FOLEY & LARDNER LLP

NOTICE OF REDLINE CHANGES TO THE JOINT CHAPTER 11 PLAN OF REORGANIZATION – PAGE 1 4814-2849-6585.1

Marcus A. Helt (TX 24052187) Paul V. Storm (TX 19325350) C. Ashley Ellis (TX 00794824) Emily F. Shanks (TX 24110350) FOLEY & LARDNER LLP 2021 McKinney Avenue, Suite 1600 Dallas, TX 75201 Telephone: 214.999.3000 Facsimile: 214.999.4667 COUNSEL FOR THE DEBTORS, DIAMONDBACK INDUSTRIES, INC., et al.

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

IN RE: DIAMONDBACK INDUSTRIES, INC., et al.1 Debtors.

§ § § § §

Case No. 20-41504-ELM-11 Jointly Administered

NOTICE OF REDLINE CHANGES

TO THE JOINT CHAPTER 11 PLAN OF REORGANIZATION

PLEASE TAKE NOTICE that pursuant to the Debtors’ Notice of Hearing and Deadlines

filed on October 6, 2020, Diamondback Industries, Inc., (“Diamondback”), Discerner Holdings,

Inc. (“Discerner Holdings”), and Discerner Investments, LLC (“Discerner Investments”),

(collectively, “Diamondback” or “Debtors”), as debtors and debtors-in-possession in the above-

captioned chapter 11 cases (the “Chapter 11 Cases”) have modified Docket No. 457, which is the

1 The debtors in these Chapter 11 Cases, along with the last four digits of each debtor’s federal tax identification number, include: Diamondback Industries, Inc. (4403) (“Diamondback”); Discerner Holdings, Inc. (5110) (“Discerner Holdings”); and Discerner Investments, LLC (3076) (“Discerner Investments”). The location of the debtors’ service address is 3824 Williamson Road, Crowley, Texas 76036.

Case 20-41504-elm11 Doc 541 Filed 10/12/20 Entered 10/12/20 11:57:54 of 78


Joint Chapter 11 Plan of Reorganization For Diamondback Industries, Inc. and Its Affiliated

Debtors (“Plan”). That modified Plan (“Amended Plan”) is filed on the docket at number 539.

PLEASE TAKE NOTICE that attached as Exhibit A is a redlined version of the Amended

Plan.

DATED: October 12, 2020 Respectfully submitted by:

CERTIFICATE OF SERVICE

I hereby certify that, on October 12, 2020, a true and correct copy of the foregoing document was served electronically by the Court’s PACER system.

/s/ Marcus A. Helt Marcus A. Helt

/s/ Marcus Helt Marcus A. Helt (TX 24052187)

Paul V. Storm (TX 19325350) C. Ashley Ellis (TX 00794824) Emily F. Shanks (TX 24110350) FOLEY & LARDNER LLP 2021 McKinney Avenue, Suite 1600 Dallas, TX 75201 Telephone: 214.999.3000 Facsimile: 214.999.4667 COUNSEL TO DEBTORS DIAMONDBACK INDUSTRIES, INC., et al.



EXHIBIT A


4849-0654-9698.54851-6463-2522.4

UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

IN RE: § CHAPTER 11 § DIAMONDBACK INDUSTRIES, INC., et al.,1 § CASE NO.: 20-41504-ELM-11 §

DEBTORS. § JOINTLY ADMINISTERED

JOINT CHAPTER 11 PLAN OF REORGANIZATION FOR

DIAMONDBACK INDUSTRIES, INC. AND ITS AFFILIATED DEBTORS

Marcus A. Helt (TX 24052187) C. Ashley Ellis (TX 00794824) FOLEY & LARDNER, LLP

2021 McKinney Avenue, Suite 1600 Dallas, TX 75201

Telephone: (214) 999-3000 Facsimile: (214) 999-4667

[email protected] [email protected]

COUNSEL TO THE DEBTORS AND DEBTORS-IN-POSSESSION

1 The debtors in these Chapter 11 Cases, along with the last four digits of each debtor’s federal tax identification number, include: Diamondback Industries, Inc. (4403) (“Diamondback”); Discerner Holdings, Inc. (5110) (“Discerner Holdings”); and Discerner Investments, LLC (3076) (“Discerner Investments”). The debtors’ service address is 3824 Williamson Road, Crowley, Texas 76036.


mailto:[email protected]

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INTRODUCTION

Diamondback Industries, Inc., and its two affiliates Discerner Holdings, Inc. and Discerner Investments, LLC, as Debtors and Debtors-in-Possession in the above-captioned jointly administered Bankruptcy Cases, hereby propose this Joint Chapter 11 Plan of Reorganization for Diamondback Industries, Inc. and its Affiliated Debtors (the “Full Payment Appeal Settlement Plan” or “Plan”) under Bankruptcy Code § 1121 for the resolution of outstanding Claims against and Interests in the Debtors.

The Full Payment AppealSettlement Plan is a long but simple read. Essentially, it allows the debtors to continue their appeal of the Patent Litigation (defined below), andIt implements (1) a sale of the Business Assets of Diamondback to and the assumption of certain liabilities by DBK Industries, LLC in consideration for and a guaranty of the Exit Financing from the Exit Financer, which such proceeds will be used to fund the go-forward business and make certain Effective Date payments; and (2) a global settlement negotiated between the Debtors, their majority Equity Interest Holder, and the Debtors’ largest creditors – that is, the Judgment Creditors who are also the Debtors’ largest unsecured creditors – that allows the Debtors to pay all of their debts (including those of the Judgment Creditors) 100% plus interest in two to seven years. Non-judgment creditors will get paid in no more than two years. Judgment Creditors will also be paid as soon as possible, depending on the appeal of the Patent Litigation. Either way,. UMB Bank will be paid the UMB Bank Allowed Claim Class in accordance with the treatment dictated by its acceptance or rejection of the Plan. Non-Judgment Creditor Unsecured Creditors will get paid on the Effective Date, and Judgment Creditors will be paid in full with interest. It should be noted thatpursuant to the Repeat Settlement. Chapter 11 worked in this case. After protracted pre- and post-petition litigation, the Judgment Creditors and the debtors were ordered to mediate their disputes before a former bankruptcy judge. While the parties have notDebtors have settled their disputes, the debtors believe that the parties continue to make progress through the continual offer-and-counteroffer process and negotiation. If a settlement is reached, the Debtors will inform the Court and file the necessary papers.subject to this Court’s approval.

ARTICLE I.

Summary Only. The following is a brief summary of the Full Payment AppealSettlement Plan’s general terms and does not form a part of the Full Payment AppealSettlement Plan. This summary is qualified in its entirety by reference to the provisions of the Full Payment AppealSettlement Plan. Capitalized terms used in this summary are defined in the Full Payment AppealSettlement Plan.

General Description of the Business. The Debtors develop, manufacture, and sell power charges, ignitors and setting tools for use in completing oil and gas wells. Sales of power charges are Debtor’s core business. Diamondback holds several patents and trademarks and trade secrets that have been developed over the years from tens of millions of dollars of investments.

Full Payment AppealSettlement Plan Summary and Treatment of Claims and Interests. The Full Payment AppealSettlement Plan will implement chapterChapter 11’s stated goal of allowing a debtor time to rehabilitate itself, compromise and settle creditor disputes where possible, and pay creditors within a reasonable time, while preserving enterprise value in excess of debts. In part, the. The Full Payment AppealSettlement Plan will accomplish chapter 11’s goal withof rehabilitation and repayment of debts by (a) the sale of the Business Assets to DBK Industries, LLC, (b) the assumption of certain debts by DBK Industries, (c) the approval and implementation of the Repeat Settlement, (d) the approval and implementation of the Drury Settlement (defined below) and


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the UMB Settlement (defined below), and (e) the fair-and-equitable treatment of UMB Bank and repayment of UMB Bank’s Allowed Claims. The Drury 9019 Payment and the Debtors’ ongoing, the Exit Financing, and the post-confirmation business operations of DBK Industries will provide the following to Creditors and Interest holders: (a) it willthe restructure and repay Diamondback’s secured debt torepayment of the UMB Bank Allowed Claim over time or, at UMB Bank’s election, in cash on the Effective Date; (b) it will stabilize and reinvigorate (stalled) business operations in harmony with Repeat Precision; and (c) it will establish a process by which the Allowed Class 8 Claims and Class 9 Claims(that is, non-Repeat Precision unsecured claims) will be paid in full with interest pursuant to the UCC Notes and the Creditor Trust Note.

on the Effective Date.2 The Repeat Settlement This will be done while (a) respecting the appellate process for(a) provide for the satisfaction in full of the Allowed Class 9 Claim; (b) dismiss the Patent Judgment Appeal, and (b) adequately protecting Repeat Precision’s rights in the interimc) define the parameters of the future business relationship between the Debtors and Repeat Precision. Pursuant to the terms of the Full Payment AppealSettlement Plan:

a) UMB. The UMB Bank’sBank Allowed Secured Claim will be paid

in full pursuant to the UMB Settlementterms and conditions of this Plan.

b) Equipment Lenders. Allowed Secured Claims of each

Equipment Lender will be paid (a) pursuant to an agreement between the Debtors/Reorganized DebtorsDBK Industries and each Equipment Lender on terms consistent with prepetition agreement(s), or (b) if no agreement is reached, at the Debtors/Reorganized DebtorsDBK Industries’ sole and absolute option, (i) the net proceeds from the liquidation of collateral after payment of all fees incurred and expenses reimbursed related to the liquidation of such collateral, or (ii) surrender of collateral.

c) Other Secured Claims. At the Debtors’ election, Other Secured

Claims will receive either (a) Cash equal to the full Allowed amount of its Other Secured Claim on the later of (x) the Effective Date and (y) the date payment on account of such Claim is due, (b) Reinstatement of such Holder’s Allowed Other Secured Claim, (c) the return or abandonment of the collateral securing such Allowed Other Secured Claim to such Holder, or (d) such other treatment as may be agreed to by such Holder and the Debtors.

d) Allowed Administrative Expenses. Allowed Administrative

Claims will be paid at or before the Effective Date, or on such

2 As detailed herein, the claims register and the Debtors’ books and records agree that Allowed Class 8 Claims are in the aggregate amount of $355,000.00 with the exception of two claims: (1) Claim No. 16 filed on September 8, 2020, by the IRS, asserting a $1,218,309.58 priority claim pursuant to § 507(a)(8) and a $25,060.22 general unsecured claim; and (2) Claim No. 38 filed by Starke Machine Company on August 26, 2020, asserting a $68,333.94 general unsecured claim. This Plan objects to claims 16 and 38. Upon disallowance of claims 16 and 38, the estimated percentage payout to Allowed Class 8 Claims will be 100%. To the extent that either claim 16 or claim 38 is Allowed in any amount, the Distribution percentage to Allowed Class 8 Claims could be decreased.


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terms as the Reorganized Debtors and the Holder of an Allowed Administrative Claim may otherwise agree.

e) Allowed General Unsecured Claims Other than the Judgment

Creditors’ Asserted General Unsecured Claim. Allowed General Unsecured Claims do not include the unsecured claims asserted by the Judgment Creditors. All Allowed Class 8 Claims will be paid in full at the Full Payment Appeal Plan Interest Rate by the UCC Note Down Payment and the UCC Notes. Allowed Administrative Convenience Claims in Class 8-A will be paid in full within fifteen (15) days offrom the Class 8 Payment Fund on the Effective Date, with an estimated 100% distribution percentage.

f) Repeat Precision’s and any other Judgment Creditor’s Allowed

Unsecured Claim. A Creditor Trust will be established, and a Creditor Trustee for that Creditor Trust will be appointed on the Effective Date. Repeat Precision and any other Judgment Creditor (e.g. NCS Multistage) will be the Trust’s only beneficiaries if/when claims held by the Judgment Creditors are Allowed by Final Order. All Allowed Class 9 Claims will be paid in full with beneficial interests in the Creditor Trust equal to their Pro Rata Share of such Allowed Class 9 Claims. All Class 9 Claims will be paid in full by the Creditor Trust Note. The Creditor Trust Note will be collateralized by 100% of the Interests in the Debtors owned by the Drurys. The Creditor Trust will not make any distributions to Trust Beneficiaries until each Trust Beneficiary’s Unsecured Claim against the Debtors is Allowed by Final Order. Each Trust Beneficiary’s Allowed Unsecured Claim will be paid in full with interest at the Full Payment Appeal Plan Interest Rate.

f) Judgment Creditors’ Allowed Unsecured Claim. The Judgment Creditors’ Allowed Unsecured Claim will be paid pursuant to the terms and conditions of the Repeat Settlement.

g) Creditor Trust Collateral. As collateral for each Judgment

Creditor’s disputed claims, the Creditor Trust shall receive 100% of the Interests in the Debtors, pending final adjudication or other resolution of the Patent Judgment Appeal, subject to the terms and conditions of the Stock Pledge Agreement, which will be a Full Payment Appeal Plan Supplement Document.

hg) Interest HolderEquity. Holders of Interests will retain such Interests and all rights incident to such Interests, including the right to receive proceedsand of such Interests; provided, however, the rights of Holders of Interests to receive any proceeds of such Interests will be subordinate to the Trustee’s right to receive such proceeds until the Judgment Claims, once Allowed, are paid in full pursuant to Full Payment Appeal Plan..


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Holders of Allowed Claims and Interests shall receive the following treatment under the Full Payment AppealSettlement Plan:

CLASS

CLAIMANT TREATMENT

1.

ALLOWED PRIORITY NON-TAX CLAIMS

Shall receive (i) Cash in an amount equal to the Allowed amount of such Priority Non-Tax Claim on the Effective Date or (ii) other treatment consistent with the provisions of § 1129(a)(9) of the Bankruptcy Code.

2. SECUREDALLOWED CLAIM OF UMB BANK, N.A.

Class 2 includes all Claims of UMB against the Debtors and the Estates. On the Effective Date, and except to the extent UMB Bank agrees to a less favorable treatment, UMB Bank’s Allowed Secured Claim will be paid in full pursuant to the UMB Settlement.satisfaction, compromise, release, and discharge of and exchange for all such Claims, including against the Debtors and the Estates, as follows: Option 1: If UMB votes to accept the Plan, UMB will select one of the following treatments: (a) the UMB Class 2 Claim is Allowed for Plan purposes at $20.127 mm and will be paid to holder of the Class 2 Claim on the Effective Date. All Causes of Action and claw-back rights against UMB and challenges to the UMB Bank Allowed Claim are hereby preserved and not released and transferred to DBK Industries, and the amount, validity, extent, value, and priority of this Class 2 Claim will be subject to determination by the Bankruptcy Court or pursuant to an agreement by DBK Industries and the holder of this Class 2 Claim or (b) the UMB Class 2 Claim is Allowed for Plan purposes at $17.127 mm and will be paid to the holder of the Class 2 Claim on the Effective Date. All Causes of Action held by the Estate and Repeat Precision against UMB and challenges to the UMB Bank Allowed Claim are hereby waived and released, and all claims and Causes of Action held or owned by UMB against the Debtors, the Estates, and Repeat Precision are hereby waived and released. As consideration for the Repeat Precision release, $3.0 mm will be paid to Repeat Precision on the Effective Date.

Option 2: If UMB votes to reject the Plan, then the UMB Bank Allowed Claim is Allowed for Plan purposes at $20.285 mm plus an amount, not to exceed $700,000, adjudicated by the Bankruptcy Court as actual, necessary, and reasonable attorney fees and other expenses (the “Option 2 Amount”). The


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CLASS

CLAIMANT TREATMENT

Option 2 Amount will be paid by DBK Industries over a six-year period with equal quarterly payments of $250,000.00, the first payment starting on March 31, 2020, and continuing thereafter on the last day of each successive quarter end, and a balloon payment on the seventy-third month after the Effective Date, unless otherwise paid earlier. Under this Option 2, the UMB Allowed Claim will accrue interest at 3.25% per annum.

