in the united states bankruptcy court for the...
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
MONTESQUIEU, INC., et al.,1
Debtors.
Chapter 11
Case No. 19-10599 (BLS)
Jointly Administered
Re: D.I. 152 and 175
ORDER (I) APPROVING ON AN INTERIM BASIS THE ADEQUACY OF
DISCLOSURES IN THE COMBINED PLAN AND DISCLOSURE STATEMENT,
(II) SCHEDULING THE CONFIRMATION HEARING AND THE DEADLINE FOR
FILING OBJECTIONS, (III) ESTABLISHING PROCEDURES FOR SOLICITATION
AND TABULATION OF VOTES TO ACCEPT OR REJECT THE COMBINED PLAN
AND DISCLOSURE STATEMENT, AND APPROVING THE FORM OF BALLOT AND
SOLICITATION PACKAGE, (IV) APPROVING THE NOTICE PROCEDURES, AND
(V) CONFIRMING THE PLAN
Upon consideration of the Debtors’ Motion for an Order (I) Approving on an Interim Basis
the Adequacy of Disclosures in the Combined Plan and Disclosure Statement, (II) Scheduling the
Confirmation Hearing and Deadline for Filing Objections, (III) Establishing Procedures for
Solicitation and Tabulation of Votes to Accept or Reject the Combined Plan and Disclosure
Statement, and Approving the Form of Ballot and Solicitation Package, (IV) Approving the Notice
Procedures, and (V) Confirming the Plan (the “Motion”) [D.I. 152];2 and it appearing that this
Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended
Standing Order of Reference from the United States District Court for the District of Delaware
dated February 29, 2012; and it appearing that this proceeding is a core proceeding pursuant to 28
1 The Debtors and the last four digits of their respective taxpayer identification numbers include Montesquieu,
Inc. (8069), WG Best Weinkellerei, Inc. dba Montesquieu Winery (California) (0458) and Montesquieu Corp.
(California) (4025). The headquarters and service address for the above-captioned Debtors is 8929 Aero Dr.,
San Diego, California 92123.
2 Capitalized terms used but otherwise not defined herein shall have the meaning ascribed to such terms in the
Motion.
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U.S.C. § 157(b)(2); and it appearing that venue of this proceeding and the Motion is proper in this
District pursuant to 28 U.S.C. §§ 1408 and 1409; and due, adequate and sufficient notice of the
Motion having been given; and this Court having reviewed the Motion and having heard the
statements in support of the relief requested therein at a hearing held on August 28, 2019 before
this Court; and it appearing that no other notice need be given; and after due deliberation and
sufficient cause appearing therefor,
THE COURT HEREBY FINDS AS FOLLOWS:
1. The procedures set forth below for the solicitation and tabulation of votes to accept
or reject the Plan provide for a fair and equitable voting process and are consistent with Bankruptcy
Code Section 1126.
2. The contents of the Solicitation Package and Non-Voting Package, as set forth in
the Motion, comply with Bankruptcy Rules 2002 and 3017 and constitute sufficient notice to all
interested parties including, without limitation, Holders of Claims against and Equity Interests in
the Debtors.
3. The Ballot substantially in the form attached to the Motion as Exhibit D: (i) is
sufficiently consistent with Official Form B314; (ii) adequately addresses the particular needs of
the Chapter 11 Cases; and (iii) is appropriate for the Voting Classes.
4. The voting instructions and procedures attached to the Ballot provide for a fair and
equitable voting process and are consistent with Bankruptcy Code Section 1126 and the applicable
Bankruptcy Rules.
5. The Ballot need not be provided to Holders of Unclassified Claims, or to Holders
of Secured Claims, Priority Claims, Intercompany Claims, or Equity Interests in Classes 1, 2, 5,
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and 6, as such Non-Voting Classes are either Unimpaired or are conclusively presumed to have
accepted or rejected the Plan in accordance with Bankruptcy Code Sections 1126(f) and (g).
6. The period during which the Debtors may solicit votes to accept or reject the Plan,
as established by this Order, provides sufficient time for Holders of Claims in the Voting Classes
to make informed decisions to accept or reject the Plan, and submit their Ballots in a timely fashion.
7. The notice of Confirmation Hearing substantially in the form attached to the Motion
as Exhibit B (the “Confirmation Hearing Notice”), satisfies the requirements of due process with
respect to all Holders of Claims and Equity Interests, whether known or unknown.
IT IS HEREBY FOUND AND DETERMINED THAT:
1. The Motion is GRANTED as set forth herein.
2. The Plan is approved on an interim basis as containing adequate information under
Bankruptcy Code Section 1125 for solicitation purposes.
3. The Bankruptcy Court shall conduct the Confirmation Hearing for (i) final approval
of the Plan and (ii) confirmation of the Plan. The Confirmation Hearing is hereby scheduled for
September 25, 2019 at 11:30 a.m. (ET).
4. The Debtors shall provide all known creditors and equity security holders with the
Confirmation Hearing Notice. The Confirmation Hearing Notice in substantially the form attached
to the Motion as Exhibit B is approved.
5. The Debtors shall provide all known holders of Claims in the Non-Voting Classes
with notice of Non-Voting Status (the “Non-Voting Status Notice”). The Non-Voting Status
Notice, in substantially the form attached to the Motion as Exhibit C, is approved.
6. The Debtors shall complete service of the Confirmation Hearing Notice within two
days after the date the Court enters the Conditional Approval and Procedures Order (the
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“Solicitation Commencement Date”). The Debtors shall serve the Confirmation Hearing Notice
on: (i) all parties filing a notice of appearance and request for service pursuant to Bankruptcy Rule
2002 in the Chapter 11 Cases, (ii) state and local taxing authorities for all jurisdictions in which
the Debtors did business, (iii) the Internal Revenue Service, (iv) the United States Attorney for the
District of Delaware, (v) holders of Claims or Equity Interests whether in the Voting Classes or in
the Non-Voting Classes, (vi) the United States Trustee, and (vii) all persons or entities listed on
the Debtors’ creditor mailing matrix, on the Solicitation Commencement Date.
7. The Ballot substantially in the form attached to the Motion as Exhibit D is
approved.
8. In order to be counted as votes to accept or reject the Plan, Ballots must be properly
executed, completed and delivered to the Voting Agent by First Class Mail, overnight courier,
messenger, or hand delivery to the following address: Montesquieu Ballot Processing, c/o Stretto,
8269 E. 23rd Avenue, Suite 275, Denver, Colorado 80238. The Voting Agent is also authorized to
accept Ballots via electronic online transmission solely through a customized online balloting
portal on the Debtors’ case website. The encrypted ballot data and audit trail created by such
electronic submission shall become part of the record of any Ballot submitted in this manner and
the creditor’s electronic signature will be deemed to be immediately legally valid and effective.
Ballots submitted via the customized online balloting portal shall be deemed to contain an original
signature.
9. On or before September 20, 2019, Stretto will file a signed declaration setting forth
the final voting results and methodology used to tabulate the votes (the “Voting Declaration”).
10. Each Holder of a Claim in the Voting Classes shall be entitled to vote the amount
of its Claim as of the Voting Record Date. For purposes of voting on the Plan, with respect to all
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Holders of Claims against the Debtors, any Ballot that is timely received from a Holder of a Claim
in the Voting Classes entitled to vote, that contains sufficient information to permit the
identification of the party casting the Ballot, and that is cast as an acceptance or rejection of the
Plan, will be counted and will be deemed to be cast as an acceptance or rejection, as the case may
be, of the Plan. To the extent a Holder of a Claim in the Voting Class has filed (i) duplicate Proofs
of Claim with respect to a single Claim against the Debtors, or (ii) Proofs of Claim amending
previous Proofs of Claim with respect to the Debtors, such Holder of a Claim shall be entitled to
receive only one Solicitation Package and one Ballot for voting such Claim, whether or not the
Debtors have objected to such Claim(s).
