connection with their highly consensual and successful Chapter 11 reorganization cases in the U.S. Bankruptcy Court for the District of Delaware. Among his responsibilities, Mr. Bennett managed the day-to-day administration of the Chapter 11 process, and represented DURA in all aspects of its complex multi-billion dollar restructuring. Tower Automotive, Inc. - Representing Tower Automotive, a leading tier 1 automotive supplier, in connection with its successful Chapter 11 reorganization case in the U.S. Bankruptcy Court for the Southern District of New York. Among his responsibilities on this case, Mr. Bennett was principally charged with maintaining and ensuring the integrity of Tower's supply chain. In this context, he frequently negotiated trade and pricing agreements with Tower's vendors and customers, developed business and litigation tactics to counter stop shipment threats by sole-source vendors, and obtained court approval of several commercial initiatives designed to improve Tower's North American business model. MPI International, Inc. - Representing MPI International, a global and specialized automotive supplier, as the largest unsecured creditor and chair of the Official Committee of Unsecured Creditors, in the chapter 11 bankruptcy case of Sturgis Iron & Metal Co., Inc., in the U.S. Bankruptcy Court for the Western District of Michigan. Atlantic Equity Partners, L.P. (AEP) - Representing AEP in its capacity as prepetition secured lender and proposed chapter 11 plan sponsor in the chapter 11 cases of BHM Technologies Holdings, Inc. et al., pending in the U.S. Bankruptcy Court for the Western District of Michigan. In addition to the above-listed public matters, Mr. Bennett has also actively participated on both debtor and creditor sides in several out of court workouts, restructurings, and consensual wind-downs of various tier 1 and tier 2 automotive suppliers. International: Japan Airlines Corporation (JAL) - Representing Japan Airlines Corporation, Asia's largest air carrier with a fleet of more than 270 aircraft, as international restructuring counsel advising JAL on all aspects of the restructuring of its global operations and representing it in connection with Chapter 15 cases pending before the U.S. Bankruptcy Court for the Southern District of New York. JAL, headquartered in Tokyo, maintained $28 billion in debt at the time of its filing and operates over 900 daily flights from over 60 airports in Japan and provides international flight services to 11 million international passengers in 34 countries each year. Betcorp Ltd. - Representing the Austrailian liquidating trustee of Betcorp Ltd., a former Internet gaming company, in filing its petition for recognition under the newlyestablished Chapter 15 of the U.S. Bankruptcy Code, in the U.S. Bankruptcy Court for the District of Nevada. Betcorp's petition was highly contested, but the Bankruptcy Court ultimately ruled in Mr. Bennett's client's favor, recognizing the Australian
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liquidation as a "foreign main proceeding" under Chapter 15. The Court issued and published a 27-page opinion on the ruling, which has been frequently cited in subsequent bankruptcy court opinions and publications. See In re Betcorp Ltd., 400 B.R. 266 (Bankr. D. Nev. 2009). Cover-All Holding Corp. - Representing Cover-All Holding Corp. and its ten Canadian and U.S. subsidiaries, as the once leading global manufacturers of pre-engineered building structures, in successfully obtaining an order pursuant to Chapter 15 of the U.S. Bankruptcy Code recognizing the Cover-All debtors' pending case under the Canadian Creditors Companies Arrangement Act (CCAA) as a foreign main proceeding. The Cover-All companies were the first foreign debtors to obtain chapter 15 recognition in the U.S. Bankruptcy Court for the Eastern District of Pennsylvania. Industrial (Non-Automotive): NRG Energy, Inc. - Representing NRG Energy, a multi-billion dollar international energy services conglomerate, in connection with its Chapter 11 reorganization in the U.S. Bankruptcy Court for the