UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re:
CYTOMEDIX, INC.
(f/k/a Autologous Wound Therapy, Inc.)
Debtor.
Taxpayer ID No.: 23-3011702
Chapter 11 Case No. 01 B 27610 Honorable Eugene R. Wedoff
FIRST AMENDED
PLAN OF REORGANIZATION
OF CYTOMEDIX, INC.
(with All Technical Amendments)
Steven R. Jakubowski (ARDC NO. 6191960)
Elizabeth E. Richert (ARDC NO. 6275764)
ROBERT F. COLEMAN & ASSOCIATES
77 West Wacker Drive
Suite 4800
Chicago, Illinois 60601
Telephone: (312) 444-1000
Facsimile: (312) 444-1028
Attorneys for the Debtor and Debtor in Possession
DATED: June 27, 2002
TABLE OF CONTENTS
Page
INTRODUCTION 1
ARTICLE I. DEFINED TERMS AND RULES OF INTERPRETATION 1
A. Definitions 1
B. Rules of Interpretation, Computation of Time, and Choice of Law 13
ARTICLE II. DESIGNATION OF CLASSES OF CLAIMS AND EQUITY INTERESTS 14
A. Class 1 - Secured Claims (Classes 1A-1E) 15
B. Class 2 - Certain Priority Unsecured Claims 15
C. Class 3 - Certain Unsecured Claims Without Priority 15
D. Class 4 - Existing Preferred Stock Equity Interests (Classes 4A and 4B) 16
E. Class 5 - Existing Common Stock 16
F. Class 6 - Existing Stock Options 16
G. Class 7 - Other Equity Interests, Including Section 510(b) Claims 16
ARTICLE III. TREATMENT OF CLAIMS AND EQUITY INTERESTS 16
A. Treatment of Unclassified Claims 16
1. Allowed Administrative Claims 16
a. Generally 16
b. Manner of Distribution of New Common Stock to Converting Holders of Allowed Administrative Claims, Including Holders of Postpetition Senior Secured Notes 17
c. Special Provisions for Distribution of New Common Stock and New Warrants for Converting Holders of Postpetition Senior Secured Notes 17
d. Statutory Fees 17
2. Allowed Tax Claims 18
B. Treatment of Classified Claims 18
1. Treatment of Allowed Secured Claims (Class 1) 18
a. Allowed Secured Claims in Class 1A (12% Senior Notes) 18
(1) Partial Conversion into New Common Stock at the Administrative Rate 18
(2) Partial Conversion into New Series A Convertible Preferred Stock 19
(3) Release of All Causes of Action Against Certain Holders of Class 1A Claims" 19
(4) Effect of Acceptance of the Plan by Class 1A: the "Cramdown Alternative" 19
b. Allowed Secured Claims in Class 1B (10% Junior Notes) 19
(1) Partial Conversion into New Common Stock at the Administrative Rate 19
(2) Partial Conversion into New Series B Convertible Preferred Stock 20
(3) Release of All Causes of Action Against Certain Holders of Class 1B Claims" 20
(4) Effect of Acceptance of the Plan by Class 1B: the "Cramdown Alternative" 20
c. Allowed Secured Claims in Class 1C (Worden) 20
d. Allowed Secured Claims in Class 1D (Curative Royalty Agreement) 21
e. Allowed Secured Claims in Class 1E 21
2. Allowed Priority Unsecured Claims of Employees (Class 2) 21
3. Allowed Unsecured Claims (Class 3) 22
a. Option 3A (Distribution of Cash Only) 22
b. Option 3B (Distribution of New Common Stock Only) 22
4. Allowed Preferred Stock Interests (Class 4) 23
a. Class 4A (Existing Series A Preferred Stock) 23
b. Class 4B (Existing Series B Preferred Stock) 23
5. Existing Common Stock (Class 5) 23
6. Existing Stock Options (Class 6) 24
7. Other Equity Interests, Including Section 510(b) Claims (Class 7) 24
ARTICLE IV. ACCEPTANCE OR REJECTION OF THE PLAN 24
A. Classes Entitled to Vote 24
B. Acceptance by Impaired Classes 24
C. Classes Deemed to Reject Plan 25
D. Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code 25
ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 25
A. Assumption of Executory Contracts and Unexpired Leases 25
1. Assumptions Generally 25
2. Approval of Assumption of Executory Contracts and Unexpired Leases 26
3. Objections to Assumption of Executory Contracts and Unexpired Leases 26
4. Payments Related to Assumption of Executory Contracts and Unexpired Leases 27
B. Executory Contracts and Unexpired Leases to Be Rejected 27
C. Claims Bar Date for Rejection Damages 28
D. Contracts and Leases Entered Into After the Petition Date 28
ARTICLE VI. MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN 28
A. Corporate Action 28
B. Funding of the Plan 29
C. Management of the Reorganized Debtor 29
D. Exemption from Certain Transfer Taxes 30
E. Cancellation and Surrender of Instruments, Securities, and Other Documentation 30
F. Applicability of Bankruptcy Code Sections 1125 and 1145 to Certain New Securities to Be Issued Under the Plan 31
G. Discharge and Injunction 31
H. Revesting of Property of the Estate and Release of Liens 33
I. Setoffs 34
J. Preservation of Causes of Action 34
ARTICLE VII. PROCEDURES REGARDING DISTRIBUTIONS UNDER THE PLAN AND RESOLUTION OF DISPUTED CLAIMS AND EQUITY INTERESTS 35
A. Claims Administration Responsibility; The Disbursing Agent 35
B. Objections to Disputed Claims and Disputed Interests 35
C. No Distributions Pending Allowance 36
D. Timing, Calculation, and Manner of Amounts to Be Distributed 36
1. Cash Payments 36
2. Transmittal of Distributions 36
3. Estimation of Disputed Claims and Disputed Interests 36