11. Notwithstanding the foregoing, the following types of Ballots will not be counted
in determining whether the Plan has been accepted or rejected:
(a) any Ballot received after the Voting Deadline (unless extended by the
Bankruptcy Court or Debtors);
(b) any Ballot that is illegible or contains insufficient information to permit the
identification of the claimant;
(c) any Ballot cast by a Person or Entity that does not hold a Claim in a Class
that is entitled to vote to accept or reject the Plan;
(d) any Ballot cast for a Claim that is scheduled as contingent, unliquidated or
disputed or as zero or unknown in amount and for which no timely motion
was filed pursuant to Bankruptcy Rule 3018(a);
(e) any Ballot that indicates neither an acceptance nor a rejection, or indicates
both an acceptance and rejection of the Plan;
(f) any Ballot that casts part of its vote in the same Class to accept the Plan and
part to reject the Plan;
(g) any form of Ballot other than the official form sent by the Voting Agent;
(h) any form of Ballot received that the Voting Agent cannot match to an
existing database record of a creditor;
(i) any original Ballot that does not contain an original signature;
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(j) any Ballot that is submitted by facsimile; or
(k) any Ballot sent only to the Debtors or the Debtors’ professionals and not the
Voting Agent.
12. Any Class of Claims or Equity Interests that does not contain, as of the date of
commencement of the Confirmation Hearing, a Holder of an Allowed Claim or Equity Interest or
a Claim temporarily Allowed under Bankruptcy Rule 3018 (i.e., no Ballots are cast in a Class
entitled to vote on the Plan), shall be deemed deleted from the Plan for all purposes, including for
purposes of: (i) voting on the acceptance or rejection of the Plan; and (ii) determining acceptance
or rejection of the Plan by such Class under Bankruptcy Code section 1129(a)(8).
13. Upon completion of the balloting, the Voting Agent shall certify the amount and
number of allowed claims included in the Voting Class accepting or rejecting the Plan. The
Debtors shall cause such certification to be filed with the Court prior to the commencement of the
Confirmation Hearing.
14. If any Holder of a Claim seeks to challenge the allowance of its claim for voting
purposes, such Holder must file a motion, pursuant to Bankruptcy Rule 3018(a), for an order
temporarily allowing its claim in a different amount or classification for purposes of voting to
accept or reject the Plan (a “Rule 3018 Motion”) and serve the Rule 3018 Motion on the Debtors
so that it is received no later than September 16, 2019 at 4:00 p.m. (ET). The Debtors (and, with
respect to filing a response, any other party in interest) shall then have until September 23, 2019
at 4:00 p.m. (ET) to file and serve any responses to Rule 3018 Motions (a “Rule 3018 Response”)
and will use reasonable efforts to set the Rule 3018 Motion for hearing before the Confirmation
Hearing. If the Court is unable to hear the Rule 3018 Motion before the Confirmation Hearing,
such Rule 3018 Motion will be adjudicated as part of the Confirmation Hearing.
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15. For purposes of filing the Voting Declaration, the Voting Agent shall tabulate the
vote based on a claim subject to a Rule 3018 Motion in the amount as allowed (for voting purposes)
by the Court after notice and a hearing. If the Court does not conduct a hearing on a Rule 3018
Motion or otherwise issue a ruling on the Rule 3018 Motion by the date the Voting Agent is
required to file the Voting Declaration, the Voting Agent shall tabulate the vote based on the
amount of the Holder’s Claim as of the Voting Record Date.
16. The Confirmation Hearing may be continued from time to time by the Debtors
without further notice other than by (i) announcing the adjourned date(s) at the Confirmation
Hearing (or any continued hearing) or (ii) filing a notice with the Court.
17. Objections to final approval and confirmation of the Plan on any ground, including
adequacy of the disclosures therein, if any, must: (i) be in writing, (ii) comply with the Bankruptcy
Rules and the Local Rules, and (iii) be filed with the Clerk of the Court, 824 North Market Street,
3rd Floor, Wilmington, Delaware 19801, with a copy served upon: (a)(1) counsel to the Debtors,
Fox Rothschild LLP, 919 N. Market Street, Suite 300, Wilmington, DE 19801 (Attn: Mette Kurth,
Esq.; Thomas M. Horan, Esq.; and Johnna M. Darby, Esq.); and (b) the Office of the United States
Trustee, 844 King Street, Suite 2207, Wilmington, DE 19801 (Attn: Linda Richenderfer, Esq.) so
that they are received no later than September 16, 2019 at 4:00 p.m. (ET).
18. Pursuant to Bankruptcy Rule 3017(d), August 28, 2019 shall be the record date for
purposes of determining (i) the Holders of Claims in (a) the Voting Classes, who will receive
Solicitation Packages and are entitled to vote to accept or reject the Plan, and (b) the Non-Voting
Classes, who will receive a Non-Voting Package and are not entitled to vote to accept or reject the
Plan, and (ii) whether Claims have been properly assigned or transferred to an assignee pursuant
to Bankruptcy Rule 3001(e) such that the assignee can vote to accept or reject the Plan as the
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Holder of the Claim (the “Voting Record Date”). With respect to any transferred Claim, the
transferee shall be entitled to receive a Solicitation Package and cast a Ballot on account of the
transferred Claim only if the parties have completed all actions necessary to effectuate the transfer
of the Claim pursuant to Bankruptcy Rule 3001(e) by the Voting Record Date as set forth above.
The amount of each Holder’s Claim shall be determined for solicitation and voting purposes as of
the Voting Record Date.
19. The Voting Agent shall mail the Solicitation Package on the Solicitation
Commencement Date to the Voting Classes containing copies of:
a. the Plan and all other exhibits annexed thereto, which shall be distributed
via USB flash drive instead of printed copies;
b. the Confirmation Hearing Notice;
c. a Ballot to accept or reject the Plan along with a pre-addressed, postage
prepaid return envelope; and
d. such other materials as the Court may direct or approval, including any
supplemental solicitation materials the Debtors may file with the Court.
20. The Voting Agent shall mail the Non-Voting Package which shall consist of: (i)
the Confirmation Hearing Notice, and (ii) a Non-Voting Status Notice. This distribution shall be
for information purposes only and not for solicitation since such Creditors and Interest Holders
shall not be entitled to vote on the Plan or shall be deemed to have accepted or rejected the Plan,
as applicable. The notice to Non-Voting Classes is hereby approved. Debtors’ request to reduce
the period required by Federal Rule of Bankruptcy Procedure 2002(b) by two (2) business days in
accordance with Federal Rule of Bankruptcy Procedure 9006 is approved if needed.
21. The Debtors are authorized to make non-substantive and ministerial changes to the
Plan, the Ballots, the Notices, and any related documents without further order of the Court
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including, without limitation, changes to correct typographical and grammatical errors and to make
nonmaterial conforming changes among the Plan, and any other materials in the Solicitation
Packages and/or the Non-Voting Packages, as applicable, prior to the distribution of such
materials. The Debtors will provide notice of any such changes to the Office of the United States
Trustee.
22. The Debtors are authorized to take or refrain from taking any action necessary or
appropriate to implement the terms of, and the relief granted in, this Order without seeking further
order of the Court.
23. The Court shall retain jurisdiction as to all matters relating to the interpretation,
implementation, and enforcement of this Order.