Southern District of New York. Within this mega-case, Mr. Bennett was the attorney primarily responsible for negotiating and obtaining court approval of his clients sale of certain non-core assets, including the $80.4 million sale of electrical turbines to a Chinese power company and the $160 million sale of a 520 megawatt generating power facility to an Oklahoma-based energy provider. Mr. Bennetts role included, among other things, (i) advising as to the marketing and auction process; (ii) negotiating and drafting the necessary pleadings and purchase agreements; and (iii) negotiating cash collateral agreements with his clients prepetition secured lenders. Atwood Mobile Products, Inc. - Representing Atwood, a prominent manufacturer of components for the recreational and specialty vehicle industry, with respect to its chapter 11 bankruptcy case in the U.S. Bankruptcy Court for the District of Delaware, and subsequent $160 million going-concern sale to Insight Equity, pursuant to section 363 of the Bankruptcy Code. J&L Specialty Steel, Inc. - Representing J&L Specialty Steel, a leading North American manufacturer of flat rolled stainless steel, in its successful out of court restructuring and ultimate acquisition by Allegheny Ludlum Corporation. W.R. Grace & Co. - Representing W.R. Grace, an international chemical supply conglomerate, in connection with preparing and negotiating its Chapter 11 plan of reorganization in the U.S. Bankruptcy Court for the District of Delaware. National Equipment Services, Inc. - Representing National Equipment Services (n/k/a NES Rentals), a national equipment leasing corporation, in all aspects of its Chapter 11 reorganization in the U.S. Bankruptcy Court for the Northern District of Illinois. Polymer Group, Inc. - Representing Polymer Group, a large industrial manufacturer, in all aspects of its ongoing restructuring efforts both prior to, and within the context of, a
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Chapter 11 reorganization in the U.S. Bankruptcy Court for the District of South Carolina. Bank One, N.A. - Representing Bank One's interests as a secured creditor in obtaining adequate protection from debtor HAR Technologies, Inc., for the continued use and subsequent section 363 sale of his clients collateral, in the U.S. Bankruptcy Court for the Northern District of Illinois. Real Estate Development & Hospitality: Clark Realty Capital - Representing Clark Realty with respect to identifying and analyzing distressed real estate investment opportunities. Global Hyatt Corporation - Representing Hyatt in connection with its interests as a significant creditor and contract counterparty of the Cosmopolitan Resort in Las Vegas, Nevada. Starwood Capital Group - Representing Starwood Capital in connection with analysis and potential acquisitions of distressed properties. Telecommunications and Internet: Cable & Wireless (USA), Inc. - Representing Cable & Wireless, a leading Internet services provider, in drafting, negotiating, and confirming its Chapter 11 plan of liquidation in the U.S. Bankruptcy Court for the District of Delaware. Rogers Communications, Inc. - Representing Rogers Communications, a leading North American cable service provider, in protecting its interests as a creditor and cooperative high-speed Internet provider in the Excite@Home bankruptcy case in the U.S. Bankruptcy Court for the Northern District of California. Concurrently, Mr. Bennett also represented his clients Chief Executive Officer in such officers capacity as a former Director of Excite@Home. Commercial Capital Corporation - Representing Commercial Capital as a significant noteholder in connection with an assignment for the benefit of creditors of a defunct dot.com corporation. Retail: Boyds Collection, Ltd. - Representing Boyds, a leading designer, manufacturer and distributor of hand-crafted collectibles and gift products, in drafting, negotiating, and confirming its Chapter 11 plan of reorganization in the U.S. Bankruptcy Court for the District of Maryland. Quality Stores, Inc. - Representing Quality Stores, a large retail chain, as a debtor in its Chapter 11 liquidation proceedings in the U.S. Bankruptcy Court for the Western District of Michigan.
