Opinion
Case No. 07-12791.
January 2, 2008
Pixelligent Technologies, LLC, Daniel M. Litt (Bar No. 02908), Paul Bennett Bran (Bar No. 04946), David Lee Tayman (Bar No. 15093), DICKSTEIN SHAPIRO LLP, Washington, DC, Bankruptcy Counsel to Debtor.
ATMI, Inc., Gary M. Zinkgraf (Bar No. 08224), Judy A. O'Neill (Pro Hac Vice), David G. Dragich (Pro Hac Vice), Erika L. Morabito (Pro Hac Vice), FOLEY LARDNER LLP, Washington, DC, Counsel to ATMI, Inc.
Pixelligent Technologies LLC ("Pixelligent" or the "Debtor") and Advanced Technology Materials, Inc. ("ATMI"), by and through their respective undersigned counsel, hereby stipulate and agree as follows:
WHEREAS, on or about September 21, 2007, the Court entered its Order Granting Debtor's Motion for Approval of Comprehensive Settlement Between Debtor and ATMI (the "Settlement Approval Order"), which became final and nonappealable on October 2, 2007;
WHEREAS, the Settlement Approval Order, inter alia, authorized the Debtor to implement and close on the comprehensive Settlement Agreement by and between Pixelligent and ATMI, and further authorized, ratified and approved the related License Agreement, Settlement Note, Security Agreement and Collateral Grant Agreement (collectively, the "Settlement Agreement");
WHEREAS, the Settlement Agreement contains several contingencies to effectiveness (including a financing contingency) and it contains several deadlines, including but not limited to (i) Pixelligent having until December 30, 2007, to close on the Settlement Agreement including, but not limited to, paying ATMI $800,000 in cash and the $1.35 million balance due and owing to ATMI pursuant to the terms and conditions of the Settlement Note; and (ii) after any such closing on the Settlement Agreement, Pixelligent has fifteen (15) days thereafter to either seek to voluntarily dismiss this Chapter 11 bankruptcy case or to file a disclosure statement seeking approval of a plan of reorganization and a plan of reorganization;
WHEREAS, because Pixelligent has represented to ATMI that Pixelligent has been unable to raise the funding necessary to close on the Settlement Agreement by December 30, 2007, and therefore Pixelligent has disclosed to ATMI that it will not be able to close on the Settlement Agreement on or before December 30, 2007, and specifically will not be able to pay ATMI the $800,000 in cash as required under the Settlement Agreement;
WHEREAS, to afford Pixelligent the opportunity to request from ATMI potential modifications to the Settlement Agreement and/or to provide Pixelligent an opportunity to continue to seek the funding necessary to close on the Settlement Agreement and pay ATMI the $800,000 in cash, the parties have agreed as set forth in this Stipulation and Consent Order to extend the dates associated with the Settlement Agreement;
WHEREAS, because Pixelligent contends that the resolution of the disputes embodied in the Settlement Agreement will be necessary to determine what assets are available for distribution to Pixelligent's creditors and will therefore have a considerable and material impact on any plan of reorganization filed in this bankruptcy case, the extension of the period to file a Chapter 11 Plan should also be extended, consistent with the terms and conditions of the Settlement Agreement; and
WHEREAS, counsel for the Office of the United States Trustee and counsel for secured creditor Novak Biddle Venture Partners V, L.P. have consented to the extension granted herein.
NOW, THEREFORE, upon consideration of this Stipulation and Consent Order and good cause therefore having been found, it is hereby
ORDERED, that Pixelligent and ATMI shall have an additional sixty (60) days through and including February 28, 2008, to perform any obligations, to execute any documents, and to take any other and further actions deemed reasonably necessary or appropriate to implement and close on the settlement embodied in the Settlement Agreement; and it is further
ORDERED, that, after any such closing on the settlement embodied in the Settlement Agreement, Pixelligent shall have fifteen (15) days thereafter to either seek to voluntarily dismiss this Chapter 11 bankruptcy case or to file a disclosure statement seeking approval of a plan of reorganization and a plan of reorganization; and it is further
ORDERED, that the exclusive period provided under 11 U.S.C. § 1121(e)(1) during which Pixelligent Technologies LLC may file a Chapter 11 Plan in this bankruptcy case shall be, and hereby is, extended from the January 21, 2008, deadline in this Court's Order dated September 21, 2007, to the earlier of either fifteen (15) days after any such closing on the settlement embodied in the Settlement Agreement or March 15, 2008; and it is further
ORDERED, that Pixelligent's right to seek further extensions of the exclusive period provided under 11 U.S.C. § 1121(e) within which only the Debtor may file a plan of reorganization is hereby fully reserved, and the rights of all creditors and parties-in-interest (including the U.S. Trustee and ATMI) to object or otherwise respond to any such further extension requests by the Debtor are similarly hereby fully reserved.
SO ORDERED
THE PROVISION IN THIS ORDER REGARDING THE EXTENSION OF THE EXCLUSIVE PERIOD TO FILE A PLAN IS BINDING UPON ATMI ONLY. IF DEBTOR WANTS TO EXTEND THE EXCLUSIVE PERIOD AS TO OTHER CREDITORS, A MOTION WITH NOTICE TO CREDITORS MUST BE FILED.