24. This Order is effective immediately upon entry.
[Remainder of page intentionally left blank.]
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25. The following milestone dates are approved:
Timetable and Proposed Schedule for the Plan Solicitation Procedures
Solicitation Procedures and Conditional
Disclosure Statement Hearing (the
“Solicitation Procedures Hearing”)
August 28, 2019, at 11:00 a.m. (ET)
Solicitation Procedures Hearing Objection
Deadline
August 21, 2019 at 4:00 p.m. (ET)
Voting Record Date August 28, 2019
Solicitation Commencement Date August 30, 2019
Deadline to File Plan Supplement September 12, 2019
Voting Deadline for Plan September 19, 2019
Confirmation Objection Deadline September 16, 2019 at 4:00 p.m. (ET)
Deadline to File Voting Tabulations Affidavit September 20, 2019 at 4:00 p.m. (ET)
Deadline to File Confirmation Brief and
Supporting Evidence and Respond to
Objections to the Plan
September 23, 2019 at 4:00 p.m. (ET)
Confirmation Hearing September 25, 2019, at 11:30 a.m. (ET)
Dated: August 28th, 2019Wilmington, Delaware
BRENDAN L. SHANNON UNITED STATES BANKRUPTCYJUDGE
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EXHIBIT B
Confirmation Hearing Notice
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
MONTESQUIEU, INC., et al.,1
Debtors.
Chapter 11
Case No. 19-10599 (BLS)
Jointly Administered
NOTICE OF (I) APPROVAL ON INTERIM BASIS OF COMBINED PLAN AND
DISCLOSURE STATEMENT AS CONTAINING ADEQUATE INFORMATION
FOR SOLICITATION PURPOSES (II) DEADLINE FOR CASTING VOTES TO
ACCEPT OR REJECT THE COMBINED PLAN AND DISCLOSURE STATEMENT,
AND (III) THE CONFIRMATION HEARING TO CONSIDER (A) FINAL
APPROVAL OF THE COMBINED PLAN AND DISCLOSURE STATEMENT AND
(B) CONFIRMATION OF THE COMBINED PLAN AND DISCLOSURE
STATEMENT
PLEASE TAKE NOTICE OF THE FOLLOWING:
1. On August 28, 2019, the above-captioned debtors and debtors in possession (the
“Debtors”) filed their Amended Combined Disclosure Statement and Chapter 11 Plan of
Liquidation [Docket No. 175] (as may be amended, modified and/or supplemented, the “Plan”).2
2. On August 28, 2019, after a hearing (the “Solicitation Procedures Hearing”) to
consider whether the Plan contains adequate information and seeking approval of the solicitation
procedures contemplated by the Plan (the “Solicitation Procedures”), the Court entered an order
approving on an interim basis the disclosure provided in the Plan, and approving the Solicitation
Procedures (the “Conditional Approval and Procedures Order”) [Docket No. [ ]].
3. A hearing (the “Confirmation Hearing”) to consider final approval and
confirmation of the Plan will be held before The Honorable Brendan Linehan Shannon, United
States Bankruptcy Judge, on the 5th floor of the Bankruptcy Court, Courtroom No. 6, 824 North
Market Street, Wilmington, Delaware 19801, September 25, 2019 at 11:30 a.m. (ET). The
Confirmation Hearing may be continued from time to time without further notice other than the
announcement by the Debtors in open court of the adjourned date(s) at the Confirmation Hearing
or any continued hearing or as indicated in any notice filed with the Bankruptcy Court. The Plan
1 The Debtors and the last four digits of their respective taxpayer identification numbers include Montesquieu,
Inc. (8069), WG Best Weinkellerei, Inc. dba Montesquieu Winery (California) (0458) and Montesquieu Corp.
(California) (4025). The headquarters and service address for the above-captioned Debtors is 8929 Aero Dr.,
San Diego, California 92123.
2 Capitalized terms used but otherwise not defined in this Confirmation Hearing Notice have meanings ascribed
to such terms in the Conditional Approval and Procedures Order, or the Plan, as applicable.
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may be amended, supplemented or modified from time to time, if necessary, in accordance with
the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and other applicable law,
before, during, or as a result of the Confirmation Hearing, without further notice to Creditors or
other parties in interest.
4. Pursuant to the Conditional Approval and Procedures Order, the Bankruptcy Court
established September 19, 2019 at 4:00 p.m. (ET) (the “Voting Deadline”) as the deadline by
which Ballots accepting or rejecting the Plan must be received. To be counted, your original
Ballots must actually be received on or before the Voting Deadline by the Voting Agent, at
Montesquieu Ballot Processing, c/o Stretto, 8269 E. 23rd Avenue – Suite 275, Denver, CO 80238
and must be sent by first class mail, overnight courier, messenger, or hand delivery. The Voting
Agent is also authorized to accept Ballots via electronic online transmission solely through a
customized online balloting portal on the Debtors’ case website. The encrypted ballot data and
audit trail created by such electronic submission shall become part of the record of any Ballot
submitted in this manner and the creditor’s electronic signature will be deemed to be immediately
legally valid and effective. Ballots submitted via the customized online balloting portal shall be
deemed to contain an original signature.
5. If you hold a Claim against the Debtors as of August 28, 2019 (the “Voting Record
Date”) and are entitled to vote to accept or reject the Plan, you have received with this
Confirmation Hearing Notice a Ballot and voting instructions appropriate for your Claim. You
should carefully read the Plan and all documents attendant thereto. For your Ballot to be counted,
you must complete all required information on the Ballot, execute the Ballot, and return the
completed Ballot with original signature to the address indicated on the instructions accompanying
your Ballot, so as to be actually received by the Voting Agent by the Voting Deadline. Any
failure to follow the voting instructions included with the Ballot may disqualify your Ballot and
your vote.
6. If you have not received a Ballot and are entitled to vote on the Plan, you may
request a Ballot and voting instructions appropriate for your Claim from the Voting Agent by (a)
visiting the Debtors’ case website (http://case.stretto.com/wgbest); or (b) telephoning the Voting
Agent at 855-378-6886. All submitted Ballots will be tabulated according to the rules set forth in
the Conditional Approval and Procedures Order.
7. The Debtors will, by no later than September 12, 2019, file and serve any Plan
Supplement on all parties receiving package soliciting votes to confirm the Plan. The Plan
Supplement will be available on the Voting Agent’s website at https://case.stretto.com/wgbest.
8. Objections, if any, to Confirmation of the Plan, including any supporting
memoranda, must (i) be made in writing; (ii) state the name and address of the objecting party and
the nature of the Claim or Equity Interest of such party; (iii) state with particularity the legal and
factual basis and nature of any objection to the Plan; and (iv) be filed with the Bankruptcy Court,
together with proof of service, and served so that they are received on or before September 16,
2019 at 4:00 p.m. (ET) (the “Confirmation Objection Deadline”) by the following parties: (a)(1)
counsel to the Debtors, Fox Rothschild LLP, 919 N. Market Street, Suite 300, Wilmington, DE
19801 (Attn: Mette Kurth, Esq.); and (b) the Office of the United States Trustee, 844 King Street,
Suite 2207, Wilmington, DE 19801 (Attn: Linda Richenderfer, Esq.) Objections not timely filed
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and served in the manner set forth in the Conditional Approval and Procedures Order shall not be
considered and shall be deemed overruled.