Until the UMB Bank Allowed Claim is paid in full, UMB shall retain its Liens in the Collateral that secured the UMB Bank Allowed Claim on the Petition Date in the same priority as existed on the Petition Date. Upon payment in full of the Allowed UMB Bank Claim pursuant to the terms and conditions of this Plan, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released and discharged, and all of the right, title, and interest of UMB Bank in such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the applicable Debtor and/or its successors and assigns as applicable under the APA. Upon payment in full of the Allowed UMB Bank Claim pursuant to the terms and conditions of this Plan, UMB Bank shall be authorized and directed to release any collateral or other property of any Debtor (including any Cash collateral and possessory collateral) held by UMB Bank (and the applicable agents for such Holder), and to take such actions as may be reasonably requested by the Debtors, DBK Industries or the Plan Administrator, as the case may be, to evidence the release of all such Liens, including the execution, delivery, and filing or recording of such releases. UMB Liens will not attach to assets acquired by DBK Industries after the Effective Date.


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CLASS

CLAIMANT TREATMENT

3. SECURED CLAIM OF U.S. BANK NATIONAL ASSOCIATION D/B/A U.S. BANK EQUIPMENT FINANCE (“U.S. BANK”) (ACQUIRED THROUGH ASSIGNMENT FROM INTECH FUNDING CORP.)

The Allowed Secured Claim of Intech Funding Corp. will be satisfied (a) pursuant to an agreement between the Reorganized Debtors and Intech Funding Corp. on terms consistent with prepetition agreement(s), or (b) if no agreement is reached, at the Debtors/Reorganized Debtors’ sole and absolute option, (i) the net proceeds from the liquidation of collateral after payment of all fees incurred and expenses reimbursed related to the liquidation of such collateral, or (ii) surrender of collateral. The amount, validity, extent, value, and priority of the Allowed Secured Class 3 Claim under § 506 of the Bankruptcy Code will be determined by the Bankruptcy Court after the Effective Date. Any Deficiency Claim or other Unsecured Claim of the Holder of the Class 3 Claim shall be treated in Class 8. The Allowed Secured Claim of U.S. Bank will be satisfied pursuant to the U.S. Bank Settlement.

4. SECURED CLAIM OF TOYOTA COMMERCIAL FINANCE

The Allowed Secured Claim of Toyota Commercial Finance will be satisfied (a) pursuant to an agreement between the Reorganized DebtorsDBK Industries and Toyota Commercial Finance on terms consistent with prepetition agreement(s), or (b) if no agreement is reached, at the Reorganized Debtors’ sole and absolute option, (i) the net proceeds from the liquidation of collateral after payment of all fees incurred and expenses reimbursed related to the liquidation of such collateral, or (ii) surrender of collateral. The amount, validity, extent, value, and priority of the Allowed Secured Class 4 Claim under § 506 of the Bankruptcy Code will be determined by the Bankruptcy Court after the Effective Date. Any Deficiency Claim or other Unsecured Claim of the Holder of the Class 4 Claim shall be treated in Class 8.

5. SECURED CLAIM OF WELLS FARGO EQUIPMENT FINANCE

The Allowed Secured Claim of Wells Fargo Equipment Finance will be satisfied pursuant to the Wells Fargo Settlement.

6. SECURED TAX CLAIMS Each Class 6 Claim that is an Allowed Claim shall be satisfied, in full satisfaction, release, and discharge of and exchange for such Claim, by retention of all applicable liens until payment in full of the Allowed Secured Tax Claim in monthly installments for a period of five (5) years at the applicable statutory rate(s) of 12% interest per annumon such Allowed Class 6 Claim, or other applicable legal rate in accordance with § 1129(a)(9)(D) of the Bankruptcy Code as determined by the Bankruptcy Court at Confirmation.


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CLASS

CLAIMANT TREATMENT

Until paid in full, each Holder of a Class 6 Claim that is an Allowed Claim shall retain its Lien in the Collateral that secured the Class 6 Claim on the Petition Date in the same priority as existed on the Petition Date. The amount, validity, extent, value, and priority of each Class 6 Claim will be subject to determination by the Bankruptcy Court or pursuant to an agreement between the Reorganized Debtors and the Holder of a Class 6 Claim.

7. OTHER SECURED CLAIMS

Holders of Allowed Class 7 Claims, if any, shall be designated as Class 7A, Class 7B et seq. and will be satisfied (a) pursuant to an agreement between the Reorganized Debtors and the Holder of an Allowed Class 7 Claim on terms consistent with prepetition agreement(s), or (b) if no agreement is reached, at the Reorganized Debtors’ sole and absolute option, (i) the net proceeds from the liquidation of collateral after payment of all fees incurred and expenses reimbursed related to the liquidation of such collateral, or (ii) surrender of collateral. The amount, validity, extent, value, and priority of the Allowed Secured Class 7 Claim under § 506 of the Bankruptcy Code will be determined by the Bankruptcy Court after the Effective Date. Any Deficiency Claim or other Unsecured Claim of the Holder of the Class 7 Claim shall be treated in Class 8.

8. GENERAL UNSECURED CLAIMS3

As full and final satisfaction, settlement, release, and discharge of each Allowed Class 8 Claim against the Debtors, each Holder of an Allowed Class 8 Claim will be paid in full, with interest, pursuant to the UCC Notesfrom the Class 8 Payment Fund on the Effective Date, with an estimated 100% distribution percentage.

8-A. ADMINISTRATIVE CONVENIENCE CLASS

As full and final satisfaction, settlement, release and discharge of each Allowed Class 8-A Claim against the Debtors, each Holder of an Allowed Class 8-A Claim will be paid in full within fifteen (15) days of the Effective Date.

9. UNSECURED CLAIMS OF JUDGMENT CREDITORS

Judgment Creditors’ Unsecured Claims are Disputed Claims. To the extent Allowed by Final Order in the Patent Judgment Appeal, each Judgment Creditor’s Unsecured Claim will be treated in Class 9.

3 Claim No. 38 filed by Starke Machine Company asserting an alleged General Unsecured Claim in the amount of $68,333.94 is a Disputed Claim.


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CLASS

CLAIMANT TREATMENT

InAs full and final satisfaction and, settlement, release, and discharge of each Judgment Creditor’s (asserted and disputed) Unsecured Claims against the Debtors, each Judgment Creditor will receive a beneficial interest in the Creditor Trust equal to that Judgment Creditor’s pro rata share of the Allowed sum of all Trust Beneficiaries Allowed Claims. Each Allowed Class 9 Claim against the Debtors, the Judgment Creditors’ Allowed Unsecured Claims will be paid its pro-rata share of Distributions from the Creditor Trust Assetspursuant to the Repeat Settlement and will be treated in Class 9. The Creditor Trust shall not distribute any portion of the Creditor Trust Assets to any Trust Beneficiary until entry of a Final Order in the Patent Judgment Appeal or other litigation involving the Trust Beneficiary or other resolution or compromise is reached between any Trust Beneficiary and the Reorganized Debtors. As the Creditor Trust Collateral, the Creditors Trust will receive the Interests of Diamondback owned by the Drurys pursuant to the terms and conditions of a Stock Pledge Agreement, pending final adjudication or other resolution of each Trust Beneficiary’s litigation, including the Patent Judgment Appeal.

10. UNSECURED SUBORDINATED CLAIMS

The holders of Allowed Class 10 Claims shall not receive any payment unless and until all Allowed Claims in Classes 1 to 9 are paid in full at which time a Class 10 Claim shall be satisfied with interest, from Excess Cash Flow generated by post-confirmation business operations of the Reorganized DebtorsDBK Industries until such Class 10 Claims are paid in full.

11. INTERESTS IN THE DEBTORS

Holders of Interests will retain such Interests and all rights incident to or of such Interests, including the right to receive proceeds of such Interests; provided, however, the rights of holders of Interests to receive any proceeds of such Interests will be subordinate to the Creditor Trustee’s right to receive such proceeds until each allowed claim of the Judgment Creditors is paid in full pursuant to Full Payment Appeal Plan. Pursuant to the 9019 Settlement Agreement, the Interest Holders will, among other things, (a) (i) pledge such Interests as collateral to the Creditor Trust, and (ii) pay a portion of the Drury 9019 Payment to the Estates and a portion to the Creditor Trust; and (b) upon payment in full of Allowed Claims in Classes 1-10,and receive a full and final release of all claims and causes of action outlined in this Full Payment Appeal Plan, including cancellation/termination of the Stock


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CLASS

CLAIMANT TREATMENT

Pledge AgreementSettlement Plan pursuant to the Drury Settlement.

Other Full Payment Appeal Plan Highlights. The Full Payment Appeal Plan also: a. Allows the Debtors the time to generate cash to pay all Allowed

Claims, including the Claims of the Judgment Creditors, over time.

b. Approves the 9019 Settlement Agreements.

c. Approves the Drury Settlement and the UMB Settlement.

d. Gives the Reorganized Debtors time necessary to repay all Allowed claims in full.

e. Continues the Debtors’ reconstituted board of directors with the Current Directors and Officers as of July 3, 2020, with a former bankruptcy judge, a former M&A lawyer who is also the president of the Debtors, and a former bankruptcy lawyer who is experienced in running businesses until all Allowed Class 8 and Class 9 Claims are paid in full.

f. Avoids costly and time-consuming litigation, while preserving all litigation rights and allowing the Reorganized Debtors to rehabilitate and repay their allowed debts, which is designed to maximize value for all stakeholders, especially creditors.

g. Establishes a Creditor Trust and a Creditor Trustee to receive the Creditor Trust Property and pay all Allowed claims of each Judgment Creditor upon final adjudication or other resolution of the Patent Judgment Appeal.

ARTICLE II. DEFINED TERMS, RULES OF INTERPRETATION,

CONSTRUCTION OF TERMS, COMPUTATION OF TIME, AND GOVERNING LAW

A. Defined Terms

For purposes of this Full Payment AppealSettlement Plan, except as expressly provided or unless the context otherwise requires, all capitalized terms not otherwise defined shall have meanings ascribed to them in this Article. Any term used in this Full Payment AppealSettlement Plan that is not defined herein but is defined in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning ascribed to that term in the Bankruptcy Code or Bankruptcy Rules. Whenever the context requires, such terms shall include the plural as well as the singular number, the masculine gender shall include the feminine, and the feminine gender shall include the masculine.


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1. 9019 Settlement Agreement(s) means the agreement(s) executed between the Debtors and UMB, the Debtors and the Drurys,; and the agreement(s) executed between the Debtors, UMB, and the Drurys, and Repeat all as part of the Full Payment AppealSettlement Plan.

2. APA means that certain asset purchase agreement and related document(s) under which the Business Assets are sold or transferred, and the Assumed Liabilities transferred, by one or more of the Debtors to and assumed by DBK Industries on the Effective Date. The transaction affected by the APA may, at the election of DBK Industries, take the form of a divisive merger pursuant to the Texas Business Organizations Code.4

3. 2. Administrative Claim or Administrative Expense Claims means a Claim, Cause of Action, right to payment, whether secured or unsecured, right, or other liability, or the portion thereof, constituting a cost or expense of administration of any the Bankruptcy Cases that is entitled to priority under Bankruptcy Code §§ 326, 327, 330, 503(b), 506(c), 507(a)(2), 507(b), and 1103, including: (ia) the actual and necessary costs and expenses incurred after the Petition Date of preserving the Estates and/or in connection with operating the Debtors’ businesses (such as wages, salaries, or payments for goods and services); (iib) Professional Compensation Claims; and (iii) all fees and charges assessed against either Estate under 28 U.S.C. § 1930.

4. 3. Administrative Claim Bar Date means the first Business Day that is thirty (30) days after the Effective Date or such earlier deadline as established by an order of the Bankruptcy Court.

4. Administrative Convenience Class means Class 8-A under this Plan consisting of Unsecured Claims against the Estates in the Allowed amount of less than $5,000.00.

5. Affiliate has the meaning prescribed in Bankruptcy Code § 101(2).

6. Allowed means, with respect to any Claim or Interest, except as otherwise provided in the Full Payment AppealSettlement Plan, a Claim or Interest allowable under Bankruptcy Code § 502 that: (i) has been allowed by a Final Order, including, without limitation, any Final Order estimating claims for purposes of confirming this Full Payment AppealSettlement Plan; (ii) either has been Scheduled as a liquidated, non-contingent, undisputed Claim in an amount greater than zero in the Debtors’ Schedules, as the same may from time to time be amended in accordance with the Bankruptcy Code, Bankruptcy Rules or order of the Bankruptcy Court, or is the subject of a timely filed and liquidated Proof of Claim as to which either no objection to its allowance has been filed (either by way of objection or amendment to the Schedules) within the periods of limitation fixed by the Bankruptcy Code or by any order of the Bankruptcy Court, or any objection to its allowance has been settled, waived through payment, or withdrawn, or has been denied by a Final Order; or (iii) is expressly allowed in a liquidated amount in the Full Payment AppealSettlement Plan; provided, however, that with respect to an Administrative Claim, “Allowed” means an Administrative Claim as to which a timely request for payment has been made in accordance with this Full Payment AppealSettlement Plan (if such written request is required) or other Administrative Claim, in each case

4 Section 1.002(55)(A) of the Texas Business Organizations Code, which defines “Merger” to include, among other transactions, “the division of a domestic entity [such as a Texas LLC or Texas corporation] into two or more new domestic entities or other organizations or into a surviving domestic entity and one or more new domestic or foreign entities or non-code organizations.”


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as to which (a) a timely objection has not been filed, or (b) a timely objection is filed and such objection has been settled, waived through payment, or withdrawn, or has been denied by a Final Order.

7. Assumed Liabilities means the liabilities, expressly including the obligations of the Debtors under the Repeat Settlement Agreement and to pay Allowed Administrative Claims, Professional Compensation Claims, Allowed Priority Tax Claims, Allowed Secured Tax Claims, and Allowed Claims pursuant to this Plan (and, as to Class 9 pursuant to the Repeat Settlement), that DBK Industries shall assume and agree to pay, perform and discharge when due arising out of or relating to the Business Assets at, upon, or after the closing of the sale under the APA. All liabilities and obligations of the Debtors other than the Assumed Liabilities are collectively referred to as the “Excluded Liabilities.” DBK Industries does not assume (or intend to assume) or agree to pay, perform, fulfill or discharge any Excluded Liabilities, and the Confirmation Order will provide / order the same.

8. 7. Avoidance Actions means any and all actual or potential Claims and Causes of Action that have been, or may be, commenced before or after the Effective Date, to avoid a transfer of property or an obligation incurred by either Debtor pursuant to any applicable § of the Bankruptcy Code, including Bankruptcy Code § § 544, 545, 547, 548, 549, 550, 551, 553(b), and 724(a), or under similar or related state or federal statutes and common law.

9. 8. Bankruptcy Cases or Cases means the Chapter 11 bankruptcy cases commenced by the Debtors upon the Filing of the voluntary petitions on the Petition Date; styled In re Diamondback Industries, Inc. et al. The Bankruptcy Cases are jointly administered under Case No. 20-41504-ELM-11, and any reference to a document or pleading filed in the Bankruptcy Case shall mean Case No. 20-41504-ELM-11.

10. 9. Bankruptcy Code means title 11 of the United States Code, 11 U.S.C. §§ 101-1532.

11. 10. Bankruptcy Court or Court means the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division.