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Education University of Notre Dame Law School (J.D., 2000) Thomas J. White Scholar Issue Editor, Notre Dame Journal of Law, Ethics and Public Policy Michigan State University (B.A., Political Theory & Constitutional Democracy, 1996) Admissions/Qualifications 2000, Illinois Courts 2004, United States Supreme Court 2003, United States District Court for the Eastern District of Michigan 2002, United States Court of Appeals for the Federal Circuit 2001, United States Court of Appeals for the Seventh Circuit 2001, United States District Court for the Western District of Michigan 2000, United States District Court for the Northern District of Illinois Memberships & Affiliations American Bankruptcy Institute Turnaround Management Association Kirkland & Ellis LLP Recruiting Committee (Member, 2006 to Present; Co-chair, Summer Program, 2009) Daniel Murphy Scholarship Foundation, Associate Board Member Chicago Volunteer Legal Services Foundation Notre Dame Alumni Association, Order of St. Thomas More Notre Dame Law School, Alumni Admissions Advisor Michigan State University Alumni Association, Presidents Club
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Other Distinctions Publications: Prof. John Ayer, Michael Bernstein, Jonathan Friedland, and Ryan Blaine Bennett, Chapter 11 101 - Professional Retention and Compensation, AMERICAN BANKRUPTCY INSTITUTE JOURNAL (February 2005) Jonathan P. Friedland and Ryan Blaine Bennett, Turning Off the Lights: Safely Shutting Down an Insolvent Subsidiary, THE CORPORATE COUNSELOR, Volume 19, No. 4a 2004) Professor John Ayer, Michael Bernstein, Jonathan Friedland, and Ryan Blaine Bennett, Chapter 11 101 - What Every Unsecured Creditor Should Know About Chapter 11, AMERICAN BANKRUPTCY INSTITUTE JOURNAL (June 2004) Assistant Editor, Norton Bankruptcy Law & Practice: Use, Sale or Lease of Property Under 11 U.S.C. 363 (West Group 2004) Assistant Editor, Norton Bankruptcy Law & Practice: Use, Sale or Lease of Property Under 11 U.S.C. 363 (West Group 2003) Ryan Blaine Bennett, Safeguards of the Republic: The Professional Responsibility of the American Lawyer to Preserve the Republic Through Law-Related Education, 14 NOTRE DAME JOURNAL OF LAW, ETHICS AND PUBLIC POLICY 651 (2000)
Presentations: Professional Compensation in the Context of Chapter 11, presented at the KIRKLAND INSTITUTE OF RESTRUCTURING TRAINING, July 26, 2006. Understanding Practice Groups in Large U.S. Law Firms, co-paneled with Lane Winter Vanderslice (Mayer, Brown, Rowe & Maw), presented at the Notre Dame Law School, September 10, 2004 Sections 1113 and 1114 of the Bankruptcy Code: Terminating or Modifying Collective Bargaining Agreements, Pension Plans and Retiree Benefits, presented at the KIRKLAND INSTITUTE OF RESTRUCTURING TRAINING, January 26, 2004 Fellowships: Public Interest Law Initiative Fellow (Chicago Volunteer Legal Services Foundation)Summer 2000
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Prior Experience General Motors Corporation, Oldsmobile Division (1996-97) ADP Dealer Services - General Motors University of Automotive Management (1995-96)
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1 2 3 4 5 6 7 8
EXHIBIT 4 The following lists contain the names of reviewed entities as described more fully in the Declaration of Ryan Bennett, Esq. (the Bennett Declaration). Where the names of the entities
reviewed are incomplete or ambiguous, the scope of the search was intentionally broad and inclusive, and Kirkland & Ellis LLP reviewed each entity in its records, as more fully described in the Bennett Declaration, matching the incomplete or ambiguous
9 name. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Exhibit 4(a) 4(b) 4(c) 4(d) 4(e) 4(f) 4(g) 4(h) 4(i) 4(j) 4(k)
Category Current and Recent Former Debtor Affiliates Current and Recent Former Directors and Officers Equity Holders Insurers Landlords Litigation Parties Professionals Purchaser Secured Lenders Top 20 Unsecured Creditors United States Trustee and Court Personnel for the Central District of California