9. The Plan is on file with the Clerk of the Bankruptcy Court and may be examined
by any interested party at the Clerk’s office at any time during regular business hours or by
accessing the Voting Agent by (a) visiting the Debtors’ case website
(https://case.stretto.com/wgbest); or (b) telephoning the Voting Agent at 855-378-6886. In
addition, copies of the Plan may be obtained at or viewed on the Bankruptcy Court’s website
(http://www.deb.uscourts.gov) by following the directions for accessing the ECF system on such
website.
SUMMARY OF PLAN TREATMENT OF CLAIMS AND EQUITY INTERESTS
8. The Plan proposes to modify the rights of certain Creditors and Equity Interest
Holders of the Debtors. The classification and treatment of Claims and Equity Interests under the
Plan is described generally below.
CLASS 1 – SECURED CLAIMS.
(a) Classification: Class 1 consists of Secured Claims against the
Debtors.
(b) Treatment: Except to the extent that a Holder of a Secured Claim
agrees to less favorable treatment, each Holder of such Allowed Secured Claim shall be paid in
full in Cash on the Effective Date or as soon as reasonably practicable thereafter; provided,
however, that Class 1 Claims incurred by the Debtors in the ordinary course of business may be
paid in the ordinary course of business in accordance with the terms and conditions of any
agreements relating thereto in the discretion of the Disbursing Agent without further notice to or
Order of the Bankruptcy Court.
CLASS 2 – PRIORITY CLAIMS.
(a) Classification: Class 2 consists of Priority Claims against the
Debtors.
(b) Treatment: Except to the extent that a Holder of a Priority Claim
agrees to less favorable treatment, each Holder of such Allowed Priority Claim shall be paid in
full in Cash on the Effective Date or as soon as reasonably practicable thereafter; provided,
however, that Class 2 Claims incurred by the Debtors in the ordinary course of business may be
paid in the ordinary course of business in accordance with the terms and conditions of any
agreements relating thereto in the discretion of the Disbursing Agent without further notice to or
Order of the Bankruptcy Court.
CLASS 3 – GENERAL UNSECURED CLAIMS.
(a) Classification: Class 3 consists of General Unsecured Claims
against the Debtors, other than the Class 4 General Unsecured Claims (Spirit of the East Debt).
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(b) Treatment: Except to the extent that a Holder of an Allowed General
Unsecured Claim agrees to less favorable treatment, in full and final satisfaction, settlement,
release, and discharge of and in exchange for each Allowed General Unsecured Claim, on the later
of (a) the Effective Date and (b) the date on which such General Unsecured Claim becomes
Allowed, or as soon as practicable thereafter, each Holder of an Allowed General Unsecured Claim
shall be paid its pro rata share of assets available for distribution for Holders of Allowed General
Unsecured Claims. Unless otherwise provided by an Order of the Bankruptcy Court, no fees or
penalties of any kind shall be paid to the holders of Allowed General Unsecured Claims.
CLASS 4 – GENERAL UNSECURED CLAIM (SPIRIT OF THE EAST
DEBT).
(a) Classification: Class 4 consists of the General Unsecured Claim
(Spirit of the East Debt) against the Debtors.
(b) Treatment: . Except to the extent that the Holder of the Allowed
General Unsecured Claim (Spirit of the East Debt) agrees to less favorable treatment, in full and
final satisfaction, settlement, release, and discharge of and in exchange for the Allowed General
Unsecured Claim (Spirit of the East Debt), distributions on account of the Allowed General
Unsecured Claim (Spirit of the East Debt) shall be made in accordance with the Agreement and
section 2.9 of this Plan
CLASS 5 – INTERCOMPANY CLAIMS
(a) Classification: Class 5 consists of Intercompany Claims against the
Debtors.
(b) Treatment: In full satisfaction, settlement, release, and discharge of
and in exchange for Intercompany Claims against the Debtors, except as otherwise provided
herein, Holders of Intercompany Claims against the Debtors shall receive no distribution on
account of such Intercompany Claim.
CLASS 6 – EQUITY INTERESTS.
(a) Classification: Class 6 consists of Equity Interests in the Debtors.
(b) Treatment: Equity Interests shall be cancelled under the Plan.
10. Pursuant to Article XVII of the Plan, the Debtors seek approval of the following
releases, injunction and exculpation provisions:
Section 17.2 Injunction
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS PLAN OR
IN THE CONFIRMATION ORDER, ON AND AFTER THE EFFECTIVE
DATE, PURSUANT TO BANKRUPTCY CODE SECTION 1141(D), ALL
ENTITIES WHO HAVE HELD, HOLD, OR MAY HOLD CLAIMS,
RIGHTS, CAUSES OF ACTION, LIABILITIES, OR ANY EQUITY
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INTERESTS BASED UPON ANY ACT OR OMISSION, TRANSACTION,
OR OTHER ACTIVITY OF ANY KIND OR NATURE RELATED TO THE
DEBTORS OR THE CHAPTER 11 CASES THAT OCCURRED PRIOR TO
THE EFFECTIVE DATE, REGARDLESS OF THE FILING, LACK OF
FILING, ALLOWANCE OR DISALLOWANCE OF SUCH A CLAIM OR
EQUITY INTEREST, AND ANY SUCCESSORS, ASSIGNS OR
REPRESENTATIVES OF SUCH ENTITIES, SHALL BE PRECLUDED
AND PERMANENTLY AND COMPLETELY ENJOINED ON AND AFTER
THE EFFECTIVE DATE FROM (A) ENFORCING, ATTACHING,
COLLECTING, OR RECOVERING BY ANY MANNER OF MEANS ANY
JUDGMENT, AWARD, DECREE, OR ORDER WITH RESPECT TO ANY
CLAIM, EQUITY INTEREST, OR ANY OTHER RIGHT OR CLAIM
AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY
ASSETS OR PROPERTY OF THE DEBTORS OR THE REORGANIZED
DEBTORS OTHER THAN AS EXPRESSLY PERMITTED UNDER THIS
PLAN OR THE CONFIRMATION ORDER, (B) THE CREATING,
PERFECTING, OR ENFORCING ANY LIEN OR OTHER
ENCUMBRANCE OF ANY KIND WITH RESPECT TO ANY CLAIM,
EQUITY INTEREST, OR ANY OTHER RIGHT OR CLAIM AGAINST
THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ASSETS OR
PROPERTY OF THE DEBTORS OR THE REORGANIZED DEBTORS
OTHER THAN AS EXPRESSLY PERMITTED UNDER THIS PLAN OR
THE CONFIRMATION ORDER, (C) ASSERTING ANY RIGHT OF
SETOFF AGAINST ANY OBLIGATION DUE FROM THE DEBTORS OR
AGAINST THE PROPERTY OR INTERESTS IN PROPERTY OF THE
DEBTORS ON ACCOUNT OF ANY SUCH CLAIM OR EQUITY
INTEREST, OTHER THAN AS EXPRESSLY PERMITTED UNDER THIS
PLAN OR THE CONFIRMATION ORDER, (D) ASSERTING ANY
CLAIMS OR EQUITY INTERESTS THAT ARE RELEASED HEREBY, (E)
ACTING OR PROCEEDING IN ANY MANNER, IN ANY PLACE
WHATSOEVER, THAT DOES NOT COMPLY WITH OR IS
INCONSISTENT WITH THE PROVISIONS OF THIS PLAN, THE
CONFIRMATION ORDER, OR THE DISCHARGE PROVISIONS OF
BANKRUPTCY CODE SECTION 1141 , AND (F) TAKING ANY ACTIONS
TO INTERFERE WITH THE IMPLEMENTATION OR
CONSUMMATION OF THIS PLAN OR EXECUTION OF THE
CONFIRMATION ORDER.