12. 11. Bankruptcy Estate(s) or Estate(s) means the estate of either Debtor created under Bankruptcy Code § 541 upon the Filing of the Bankruptcy Cases, and all Estate Property comprising the estates.

13. 12. Bankruptcy Rules means, collectively, the Federal Rules of Bankruptcy Procedure and the Official Bankruptcy Forms, as amended, the Federal Rules of Civil Procedure, as amended and made applicable to the Bankruptcy Cases or ancillary proceedings, and the Bankruptcy Local Rules of the Bankruptcy Court, as applicable to the Bankruptcy Cases or ancillary proceedings, as the case may be.

14. 13. Bar Date means September 10, 2020, the date established by the Bankruptcy Court by which Proofs of Claim must be filed with respect to such Claims, other than Administrative Claims, Claims held by Governmental Units, or other Claims or Interests for which the Bankruptcy Court entered an order excluding Holders of such Claims or Interests from the requirement of Filing Proofs of Claim.

15. 14. Board means the board of directors of the Debtors. Board members are Benton Cantey, Russell Nelms, and Richard Schmidt.


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16. Business Assets means substantially all of the assets sold to DBK Industries on the Effective Date under and specifically identified in the APA, which will include all Causes of Action and Avoidance Actions.

17. 15. Business Day means any day other than a Saturday, Sunday, or a “legal holiday” (as defined in Bankruptcy Rule 9006(a)).

18. 16. Cash means cash and cash equivalents, including bank deposits, checks, and other similar items in legal tender of the United States of America.

19. 17. Causes of Action means any claims, interests, damages, remedies, demands, rights, actions, suits, obligations, liabilities, accounts, defenses, offsets, powers, privileges, licenses, liens, indemnities, guaranties, and franchises of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, now existing or hereinafter arising, contingent or non-contingent, liquidated or unliquidated, secured or unsecured, assertable, directly or derivatively, matured or unmatured, suspected or unsuspected, in contract, tort, law, equity, or otherwise, but shall not include any action against a Released Party. This term also includes: (a) all rights of setoff, counterclaim, or recoupment and claims under contracts or for breaches of duties imposed by law; (b) the right to object to or otherwise contest Claims or Interests; (c) Avoidance Actions; and (d) such claims and defenses as fraud, mistake, duress, and usury, and any other defenses set forth in Bankruptcy Code § 558.

20. 18. Chief Restructuring Officer means Cade Kennedy as appointed and employed by the Debtors pursuant to the Bankruptcy Court’s order [Docket. No. 175].

21. 19. Claim means a claim or right to payment, whether secured or unsecured, against any portion of the Bankruptcy Estate(s) of either Debtor, whether or not asserted, as defined in Bankruptcy Code § 105(5).

22. 20. Claims Register means the official register of Claims.

23. 21. Class means a category of Claims or Interests as described in the Full Payment AppealSettlement Plan pursuant to Bankruptcy Code § 1122(a).

24. Class 8 Payment Fund means the lesser of (a) $355,000 or (b) the total Allowed Amount of Class 8 Claims, earmarked from the Exit Financing, from which Allowed Class 8 Claims will be paid in Cash on the Effective Date, with an estimated distribution percentage of 100%.

25. 22. CM/ECF means the Bankruptcy Court’s Case Management and Electronic Case Filing system.

26. 23. Confirmation means entry by the Bankruptcy Court of the Confirmation Order confirming this Full Payment AppealSettlement Plan.

27. 24. Confirmation Date means the date of entry by the Bankruptcy Court of the Confirmation Order.

28. 25. Confirmation Hearing means the hearing held by the Bankruptcy Court to consider Confirmation of the Full Payment AppealSettlement Plan.


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29. 26. Confirmation Order means the order of the Bankruptcy Court confirming the Full Payment AppealSettlement Plan pursuant to Bankruptcy Code § 1129.

30. 27. Consummation means the occurrence of the Effective Date.

28. Creditor Trust means the trust established under the Full Payment Appeal Plan pursuant to the Creditor Trust Agreement. With respect to any action required or permitted to be taken by the Creditor Trust, the term includes the Creditor Trustee, or any other person authorized to take such action in accordance with the Creditor Trust Agreement.

29. Creditor Trust Agreement means the agreement governing the Creditor Trust to be implemented pursuant to the Full Payment Appeal Plan, which terms are consistent with the terms of the Full Payment Appeal Plan. The Creditor Trust Agreement will be filed in the Bankruptcy Cases as a Full Payment Appeal Plan Supplement Document at least ten (10) days prior to the Voting Deadline (unless already on file with the Bankruptcy Court or attached as Exhibits to the Full Payment Appeal Plan or this Disclosure Statement) provided, however, that the Debtors may amend the Full Payment Appeal Plan Supplement Documents through and including the Confirmation Date.

30. Creditor Trust Assets means the assets transferred to the Creditor Trust pursuant to the terms of this Full Payment Appeal Plan and the Creditor Trust Agreement. The Creditor Trust Assets are as follows: (i) $1,000,000, which represents its portion of the First Drury 9019 Payment, (ii) the Final Drury 9019 Payment; (iii) Royalty Payments; (iv) Patented Inventory; and (v) the Creditor Trust Note.

31. Creditor Trust Beneficiary(ies) or Trust Beneficiary(ies) means Holders of Allowed Judgment Claims in accordance with their treatment under this Full Payment Appeal Plan and the Creditor Trust Agreement.

32. Creditor Trust Collateral means the portion of the Drury 9019 Payment received by the Creditor Trust and the Equity Interests owned by the Drurys and pledged as part of the 9019 Settlement pursuant to the Stock Pledge Agreement.

33. Creditor Trust Note means that certain promissory note issued by the Reorganized Debtors to the Creditor Trust and included in the Full Payment Appeal Plan Supplement Documents. The Creditor Trust Note will be issued in the principal amount of the Allowed Class 9 Claims and will earn interest annually at the Full Payment Appeal Plan Interest Rate. The Creditor Trust Note will mature on December 28, 2028. Interest payments will be paid in arrears on a quarterly basis on the first Business Day of the next calendar month. Principal payments will be made to the Creditor Trust in the following amounts and on the following dates: (a) $1,000,000 on the later of (x) the Effective Date and (y) September 30, 2020, (b) $500,000 on a quarterly basis, starting on April 1, 2022, and each successive quarterly payment due on the first Business Day of the next calendar month, and (c) a balloon payment on December 28, 2028.

34. Creditor Trustee means the trustee of the Creditor Trust after his or her appointment pursuant to the Full Payment Appeal Plan and the Creditor Trust Agreement. The initial Creditor Trustee will be Dennis Faulkner.


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31. 35. Cure Claim means a Claim based upon eitheron any Debtor’s default on an Executory Contract or Unexpired Lease at the time such contract or lease is assumed by eithera Debtor pursuant to Bankruptcy Code § 365.

32. 36. Current Directors means the directors on the Board. The Current Directors will continue to serve the Debtors or Reorganized Debtors, as applicable, until the later of (a) payment in full of Allowed Class 9 Claims and (b) further Order of this Courtuntil replaced by the DBK Manager on the Effective Date.

33. DBK Industries means the manager-managed Texas limited liability company f/k/a DB Holdings, LLC to whom the Business Assets may be transferred and/or assigned free and clear of Liens, claims, interests, and encumbrances (except as otherwise provided in the Plan) on the Effective Date pursuant to the

34. DBK Manager means Benton Cantey who has been designated by the members of DBK Industries as the sole manager to oversee day-to-day operations and make business decisions for DBK Industries. The member interest of DBK Industries are anticipated to be split as follows: more than 50% by FW Diamondback Investors, LLC, a newly formed Texas entity; and the remaining member interests split evenly between Benton Cantey, Robert Boyce, Derrek Drury and Brian Gleason.

35. 37. Debtor means one of the Debtors, as applicable in the context.

36. 38. Debtors means, collectively, Diamondback Industries, Inc. (“Diamondback”); Discerner Holdings, Inc. (“Discerner Holdings”); and Discerner Investments, LLC (“Discerner Investments”).

37. 39. Diamondback means Diamondback Industries, Inc.

38. Diamondback Manufacturing Facility means the manufacturing facility located at 3824 Williamson Road, Crowley, Texas.

39. 40. Disputed Claim means a Claim in a particular Class as to which a Proof of Claim has been filed or is deemed to have been filed under applicable law or an Administrative Claim as to which an objection has been filed in accordance with the Full Payment AppealSettlement Plan, the Bankruptcy Code or the Bankruptcy Rules, and such objection has not been withdrawn or determined by a Final Order. For purposes of the Full Payment AppealSettlement Plan, a Claim is a Disputed Claim prior to any objection to the extent that: (a) the amount of a Claim specified in a Proof of Claim exceeds the amount of any corresponding Claim scheduled by the applicable Debtor in the Schedules of Assets and Liabilities; (b) any corresponding Claim scheduled by the applicable Debtor in the Schedules of Assets and Liabilities has been scheduled as disputed, contingent or unliquidated, irrespective of the amount scheduled; (c) no corresponding Claim has been scheduled by the applicable Debtor in the Schedules of Assets and Liabilities; or (d) the Claim is subject to disallowance pursuant to Bankruptcy Code § 502(d). The Debtors specifically denominate the following as Disputed Claims: (1) Claim No. 16 filed on September 8, 2020 by the IRS in the amount of $1,243,369.80 of which $1,218,309.58 is alleged to be entitled to priority status pursuant to § 507(a)(8) and $25,060.22 is alleged to be a General Unsecured Claim; and (2) Claim No. 38 filed by Starke Machine Company asserting an alleged General Unsecured Claim in the amount of $68,333.94.


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40. 41. Distribution Record Date means the Confirmation Date.

41. 42. Drurys means Derrek D. Drury, Laura M. Drury, the 2018 Irrevocable Trust FBO Derrek Drury, and the 2018 Irrevocable Trust FBO Laura Drury.

42. Drury Affiliates means AKOE, LLC and ATAR, LLC.

43. Drury 9019 Payment or 9019 Payment means $12,000,000.0015,600,000.00 to be paid by the Drurys to Repeat Precision for the benefit of the Bankruptcy Estates. $9,500,000.00 (the “First Drury 9019 Payment”) to implement the Repeat Settlement in full and complete satisfaction of the Allowed Class 9 Claim as follows: (a) $10,600,000.00 will be paid by the Drurys to the EstatesDebtors who will then pay same to Repeat Precision in Cash on the Effective Date. $2,500,000 (the “Final Drury 9019 Payment”) will be paid to the Creditor Trust within one year after the Effective Date. The Estates will use $7,500,000 of the First Drury 9019 Payment to pay their administrative expenses. UMB will receive its portion of the First Drury 9019 Payment ($1,000,000) as a payment on its Allowed Claim. The Creditor Trust will receive its portion of the First Drury 9019 Payment ($1,000,000) as collateral for payment of the disputed claims asserted against the Estates by the Judgment Creditors. The Final Drury 9019 Payment will also be collateral for payment of the disputed claims asserted against the Estates by the Judgment Creditors. as consideration for the Repeat Settlement; and (b) the Drurys will execute the $5,000,000 Drury/Repeat Note as set forth in the Repeat Settlement Agreement.

44. Drury/Repeat Note means that certain secured promissory note in the principal amount of $5,000,000 to be executed by Derrek Drury and Laura Drury attached as an exhibit to the Repeat Settlement Agreement.

45. 44. Drury Settlement means the proposed compromise and settlement between the Estates and the Drurys described in Article III.

46. 45. Effective Date means the date that is the first Business Day after the Confirmation Date, on which: (a) no stay of the Confirmation Order is in effect; and (b) all conditions precedent to the effectiveness of the Full Payment AppealSettlement Plan have been satisfied or waived as provided in the Full Payment AppealSettlement Plan.

47. 46. Entity means any Person, estate, trust, Governmental Unit, or United States trustee, as set forth in Bankruptcy Code § 101(15).

48. 47. Equipment Lender(s) means U.S. Bank National Association d/b/a U.S. Bank Equipment Finance (“U.S. Bank”) (acquired through assignment from Intech Funding Corp.), Toyota Commercial Finance and Wells Fargo Equipment Finance.

49. 48. Estate Property means all right, title, and interest in and to any and all property of every kind or nature, owned by either Debtor or their Estates on the Petition Date pursuant to, and as defined by, Bankruptcy Code § 541.

50. 49. Excess Cash Flow means, annually in March/April based on audited financial statements of DBK Industries for the prior year, the remainder of (a) EBITDA for such period, minus (a) distributable cash to each Holder of an Equity Interestholder of a(n) membership/equity interest in an amount sufficient to pay the federal and state income tax on the taxable income allocated to each


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Holder of an Equity Interestholder of a(n) membership/equity interest to pay taxes on the taxable income so allocated and not yet distributed minus (b) the sum, without duplication, of (i) scheduled repayments of principal of theto UMB DebtBank made during such period, plus (ii) voluntary prepayments of theto UMB Debt made during such period, plus (iii) capital expenditures and lease payments, plus (iv) net working-capital change (A/R less A/P), plus (v) all income taxes paid in cash by Reorganized Debtors during such period, plus (vi) cash interest expense of Reorganized DebtorsDBK Industries during such period.

51. Excluded Liabilities means all liabilities and obligations of the Debtors other than the Assumed Liabilities. DBK Industries does not assume (or intend to assume) or agree to pay, perform, fulfill or discharge any Excluded Liabilities.

52. 50. Exculpated Parties means, collectively, DBK Industries and the Debtors, and with respect to each of the foregoing Entities, any of their respective current officers, directors, Professionals, advisors, accountants, attorneys, investment bankers, consultants, employees, agents and other representatives (but solely in their capacity as such).

53. 51. Executory Contract means an executory contract or unexpired lease as such terms are used in Bankruptcy Code § 365, including all operating leases, capital leases, and contracts to which either Debtor is a party or beneficiary.

54. 52. Exhibit means an exhibit annexed to the Full Payment AppealSettlement Plan, as may be amended, modified or supplemented.

55. Exit Financer means Bank of Montreal.

56. 53. Exit Financing means the refinancing or modification of UMB’s Prepetition Credit Facility provided to the Debtors and Reorganized Debtorsby the Exit Financer pursuant to the Exit Financing Documents executed on Effective Date of the Full Payment AppealSettlement Plan. The general terms of that Exit Financing are as follows: (a) the debt loaned under the Exit Financing Documents will accrue interest at 5% per annum, and it will mature on December 15, 2022; and (b) that debt will be repaid by (b) principal payments in the following amounts and on the following dates: (i) $2,000,000 on the later of (x) September 30, 2020, and (y) the Effective Date; (ii) $1,000,000 on December 31, 2020, and (iii) $1,000,000 at end of each quarter, starting on March 31, 2021, and ending with a balloon payment on December 15, 2022. be Full Payment Settlement Plan Supplement Documents.

57. 54. Exit Financing Documents means those certain documents, including the credit agreement, security agreement and/or other loan documents related to or evidencing the loans, liens, collateral, and all terms, conditions, rights and obligations thereunder or in connection therewith, governing the Exit Financing, each in form and substance acceptable to the Debtors and UMB, andthe Exit Financer to be dated as of the Effective Date.

58. 55. Final Order means an order or judgment executed by the Bankruptcy Court and entered by the Clerk of the Bankruptcy Court on the docket in one or more of these Chapter 11 Bankruptcy Cases, as appropriate, (a) as to which any stay by rule (for example, Bankruptcy Rule 3020(e) and Bankruptcy Rule 7062) no longer stays such order or judgment, either because such rule has (i) expired, or (ii) been dispensed with or shortened by the Bankruptcy Court or other federal


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court with appropriate jurisdiction, or (b) if an appeal, writ of certiorari, new trial, reargument or rehearing has been sought, such order or judgment shall not be, or shall no longer be, subject to stay pending appeal, writ of certiorari, new trial, reargument or rehearing entered by the Bankruptcy Court or other federal court with appropriate jurisdiction. An order or judgment shall be deemed a Final Order notwithstanding the possibility that a motion may be filed relating to such order or judgment pursuant to Bankruptcy Code §502(j), Bankruptcy Rule 3008, Bankruptcy Rule 9024, Federal Rule of Civil Procedure 60, or any analogous statute or rule.

