10/02/2007 254 Supplemental Document , filed by Plasticon International, Inc. (RE: related document(s)237 Application to Employ, ). (Kennedy, Ellen) (Entered: 10/02/2007)
------------------------
Doc 254
IN RE:
PLASTICON INTERNATIONAL, INC.
Debtor.
Case No. 07-50934
Judge William S. Howard
Chapter 11
SUPPLEMENT TO DEBTOR’S APPLICATION FOR AUTHORIZATION TO EMPLOY ARCADIA CONSULTING SERVICES TO PROVIDE WILLIAM D. BISHOP AS CHIEF RESTRUCTURING OFFICER
The Debtor and Debtor-in-Possession, Plasticon International, Inc. (“Plasticon”) (the “Debtor”), pursuant to 11 U.S.C. §§ 327 and 329, and Fed. R. Bk. P. 2014(a), respectfully
supplements its Application for Authorization to Employ Arcadia Consulting Services to Provide William D. Bishop as Chief Restructuring Officer (DE #237) (the “Application”).
In the Application, Debtor proposed the hiring of Arcadia Consulting Services (“Arcadia”) to provide William D. Bishop (“Bishop”), to serve as its Chief Restructuring Officer (“CRO”).
At the preliminary hearing of the Application, on September 28, 2007, the Court, the Trustee and the Murphy Entities [1] raised certain concerns concerning the scope of the proposed CRO’s duties and the degree of independence he would have from prior management. In response to those concerns, the Debtor hereby enumerates additional duties and responsibilities of its proposed CRO and clarifies those set forth in the Application. As CRO, Bishop shall:
a. Be accountable for all property received;
b. Examine proofs of claims and object to the allowance of any claim that is improper;
c. Furnish such information concerning the estate and the estate’s administration as is requested by a party in interest;
d. Make a final report and file a final account of the administration of the estate with this Court and with the United States Trustee; and Bishop shall also:
a. Investigate the acts, conduct, assets, liabilities, and financial condition of the Debtor, the operation of the Debtor’s business and the desirability of the continuance of such business, and any other matter relevant to the case or to the formulation or confirmation of a plan;
b. Conduct an investigation of all causes of action held by the estate including fraud, dishonesty, incompetence, misconduct, mismanagement, or irregularity in the management of the affairs of the debtor prior to his employment, and notify interested parties of his findings;
c. Negotiate with lenders to obtain post-petition financing to facilitate restructuring of Debtor and fund re-organization of the Debtor;
d. Evaluate the Plan of Reorganization (the “Pro Mold Plan”) filed by the Debtor in the Pro Mold case and the drafted Plan of Reorganization in the Plasticon case, move the Debtor forward to confirmation of the Pro Mold Plan, and approve the filing of the Plasticon Plan; though Bishop is free to file a plan of his own or recommend conversion of the case to a case under Chapter 7 of the Bankruptcy Code or recommend dismissal of the case;
e. For any year for which the debtor has not filed a tax return required by law, furnish, without personal liability, such information as may be required by the governmental unit with which such tax return was to be filed, in light of the condition of the debtor’s books and records and the availability of such information; and
f. After confirmation of a plan, supervise the filing file such reports as are necessary or as the Court orders.
[1] Pro Plas, LLC, John P. Murphy III Revocable Trust, 103155, LLC and John P. Murphy (“Murphy”) are collectively referred to as “the Murphy Entities”.
The Court and interested parties will note that Bishop’s duties and responsibilities track closely with those found in 11 U.S.C. § 1106. As a court-appointed CRO, Bishop would similarly enjoy protection from any liability based on the actions of Debtor’s former management, if any. It is the Debtor’s intention that Bishop serve with unfettered rights to make all decisions regarding the operation and reorganization of the Debtor and for him to fulfill his duties as CRO in a manner completely independence of prior management.
Further, the Trustee and the Murphy Entities have expressed concerns regarding the possibility that Bishop may return control of the Debtor to its prior management without their knowledge or Court approval. In response, the Debtor states that Bishop shall serve at the pleasure of the Court, until such time as, 1) the Company has exited bankruptcy protection under Chapter 11 of the Bankruptcy Code, 2) he has resigned as CRO pursuant to Order of the Bankruptcy Court, or 3) the Bankruptcy Court terminates his employment pursuant to a properly noticed motion and hearing filed by an interested party or the United States Trustee. Upon termination of Bishop’s service, the Court may replace Bishop or restore the Debtor to possession and management of the property of the estate, and of the operation of the Debtor’s businesses as would be allowed under 11 U.S.C. § 1105.
FOWLER MEASLE & BELL PLLC
/s/ Ellen Arvin Kennedy
Ellen Arvin Kennedy, Esq.
Timothy A. West, Esq.
300 West Vine Street, Suite 600
Lexington, KY 40507-1660
(859) 252-6700
(859) 255-3735 fax
EAKennedy@FowlerLaw.com
TWest@FowlerLaw.com
ATTORNEYS FOR DEBTOR, PLASTICON INTERNATIONAL, INC.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing was served this the 2nd day of October, 2007, electronically in accordance with the method established under this Court’s CM/ECF Administrative Procedures and Standing Order dated July 25, 2002 upon all parties in the electronic filing system in this case and was served upon those listed on the Master Service List No. 1, by first class postage paid mail, electronic service or via email.
/s/ Ellen Arvin Kennedy
ATTORNEY FOR DEBTOR |