Section 17.3 Debtors’ Releases
EXCEPT AS EXPRESSLY PROVIDED IN THIS PLAN, UPON THE
EFFECTIVE DATE, FOR GOOD AND VALUABLE CONSIDERATION,
THE ADEQUACY OF WHICH IS HEREBY CONFIRMED, THE
RELEASED PARTIES ARE RELEASED BY THE DEBTORS, THE
ESTATES, AND THE REORGANIZED DEBTORS FROM ANY AND ALL
CLAIMS, OBLIGATIONS, RIGHTS, SUITS, DAMAGES, CAUSES OF
ACTION, REMEDIES, AND LIABILITIES WHATSOEVER, INCLUDING
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ANY DERIVATIVE CLAIMS OR CAUSES OF ACTION THAT HAVE
BEEN OR COULD HAVE BEEN ASSERTED ON BEHALF OF THE
DEBTORS, THE ESTATES, OR THE REORGANIZED DEBTORS,
WHETHER LIQUIDATED OR UNLIQUIDATED, FIXED OR
CONTINGENT, MATURED OR UNMATURED, KNOWN OR UNKNOWN,
FORESEEN OR UNFORESEEN, THEN EXISTING OR THEREAFTER
ARISING, IN LAW, EQUITY, OR OTHERWISE, THAT THE DEBTORS,
THE ESTATES, OR THE REORGANIZED DEBTORS, OR ANY PERSON
CLAIMING DERIVATIVELY THROUGH OR ON BEHALF OF THE
DEBTORS, THE ESTATES, OR THE REORGANIZED DEBTORS,
WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT IN THEIR
OWN RIGHT (WHETHER INDIVIDUALLY OR COLLECTIVELY) OR
ON BEHALF OF THE HOLDER OF ANY CLAIM OR EQUITY INTEREST
OR OTHER PERSON, BASED IN WHOLE OR IN PART UPON ANY ACT
OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER
OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE
DATE IN ANY WAY RELATING TO THE DEBTORS, THE CHAPTER 11
CASES, THE ESTATES, THE CONDUCT OF THE DEBTORS’
BUSINESSES, THE SPIRIT OF THE EAST DEBT, OR THIS PLAN
(OTHER THAN THE RIGHTS OF THE DEBTORS AND THE
REORGANIZED DEBTORS TO ENFORCE THIS PLAN AND THE
CONTRACTS, INSTRUMENTS, RELEASES, INDENTURES, AND
OTHER AGREEMENTS OR DOCUMENTS DELIVERED
THEREUNDER), EXCEPT FOR ACTS CONSTITUTING FRAUD,
WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE AS DETERMINED
BY FINAL ORDER.
Definition of Released Parties: Fonda Hopkins, in her individual capacity, the Debtors, and the
Debtors’ current directors, officers, employees, advisors, attorneys, professionals, and agents
(but solely in their respective capacities as such and provided that they acted or were employed
in such capacity during the Chapter 11 Cases).
Section 17.4 Third Party Releases
EXCEPT AS EXPRESSLY PROVIDED IN THIS PLAN, AS OF THE EFFECTIVE
DATE, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW,
FOR GOOD AND VALUABLE CONSIDERATION, EACH HOLDER OF A
CLAIM OR EQUITY INTEREST SHALL BE DEEMED TO RELEASE, AND
FOREVER WAIVE AND DISCHARGE ANY AND ALL CLAIMS,
OBLIGATIONS, SUITS, JUDGMENTS, DAMAGES, DEMANDS, DEBTS,
RIGHTS, CAUSES OF ACTION, AND LIABILITIES (OTHER THAN THE
RIGHTS TO ENFORCE THE DEBTORS’ OR THE REORGANIZED DEBTORS’
OBLIGATIONS UNDER ANY ORDER OF THE BANKRUPTCY COURT, THIS
PLAN, AND THE SECURITIES, CONTRACTS, INSTRUMENTS, RELEASES,
AND OTHER AGREEMENTS AND DOCUMENTS DELIVERED
THEREUNDER), WHETHER LIQUIDATED OR UNLIQUIDATED, FIXED OR
CONTINGENT, MATURED OR UNMATURED, KNOWN OR UNKNOWN,
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FORESEEN OR UNFORESEEN, THEN EXISTING OR THEREAFTER ARISING,
IN LAW, EQUITY, OR OTHERWISE THAT ARE BASED IN WHOLE OR IN
PART ON ANY ACT, OMISSION, TRANSACTION, EVENT, OR OTHER
OCCURRENCE TAKING PLACE ON OR PRIOR TO THE EFFECTIVE DATE
IN ANY WAY RELATING TO THE DEBTORS, THE CHAPTER 11 CASES, THE
ESTATES, THE CONDUCT OF THE DEBTORS’ BUSINESSES, THE SPIRIT OF
THE EAST DEBT OR OTHER CLAIMS AGAINST THE DEBTORS, OR THIS
PLAN (OTHER THAN THE RIGHTS OF THE DEBTORS AND THE
REORGANIZED DEBTORS TO ENFORCE THIS PLAN AND THE
CONTRACTS, INSTRUMENTS, RELEASES, INDENTURES, AND OTHER
AGREEMENTS OR DOCUMENTS DELIVERED THEREUNDER), AGAINST
ANY RELEASED PARTY, EXCEPT FOR ACTS CONSTITUTING FRAUD,
WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE AS DETERMINED BY A
FINAL ORDER.
HOWEVER, IF YOU VOTE TO ACCEPT OR REJECT THE PLAN, YOU MAY
OPT OUT OF THE RELEASES PROVIDED IN SECTION 17.4 OF THE PLAN BY
CHECKING THE OPT-OUT BOX ON YOUR PLAN BALLOT. IF YOU CHECK
THE OPT-OUT BOX ON YOUR PLAN BALLOT, YOU WILL NOT BE BOUND
BY RELEASES SET FORTH IN SECTION 17.4 OF THE PLAN.
IF YOU VOTE TO ACCEPT OR REJECT THE PLAN AND DO NOT CHECK THE
OPT-OUT BOX ON YOUR PLAN BALLOT, YOU WILL BE DEEMED TO
CONSENT TO THE RELEASES SET FORTH IN SECTION 17.4 OF THE PLAN.
IF YOU ABSTAIN FROM VOTING ON THE PLAN EITHER (1) BY NOT
SUBMITTING A BALLOT OR (2) BY SUBMITTING A BALLOT AND NOT
VOTING TO EITHER ACCEPT OR REJECT THE PLAN, AND YOU DO NOT
CHECK THE OPT-OUT BOX ON YOUR PLAN BALLOT, YOU WILL BE
BOUND BY THE RELEASES SET FORTH IN SECTION 17.4 OF THE PLAN.