59. 56. Full Payment AppealSettlement Plan means the Chapter 11 Plan of Reorganization filed by the Debtors, as such document may be amended, modified or supplemented from time to time.

57. Full Payment Appeal Plan Interest Rate means .16% per annum, which was the federal judgment interest rate on July 3, 2020, per http://www.txnd.uscourts.gov/post-judgment-rates.

60. 58. Full Payment AppealSettlement Plan Supplement Document(s) means (a) the compilation of documents and forms of documents, schedules, and exhibits to the Full Payment AppealSettlement Plan, to be filed by the Debtors at least ten (10) days prior to the Voting Deadline or such later date as may be approved by the Bankruptcy Court on notice to parties in interest (unless already on file with the Bankruptcy Court or attached as Exhibits to the Full Payment AppealSettlement Plan or the Disclosure Statement) provided, however, that the Debtors may amend the Full Payment AppealSettlement Plan Supplement Documents through and including the Confirmation Date; and (b) any additional documents filed with the Bankruptcy Court prior to the Effective Date as amendments to the Full Payment AppealSettlement Plan Supplement Documents. The Full Payment AppealSettlement Plan Supplement Documents shall include the following (a) the 9019 Settlement Agreements; (b) the Stock Pledge Agreement; (c) the Exit Financing Documents; (c) the Drury/Repeat Note; (d) the Schedule of Rejected Executory Contracts and Leases; (e) the Creditor TrustRepeat Settlement Agreement; and (f) the UCC Notes; and (g) the Creditor Trust NoteAPA.

61. 59. General Unsecured Claim means an Unsecured Claim that is not: (a) an Administrative Claim; (b) a Professional Compensation Claim; (c) a Priority Tax Claim; (d) a Priority Non-Tax Claim; and (e) a Judgment Claim.

62. 60. Governmental Unit means any governmental unit, as defined in Bankruptcy Code § 101(27).

63. 61. Holder means (a) as to any Claim, (i) the owner or holder of such Claim as such is reflected on the Proof of Claim filed with respect to such Claim, or (ii) if no Proof of Claim has been filed with respect to such Claim, the owner or holder of such Claim as such is reflected on the Schedules or the books and records of the Debtors or as otherwise determined by order of the Bankruptcy Court, or (iii) if the owner or holder of such Claim has assigned or transferred the Claim to a third party and the Debtors have received sufficient written evidence of such assignment or transfer, the assignee or transferee; and (b) as to any Equity Interest, the record owner or holder of such Equity Interest as shown on the stock register that is maintained by the Debtors or as otherwise determined by order of the Bankruptcy Court.

64. 62. Impaired or Impairment means, with respect to a Class of Claims or Interests, a Class of Claims or Interests that is impaired within the meaning of Bankruptcy Code § 1124.


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63. Injunction Termination Date means the earlier of (a) January 1, 2029, and (b) when the Allowed UMB Claim and the Allowed Class 9 Claims are paid in full (the “Injunction Termination Date”).

65. 64. Insider has the meaning set forth in Bankruptcy Code § 101(31).

66. Intech means Intech Funding Corp.

67. Intech Secured Claim means the Allowed Secured Claim of Intech for the outstanding balance as of the Petition Date owed by Diamondback, as borrower, to Intech pursuant those certain prepetition agreements relating to equipment loans.

68. 65. Interest or Equity Interest means any ownership interest in a Debtor, as of the Petition Date, including, but not limited to, an interest in any issued, unissued, authorized or outstanding shares or stock, including ordinary shares, common stock, preferred stock, membership interests, units or other instrument evidencing any fixed or contingent ownership interest in the Debtor, whether or not transferable, together with any warrants, options, or contractual rights to purchase or acquire such interests at any time and all rights arising with respect thereto.

69. Injunction Termination Date means the later of (a) December 31, 2027, and (b) the date on which the Allowed UMB Claim is paid in full pursuant to this Plan.

70. 66. IRS means the Internal Revenue Service. Claim No. 16 filed on September 8, 2020 by the IRS in the amount of $1,243,369.80 of which $1,218,309.58 is alleged to be entitled to priority status pursuant to § 507(a)(8) and $25,060.22 is alleged to be a General Unsecured Claim is a Disputed Claim.

71. 67. Judgment Claim(s) means the Claim of the Judgment Creditors arising under the Patent Judgment.

72. 68. Judgment Creditors means Repeat Precision, NCS Multistage, LLC, and NCS Multistage Holdings, Inc.

73. 69. Judicial Code means title 28 of the United States Code, 28 U.S.C. §§ 1 – 4001.

74. 70. Lien means a lien, security interest, or other interest or encumbrance asserted against any Estate Property as defined in Bankruptcy Code § 101(37).

75. 71. Other Secured Claim means any Secured Claim that is not a UMB Claim, or a Secured Claim held by an Equipment Lender. Other Secured Claims shall not include any such claims secured by Liens that are avoidable, unperfected, subject to subordination, or otherwise unenforceable.

76. 72. Patent means that certain patent related to disposable setting tools used in the fracking business and assigned U.S. Patent Number 9,810,035 and commonly referred to by the Debtors and Repeat Precision as the “‘035 Patent.”

77. 73. Patented Inventory means Diamond Back’s SS 10 and SS 20 disposable-setting tool inventory that is subject to the permanent injunction issued by the District Court in the Patent


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Litigation.the eight (8) shipping containers of 1018 SS Tool Barrels and Mandrels to be conveyed to Repeat Precision pursuant to the Repeat Settlement which Diamondback will make available for pick up at the Diamondback Manufacturing Facility.

78. 74. Patent Judgment means that judgment for approximately $40 million entered against Diamondback in the Patent Litigation and in favor of the Judgment Creditors.

79. 75. Patent Judgment Appeal means the appeal of the Patent Judgment, pending in the United States Court of Appeals for the Federal Circuit arising out of the Patent Litigation.

80. 76. Patent License Agreement means that certain patent license agreementPatent License Agreement dated March 16, 2018 by and between Diamondback Industries, Inc. and Repeat Precision, LLC, as amended by that certain Amendment to Patent License Agreement and Right of First Refusal Agreement dated May 30, 2018 by and between Diamondback Industries, Inc., the shareholders of Diamondback Industries, Inc., and Repeat Precision, LLC pursuant to which Diamondback licenses certain rights to Repeat Precision in connection with a product known as a “disposable setting tool.”

81. 77. Patent Litigation means Case Nos. 20-1795 and 20-1796 tried before the United States District Court for the Western District of Texas, Waco Division.

82. 78. Person means and includes natural persons, corporations, limited partnerships, general partnerships, joint ventures, trusts, land trusts, business trusts, unincorporated organizations, or other legal entities, regardless of whether they are governments, agencies, or political subdivisions thereof.

83. 79. Petition Date means April 21, 2020, the date on which the Debtors commenced the Bankruptcy Cases.

84. Plan Administrator means the individual named and appointed in the Confirmation Order who will serve as a post-confirmation fiduciary to the Estates authorized to issue, execute, deliver, File, or record such contracts, securities, instruments, releases, and other agreements or documents and take such actions as may be necessary to effectuate, implement, and further evidence the terms and conditions of the Full Payment Settlement Plan, the Repeat Settlement, the Drury Settlement and the APA in the name of, and on behalf of, the Debtors; to resolve issues incident to the Excluded Liabilities; and to initiate, File, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any and all Causes of Action that the Debtors or their Estates may hold against any Entity not otherwise resolved in this Full Payment Settlement Plan.

85. Plan Administration Fund means the sum of $75,000.00 earmarked for the payment of the fees and expenses of the Plan Administrator incurred in fulfillment of his/her responsibilities under this Plan.

86. 80. Prepetition Credit Agreement means that certain credit agreement between the Debtors as borrowers and UMB as lender dated as of December 30, 2019.

87. 81. Prepetition Credit Facility means that senior secured term loan credit facility of up to $40 million under the Prepetition Credit Agreement, and secured by first priority liens on substantially all of the Debtors’ assets.


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88. 82. Prepetition Loan Documents means that Prepetition Credit Agreement and all other documents, instruments and agreements executed and/or delivered in connection with the foregoing for the Prepetition Credit Facility.

89. 83. Priority Non-Tax Claim means a Claim asserted under Bankruptcy Code §§ 507(a)(3-7 and 9-10).

90. 84. Priority Tax Claim means a Claim asserted under Bankruptcy Code § 507(a)(8).

91. 85. Pro Rata means the proportion that an Allowed Claim or an Allowed Interest in a particular Class bears to the aggregate amount of Allowed Claims or Allowed Interests in that Class.

92. 86. Professional means an Entity: (a) employed pursuant to a Bankruptcy Court order in accordance with §§ 327, 363, or 1103 of the Bankruptcy Code and to be compensated for services rendered prior to or on the Confirmation Date, pursuant to §§ 327, 328, 329, 330, 331, and 363 of the Bankruptcy Code; or (b) awarded compensation and reimbursement by the Bankruptcy Court pursuant to § 503(b)(4) of the Bankruptcy Code. For the avoidance of doubt, this term includes, but is not limited to, Professionals employed by the Debtors.

93. 87. Professional Compensation Claim means a Claim for compensation or reimbursement of expenses of a Professional incurred on and after the Petition Date and prior to the Effective Date, including fees and expenses incurred in preparing final fee applications and participating in hearings on such applications, and requested in accordance with the provisions of Bankruptcy Code § 326, 327, 328, 330, 331, 502(b), or 1103.

94. 88. Professional Compensation Claim Bar Date means forty-five (45) days after the Effective Date.

95. 89. Professional Compensation Claim Objection Deadline means twenty-one (21) days after the Professional Compensation Claim Bar Date.

96. 90. Proponent(s) means the Debtors, either individually or collectively, as the context requires.

97. 91. Proof of Claim means a proof of Claim filed against each Debtor in the Bankruptcy Cases by the applicable Bar Date.

98. 92. Real Property Improvements means the various improvements owned by the Debtors to the real estate located at 3824 Williamson Road, Crowley, Texas.

99. 93. Reinstate, Reinstated, or Reinstatement means, with respect to Claims and Interests, that the Claim or Interest shall be rendered Unimpaired in accordance with Bankruptcy Code § 1124.

100. 94. Released Party(ies) means, individually and collectively as the context requires, and solely in their capacities as such, (a) DBK Industries; (b) the Debtors, and (c) with respect to the Debtors, their Professionals, successors, assigns, subsidiaries, Affiliates, Current Directors and officers, employees, subcontractors, agents, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals, and such Entities’ respective heirs,


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executors, estates, servants, and nominees. For the avoidance of doubt, this term specifically excludes the Drurys.

101. 95. Releasing Party(ies) means the Holders of Claims or Interests in Classes 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 that are entitled to receive distributions under the Full Payment AppealSettlement Plan.

96. Reorganized Debtors means, collectively, the Debtors, or any successors or assigns, by merger, consolidation, or otherwise, on and after the Effective Date.

102. 97. Repeat Precision or Repeat means Repeat Precision, LLC.

98. Royalty Payments means royalty income due to the Debtors for sales by Repeat Precision of products covered by the ‘035 patent, including, without limitation, to the Purple Seal Express and RP disposable-setting tool products pursuant to the Patent License Agreement, and including funds held in the registry of the United States District Court for the Western District of Texas pursuant to the Patent Litigation.

103. Repeat Settlement means the proposed compromise and settlement between the Estates, the Judgment Creditors and the other named parties set forth in the Repeat Settlement Agreement described in Article III of this Plan.

104. Repeat Settlement Agreement means the Settlement Agreement implementing the Repeat Settlement executed by and between the Judgment Creditors, Robert Nipper, Gary Martin, Grant Martin, Diamondback, DBK Industries, Derrek Drury and Laura Drury, a true and correct copy of which is attached hereto as Exhibit “A.”

105. 99. Schedules means, collectively, the Schedule of Assets and Liabilities, Schedule of Equity Security Holders filed by the Debtors in the Bankruptcy Cases.

106. 100. Schedule of Assets and Liabilities means the schedules of assets and liabilities filed by the Debtors in the Bankruptcy Cases, as may be amended, modified, or supplemented.

107. 101. Schedule of Equity Security Holders means the schedule of Interests required to be filed pursuant to Bankruptcy Rule 1007(a)(3).

108. 102. Schedule of Rejected Contracts and Leases means the schedule of Executory Contracts and Unexpired Leases to be rejected by the Debtors, to be filed as an Exhibit to the Full Payment Appeal PlanAPA.

109. 103. Secured Claim means a Claim: (a) secured by a Lien on collateral to the extent of the value of such collateral, as determined in accordance with § 506(a) of the Bankruptcy Code or (b) subject to a valid right of setoff pursuant to § 553 of the Bankruptcy Code.

110. 104. Secured Tax Claim means a Secured Claim for taxes held by a Governmental Unit, including cities, counties, school districts, and hospital districts, (a) entitled by statute to assess taxes based on the value or use of real and personal property and to obtain an encumbrance against such property to secure payment of such taxes or (b) entitled to obtain an encumbrance on property to secure payment of any tax claim specified in Bankruptcy Code § 507(a)(8). Secured Tax Claims shall


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not include any such Claims secured by liens / security interests that are avoidable, unperfected, subject to subordination, or otherwise unenforceable.

111. 105. Securities Act means the Securities Act of 1933, as amended, 15 U.S.C. §§ 77a-77aa, or any similar federal, state, or local laws or regulations.

106. Stock Pledge Agreement means the agreement between the Creditor Trust and the Drurys that pledges one-hundred percent (100%) of the Equity Interests in the Debtors owned by the Drurys to the Creditor Trust, pending final adjudication or other resolution of the Patent Judgment Appeal.

112. 107. Subordinated Claim means a Claim that is subordinated to General Unsecured Claims pursuant to (a) a contract or agreement, (b) a Final Order declaring that such Claim is subordinated in right or payment, or (c) any applicable provision of the Bankruptcy Code, including Bankruptcy Code § 510, or other applicable law. Subordinated Claims specifically include any Claim for punitive damages provided for under applicable law.

113. 108. Toyota means Toyota Commercial Finance.

114. 109. Toyota Secured Claim means the Claim of Toyota for the outstanding balance as of the Petition Date owed by Diamondback, as borrower, to Toyota pursuant those certain prepetition agreements relating to equipment loans.

110. UCC Note Down Payment means the payment made to each Holder of an Allowed Class 8 Claim in the amount of 20% of its Allowed Class 8 Claim. The UCC Note Down Payment will be paid on the later of the Effective Date and September 30, 2020.

111. UCC Note(s) means those certain unsecured promissory notes to be executed and delivered by the Reorganized Debtors to each Holder of an Allowed Class 8 Claim in the original principal amount equal to each Class 8 Creditor’s Allowed Claim. Each UCC Note will earn interest at the Full Payment Appeal Plan Interest Rate, be amortized over two (2) years, and pay principal payments on a quarterly basis, beginning on December 31, 2020, and ending on December 31, 2022. A copy of the UCC Note will be a Full Payment Appeal Plan Supplement Document.

115. 112. UMB or UMB Bank means UMB Bank, N.A.

113. UMB Debt means the amount owed to UMB by the Reorganized Debtors upon the Effective Date of the Full Payment Appeal Plan, which will include the UMB Claim.