4. Distributions After Allowance of Disputed Claims or Disputed Interests 37
5. Undeliverable Distributions 37
E. Fractional Securities 37
F. Distribution Record Date 38
G. Withholding and Reporting Requirements 38
ARTICLE VIII. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE 39
A. Conditions Precedent 39
B. Effect of Nonoccurrence of Conditions Precedent to the Effective Date 39
ARTICLE IX. RETENTION OF JURISDICTION 40
ARTICLE X. MISCELLANEOUS PROVISIONS 42
A. Amendment and Modification of the Plan 42
B. Withdrawal, Revocation, or Non-Consummation of the Plan 43
C. Successors and Assigns 43
D. Severability of Provisions of the Plan 43
E. Contribution Bar 44
F. Termination of Subordination Rights and Settlement of Related Claims and Controversies 44
G. Limitation of Liability 44
H. Notices 45
I. Governing Law 45
EXHIBITS
I.A.61 Long Term Incentive Plan for the Reorganized Debtor
I.A.64 Form of New Class A Warrant
I.A.65 Form of New Class B Warrant
I.A.70 Form of New Series A Convertible Preferred Stock Certificate
I.A.71 Form of New Series B Convertible Preferred Stock Certificate
I.A.91 Restated Bylaws for the Reorganized Debtor
I.A.92(A) Restated Certificate of Incorporation for the Reorganized Debtor
I.A.92(B) Restated Certificate of Designation for the Reorganized Debtor
I.A.100 Short-Selling Bar Representation Irrevocably Made and Deemed Made by All Persons Receiving New Common Stock Under the Plan
I.A.106 Worden Agreements with the Reorganized Debtor
A. Patent License Agreement
B. Substitute Royalty Agreement
C. Mutual Releases
V.A Schedule of Contracts to Be Assumed
V.B Schedule of Contracts to Be Rejected
INTRODUCTION
Cytomedix, Inc., debtor and debtor-in-possession in the above-captioned chapter 11 case, hereby proposes the following plan of reorganization for the resolution of the outstanding Claims against and Equity Interests in the Debtor. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in Section I.A of the Plan.
Under section 1125(b) of the Bankruptcy Code, a vote to accept or reject the Plan cannot be solicited from the holders of Claims or Equity Interests until such time as the Disclosure Statement has been approved by the Bankruptcy Court and distributed to such holders. In this case, the Disclosure Statement was approved by the Bankruptcy Court by order entered on April 24, 2002, and has been distributed simultaneously with the Plan to all parties whose votes are being solicited. The Disclosure Statement contains, among other things, a discussion of (i) the Debtor's history, business, properties and operations, (ii) financial projections for those operations, (iii) risk factors, (iv) a summary and analysis of the Plan, and (v) certain related matters including, among other things, the securities to be issued under the Plan. All Persons entitled to vote on the Plan are encouraged to read the Plan and the Disclosure Statement in their entirety before voting.
Subject to certain restrictions and requirements set forth in section 1127 of the Bankruptcy Code and Fed. R. Bankr. P. 3019 and those restrictions on modifications set forth in Sections X.A and X.B of the Plan, the Debtor expressly reserves its rights to alter, amend, modify, revoke or withdraw the Plan one or more times prior to its substantial consummation.
ARTICLE I.
DEFINED TERMS AND RULES OF INTERPRETATION
A. Definitions
In addition to such other terms as are defined elsewhere in the Plan, the following terms (which appear in the Plan or in the Disclosure Statement as capitalized terms) have the following meanings as used in the Plan or the Disclosure Statement, as the case may be. Any term that is not otherwise defined herein, but that is used in the Bankruptcy Code or the Bankruptcy Rules, will have the meaning given to that term in the Bankruptcy Code or the Bankruptcy Rules, as applicable.
1. "10% Junior Notes" means those certain 10% convertible secured promissory notes with a scheduled maturity date as of the Petition Date of April 15, 2002, together with all other documents and agreements evidencing said indebtedness (including, but not limited to, all promissory notes, security agreements, assignments, and any other agreements entered into or other documents executed in connection therewith, or as an adjunct or supplement thereto, or required thereby).
2. "12% Senior Notes" means those certain 12% convertible secured promissory notes with a scheduled maturity date of April 23, 2005, together with all other documents and agreements evidencing said indebtedness (including, but not limited to, all promissory notes, security agreements, assignments, and any other agreements entered into or other documents executed in connection therewith, or as an adjunct or supplement thereto, or required thereby).
3. "Administrative Bar Date" means the deadline for filing requests for payment of Administrative Claims established by the Bankruptcy Court as May 30, 2002, pursuant to the Administrative Bar Date Order.