Section 17.5 Exculpation and Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED BY THIS PLAN OR THE
CONFIRMATION ORDER, ON THE EFFECTIVE DATE, THE DEBTORS
AND EACH OF THEIR RESPECTIVE CURRENT OR FORMER
MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS,
ATTORNEYS, PROFESSIONALS, AGENTS, PARTNERS,
STOCKHOLDERS, OR ANY OF THEIR SUCCESSORS AND ASSIGNS
WHO ACTED OR WERE EMPLOYED IN SUCH CAPACITIES DURING
THE CHAPTER 11 CASES SHALL NOT HAVE OR INCUR AND ARE
HEREBY EXCULPATED FROM ANY CLAIMS, OBLIGATIONS,
RIGHTS, CAUSES OF ACTION, AND LIABILITIES FOR ANY ACT OR
OMISSION IN CONNECTION WITH, OR ARISING OUT OF, THE
CHAPTER 11 CASES, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, THE FORMULATION,
PREPARATION, DISSEMINATION, IMPLEMENTATION,
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CONFIRMATION OR APPROVAL OF THIS PLAN, OR ANY
COMPROMISES OR SETTLEMENTS CONTAINED THEREIN, OR ANY
CONTRACT, INSTRUMENT, RELEASE, OR OTHER AGREEMENT OR
DOCUMENT PROVIDED FOR OR CONTEMPLATED IN CONNECTION
WITH THE CONSUMMATION OF THE TRANSACTIONS SET FORTH
IN THIS PLAN, EXCEPT FOR ACTS OR OMISSIONS WHICH
CONSTITUTE FRAUD, WILLFUL MISCONDUCT, OR GROSS
NEGLIGENCE AS DETERMINED BY FINAL ORDER, AND ALL SUCH
PERSONS, IN ALL RESPECTS, SHALL BE ENTITLED TO RELY UPON
THE ADVICE OF COUNSEL WITH RESPECT TO THEIR DUTIES AND
RESPONSIBILITIES UNDER THIS PLAN AND UNDER THE
BANKRUPTCY CODE.
Section 17.6 Waiver of Statutory Limitation on Releases
THE LAWS OF SOME STATES (FOR EXAMPLE, CALIFORNIA CIVIL
CODE § 1542) PROVIDE, IN WORDS OR SUBSTANCE THAT A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER DECISION TO RELEASE. THE RELEASING
PARTIES IN EACH OF SECTIONS 17.3, 17.4, AND 17.5 OF THIS PLAN
ARE DEEMED TO HAVE WAIVED ANY RIGHTS THEY MAY HAVE
UNDER SUCH STATE LAWS AS WELL AS UNDER ANY OTHER
STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
Dated August 28, 2019 FOX ROTHSCHILD LLP
/s/ Mette H. Kurth
Mette H. Kurth (DE Bar No. 6491)
Thomas M. Horan (DE Bar No. 4641)
Johnna M. Darby (DE Bar No. 5153)
919 N. Market St., Suite 300
Wilmington, DE 19899-2323
Telephone: (302) 654-7444
E-mail: [email protected]
E-mail: [email protected]
E-mail: [email protected]
Counsel to the Debtors and Debtors-in-
Possession
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EXHIBIT C
Notice of Non-Voting Status
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
MONTESQUIEU, INC., et al.,1
Debtors.
Chapter 11
Case No. 19-10599 (BLS)
Jointly Administered
NOTICE OF NON-VOTING STATUS AND NOTICE OF (I) APPROVAL ON
INTERIM BASIS OF COMBINED PLAN AND DISCLOSURE STATEMENT AS
CONTAINING ADEQUATE INFORMATION FOR SOLICITATION
PURPOSES, (II) THE CONFIRMATION HEARING TO CONSIDER (A) FINAL
APPROVAL OF THE COMBINED PLAN AND DISCLOSURE
STATEMENT AND (B) CONFIRMATION OF THE COMBINED PLAN AND
DISCLOSURE STATEMENT, AND (III) DEADLINE TO FILE
OBJECTIONS TO CONFIRMATION OF THE COMBINED
PLAN AND DISCLOSURE STATEMENT
TO: ALL HOLDERS OF CLAIMS OR INTERESTS IN CLASSES 1, 2, 5, AND 6
PLEASE TAKE NOTICE OF THE FOLLOWING:
CONDITIONAL APPROVAL OF DISCLOSURE STATEMENT AND PLAN
1. On August 28, 2019, the above-captioned debtors and debtors in possession (the
“Debtors”) filed their Amended Combined Disclosure Statement and Chapter 11 Plan of
Liquidation [Docket No. 175] (as may be amended, modified and/or supplemented, the “Plan”).2
2. On August 28, 2019, after a hearing (the “Solicitation Procedures Hearing”) to
consider whether the Plan contains adequate information and seeking approval of the solicitation
procedures contemplated by the Plan (the “Solicitation Procedures”), the Court entered an order
approving on an interim basis the disclosure provided in the Plan, and approving the Solicitation
Procedures (the “Conditional Approval and Procedures Order”) [Docket No. [ ]].
3. A hearing (the “Confirmation Hearing”) to consider final approval and
confirmation of the Plan will be held before The Honorable Brendan Linehan Shannon, United
1 The Debtors and the last four digits of their respective taxpayer identification numbers include Montesquieu,
Inc. (8069), WG Best Weinkellerei, Inc. dba Montesquieu Winery (California) (0458) and Montesquieu Corp.
(California) (4025). The headquarters and service address for the above-captioned Debtors is 8929 Aero Dr.,
San Diego, California 92123.
2 Capitalized terms used but otherwise not defined in this Confirmation Hearing Notice have meanings ascribed
to such terms in the Conditional Approval and Procedures Order, or the Plan, as applicable.
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States Bankruptcy Judge, on the 5th floor of the Bankruptcy Court, Courtroom No. 6, 824 North
Market Street, Wilmington, Delaware 19801, on September 25, 2019 at 11:30 a.m. (ET). The
Confirmation Hearing may be continued from time to time without further notice other than the
announcement by the Debtors in open court of the adjourned date(s) at the Confirmation Hearing
or any continued hearing or as indicated in any notice filed with the Court. The Plan may be
amended, supplemented or modified from time to time, if necessary, in accordance with the
Bankruptcy Code, the Federal Rules of Bankruptcy Procedure and other applicable law, before,
during, or as a result of the Confirmation Hearing, without further notice to Creditors or other
parties in interest.
ENTITLEMENT TO VOTE ON THE PLAN
4. In accordance with the terms of the Plan, and the Bankruptcy Code, Administrative
Expense Claims, Professional Claims, Priority Tax Claims, and the U.S. Trustee Fees (collectively,
the “Unclassified Claims”) are unclassified and are not entitled to vote on the Plan. Also, Holders
of Claims in Classes 1 and 2 under the Plan (collectively, the “Unimpaired Claims”) are
Unimpaired by the Plan. As such, the Unimpaired Claims are (i) deemed to have accepted the
Plan, and (ii) not entitled to vote to accept or reject the Plan. Holders of Claims and Equity Interests
in Classes 5 and 6 (the “Deemed Rejecting Classes,” and together with the Unimpaired Claims
and the Unclassified Claims, the “Non-Voting Classes”) will not receive any Distribution under
the Plan and, therefore, are (i) deemed to have rejected the Plan, and (ii) not entitled to vote to
accept or reject the Plan. You are receiving this Notice because (i) you are either a Holder of an
Unclassified Claim or an Unimpaired Claim and, therefore, are not entitled to vote on the Plan; or
(ii) you are a Holder of a Claim or Equity Interest in a Deemed Rejecting Class and, therefore, are
not entitled to vote on the Plan. Members of Deemed Rejecting Classes are not bound by the Third
Party Releases set forth in Section 17.4 of the Plan.
DEADLINE FOR OBJECTIONS TO CONFIRMATION OF THE PLAN
5. Notwithstanding the fact that you are not entitled to vote to accept or reject the Plan,
you nevertheless may be a party in interest in the Chapter 11 Cases and you, therefore, may be
entitled to participate in the Chapter 11 Cases, including by filing objections to Confirmation of
the Plan. Objections, if any, to Confirmation of the Plan, including any supporting memoranda,
must (i) be made in writing; (ii) state the name and address of the objecting party and the nature
of the Claim or Interest of such party; (iii) state with particularity the legal and factual basis and
nature of any objection to the Plan; and (iv) be filed with the Court, together with proof of service,
and served so that they are received on or before September 16, 2019 at 4:00 p.m. (ET) (the
“Confirmation Objection Deadline”) by the following parties: (a)(1) counsel to the Debtors, Fox
Rothschild LLP, 919 N. Market Street, Suite 300, Wilmington, DE 19801 (Attn: Mette Kurth,
Esq.; Thomas M. Horan, Esq.; and Johnna M. Darby, Esq.); and (b) the Office of the United States
Trustee, 844 King Street, Suite 2207, Wilmington, DE 19801 (Attn: Linda Richenderfer, Esq).