116. 114. UMB Allowed Claim means UMB’s Claim for the outstanding balance owed by the Debtors, as borrowers, to UMB, as the prepetition secured lender, pursuant those certain Prepetition Loan Documents in connection with the Prepetition Credit Facility of the Effective Date in the amount of $20,285,398.67.

117. 115. UMB SettlementTreatment means the proposed compromise and settlement between the Estates and UMB alternatives for treatment of the UMB Allowed Claim described in Article III.


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118. U.S. Bank means U.S. Bank National Association d/b/a U.S. Bank Equipment Finance

119. 116. U.S. Bank Secured Claim means the Allowed Secured Claim of U.S. Bank for the outstanding balance as of the Petition Date owed by Diamondback, as borrower, to U.S. Bank pursuant to those certain prepetition agreements relating to equipment loans acquired through assignment from Intech Funding Corp.

120. U.S. Bank Settlement means the proposed compromise and settlement between the Estates and U.S. Bank described in Article V(c)(5).

121. 117. Unexpired Lease means a lease to which either Debtor is a party that is subject to assumption or rejection under Bankruptcy Code § 365.

122. 118. Unimpaired means, with respect to a Class of Claims or Interests, a Class of Claims or Interests that is not impaired within the meaning of Bankruptcy Code § 1124.

123. 119. Unsecured Claim means a Claim that is not a Secured Claim and that is not entitled to priority under Bankruptcy Code § 507(a)(1-9). The term specifically includes, pursuant to Bankruptcy Code § 506(a), any Claim of a creditor against either Debtor to the extent that such creditor’s Claim is greater than the value of the Lien securing such Claim, any Claim for damages resulting from rejection of any Executory Contract or Unexpired Lease under Bankruptcy Code § 365, any tort Claims or contractual Claims or Claims arising from damage or harm to the environment and, and any Claim not otherwise classified under the Full Payment AppealSettlement Plan.

124. 120. Wells Fargo means Wells Fargo Equipment Finance.

125. 121. Wells Fargo Agreements means the following agreements between the Debtor, as lessee or debtor, and Wells Fargo, as assignee of, and successor-in-interest to, Intech, as lessor or creditor: Equipment Lease Agreement No. XXXX2285 dated as of May 9, 2017, Equipment Finance Agreement No. XXXX3233 dated as of February 23, 2018 and amended as of February 26, 2018, and Equipment Finance Agreement No. XXXX3237 dated as of February 23, 2018 and amended as of February 26, 2018.

126. 122. Wells Fargo Collateral means the “Equipment” as defined in, and subject to, the Wells Fargo Agreements, including (a) three (3) Doosan Puma 4100B high performance turning centers with FANUC Oi-T control, chip conveyor, high pressure coolant, tooling package and all standard equipment, serial nos. ML0278-000114, ML0278-000115, and ML0278-000116, (b) one (1) demo Doosan Puma TT2500SY turning center with FANUC 31i-B control, turbo side discharge chip conveyor w/variable speed drive and M-code capability, 7.073.608 adjustable angle live tooling head, S30 push to close dead length collet chuck 3” bar capacity, chip BLASTER modular 1,000 PSI 2-20 GPM automatic variable flow coolant system and all standard equipment, serial no. ML0186-000256, and (c) one (1) Doosan PUMA GT3100L horizontal turning center with FANUC 0i-T control, turbo side discharge chip conveyor w/variable speed drive and M-code capability, ChipBLASTER 1,000 PSI 8 GPM fixed rate coolant system w/dual 5 micron pleated cartridge filters and all standard equipment, serial no. ML0313-000137.


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127. 123. Wells Fargo Secured Claim means the Claim of Wells Fargo for the outstanding balance as of the Petition Date owed by Diamondback, as borrower, to Wells Fargo pursuant to those certain prepetition agreements relating to equipment loans.

128. 124. Wells Fargo Settlement means the proposed compromise and settlement between the Estates and Wells Fargo described in Article V(c)(5).

B. Rules of Interpretation and Construction of Terms

For purposes of this Full Payment AppealSettlement Plan: (1) any reference in this Full Payment AppealSettlement Plan to a contract, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions; (2) any reference in this Full Payment AppealSettlement Plan to an existing document or Exhibit filed or to be filed means that document or Exhibit as it may have been or may be amended, supplemented, or otherwise modified; (3) unless otherwise specified, all references in this Full Payment AppealSettlement Plan to Sections or Articles are references to Sections or Articles of or to this Full Payment AppealSettlement Plan; (4) the words “herein,” “hereto,” “hereunder,” and other words of similar import refer to this Full Payment AppealSettlement Plan in its entirety rather than to a particular portion of this Full Payment AppealSettlement Plan; (5) captions and headings contained in the Full Payment AppealSettlement Plan are inserted for convenience and reference only, and are not intended to be part of or to affect the interpretation of the Full Payment AppealSettlement Plan; (6) wherever appropriate from the context, each term stated in either the singular or the plural includes the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and neuter gender; (7) any reference to an Entity as a Holder of a Claim or Interest includes the Entity’s successors and assigns; (8) any reference to docket numbers of documents filed in the Bankruptcy Case are references to docket numbers under the Bankruptcy Court’s CM/ECF system; and (9) the rules of construction set forth in Bankruptcy Code § 102 and the Bankruptcy Rules shall apply.

C. Computation of Time

All times referenced in this Full Payment AppealSettlement Plan are prevailing Central Time. In computing any period of time, date, or deadline prescribed or allowed in the Full Payment AppealSettlement Plan, the provisions of Bankruptcy Rule 9006(a) shall apply. If the date on which a transaction may or must occur pursuant to the Full Payment AppealSettlement Plan shall occur on a day that is not a Business Day, then such transaction shall instead occur on the next succeeding Business Day.

D. Governing Law

Subject to the provisions of any contract, certificate of incorporation, by-law, instrument, release, or other agreement or document entered into in connection with the Full Payment AppealSettlement Plan, the rights and obligations arising pursuant to the Full Payment AppealSettlement Plan shall be governed by, and construed and enforced in accordance with, applicable federal law, including the Bankruptcy Code and the Bankruptcy Rules.


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E. Reference to Monetary Figures

All references in the Full Payment AppealSettlement Plan to monetary figures shall refer to currency of the United States of America, unless otherwise expressly provided.

F. Incorporation of Documents by Reference

This Full Payment AppealSettlement Plan incorporates by reference certain documents relating to the Debtors that are not presented herein or delivered herewith. The documents that have been filed in the Bankruptcy Case are incorporated by reference herein in their entirety, including all amendments thereto filed prior to the date set for Confirmation, including the following documents: (a) the Debtors’ Schedules of Assets and Liabilities and all amendments thereto and (b) the Statements of Financial Affairs, including exhibits. Documents and pleadings filed in the Bankruptcy Case may be downloaded from the website maintained by the Debtors’ notice and claim agent, Bankruptcy Management Solutions, Inc. d/b/a Stretto at https://cases.stretto.com/diamondback.

ARTICLE III. COMPROMISES AND SETTLEMENTS OF DISPUTES

A. Settlement Authority

Pursuant to Bankruptcy Rule 9019(b), the Debtors may compromise and settle various Claims and Causes of Action against the Debtors and Claims and Causes of Action that the Debtors may have against any Entity. The Confirmation Order shall authorize, and constitute Bankruptcy Court approval of, the compromises and settlements in this Full Payment AppealSettlement Plan pursuant to Bankruptcy Rule 9019(b) and § 1123(b)(3) of the Bankruptcy Code. The Debtors reserve the right to modify the Full Payment AppealSettlement Plan to the extent any compromise and settlement described in this Full Payment AppealSettlement Plan is not approved by the Bankruptcy Court, in whole or in part.

B. UMBDrury Settlement

UMB asserts a Secured Claim against the Estates in an amount at least equal to $20,127,415.44. UMB asserts that its Claim against the Estates continues to accrue to include, among other things, contract-interest at the default rate and collection fees and charges, including attorney’s fees, as Administrative Claims. To secure repayment of that Claim, UMB asserts a security interest and lien in certain Estate assets. The Debtors do not dispute the amount of UMB’s asserted Secured Claim against the Estates; however, the Debtors do dispute certain aspects of the Administrative Claims asserted or that might be asserted by UMB.

Diamondback reported net income of $25,889,000 in 2018 and $13,286,000 in 2019. Because the Drurys own all Interests in Discerner Holdings, and Discerner Holdings owns all Interests in Diamondback, the Drurys received $22,040,000 in distributions from the Debtors related to 2019.

Repeat Precision has demanded that the Debtors investigate and pursue alleged fraudulent-transfer claims under asserted that a portion of such equity distributions made from funds received from UMB in 2020, $13.6 million, are fraudulent transfers under §§ 544 and 548 of the Bankruptcy Code and Texas Uniform Fraudulent TransferTransfers Act against UMB. Repeat Precision has also requested that the Court lift the automatic stay to allow Repeat Precision to bring its own Texas


https://cases.stretto.com/diamondback

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Uniform Fraudulent Transfer Act Causes of Action against UMB. Repeat Precision has also initiated an adversary proceeding against UMB (i) challenging whether UMB has lien rights in certain Estate assets and (ii) asserting tortious-interference demanded that the Debtors investigate and pursue the alleged fraudulent-transfer claims against UMBthe Drurys and the Drury Affiliates.

The Board has investigated the fraudulent-transfer allegations. Based on that investigation, the Board has decided to settle all Estate disputes with UMBfraudulent-transfer disputes and new-value requirements with the Drurys and the Drury Affiliates. Repeat Precision has agreed to the Drury Settlement and the terms of the Drury Settlement are incorporated into the Repeat Settlement Agreement. This settlement is a product of good-faith, arms-length negotiations and will avoid the expense, inconvenience, delay, and uncertainty of further prosecuting, disputing, or pursuing the Claims and Causes of Action by and against UMBthe Drurys, the Drury Affiliates and the Estates. A 9019The Repeat Settlement Agreement will be, which is inclusive of the material terms of the Drury Settlement, has been executed by (among other parties) the Estates and UMB, the Drurys, Repeat, and DBK Industries and will be a Full Payment AppealSettlement Plan Supplement Document. The UMBDrury Settlement will be announced on the record and shown at the Confirmation Hearing to be fair and equitable and in the best interests of the Estates and their stakeholders. Significant terms of that compromise and settlement with UMBthe Drurys are as follows:

1. Settlement Payment. The Drurys will make the Drury 9019 Payment.

1. On the Effective Date, UMB shall have (collectively, the

“UMB Allowed Claim”) (a) an Allowed Class 2 Claim in the amount of $20,019,697.21 and (b) an Allowed Administrative Claim in the amount of (x) all unpaid interest at the default rate accrued from the Petition Date to the Effective Date as provided in the Prepetition Loan Documents and (y) all attorney’s fees incurred by UMB’s counsel in this Case from the Petition Date to the Effective Date in an amount determined by this Court as actual and necessary pursuant to § 503(b). For avoidance of doubt, the Allowed Administrative Claim portion of the UMB Allowed Claim will be paid when all other Professional Compensation Claims are paid.

2. That Allowed Class 2 Claim will be paid in full by UMB’s receipt of its portion of the FirstSettlement Payment Allocation. $10,600,000.00 of the Drury 9019 Payment and pursuant to the Exit Financing Documentswill be paid to the Debtors on the Effective Date, and the Debtors will then pay or direct the $10,600,000.00 in Cash to be paid to Repeat Precision for the benefit of the Estates.

3. Under the Exit Financing Documents, the Allowed Class 2 Claim will accrue interest at 5% per annum. The Reorganized Debtors will make payments as follows: (a) monthly interest payments, starting on October 31, 2020, and continuing every thirty (30) days until the Exit Facility


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is paid in full, and (b) principal payments to UMB of $2,000,000.00 on or before September 30, 2020, and $1,000,000.00 on or before December 31, 2020. The Reorganized Debtors will also make regular quarterly principal payments in the amount of $1,000,000.00, starting on March 30, 2021, and ending on September 30, 2022.

4. The Exit Facility will mature on December 15, 2022.

5. UMB shall not have a Lien on the Real Property Improvements, the Patent, the Royalty Payments, the Patent Inventory, and Avoidance Actions (collectively, the “Released Liens”). To the extent UMB presently has a Lien on such assets, such Lien(s) shall be deemed released effective on the Effective Date.

3. Additional Consideration: the Drury/Repeat Note. In addition to the Drury 9019 Payment, the Drurys will execute the Drury/Repeat Note, guaranteed by the Drury Affiliates, which will pledge significant property that the Drurys own as collateral for the payment of an additional $5,000,000.00 pursuant to the Repeat Settlement in full and final satisfaction of the Claims asserted against the Estates by the Judgment Creditors. The terms and conditions of the Drury/Repeat Note will be stated therein, and the Drury/Repeat Note is attached as an exhibit to the Repeat Settlement Agreement and will be a Full Payment Settlement Plan Supplement Document.

6. Other than Released Liens, the UMB Class 2 Claim shall

be secured by UMB’s existing Liens in substantially all assets of the Reorganized Debtors (the “Retained Liens”), and such Retained Liens will be described in the Exit Financing Documents. Such Retained Liens are not compromised or released as part of this Settlement. The Exit Financing Documents may include such documents as are necessary to affirm and/or perfect the Retained Liens, in UMB’s discretion.

4. Releases. IN EXCHANGE FOR THE DRURY 9019 PAYMENT AND THE EXECUTION OF THE DRURY/REPEAT NOTE, THE DRURYS AND THE DRURY AFFILIATES WILL RECEIVE A RELEASE FROM THE ESTATES, THE JUDGMENT CREDITORS, AND THE ADITIONAL NAMED SIGNATORIES TO THE REPEAT SETTLEMENT AGREEMENT OF ALL CLAIMS AND CAUSES OF ACTION EACH OTHER HOLDS OR OWNS AGAINST THE DRURYS AND THE DRURY AFFILIATES AS SET FORTH IN ¶4.1 AND 4.2 OF THE REPEAT SETTLEMENT AGREEMENT.


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7. THE DEBTORS, REORGANIZED DEBTORS, THE

ESTATES, AND EACH HOLDER OF A CLAIM THAT DOES NOT VOTE OR DOES NOT VOTE TO REJECT THE FULL PAYMENT APPEAL PLAN, SHALL RELEASE UMB OF AND FROM ANY CLAIMS, ACTIONS, DEMANDS, AND CAUSES OF ACTION, ASSERTED OR UNASSERTED RELATING IN ANY WAY TO UMB’S LENDING RELATIONSHIP WITH THE DEBTORS, THE REORGANIZED DEBTORS, AND/OR THE ESTATES, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ASSERTED OR THAT COULD HAVE BEEN ASSERTED IN THE BANKRUPTCY CASES, OR ARISING OUT OF OR IN ANY WAY RELATED TO THE NEGOTIATION, FORMULATION, OR PREPARATION OF THE FULL PAYMENT APPEAL PLAN, THE BANKRUPTCY CASE, AS WELL AS CLAIMS ARISING UNDER ANY CIRCUMSTANCE KNOWN AND EXISTING AS OF CONFIRMATION, SAVE AND EXCEPT FOR THE OBLIGATIONS SPECIFICALLY OUTLINED UNDER THE FULL PAYMENT APPEAL PLAN, AND ANY CLAIMS AND/OR CAUSES OF ACTION, THAT ARE OR MAY BE RELATED TO ANY BREACH, ENFORCEMENT, OR INTERPRETATION OF THE FULL PAYMENT APPEAL PLAN OR THE OBLIGATIONS OF THE PARTIES THEREUNDER; PROVIDED, HOWEVER, THAT THE RELASE FROM THE JUDGMENT CREDITORS SHALL NOT BECOME EFFECTIVE UNTIL ALLOWED CLASS 9 CLAIMS ARE PAID IN FULL; PROVIDED, FURTHER, HOWEVER, THAT THE JUDGMENT CREDITORS WILL BE ENJOINED FROM PURSUING ANY LEGAL ACTION AGAINST UMB UNDER ANY CAUSE OF ACTION RELATED, IN ANY WAY, TO THE PREPETITION CREDIT FACILITY AND THESE BANKRUPTCY CASES UNTIL THE INJUNCTION TERMINATION DATE, WITH ALL APPLICABLE STATUTES OF LIMITATION TOLLED UNTIL ONE (1) YEAR AFTER THE INJUNCTION TERMINATION DATE.