EXHIBIT 4(a) Current and Recent Former Debtor Affiliates BioLabs Inc. Westcliff Medical Laboratories Inc.
EXHIBIT 4(b) Current and Recent Former Directors and Officers Clark, Gregory Kessinger, Will Lynch, Casey Skelton, Jim Skinner, Michael Sloan, H. Bradley Urban, Brian Vernaglia, Kip Whalen, Robert E.
EXHIBIT 4(c) Equity Holders Angress, Daniel Barnes, Joseph Biolabs Inc. Dalavarian, Hooshang Harrington, Douglas J&R Founders' Fund II LP Nicholson, Richard Nostadt, Gerald Parthenon Capital Parthenon Investors II LP PCIP Investors Preciado, Gayle Urban, Brian Vernaglia, Kip Whalen, Robert E. Young, Richard
EXHIBIT 4(d) Insurers AFLAC Blue Cross of California Chubb
EXHIBIT 4(e) Landlords
16585 Via Floresta Inc. 2287 Mowry Group LLC 575 Hardy Investors LLC 624 Medical Center LLC Accretive Laguna Partners LLC Adair Family Trust AH Rolling Oaks Associates Ammlock Real Estate Management Ang, Robert, MD Angel, Stephen, MD Apple Bear Center LLC ARP Holdings LLC Arroyo, Manuel, MD Ascension Realty & Investments Balboa Park Internal Medicine Medical Associates Inc. Balma-Road, Mildred, MD Barth, Neil M. Batavia Woods Medical Center Bhimani Family Trust Bishara, Ishak Biswas, Nanda, MD Blanscet, Laurie, DO Brink, Daniel J. Broe Cos.
Bronco Professional Park LLC BSV Medical Office Building 2 Camarillo Professional Partners Ltd. CBI Centercourt Partners LLC Central Valley Comprehensive Care Inc. Chen, Chien Fang, Dr. Chiavatti LLC Choice Medical Group Chung, Hankyu, MD College Medical Arts Inc. Community Hospital of Los Gatos Inc. Continental Skypark Corp. LLC Corwin Medical Center Cuneo Property Management LLC CVMB LLC Davis, Craig A. Daymore Development De Leon, S.R. Delakator Desert Mountain Professionals DFSCHA Anaheim General Medical Center
Doherty, Lady Bug Eisenhower Properties Inc. Foothill Technology Center LLC Foster City Medical Center Ft.Craig LP Garfield Jackson Pristine Property Management Glancz Family LLP, The Greenlaw Laguna Hills LLC Gretchen A. Hetzler MD Inc. Grossmont Land Co. Ha & Yoo Enterprises Inc. Heacock Medical Center Healthcare Realty Services Inc. Heartwise Fitness & Longevity Center High Desert Gastro Inc. High Desert Medical Group Highland Springs Medical Arts Hoag Memorial Hospital Hooshang Dalavarian Family Trust Houghton, Robert, MD HPFGLB Oceanview Medical Cente Irvine Co. LLC, The Joudi, Souad
K&G Mission Medical LLC Kamf Tustin LLC Katzen, Robert, MD Keller, Gregory S., MD Klingbeil Capital Management Lakeside Medical Building LLC Lam, Richard, MD Lancaster Cardiology Medical Group Las Palmas Medical Plaza Lawrence D. Sher MD Inc. Lexham Tenth Street LLC LNI Investment Properties Magnolia Building Investors Inc. Maletz, Willard L., MD Manor Park LLC Martin N. Gordon MD Inc. Matharu, Joginder S., MD McClellan, Stephanie, MD MDT Investments LP Meardon, Paul H. Medical Arts Bulding LP Medical Buildings of America Medical Center, The Medical Group of Culver City
Mehan, Ris M., as trustee Minson Co. Mission Hospital Mission Hospital Regional Medical Center Inc. Mission Ob/Gyn Medical Group Mitts, Thomas F., MD Mondkar, Avinash M., MD Montpelier One LLC Mowry Medical Partners LLC Narko, Edwin Nephron Properties LLC Newport Center Medical Building 2 Newport Lido Medical Center Newport Lido Medical Parking Newport Medical LLC Newport Pulmonary Associates Medical Group NNN Culver Medical Plaza Orange County Heart Institute Ostoya, Jola J. Ostoya, Paul W. Ouch Sport Medical Center Pacific Coast Cardiology PMB Mission Viejo LLC Pointe Perris Medical LLC
Pomona Mission Medical Clinic Porciuncula, Generoso, MD Primary Provider Manage Co. Inc. Prime A Investments LLC Procom Investments RDB LLC Retsky Family Trust Troop Real Estate Inc. Richard Lam MD Inc. Riches-Sinclair Management Group Riley-Whitwer Medical Building RJS 302 LLC RK Joint Venture Trust Account Robert G.Czako MD Inc. Rodeo Drive Health Center Roohipour, Haleh, MD Royal Development Plaza LLC RVS 110 LLC Saada, Merhej Samaritan Properties LLC San Gabriel Orthopaedic Medical Group San Juan Medical Clinic Inc. Santa Rosa Del Valle Medical Group Inc. SC Heart Specialists