Objections not timely filed and served in the manner set forth in the Conditional Approval and
Procedures Order shall not be considered and shall be deemed overruled.
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OBJECTIONS TO CONFIRMATION OF THE PLAN NOT TIMELY FILED AND
SERVED IN THE MANNER SET FORTH HEREIN MAY NOT BE CONSIDERED BY
THE BANKRUPTCY COURT AND MAY BE OVERRULED WITHOUT FURTHER
NOTICE.
COPIES OF THE PLAN
6. The Plan and other related pleadings are on file with the Clerk of the Bankruptcy
Court and may be examined by any interested party at the Clerk’s office at any time during regular
business hours or by visiting the Debtors’ case website (https://case.stretto.com/wgbest). Parties
in interest also may request copies of the Plan and related documents by a writing addressed to
Stretto, Voting Agent, 8269 E. 23rd Avenue, Suite 275, Denver, Colorado 80238. In addition,
copies of the Plan and other related pleadings may be obtained at or viewed on the Bankruptcy
Court’s website (http://www.deb.uscourts.gov) by following the directions for accessing the ECF
system on such website.
Dated: August 28, 2019 FOX ROTHSCHILD LLP
/s/ Mette H. Kurth
Mette H. Kurth (DE Bar No. 6491)
Thomas M. Horan (DE Bar No. 4641)
Johnna M. Darby (DE Bar No. 5153)
919 N. Market St., Suite 300
Wilmington, DE 19899-2323
Telephone: (302) 654-7444
E-mail: [email protected]
E-mail: [email protected]
E-mail: [email protected]
Counsel to the Debtors and Debtors-in-
Possession
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EXHIBIT D
Form of Ballot
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
MONTESQUIEU, INC., et al.,1
Debtors.
Chapter 11
Case No. 19-10599 (BLS)
Jointly Administered
BALLOT FOR VOTING ON COMBINED PLAN AND DISCLOSURE STATEMENT
FOR HOLDERS OF CLAIMS IN CLASS 3 AND CLASS 4
CLASS 3 – GENERAL UNSECURED CLAIMS
CLASS 4 – GENERAL UNSECURED CLAIMS (SPIRIT OF THE EAST DEBT)
PLEASE READ CAREFULLY AND FOLLOW THE ENCLOSED
INSTRUCTIONS FOR COMPLETING THIS BALLOT BEFORE
COMPLETING THIS BALLOT.
THE BALLOT MUST BE COMPLETED, EXECUTED AND RETURNED
SO THAT IT IS ACTUALLY RECEIVED BY THE VOTING AGENT, BY
5:00 P.M. (PREVAILING EASTERN TIME) ON ________________ (THE
“VOTING DEADLINE”), OR THE VOTE REPRESENTED BY THIS
BALLOT WILL NOT BE COUNTED.
IF YOU (1) VOTE EITHER TO ACCEPT OR REJECT THE PLAN AND DO NOT
CHECK THE “OPT-OUT” BOX IN ITEM 3 BELOW; OR (2) SUBMIT A BALLOT
AND DO NOT VOTE TO ACCEPT OR REJECT THE PLAN AND DO NOT CHECK
THE “OPT-OUT’ BOX IN ITEM 3 BELOW; OR (3) DO NOT SUBMIT A BALLOT
AT ALL, YOU WILL BE DEEMED TO RELEASE THIRD PARTIES TO THE
EXTENT PROVIDED IN SECTION 17.4 OF THE PLAN AND APPLICABLE LAW.
On August 28, 2019, the above-captioned debtors and debtors in possession (the
“Debtors”) filed their Amended Combined Disclosure Statement and Chapter 11 Plan of
Liquidation [Docket No. 175] (as may be amended, modified and/or supplemented, the “Plan”).
1 The Debtors and the last four digits of their respective tax payer identification numbers are: Montesquieu, Inc.
(8069); WG Best Weinkellerei, Inc., dba Montesquieu Winery (California) (0458); and Montesquieu Corp.
(California) (4025). The Debtors’ headquarters and service address is 8929 Aero Dr., San Diego, California
92123.
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On August 28, 2019, after a hearing (the “Solicitation Procedures Hearing”) to consider
whether the Plan contains adequate information and seeking approval of the solicitation procedures
contemplated by the Plan (the “Solicitation Procedures”), the Court entered an order approving on
an interim basis the disclosure provided in the Plan, and approving the Solicitation Procedures (the
“Conditional Approval and Procedures Order”) [Docket No. [ ]].
Please use this ballot (the “Ballot”) to cast your vote to accept or reject the Plan, which is
proposed by the above-captioned Debtors. The Plan is annexed hereto. All capitalized terms used
but not defined herein or in the enclosed voting instructions have the meanings ascribed to such
terms in the Conditional Approval and Procedures Order or the Plan, as applicable. If you have
any questions regarding the proper completion of this Ballot, please call Stretto (the “Voting
Agent”) at 855-378-6886.
The Plan is subject to final approval and confirmation of the Plan by the Bankruptcy
Court.
This Ballot is being sent to you because our records indicate that, as of August 28,
2019 (the “Voting Record Date”), you are a Holder of a Claim in Class 3 or Class 4 under
the Plan (a “General Unsecured Claim”). Please follow the instructions on page 4 of the
Ballot regarding delivery of your Ballot to the Voting Agent. No Ballots will be accepted by
the Voting Agent by any other method of delivery other than those described on page 4 of
the Ballot.
You should review the Plan before you vote. You may wish to seek legal advice
concerning the Plan and your classification and treatment under the Plan.
If the Plan is confirmed by the Bankruptcy Court it will be binding on you whether
or not you vote.
IF THE VOTING AGENT DOES NOT ACTUALLY RECEIVE THIS
BALLOT ON OR BEFORE THE VOTING DEADLINE, AND IF THE
VOTING DEADLINE IS NOT EXTENDED, THE VOTES TRANSMITTED
HEREBY WILL NOT BE COUNTED.
[Remainder of Page Intentionally Left Blank]
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PLEASE COMPLETE THE FOLLOWING:
Item 1. Amount of Claim: $_____________________.