5. Abatement / Temporary Injunction. The Drurys shall be bound and protected by an injunction preventing or abating litigation by or against the Drurys until the Injunction Termination Date. The statutes of limitation for any Cause of Action by or


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against the Drurys are tolled until one year after the Injunction Termination Date.

8. OTHER THAN THE ALLOWED CLASS 2 CLAIM,

WHICH WILL BE PAID PURSUANT TO THIS FULL PAYMENT APPEAL PLAN, UMB SHALL RELEASE THE ESTATES OF AND FROM ANY CLAIMS, ACTIONS, DEMANDS, AND CAUSES OF ACTION, ASSERTED OR UNASSERTED, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ASSERTED OR THAT COULD HAVE BEEN ASSERTED IN THE BANKRUPTCY CASES, OR ARISING OUT OF OR IN ANY WAY RELATED TO THE NEGOTIATION, FORMULATION, OR PREPARATION OF THE FULL PAYMENT APPEAL PLAN, THE BANKRUPTCY CASE, AS WELL AS CLAIMS ARISING UNDER ANY CIRCUMSTANCE KNOWN AND EXISTING AS OF CONFIRMATION, SAVE AND EXCEPT FOR THE OBLIGATIONS SPECIFICALLY OUTLINED UNDER THE FULL PAYMENT APPEAL PLAN, AND ANY CLAIMS AND/OR CAUSES OF ACTION, THAT ARE OR MAY BE RELATED TO ANY BREACH, ENFORCEMENT, OR INTERPRETATION OF THE FULL PAYMENT APPEAL PLAN OR THE OBLIGATIONS OF THE PARTIES THEREUNDER.

9. Nothing in this Full Payment Appeal Plan shall impair or alter UMB’s rights to pursue recovery of any Claim that it has against the Drurys or any other guarantor or pledger of assets supporting repayment of the Prepetition Credit Facility as modified under the Plan. The Debtors, the Reorganized Debtors, and the Estates shall use reasonable efforts to cause all such guarantors and/or pledgors to execute such consents, affirmations, or other documents that UMB deems necessary and/or appropriate to give effect to UMB’s enforcement rights against such guarantors and/or pledgors. Any failure by the Debtors, the Reorganized Debtors, and the Estates to comply with this provision shall constitute an event of default under the Full Payment Appeal Plan and vest UMB with enforcement rights and remedies available under applicable law.

The Debtors believe that the terms of the UMBDrury Settlement are fair and equitable and in the best interests of the Estates. As a result, the UMBDrury Settlement should be approved by the Bankruptcy Court in the Confirmation Order pursuant to Bankruptcy Rule 9019(b) and § 1123(b)(3) of the Bankruptcy Code.


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C. DruryD. Repeat Settlement The deterioration of the business relationship between Repeat Precision and Diamondback

has given rise to a myriad of prepetition and postpetition disputes between the parties primarily related to and arising from the Patent, the Patent License Agreement, the Patented Inventory, the scope and existence of future rights to practice the Patent, and matters incident to the Patent Judgment Appeal arising from the Patent Judgment issued in the Patent Litigation. To date in these Chapter 11 cases, litigation between the Debtors and Repeat has been contentious and expensive.

Diamondback reported net income of $25,889,000 in 2018 and $13,286,000 in 2019. Because the Drurys own all Interests in Discerner Holdings, and Discerner Holdings owns all Interests in Diamondback, the Drurys received $22,040,000 in distributions from the Debtors related to 2019.

Repeat Precision has asserted that a portion of such equity distributions made from funds received from UMB in 2020 in the amount of $13.6 million, are fraudulent transfers under §§ 544 and 548 of the Bankruptcy Code and Texas Uniform Fraudulent Transfers Act. Repeat Precision has also demanded that the Debtors investigate and pursue the alleged fraudulent-transfer claims against the Drurys.

The Board has analyzed and investigated the fraudulent-transfer allegations, disputes and potential Causes of Action against Repeat, including but not limited to matters arising from the Patent, and the pros and cons of continuing to prosecute the Patent Judgment Appeal. Based on that investigation, the Board has decided to settle all fraudulent-transferEstate disputes and new-value requirements with the DrurysRepeat. This settlement is a product of extensive good-faith, arms-length negotiations and will avoid the expense, inconvenience, delay, and uncertainty of further prosecuting, disputing, or pursuing the Patent Judgment Appeal as well as other Claims and Causes of Action by and against the Drurys and the Estates. A 9019Subject to approval of this Court via Confirmation of this Plan, the Repeat Settlement Agreement will behas now been executed by the Estates and, Repeat, DBK Industries, the Drurys and bethe other named signatories thereto. The Repeat Settlement Agreement is a Full Payment AppealSettlement Plan Supplement Document. The Drury Settlement, will be announced on the record and shown at the Confirmation Hearing to be fair and equitable and in the best interests of the Estates and their stakeholders. Significant terms of thatRepeat Precision’s alleged independent claims against UMB, if any, are not affected by the Repeat Settlement; Diamondback will not participate in the prosecution of any such claims. A copy of the Repeat Settlement Agreement is attached hereto as Exhibit “A;” a summary of certain significant terms of the compromise and settlement with the DrurysRepeat, including paragraph references to the pertinent provisions of the Repeat Settlement Agreement, are as follows:

1. Settlement Payment. The Drurys will make the Cash payment

of $15 million to Repeat Precision on or as soon as reasonably practicable after the Effective Date of the Plan (payable $10.6 million from the Drurys and $4.4 million from the Debtors), plus release to Repeat of the funds held in the registry of the United States District Court for the Western District of Texas pursuant to the Patent Litigation in the approximate amount of $450,000.00. See §2.2 of the Repeat Settlement PaymentAgreement.

2. Settlement Payment Allocation. $7,500,000 of the First Drury

Settlement Payment will be retained by the Estates to pay their administrative expenses and to fund operations on a go-forward


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basis, $1,000,000 will be paid to UMB on its Allowed Class 2 Claim, and $1,000,000 will be paid to the Creditor Trust as collateral for the disputed Class 9 Claims. The Creditor Trust will also receive the Final Drury Payment as collateral for the disputed Class 9 Claims. $2,500,000 will be paid to the Creditor Trust within one year of the Effective Date. Assignment of the Patent; Termination of the Patent License Agreement. Diamondback will assign the Patent to Repeat, the Patent License Agreement will be terminated, and neither Repeat nor Diamondback will have any further or ongoing obligations under the Patent License Agreement. See §3.1 and 3.2 of the Repeat Settlement Agreement.

3. Additional Collateral. In addition to the initial $1,000,000

payment to the Creditor Trust, the Drurys will pledge 100% of the Equity Interests in the Debtors that they own as collateral for the payment of the Disputed Claims asserted against the Estates by the Judgment Creditors. The terms and conditions of that “stock pledge” will be addressed in a Stock Pledge Agreement, which will be a Full Payment Appeal Plan Supplement Document. Because the Drurys had pledged 100% of the Equity Interests that they own in the Debtors as collateral for the Prepetition Credit Facility, this pledge to the Judgment Creditors shall be and remain subordinate to UMB’s rights and interests until the UMB Allowed Claim is repaid in full.

3. Drury/Repeat Note. The Drurys will execute the Drury/Repeat Note. Execution of the Drury/Repeat Note is (a) a material term of the Repeat Settlement and (b) additional consideration for the Drury Settlement. See §2.1 of the Repeat Settlement Agreement.

4. Abatement/Injunction of Certain Litigation. The Drurys,

UMB, the Reorganized Debtors, and the Judgment Creditors (other than prosecution of the appeal of the Patent Litigation or the Patent Judgment Appeal) shall be bound and protected by an injunction preventing litigation by or against UMB, the Judgment Creditors, and the Drurys until the Injunction Termination Date. The statutes of limitation for any Cause of Action by or against the Estates, the Drurys, UMB, and the Judgment Creditors are tolled until one year after the Injunction Termination Date. For the avoidance of doubt, this injunction shall not enjoin the appeal of the Patent Litigation or any enforcement action against Repeat Precision if it fails to make the Royalty Payment; in which case, the Reorganized Debtors may sue Repeat Precision in the Bankruptcy Court or any other court of competent jurisdiction to recover the Royalty Payment and other damages.

4. Per-Tool Payments. Diamondback will pay to Repeat Precision the amount of $9.00/specified setting tool unit sold, up to an aggregate amount of $5 million. See §2.4 of the Repeat Settlement Agreement.


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5. Prohibition of Transfer of Certain Drurys’ Property. Until the

Injunction Termination Date, the Drurys are allowed to pay for reasonable living expenses, taxes, existing contractual obligations, debts reasonably arising in connection with existing contractual obligations and investments, accounting and other professional fees and costs, and expenses that would be considered ordinary operating expenses, but they are enjoined from transferring personal assets without the Bankruptcy Court’s permission; provided however, the Drurys may transfer assets for fair market value to third parties after reasonable notice to the Debtors and their independent Board. Dismissal of the Patent Judgment Appeal. On or as soon as reasonably practicable after the Effective Date, Diamondback will dismiss with prejudice the Patent Judgment Appeal. See §4.6 of the Repeat Settlement Agreement.

6. Conveyance of Patented Inventory. Diamondback will convey

to Repeat Precision the Patented Inventory. See §2.3 of the Repeat Settlement Agreement.

7. Post-confirmation Business Cooperation; Covenants Not to

Sue. Diamondback and Repeat have covenanted and agreed to material, mutually beneficial provisions regarding their post-confirmation business relationship including covenants not to sue. See §3.1-3.10 of the Repeat Settlement Agreement.

78. Releases. IN EXCHANGE FOR THE SETTLEMENT

PAYMENT AND THE EXECUTION OF THE STOCK PLEDGE AGREEMENT, THE DRURYS WILL RECEIVE A RELEASE FROM THE ESTATES, UMB, AND THE JUDGMENT CREDITORSCONSIDERATION EXCHANGED UNDER THE REPEAT SETTLEMENT, DBK INDUSTRIES, THE DEBTORS AND THE ESTATES, ON THE ONE HAND, AND THE JUDGMENT CREDITORS, ON THE OTHER HAND, WILL EXECUTE MUTUAL RELEASES OF ALL CLAIMS AND CAUSES OF ACTION EACH OTHER HOLDS OR OWNS AGAINST THE DRURYS; PROVIDED, HOWEVER, THAT THE DRURYS WILL NOT RECEIVE A RELEASE FROM THE ESTATES, UMB, OR THE JUDGMENT CREDITORS UNTIL ALL ALLOWED CLAIMS, INDIVIDUALLY, ARE PAID IN FULL.OTHER AS SET FORTH IN ¶4.1 AND 4.2 OF THE REPEAT SETTLEMENT AGREEMENT.

The Debtors believe that the terms of the DruryRepeat Settlement are fair and equitable and

in the best interests of the Estates. As a result, the DruryRepeat Settlement should be approved by the Bankruptcy Court in the Confirmation Order pursuant to Bankruptcy Rule 9019(b) and § 1123(b)(3) of the Bankruptcy Code.


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ARTICLE IV.

ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS

In accordance with Bankruptcy Code § 1123(a)(1), Administrative Claims, Professional Compensation Claims, and Priority Tax Claims have not been classified for purposes of voting on, or receiving distributions under, the Full Payment AppealSettlement Plan, and, thus, are excluded from the Classes of Claims and Interests set forth in Article III hereof.

A. Administrative Claims

Unless otherwise agreed to by the Holder of an Allowed Administrative Claim and the Reorganized Debtors, each Holder of an Allowed Administrative Claim (other than Holders of Professional Compensation Claims, and Claims for fees and expenses pursuant to § 1930 of chapter 123 of title 28 of the United States Code) will receive in full and final satisfaction of its Administrative Claim an amount of Cash equal to the amount of such Allowed Administrative Claim in accordance with the following: (i) if an Administrative Claim is Allowed on or prior to the Effective Date, on the Effective Date or as soon as reasonably practicable thereafter; or (ii) if such Administrative claim is not Allowed as of the Effective Date, no later than ten (10) days after the date on which an order allowing such Administrative Claim becomes a Final Order, or as soon as reasonably practicable thereafter. Notwithstanding anything contained in this Article, the Debtors shall continue paying their employees, utilities, insurance finance premiums, and other workforce and insurance obligations in accordance with the Bankruptcy Court’s orders and approved practices. For the avoidance of doubt, to the extent a Holder of an Administrative Claim is not being paid by the Debtors in the ordinary course, such Holder must File a request for payment of such Administrative Claim by the Administrative Claim Bar Date as set forth below.

Except for Professional Compensation Claims, and unless previously filed, requests for payment of Administrative Claims must be filed and served on the Reorganized DebtorsDBK Industries no later than the Administrative Claim Bar Date. Objections to such requests must be filed and served on the Reorganized DebtorsDBK Industries and the requesting party by the later of (i) thirty (30) days after the Effective Date; or (ii) thirty (30) days after the Filing of the applicable request for payment of the Administrative Claims, if applicable. After notice and a hearing in accordance with the procedures established by the Bankruptcy Code and prior Bankruptcy Court orders, the Allowed amounts, if any, of Administrative Claims shall be determined by, and satisfied in accordance with a Final Order of, the Bankruptcy Court.

Holders of Administrative Claims that are required to File and serve a request for such payment of such Administrative Claims that do not File and serve such request by the Administrative Claim Bar Date shall be forever barred, estopped, and enjoined from asserting such Administrative Claims against the Reorganized Debtors or their propertyEstates and DBK Industries, and such Administrative Claims shall be deemed discharged as of the Effective Date without the need for any objection from the Reorganized Debtors or any action by the Bankruptcy Court.

B. Professional Compensation Claims

All requests for payment of Professional Compensation Claims for services rendered and reimbursement of expenses incurred prior to the Effective Date must be filed no later than the


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Professional Compensation Claim Bar Date. Objections to Professional Compensation Claims must be filed and served on the Reorganized DebtorsDBK Industries and the Professional to whose application the objections are addressed no later than the Professional Compensation Claim Objection Deadline. The Bankruptcy Court shall determine the Allowed amounts of such Professional Compensation Claims after notice and hearing in accordance with the procedures established by the Bankruptcy Court, including the Compensation Procedures as set forth and defined in the Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals. Allowed Professional Compensation Claims shall be paid by the Reorganized DebtorsDBK Industries in Cash within ten (10) days of the entry of a Final Order allowing such Claims.

C. Priority Tax Claims

Except (a) to the extent that the Holders of Allowed Priority Tax Claims have not already been paid, satisfied or otherwise released prior to the Effective Date, and (b) to the extent that a Holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, then in full and final satisfaction, settlement, release, and discharge of, and in exchange for each Allowed Priority Tax Claim, each Holder of Allowed Priority Tax Claim shall receive from the applicable Reorganized DebtorDBK Industries on the later of (i) the Effective Date; (ii) the date such Priority Tax Claim becomes an Allowed Claim; (iii) the date on which such Allowed Priority Tax Claim first becomes due and payable; or (iv) as soon thereafter as is reasonably practicable, an amount in Cash equal to the unpaid amount of such Allowed Priority Tax Claim; provided, however, that the applicable Reorganized DebtorDBK Industries shall have the right to pay any Allowed Priority Tax Claim, or the remaining balance of such Claim, in full in Cash at any time on or after the Effective Date, without premium or penalty.