Sequoia Family Medical Center Seventh Avenue Professional Plaza Sharon McGarrity DOA Medical Corp. SI Investment Trust Siddiqui, K. Ali, MD SKB-Webster LLC SM Physicians Center LLC Smith, Samuel J., MD South Central Family Healthcare South Coast Medical Group South Coast Rehabilitation Center Inc. Stonebridge Medical Center LLC Sunbelt Enterprises Surgical Care Affiliates Temecula Valley OB/GYN Med Terracina Properties LLC
Thomas, Robert C. TSC Group LLC Univ Prop 7 LLC & GS Superior Urology Associate of Silicon Valley VDC Capital Resources LP Walaka Development Walsh Medical Arts Center Warren G Brown Properties Inc. Westchester Medical Group Westenberger, William Westlake Medical Center LLC Westside Medical Associates Windrose Desert Springs Properties LP Womens Health Center, The Yuan, William
EXHIBIT 4(f) Litigation Parties 1st Business Bank Bayer Healthcare Beckman Coulter Becton Dickinson Biotest Diagnostic California Department of Health Care Services California Department of Justice CI Technology Cotchett Pitre & McCarthy Dell Computer Diasorin Inc. Hunter Laboratories Inc. Jules & Associates Inc. McKesson HLAB Merrill Lynch Riedel, Chris Siemens Sweden Diagnostics
EXHIBIT 4(g) Professionals Alvarez & Marsal Garvey Schubert Barer Gordon & Rees FTI Consulting, Inc. Levine Neale Bender Brill & Rankin MTS Health Partners Winston & Strawn
EXHIBIT 4(h) Purchaser K&L Gates LLP LabCorp
EXHIBIT 4(i) Secured Lenders Bank of America NA Becton Dickinson & Co. BMT Leasing Inc. CapitalSource CapitalSource Finance LLC Cisco Systems Capital Corp. Clearlake CYTYC LP Diasorin Inc. GE Business Financial Services Inc. GE Capital Business Financial Services Inc. GE Healthcare Finance Harvest Jules & Associates Inc. Leasing Associates of Barrington Inc. M&I Marshall & Ilsley Bank Merril Lynch Business Financial Services Inc. Merril Lynch Capital Norlease Inc. Olympus America Inc. Phadia US Inc. Pitney Bowes Credit Corp. Pitney Bowes Global Financial Services Inc. Roche Diagnostics Corporation Sandelman Finance 2006-1 Ltd. TCF Equipment Finance Inc. Three Fields Capital
EXHIBIT 4(j) TOP 20 Unsecured Creditors Alpha Scientific Medical Inc AT&T Atlas Development BD Becton Dickinson Biomerix Biomerieux Vitek Inc. Cytyc Hologic Limited Partnership Diasorin Inc. Fisher Healthcare Genzyme Genetics Grifols USA LLC Irvine Corporate Center LLC McKesson Info Solutions Phadia Qiagen Inc Roche Diagnostics Corporation Siemens Healthcare Diagnostics Specialty Laboratories Inc. Tripath Imaging Inc Urban Brian (Severance) VWR International VWR International
EXHIBIT 4(k) United States Trustee and Court Personnel for the Central District of California Albert, Theodore Cadigan, Frank Goldberg, Nancy Hauser, Michael Kwan, Robert Smith, Erithe
EXHIBIT 5 Search Results Name of Entity Searched Name of Entity and/or Affiliate of Entity, that is a K&E Client Alvarez & Marsal Europe Limited Alvarez & Marsal Inc. Ameritech Cingular Wireless LLC SBC Communications Inc. BA Equity Investors Banc of America Capital Investors Banc of America Capital Investors, L.P. Banc of America Securities LLC BancAmerica Capital Investors II, L.P. Bank of America Bank of America Capital Investors Bank of America Corporation Bank of America Merrill Lynch Bank of America NT & SA Bank of America, N.A. Fleet Equity Capital Justin Dash Merrill Lynch Merrill Lynch - Global Principal Investments Merrill Lynch Bank USA Merrill Lynch Japan Securities Co., Ltd. Bayer Corporate & Business Services, Inc. Status
Alvarez & Marsal
Closed Current Closed Former Current Former Former Former Current Current Former Current Current Current Current Current Former Closed Current Closed Closed Closed Closed
AT&T
Bank of America NA Merril Lynch Business Financial Services Inc. Merril Lynch Capital Merril Lynch
Bayer Healthcare
Name of Entity Searched