Item 2. VOTE ON THE PLAN (CHECK ONE BOX ONLY)
☐ ACCEPTS THE PLAN
☐ REJECTS THE PLAN
Item 3. Releases
The Plan provides, in pertinent part, for the following releases:
SECTION 17.4 RELEASES BY HOLDERS OF CLAIMS (THIRD PARTY
RELEASE). EXCEPT AS EXPRESSLY PROVIDED IN THIS PLAN, AS OF THE
EFFECTIVE DATE, TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, FOR GOOD AND VALUABLE CONSIDERATION, EACH
HOLDER OF A CLAIM SHALL BE DEEMED TO RELEASE, AND FOREVER
WAIVE AND DISCHARGE ANY AND ALL CLAIMS, OBLIGATIONS, SUITS,
JUDGMENTS, DAMAGES, DEMANDS, DEBTS, RIGHTS, CAUSES OF ACTION,
AND LIABILITIES (OTHER THAN THE RIGHTS TO ENFORCE THE
DEBTORS’ OR THE REORGANIZED DEBTORS’ OBLIGATIONS UNDER ANY
ORDER OF THE BANKRUPTCY COURT, THIS PLAN, AND THE SECURITIES,
CONTRACTS, INSTRUMENTS, RELEASES, AND OTHER AGREEMENTS AND
DOCUMENTS DELIVERED THEREUNDER), WHETHER LIQUIDATED OR
UNLIQUIDATED, FIXED OR CONTINGENT, MATURED OR UNMATURED,
KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, THEN EXISTING OR
THEREAFTER ARISING, IN LAW, EQUITY, OR OTHERWISE THAT ARE
BASED IN WHOLE OR IN PART ON ANY ACT, OMISSION, TRANSACTION,
EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR PRIOR TO THE
EFFECTIVE DATE IN ANY WAY RELATING TO THE DEBTORS, THE
CHAPTER 11 CASES, THE ESTATES, THE CONDUCT OF THE DEBTORS’
BUSINESSES, THE SPIRIT OF THE EAST DEBT OR OTHER CLAIMS
AGAINST THE DEBTORS, OR THIS PLAN (OTHER THAN THE RIGHTS OF
THE DEBTORS AND THE REORGANIZED DEBTORS TO ENFORCE THIS
PLAN AND THE CONTRACTS, INSTRUMENTS, RELEASES, INDENTURES,
AND OTHER AGREEMENTS OR DOCUMENTS DELIVERED THEREUNDER),
AGAINST ANY RELEASED PARTY, EXCEPT FOR ACTS CONSTITUTING
FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE AS
DETERMINED BY A FINAL ORDER.
IF YOU VOTE TO ACCEPT OR REJECT THE PLAN, YOU MAY OPT OUT OF
THE RELEASES PROVIDED IN SECTION 17.4 OF THE PLAN BY CHECKING
THE OPT-OUT BOX BELOW. IF YOU CHECK THE OPT-OUT BOX BELOW,
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YOU WILL NOT BE BOUND BY RELEASES SET FORTH IN SECTION 17.4 OF
THE PLAN.
IF YOU VOTE TO ACCEPT OR REJECT THE PLAN AND DO NOT CHECK THE
OPT-OUT BOX BELOW, YOU WILL BE DEEMED TO CONSENT TO THE
RELEASES SET FORTH IN SECTION 17.4 OF THE PLAN.
IF YOU ABSTAIN FROM VOTING ON THE PLAN EITHER (1) BY NOT
SUBMITTING A BALLOT OR (2) BY SUBMITTING A BALLOT AND NOT
VOTING TO EITHER ACCEPT OR REJECT THE PLAN, AND YOU DO NOT
CHECK THE OPT-OUT BOX BELOW, YOU WILL BE BOUND BY THE
RELEASES SET FORTH IN SECTION 17.4 OF THE PLAN.
The undersigned Holder of the Claim hereby elects to:
☐ Opt Out of the Releases in Section 17.4 of the Plan.
IF YOU CHECK THE BOX, YOU WILL BE DEEMED TO OPT OUT OF THE
RELEASES IN SECTION 17.4 OF PLAN.
Dated:
Print or Type Name:
(Print or Type)
Signature:
Title:
(Print or Type)
Name of Corporation:
Address:
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PLEASE COMPLETE, SIGN, AND DATE THIS BALLOT AND
RETURN IT (WITH AN ORIGINAL SIGNATURE) PROMPTLY VIA FIRST CLASS
MAIL (OR THE ENCLOSED REPLY ENVELOPE PROVIDED), OVERNIGHT
COURIER, OR HAND DELIVERY TO:
Montesquieu Ballot Processing
c/o Stretto
8269 E. 23rd Avenue, Suite 275
Denver, Colorado 80238
OR
SUBMIT VIA AN ELECTRONIC BALLOT THROUGH THE SOLICITATION
AGENT’S ONLINE ELECTRONIC BALLOT SUBMISSION PORTAL AT
HTTPS://CASES.STRETTO.COM/WGBEST
PLEASE SELECT JUST ONE OPTION TO VOTE.
HOW TO COMPLETE YOUR BALLOT ONLINE.
1. Please visit https://cases.stretto.com/wgbest.
2. Click on the “E-Ballot” section of the Debtors’ website.
3. Follow the directions to submit your Ballot. If you choose to submit your Ballot via the
Voting Agent’s E-Ballot system, you should not return a hard copy of your Ballot.
BALLOTS CAST BY FACSIMILE AND/OR ELECTRONIC
MAIL TRANSMISSION WILL NOT BE COUNTED.
If you have any questions, please contact the Voting Agent at: 855-378-6886.
[Remainder of Page Intentionally Left Blank]
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INSTRUCTIONS FOR COMPLETING THE BALLOT
1. All capitalized terms used in the Ballot but not otherwise defined therein shall have
the meaning ascribed to them in the Conditional Approval and Procedures Order or the Plan, as
applicable.
2. The Plan can be confirmed by the Bankruptcy Court and, therefore, made binding
on you if it is accepted by the holders of two-thirds in dollar amount and more than one-half in
number of the Claims in the impaired classes voting on the Plan. Please review the Plan for more
information.
3. To ensure that your vote is counted, you must (i) complete the Ballot, (ii) indicate
your decision either to accept or reject the Plan, and (iii) sign and return the Ballot to the address
set forth herein on or before the Voting Deadline. Your Ballot must be received by the Voting
Deadline.
4. If a Ballot is received after the Voting Deadline, it will not be counted. The method
of delivery of Ballots is at the election and risk of each holder of a Claim. Except as otherwise
provided herein, such delivery will be deemed made only when the original executed Ballot is
actually received by the Voting Agent, by (a) first class mail, overnight courier, messenger, or
hand delivery to Montesquieu Ballot Processing, c/o Stretto, 8269 E. 23rd Avenue, Suite 275,
Denver, CO 80238. Instead of effecting delivery by mail, it is recommended, though not required,
that such Holders of Claims use an overnight or hand delivery service. The Voting Agent is also
authorized to accept Ballots via electronic online transmission solely through a customized online
balloting portal on the Debtors’ case website. The encrypted ballot data and audit trail created by
such electronic submission shall become part of the record of any Ballot submitted in this manner
and the creditor’s electronic signature will be deemed to be immediately legally valid and effective.
Ballots submitted via the customized online balloting portal shall be deemed to contain an original
signature. In all cases, sufficient time should be allowed to assure timely delivery.
5. If multiple Ballots are received from an individual Holder of Claims with respect
to the same Claims prior to the Voting Deadline, the last Ballot timely received will supersede and
revoke any earlier received Ballot.
6. This Ballot does not constitute, and shall not deemed to be, a proof of claim or
equity interest or an assertion or admission of a claim or equity interest.
7. Please be sure to sign and date your Ballot. If you are completing the Ballot on
behalf of an Entity, indicate your relationship with such Entity and the capacity in which you are
signing. In addition, please provide your name and mailing address if different from that set forth
on the attached mailing label or if no such mailing label is attached to the Ballot.
8. THE PLAN PROPONENT EXPRESSLY RESERVES THE RIGHT TO
OBJECT AT A LATER DATE TO THE AMOUNT ALLEGED HEREIN TO BE DUE TO
THE CREDITOR HOLDER BY THE DEBTORS OR THE INDEBTEDNESS ASSERTED
IN A TIMELY FILED PROOF OF CLAIM.
PLEASE RETURN YOUR BALLOT PROMPTLY
Case 19-10599-BLS Doc 178 Filed 08/28/19 Page 30 of 30