D. Secured and Priority Claims of the Comptroller and TWC

Notwithstanding anything else to the contrary in the Plan or Confirmation Order, these provisions will govern the treatment of the claims of the Texas Comptroller of Public Accounts (the “Comptroller”) and the Texas Workforce Commission (the “TWC”): (1) nothing provided in the Plan or Confirmation Order shall affect or impair any statutory or common law setoff rights of the Comptroller or TWC in accordance with 11 U.S.C. § 553; (2) nothing provided in the Plan or Confirmation Order shall affect or impair any rights of the Comptroller or the TWC to pursue any non-debtor third parties for tax debts or claims; (3) nothing provided in the Plan or Confirmation Order shall be construed to preclude the payment of interest on the Comptroller’s and the TWC’s administrative expense tax claims, if any; (4) to the extent that interest is payable with respect to any administrative expense, priority or secured tax claim of the Comptroller or TWC, the interest rate shall be the statutory rate of interest, currently 125.75% per annum; (5) the Comptroller and the TWC are not required to file a motion or application for payment of administrative expense claims pursuant to 11 U.S.C. § 503(b)(1)(D) and such post-petition tax claim(s) may instead be paid as and when they arise in the ordinary course of the Debtors’ business, and (6) should a dispute arise between the Debtors and the Comptroller or the TWC with regard to post-petition tax claim(s), the Comptroller and the TWC may file a request for allowance of an administrative claim with such dispute to be resolved by the Bankruptcy Court.

Notwithstanding anything else to the contrary in the Plan or Confirmation Order, all rights of

the Comptroller and the TWC related to any claims filed by the Comptroller or TWC are reserved and all parties reserve their rights thereto. The Comptroller’s Claim and the TWC’s Claim is a Secured


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Claim to the extent of collateral value. The Comptroller’s Claim and the TWC’s Claim are an Unsecured Priority Claim pursuant to 11 U.S.C. §507(a)(8) to the extent of any shortfall in collateral value. The Comptroller and the TWC retain any liens to which it is entitled under applicable state law.

A failure by the Debtors or Reorganized DebtorsDBK Industries to make a plan payment to an agency of the State of Texas shall be an Event of Default. If the Debtors or Reorganized Debtors failDBK Industries fails to cure an Event of Default as to an agency of the State of Texas within five (5) days after service of a written notice of default, then that agency may (a) enforce the entire amount of its claim; (b) exercise any and all rights and remedies available under applicable non-bankruptcy law; and (c) seek such relief as may be appropriate in this court. The Debtors and/or Reorganized DebtorsDBK Industries can receive up to three (3) notices of default, however, the third default cannot be cured.

ARTICLE V. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS

A. Classification in General

All Claims and Interests are classified in the Classes set forth below in accordance with § 1122 and 1123(a)(1) of the Bankruptcy Code. A Claim or an Interest is classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of that Class and is classified in other Classes to the extent that any portion of the Claim or Interest qualifies within the description of such other Classes. A Claim or an Interest also is classified in a particular Class for the purpose of receiving distributions under the Full Payment AppealSettlement Plan only to the extent that such Claim or Interest is an Allowed Claim or Allowed Interest in that Class and has not been paid, released, or otherwise satisfied.

B. Summary of Classification of Claims and Interests

The classification of Claims and Interests against the Debtors pursuant to the Full Payment AppealSettlement Plan is as follows:

Class Claims and Interests Status Voting Rights

Class 1 Allowed Priority Non-Tax Claims Unimpaired Not Entitled to Vote

Class 2 Allowed UMB Claim Impaired Entitled to Vote

Class 3 Allowed U.S. Bank Secured Claim Impaired Entitled to Vote

Class 4 Allowed Toyota Secured Claim Impaired Entitled to Vote

Class 5 Allowed Wells Fargo Secured Claim Impaired Entitled to Vote

Class 6 Allowed Secured Tax Claims Impaired Entitled to Vote


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Class 7 Allowed Other Secured Claims Impaired Entitled to Vote

Class 8 Allowed General Unsecured Claims Impaired Entitled to Vote

Class 8-A Allowed Administrative Convenience Class

Impaired Entitled to Vote

Class 9 Allowed Judgment Creditor Claims Impaired Entitled to Vote

Class 10 Unsecured Subordinated Claims Impaired Entitled to Vote

Class 11 Allowed Interests Impaired Entitled to Vote

C. Treatment of Claims and Interests

1. Class 1 – Allowed Priority Non-Tax Claims

Except to the extent that a Holder of an Allowed Priority Non-Tax Claim agrees to a less favorable treatment, each Holder of an Allowed Priority Non-Tax Claim shall receive, on or after the Effective Date, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Priority Non-Tax Claim, (i) payment in full in Cash of its Allowed Class 1 Claim; or (ii) such other treatment as is consistent with the requirements of Bankruptcy Code § 1129(a)(9).

Class 1 is Unimpaired under the Full Payment AppealSettlement Plan. Holders of Allowed Claims in Class 1 are conclusively presumed to have accepted the Full Payment AppealSettlement Plan, and solicitation of acceptances with respect to such Class is not required.

2. Class 2 – Allowed UMB Claim

Class 2 includes all Claims of UMB against the Debtors and the Estates. On the Effective Date, UMB shall have an Allowed Class 2 Claim in the amount of UMB Allowed Claim, and except to the extent UMB Bank agrees to a less favorable treatment, UMB Bank’s Allowed Claim will be paid in full pursuant to the UMB Settlement.satisfaction, compromise, release, and discharge of and exchange for all such Claims, including against the Debtors and the Estates, as follows:

Option 1: If UMB votes to accept the Plan, UMB will select one of the following treatments:

a. The UMB Class 2 Claim is Allowed for Plan purposes at $20.127 mm and will be paid to holder of the Class 2 Claim on the Effective Date. All Causes of Action and claw-back rights against UMB and challenges to the UMB Bank Allowed Claim are hereby preserved and not released and transferred to DBK Industries, and the amount, validity, extent, value, and priority of this Class 2 Claim will be subject to determination by the Bankruptcy Court or pursuant to an agreement by DBK Industries and the holder of this Class 2 Claim.


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As more fully set forth in the Exit Financing Documents, the Exit Financing shall be secured by certain assets of the Reorganized Debtors, consisting of the Retained Liens, and UMB shall have and retain its first-priority lien and security interest in, to and against such collateral for all amounts relating to the Allowed UMB Claim, as agreed pursuant to the UMB Settlement. The Exit Financing will be cross-pledged and cross-defaulted with all debts of the Reorganized Debtors and UMB.

b. The UMB Class 2 Claim is Allowed for Plan purposes at $17.127 mm and will be paid to the holder of the Class 2 Claim on the Effective Date. All Causes of Action held by the Estate and Repeat Precision against UMB and challenges to the UMB Bank Allowed Claim are hereby waived and released, and all claims and Causes of Action held or owned by UMB against the Debtors, the Estates, and Repeat Precision are hereby waived and released. As consideration for the Repeat Precision release, $3.0 mm will be paid to Repeat Precision on the Effective Date.

Option 2: If UMB votes to reject the Plan, then the UMB Bank Allowed Claim is Allowed for Plan purposes at $20.285 mm plus an amount, not to exceed $700,000, adjudicated by the Bankruptcy Court as actual, necessary, and reasonable attorney fees and other expenses (the “Option 2 Amount”). The Option 2 Amount will be paid by DBK Industries over a six-year period with equal quarterly payments of $250,000.00, the first payment starting on March 31, 2020, and continuing thereafter on the last day of each successive quarter end, and a balloon payment on the seventy-third month after the Effective Date, unless otherwise paid earlier. Under this Option 2, the UMB Allowed Claim will accrue interest at 3.25% per annum.

Until the UMB Bank Allowed Claim is paid in full, UMB shall retain its Liens in the Collateral that secured the UMB Bank Allowed Claim on the Petition Date in the same priority as existed on the Petition Date. Upon payment in full of the UMB Bank Allowed Claim pursuant to the terms and conditions of this Plan, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released and discharged, and all of the right, title, and interest of UMB Bank in such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the applicable Debtor and/or its successors and assigns as applicable under the APA.

Upon payment in full of the UMB Bank Allowed Claim pursuant to the terms and conditions of this Plan, UMB Bank shall be authorized and directed to release any collateral or other property of any Debtor (including any Cash collateral and possessory collateral) held by UMB Bank (and the applicable agents for such Holder), and to take such actions as may be reasonably requested by the Debtors, DBK Industries or the Plan Administrator, as the case may be, to evidence the release of all such Liens, including the execution, delivery, and filing or recording of such releases.

UMB Liens will not attach to assets acquired by DBK Industries after the Effective Date. Class 2 is Impaired under the Full Payment AppealSettlement Plan. Holders of Allowed

Claims in Class 2 are entitled to vote to accept or reject the Full Payment AppealSettlement Plan.


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3. Class 3 – Allowed U.S. Bank Secured Claim

On the Effective Date, the U.S. Bank Secured Claim shall be Allowed in the amount of the remaining principal balance owing under Equipment Lease Agreement Numbers: XXXX2337 and XXXX2338 (the “U.S. Bank Agreements”) as of such date, calculated by crediting the principal amount of all post-petition payments made by the Debtor against U.S. Bank’s proof of claim amount of $154,516.00. U.S. Bank shall retain its security interestsLiens in the U.S. Bank Collateral.

The U.S. Bank Secured Claim shall be repaid by the Debtor and satisfied as follows: On the Effective Date, and except to the extent the holder of the Class 3 Claim agrees to a

less favorable treatment, the holder of the Class 3 Claim will be paid in full satisfaction, compromise, release, and discharge of and exchange for all such Claims, including against the Debtors and the Estates as follows:

a. The Debtor shall continue to make all remaining monthly payments of

principal, interest, taxes, and fees pursuant to the U.S. Bank Agreements until all outstanding obligations thereunder (to include U.S. Bank’s reasonable attorneys’ fees and expenses incurred in connection with the Bankruptcy Cases of $1,500.00) are paid in full; and

b. The Debtor shall have the option of paying off each of the U.S. Bank Agreements at such time as the final six (6) monthly installments thereunder are due by making a lump sumlump-sum payment equal to the present value of the remaining six (6) payments discounted at the rate of 5% per annum, plus the remaining unpaid balance of U.S. Bank’s reasonable attorneys’ fees and expenses.

U.S. Bank shall retain all of its rights and remedies under the U.S. Bank Agreements, and the

DebtorDebtors shall keep and observe all of itstheir covenants and obligations thereunder (including, without limitation, its obligation to adequately insure the U.S. Bank Collateral), except as expressly modified in the Full Payment AppealSettlement Plan.

Voting. Class 3 is Impaired under the Full Payment AppealSettlement Plan. Holders of

Allowed Claims in Class 3 are entitled to vote to accept or reject the Full Payment AppealSettlement Plan.

4. Class 4 – Allowed Toyota Secured Claim

On or after the Effective Date, and except to the extent that the Holder of an Allowed Toyota Secured Claim agrees to a less favorable treatment, such Holder shall receive, in fullyfull and final satisfaction, compromise, release, and discharge of and in exchange for each Allowed Toyota Secured Claim, the following:

The Allowed Toyota Secured Claim will be satisfied (a) pursuant to an agreement between the Reorganized DebtorsDBK Industries and Toyota on terms consistent with prepetition agreement(s), or (b) if no agreement is reached, at the Debtors/Reorganized DebtorsDBK Industries’ sole and absolute option, (i) the net proceeds from the liquidation of collateral after payment of all fees incurred and expenses reimbursed related to the liquidation of such collateral, or (ii) surrender of collateral.


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The amount, validity, extent, value, and priority of the Allowed Secured Class 4 Claim under

§ 506 of the Bankruptcy Code will be determined by the Bankruptcy Court after the Effective Date. Any Deficiency Claim or other Unsecured Claim of the Holder of the Class 4 Claim shall be treated in Class 8.

Voting. Class 4 is Impaired under the Full Payment AppealSettlement Plan. Holders of Allowed Claims in Class 4 are entitled to vote to accept or reject the Full Payment AppealSettlement Plan.

5. Class 5 – Allowed Wells Fargo Secured Claim

On the Effective Date, the Wells Fargo Secured Claim shall be Allowed in the amount of the remaining principal balance owing under the Wells Fargo Agreements as of such date, calculated by crediting the principal amount of all post-petition payments made by the Debtor against Wells Fargo’s proof of claim amount of $462,928.17. Wells Fargo shall retain its security interestsLiens in the Wells Fargo Collateral.

The Wells Fargo Secured Claim shall be repaid by the Debtor and satisfied as follows: On the Effective Date, and except to the extent the holder of the Class 5 Claim agrees to a

less favorable treatment, the holder of the Class 5 Claim will be paid in full satisfaction, compromise, release, and discharge of and exchange for all such Claims, including against the Debtors and the Estates as follows:

a. The DebtorDebtors shall continue to make all remaining monthly payments of principal, interest, taxes, and fees pursuant to the Wells Fargo Agreements until all outstanding obligations thereunder (to include Wells Fargo’s reasonable attorneys’ fees and expenses incurred in connection with the Bankruptcy Cases of $8,000.00) are paid in full; and

b. The DebtorDebtors shall have the option of paying offsatisfying in full each of the Wells Fargo Agreements at such time as the final six (6) monthly installments thereunder are due by making a lump sumlump-sum payment equal to the present value of the remaining six (6) payments discounted at the rate of 5% per annum, plus the remaining unpaid balance of Wells Fargo’s reasonable attorneys’ fees and expenses.

Wells Fargo shall retain all of its rights and remedies under the Wells Fargo Agreements, and

the DebtorDebtors shall keep and observe all of its covenants and obligations thereunder (including without limitation, its obligation to adequately insure the Wells Fargo Collateral), except as expressly modified in this Section 5 of the Full Payment AppealSettlement Plan.



6. Class 6 – Allowed Secured Tax Claims


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On or after the Effective Date, and except to the extent that a Holder of an Allowed Secured Tax Claim agrees to a less favorable treatment, such Holder shall receive, in full and final satisfaction, compromise, release, and discharge of and in exchange for each Allowed Secured Tax Claim, the following:

Each Class 6 Claim that is an Allowed Claim shall be satisfied, in full satisfaction, compromise, release, and discharge of and exchange for such Claim, by retention of all applicable liens until payment in full of the Allowed Secured Tax Claim in monthly installments for a period calculated to pay the claim in full no later than the fifth anniversary of the petition date which shall include interest that has accrued from the Petition Date through the Effective Date of the Plan and from the Effective Date through payment in full at the state statutory rate of 1% per month and 12% per annum pursuant to 11 U.S.C. Sections§§ 506(b), 511, and 1129.

Until paid in full, each Holder of a Class 6 Claim that is an Allowed Claim shall retain its Lien

in the Collateral that secured the Class 6 Claim on the Petition Date in the same priority as existed on the Petition Date. The amount, validity, extent, value, and priority of each Class 6 Claim will be subject to determination by the Bankruptcy Court or pursuant to an agreement between the Reorganized DebtorsDBK Industries and the Holder of a Class 6 Claim.