Name of Entity and/or Affiliate of Entity, that is a K&E Client Bayer Corporation Bayer Pharmaceuticals, Inc. Bayer, Inc. Schering Berlin, Inc. Becton Dickinson and Company WellPoint, Inc. California Public Employees' Retirement System CenterPoint Properties Trust Executive Committee of California Water Districts University of California, Berkeley, Human Rights Center
Status
Closed Closed Closed Closed Current
BD Becton Dickinson Becton Dickinson & Co. Blue Cross of California California Department of Health Care Services California Department of Justice
Current Current
Current Closed
Closed
CapitalSource CapitalSource Finance LLC Cisco Systems Capital Corp. Cytyc Hologic Limited Partnership Dell Computer FTI Consulting, Inc.
CapitalSource, Inc. Dean Graham John Delaney Cisco Systems, Inc. Cisco-Linksys, LLC Third Wave Technologies, Inc. David Johnson FTI Cambio LLC FTI Consulting, Inc. Lexecon, Inc. Mark Hebers
Current Current Current Current Current Current Current Current Current Closed Current
Name of Entity and/or Affiliate of Entity, that is a K&E Client Birchwood Power Partners, L.P. GE Capital Financial Inc. GE Healthcare General Electric Capital Corporation General Electric Company
Status
GE Healthcare Finance GE Business Financial Services Inc. GE Capital Business Financial Services Inc.
Closed Closed Closed Closed Current Closed Current Current Current Current
Harvest McKesson HLAB McKesson Info Solutions MTS Health Partners Norlease Inc.
Harvest Partners McKesson Corporation MTS Health Partners, L.P. The Northern Trust Company The Northern Trust Company-Fund of Funds Group Ascension Insurance, Inc. Captive Media Network, LLC Diversified Collection Systems, Inc. Intermedix Corporation Parthenon Capital Rackable Systems, Inc. Triad Isotopes, Inc. Pitney Bowes Inc.
Parthenon Capital
Current Current Current Current Current Closed Current Closed
Pitney Bowes Credit Corp. Pitney Bowes Global Financial Services Inc. Roche Diagnostics Corporation
Hoffmann-LaRoche Inc Roche Laboratories, Inc
Current Current
Name of Entity and/or Affiliate of Entity, that is a K&E Client Dade Behring, Inc. Osram Middle East FZE Osram Sylvania Inc. / Osram Sylvania Products Siemens AG Siemens AG Oesterreich Siemens Audiologische Technik GmbH Siemens Audiologische Technik GmbH Siemens Building Technologies, Inc. Siemens Building Technologies, Inc. Siemens Canada Limited Siemens Communications Inc. Siemens Corporation Siemens Corporation USA Siemens Energy & Automation, Inc., Postal Automation Division Siemens Energy & Automation/Postal Division Siemens Financial Services Siemens Hearing Instruments, Inc. Siemens Medical Solutions USA, Inc. Siemens Medical Systems, Inc. Siemens Microelectronics, Inc.
Status
Siemens Siemens Healthcare Diagnostics
Current Current Current Current Current Closed Current Current Current Current Current Current Current Closed
Closed
Closed Closed Current Closed Closed
Name of Entity and/or Affiliate of Entity, that is a K&E Client Siemens Oil and Gas Offshore AS Siemens Power Generation, Inc. Siemens Power Transmission and Distribution, LLC Siemens PSE (PSC) Techlabs Siemens S.A.A. of France Siemens S.A.S. France Siemens Sanayi ve Ticaret A.S. of Turkey Siemens Shared Services Siemens Transportation Systems Corp. Siemens Transportation Systems GmbH & Co KG Siemens Water Technologies VA Tech VA Tech American Corporation VA Tech Elin EBG VA Tech Elin USA Corporation VA Tech Hydro AG VA Technologie Voest-Alpine Services & Technology Corp.
Status
Closed Closed Current
Current Current Current Current Current Current Current Former Current Current Current Current Current Current Current Current
VWR International
Madison Dearborn Capital Partners III, L.P. Madison Dearborn Capital Partners VI
Current
Name of Entity and/or Affiliate of Entity, that is a K&E Client Madison Dearborn Partners, Inc. Madison Dearborn Special Equity III, LP Mark B. Tresnowski Patrick C. Eilers VWR Funding, Inc VWR International, LLC Winston & Strawn LLP
Status
Current Current Former Current Current Current Current
Winston & Strawn
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EXHIBIT I
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Exhibit I Page 000155
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Case 8:10-bk-16743-TA

D. Means of Effectuating the Plan and Implementation of the Plan ..............................29

This Plan is a liquidating plan.

In other words, the Debtors seek to accomplish

that there will be any Debtors General Litigation Recoveries.

Class of Interest Holders

Section 1126(g) of the Bankruptcy Code.

estates any disbursing agent fee. 3. Objections to Claims

Post-Confirmation Administration of these Chapter 11 Estates and

owing to the OUST.

On the Effective Date, the Debtors shall establish a reserve (the

Distributions to be Made Pursuant to this Plan

Debtors or the Committee, or any of their representatives, officers, directors, employees or

of this Plan and the Plan Confirmation Order;

to determine the allowability, classification, or priority of claims and

provided in the Plan Confirmation Order;

to issue such orders in aid of consummation of this Plan or the Plan

Once the Debtors estates have been substantially consummated as referred to in 11

PROOF OF SERVICE OF DOCUMENT

UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA

, the undersigned in the above-captioned case, hereby declare

Exhibit B Page 000038

Exhibit B Page 000039

Exhibit C Page 000040

Exhibit C Page 000041

Exhibit D Page 000042

Exhibit D Page 000043

Exhibit D Page 000044

Exhibit E Page 000045

Exhibit E Page 000046

Exhibit E Page 000047

FILED & ENTERED JUL 19 2010

Motion for an Order Establishing Bar Date for Filing Proofs of

Exhibit F Page 000048

Exhibit F Page 000049

Exhibit F Page 000050

hereto is hereby approved. IT IS SO ORDERED. ###

DATED: July 19, 2010

United States Bankruptcy Judge

Exhibit F Page 000051

unliquidated filed in the

Exhibit F Page 000053

may wish to consult an attorney to protect their rights.

Exhibit F Page 000054

In re: WESTCLIFF MEDICAL LABORATORIES, INC., Debtor(s). BIOLABS, INC.,

PROOF OF SERVICE OF DOCUMENT

Lourdes Cruz Type Name

/s/ Lourdes Cruz Signature

Exhibit F Page 000055

NOTE TO USERS OF THIS FORM:

NOTICE OF ENTERED ORDER AND SERVICE LIST

Exhibit F Page 000057

Exhibit G Page 000058

Exhibit G Page 000059

Exhibit G Page 000060

Exhibit G Page 000061

Exhibit G Page 000062

Exhibit G Page 000063

Exhibit G Page 000064

[No Hearing Required Bankruptcy Rule 2014-1(b)]

Motion for Joint Administration pending.

The Debtors continue to operate their business, manage

the operating company.

interest in the Debtor. 3. Westcliff was founded in 1964 as a community-based