7. Class 7 – Allowed Other Secured Claims

On or after the Effective Date, and except to the extent that a Holder of an Allowed Other Secured Claim agrees to a less favorable treatment, such Holder shall receive, in fully and final satisfaction, compromise, release, and discharge of and in exchange for each Allowed Other Secured Claim, the following:

The Allowed Other Secured Claim will be satisfied (a) pursuant to an agreement between the Reorganized DebtorsDBK Industries and the Holder of an Allowed Class 7 Claim on terms consistent with prepetition agreement(s), or (b) if no agreement is reached, at the Debtors/Reorganized DebtorsDBK Industries’ sole and absolute option, (i) the net proceeds from the liquidation of collateral after payment of all fees incurred and expenses reimbursed related to the liquidation of such collateral, or (ii) surrender of collateral.

The amount, validity, extent, value, and priority of the Allowed Other Secured Class 6 Claim under § 506 of the Bankruptcy Code will be determined by the Bankruptcy Court after the Effective Date. Any Deficiency Claim or other Unsecured Claim of the Holder of the Class 7 Claim shall be treated in Class 7.



8. Class 8 – Allowed General Unsecured Claims


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As full and final satisfaction, settlement, release, and discharge of each Allowed Class 8 Claim against the Debtors, each Holder of an Allowed Class 8 Claim will be paid in full, with interest, by the UCC Note Down Payment and the UCC Note.

Voting. Class 8 is Impaired under the Full Payment Appeal Plan. Holders of Allowed Claims in Class 8 are entitled to vote to accept or reject the Full Payment Appeal Plan.

8-A. Class 8-A – Allowed Administrative Convenience Class Claims As full and final satisfaction, settlement, release, and discharge of each Allowed Class 8-A Claim against the Debtors, each Holder of an Allowed Class 8-A Claim will be paid in full, without interest, by the Reorganized Debtors within fifteen (15) days offrom the Class 8 Payment Fund on the Effective Date, with an estimated 100% distribution percentage.

Voting. Class 8-A is Impaired under the Full Payment AppealSettlement Plan. Holders of Allowed Claims in Class 8-A are entitled to vote to accept or reject the Full Payment AppealSettlement Plan.

9. Class 9 - Judgment Creditor Claims

The Judgment Creditor Claims will be Allowed and satisfied in full pursuant to the Repeat Settlement.

The Unsecured Judgment Creditor Claims are Disputed Claims. The Allowed Judgment Creditor Claims shall be (i) liquidated and Allowed pursuant to the Patent Judgment Appeal, or (ii) settled or compromised by the Reorganized Debtors and the Judgment Creditors without any further notice to or action, order, or approval by the Bankruptcy Court. In full and final satisfaction and release of each Allowed Judgment Creditor Claims against the Debtors, once liquidated and Allowed, each Holder of an Allowed Judgment Claim will receive a beneficial interest in the Creditor Trust equal to that Allowed Judgment Creditor’s pro rata share of the Allowed sum of all Trust Beneficiaries Allowed Judgment Claims. Each Allowed Class 9 Claim will be paid its pro-rata share of Distributions from Creditor Trust Assets. The Creditor Trust will receive Creditor Trust Assets.

The Creditor Trust shall not distribute any portion of the Creditor Trust Assets to any Trust Beneficiary until entry of a Final Order in the Patent Judgment Appeal or other litigation involving the Trust Beneficiary or other resolution or compromise is reached between any Trust Beneficiary and the Reorganized Debtors resulting in an Allowed Claim.


10. Class 10 – Unsecured Subordinated Claims

The holders of Allowed Class 10 Claims shall not receive any payment unless and until all Allowed Claims in Classes 1 to 9 are paid in full at which time a Class 10 Claim shall be satisfied with interest, from Excess Cash Flow generated by post-confirmation business operations of the Reorganized DebtorsDBK Industries until such Class 10 Claims are paid in full.


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11. Class 11 - Allowed Equity Interests.

On the Effective Date, in exchange for (i) the value provided by agreeing to work for the Debtors during the Bankruptcy Cases; (ii) their continued work for the Reorganized Debtors after Confirmation; and (iii) an agreement to contribute $12,000,000.0010,600,000.00 of Cash intoon behalf of the Reorganized Debtors plus the Drury/Repeat Note, Holders of Allowed Equity Interests in the Debtors shall retain such Equity Interests and all rights incident of such Equity Interests, including the right to receive proceeds of such Equity Interests; provided, however, the rights of Holders of Interests to receive any proceeds of such Interests will be subordinate to the Creditor Trustee’s right to receive such proceeds until each Allowed Judgment Claim is paid in full pursuant to Full Payment Appeal Plan..

Pursuant to the 9019 Settlement Agreement contemplated under this Full Payment AppealSettlement Plan, the Interest Holders will, among other things, (a) (i) pledge such Equity Interests as collateral to the Creditor Trust and (ii) pay a portion of the Drury 9019 Payment to the Debtors who will then pay same to Repeat Precision for the benefit of the Bankruptcy Estates and a portion to the Creditor Trust and (b) receive a full and final release of all claims and causes of action outlined in this Full Payment Appeal Plan, including cancellation/termination of the Stock Pledge Agreement once all Allowed Claims in Classes 8, 9 and 10 are paid in fullSettlement Plan pursuant to the Drury Settlement.


D. Special Provision Governing Unimpaired Claims

Except as otherwise provided in the Full Payment AppealSettlement Plan, nothing under the Full Payment AppealSettlement Plan shall affect the Debtors’ rights with respect to any Unimpaired Claims, including, all rights in respect of legal and equitable defenses to, or setoffs or recoupments against, any such Unimpaired Claims.

E. Elimination of Vacant Classes

Any Class of Claims or Interests that does not have a Holder of an Allowed Claim or Allowed Interest or a Claim or Interests temporarily Allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Full Payment AppealSettlement Plan.

F. Controversy Concerning Impairment

If any controversy arises as to whether any Claims or Interests, or any Class of Claims or Interests, are Impaired, the Bankruptcy Court shall, after notice and hearing, determine such controversy concerning impairment. Failure to timely File an objection in the Bankruptcy Case shall


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result in such Person or Entity waiving any objection to the Impairment classifications set forth in the Full Payment AppealSettlement Plan.

G. Subordinated Claims

The allowance, classification, and treatment of all Allowed Claims and Allowed Interests and the respective distributions and treatments under the Full Payment AppealSettlement Plan take into account and conform to the relative priority and rights of the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, § 510(b) of the Bankruptcy Code, or otherwise. Pursuant to § 510 of the Bankruptcy Code, the Reorganized Debtors reservePlan Administrator reserves the right to re-classify any Allowed Claim or Interest in accordance with any contractual, legal, or equitable subordination relating thereto.

H. No Waiver

Except as expressly provided in the UMBRepeat Settlement or the Drury Settlement, nothing contained in the Full Payment AppealSettlement Plan shall be construed to waive the Debtors’any Debtor’s or other Person’s right to object on any basis to any Claim or Interest.

ARTICLE VI. MEANS FOR IMPLEMENTATION OF THE FULL PAYMENT

APPEALSETTLEMENT PLAN

A. General Settlement of Claims and Interests

As discussed in detail in the Disclosure Statement and as otherwise provided herein, pursuant to § 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the classification, distributions, releases, and other benefits provided under the Full Payment AppealSettlement Plan, upon the Effective Date, the provisions of the Full Payment AppealSettlement Plan shall constitute a good faith compromise and settlement of all Claims and Interests and controversies resolved pursuant to the Full Payment AppealSettlement Plan. The Full Payment AppealSettlement Plan shall be deemed a motion to approve the good faith compromise and settlement of all such Claims, Interests, and controversies pursuant to Bankruptcy Rule 9019, and the entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of such compromise and settlement under § 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, as well as a finding by the Bankruptcy Court that such settlement and compromise is fair, equitable, reasonable and in the best interests of the Debtors and their Estates.

B. Substantive Consolidation

Deemed Substantive Consolidation. The Plan shall serve as a motion by the Debtors seeking entry of a Bankruptcy Court order deeming the substantive consolidation of the Debtors’ Estates into a single Estate for certain limited purposes related to the Plan, including Voting, Confirmation and Distribution pursuant to § 1123(a)(3). As a result of the deemed substantive consolidation of the Estates, each Class of Claims and Equity Interests will be treated as against a single consolidated Estate without regard to the separate legal existence of the Debtors. The Plan will not result in the merger or


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otherwise affect the separate legal existence of each Debtor, other than with respect to voting and distribution rights under the Plan.

C. Corporate Existence

Except as otherwise provided in the Full Payment AppealSettlement Plan or the APA with DBK Industries, the Debtors shall continue to exist after the Effective Date as separate entities, pursuant to the applicable law in the jurisdiction in which the Debtors are formed and pursuant to their respective by-laws (or other formation documents) in effect prior to the Effective Date, except to the extent such by-laws (or other formation documents) are amended under the Full Payment AppealSettlement Plan or otherwise. To the extent such documents are amended, they are deemed to be amended pursuant to the Full Payment AppealSettlement Plan and require no further action or approval (other than any requisite filings required under applicable state, or federal law).

D. Reorganized DebtorsPre-Effective Date Authority.

On and before the Effective Date, the Current Directors and officers of the Debtors shall have the authority to adopt any other agreements, documents, and instruments and to take any other actions contemplated under the Full Payment AppealSettlement Plan as necessary to consummate the Full Payment AppealSettlement Plan and establish the Creditor Trust.

E. Directors and Officers of the Reorganized DebtorsPost-Effective Date

Authority: DBK Manager

On the Effective Date, the directorsCurrent Directors and officers of the Debtors shall be as identified in the Full Payment Appeal Plan Supplement Documents. The Current Directors will continue to serve the Debtors or Reorganized Debtors, as applicable, until the later of (a) payment in full of Allowed Class 9 Claims and (b) further Order of this Court.Diamondback shall be replaced by Benton Cantey who has been designated by the members of DBK Industries to serve as DBK Manager, the sole manager to oversee day-to-day operations and make business decisions for DBK Industries post-closing under the APA.

F. Implementation of the Drury Settlement, the Repeat Settlement and Closing Under the APA With DBK Industries F. Vesting of Assets in the Reorganized Debtors On the Effective Date all property in the Estates, all Causes of Action, and any property

acquired by the Debtors pursuant to the Full Payment Appeal Plan shall vest in the respective Reorganized Debtors, , the Drury Settlement and the Repeat Settlement shall be effective. Each settlement is the product of good-faith, arms-length negotiations, and each is designed to avoid the expense, inconvenience, delay, and uncertainty of further prosecuting, disputing, or pursuing the claims by and against the Estates, the Drurys, the Drury Affiliates, the Judgment Creditors and others. Also on the Effective Date, the closing under the APA with DBK Industries shall occur and the Business Assets will be transferred to DBK Industries free and clear of all Liens, Claims, charges, or other encumbrances, except those Liens granted under any agreement, instrument, or other document incorporated in the Full Payment AppealSettlement Plan, including the Exit Financing Documents, or as otherwise provided for in the Full Payment Appeal Plan; provided, however, that the Creditor Trust


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Assets shall be transferred to the Creditor Trust pursuant to the Creditor Trust AgreementSettlement Plan.

On and after the Effective Date, the Reorganized Debtors may operate their businesses and

may use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.

G. Implementation of the Drury Settlement and the UMB Settlement

On the Effective Date, the Drury Settlement and the UMB Settlement shall be effective. Both settlements are products of good-faith, arms-length negotiations, and are designed to avoid the expense, inconvenience, delay, and uncertainty of further prosecuting, disputing, or pursuing the claims by and against the Estates, the Drurys, UMB, and others.

H. Exit Financing

On the Effective Date, except to the extent that UMB agrees to a less favorable treatment, the UMB Allowed Claim shall be refinanced and converted into Exit Financing, which shall consist of a post-petition term loan facility pursuant to the terms and conditions of the applicable Exit Financing Documents, as set forth in the UMB Settlement. The Exit Financing will be cross-pledged and cross-defaulted with all debts of the Reorganized Debtors owed to UMB.

I. Establishment of the Creditor Trust

On the Effective Date, the Creditor Trustee shall sign the Creditor Trust Agreement and, in his capacity as Creditor Trustee, accept all Creditor Trust Assets on behalf of the Trust Beneficiaries. The Creditor Trustee shall be authorized to obtain, seek the turnover, liquidate, and collect all of the Creditor Trust Assets not in his or her possession. The Creditor Trust will then be deemed created and effective without any further action by the Bankruptcy Court or any Person as of the Effective Date. Thereupon, and except as expressly provided in the Full Payment Appeal Plan or Creditor Trust Agreement, the Debtors shall not have any interest in, or with respect to, the Creditor Trust Assets.

The Creditor Trust shall be established for the purposes of (i) holding the Creditor Trust Assets pending final resolution of the Patent Litigation Appeal; and (ii) distributing the proceeds of the Creditor Trust Assets to the beneficiaries in accordance with this Full Payment Appeal Plan and the Creditor Trust Agreement. For the avoidance of doubt, the Creditor Trust Assets are as follows: (i) $1,000,000, which represents its portion of the First Drury 9019 Payment, (ii) the Final Drury 9019 Payment; (ii) Royalty Payments; (iii) Patented Inventory; and (iv) the Creditor Trust Note. The Creditor Trustee shall only make distributions to Creditor Trust Beneficiaries after their Class 9 Claims are Allowed by Final Order.

J. Creditor Trustee

The Creditor Trustee shall be appointed by the Confirmation Order. Following appointment, the Creditor Trustee shall act only in accordance with the Full Payment Appeal Plan and the Creditor Trust Agreement, and in such capacity shall be appointed by the Confirmation Order as the representative of the respective Estates pursuant to §§ 1123(a)(5), (a)(7) and (b)(3)(B), and as such shall be vested with the authority and power (subject to the Creditor Trust Agreement) to


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(i) administer the Creditor Trust; and (ii) liquidate any other Creditor Trust Assets (if any) assigned to the Creditor Trust at any time. The Confirmation Order shall provide the Creditor Trustee with express authority to convey, transfer and assign any and all of the Creditor Trust Assets and to take all actions necessary to effectuate same. After the Effective Date, the affairs of the Creditor Trust and of all assets held or controlled by the Creditor Trust shall be managed under the direction of the Creditor Trustee, as provided by the terms of the Full Payment Appeal Plan and Creditor Trust Agreement.

K. Management and Oversight

The Creditor Trust shall be administered by the Creditor Trustee and not overseen by any committee.

L. Binding Effect of the Creditor Trust Agreement

Notwithstanding anything herein to the contrary, the Debtors and the Creditor Trustee shall be bound by the terms of the Creditor Trust Agreement.

M. Vesting and Transfer of Assets to the Creditor Trust

On the Effective Date, pursuant to the Full Payment Appeal Plan and §§ 1123, 1141, and 1146(a), the Debtors and their Estates are authorized and directed to transfer, grant, assign, convey, set over, and deliver to the Creditor Trustee, for the benefit of the Creditor Trust, all of the respective Debtors’ and Estates’ right, title and interest in and to the Creditor Trust Assets free and clear of all Liens, Claims, encumbrances or interests of any kind in such property of any other or Holders of Claims against or Interests in the Debtors, except as otherwise expressly provided for in the Full Payment Appeal Plan. To the extent required to implement the transfer of the Trust Assets from the Debtors and Estates to the Creditor Trust and the Creditor Trustee as provided for herein, all Persons and governmental entities shall cooperate with the Debtors and the Estates to assist the Debtors and the Estates to implement said transfers.

N. Creditor Trust Expenses

Subject to the provisions of the Creditor Trust Agreement, all costs, expenses and obligations incurred by the Trustee in administering the applicable provisions of this Full Payment Appeal Plan, the Creditor Trust, or in any manner connected, incidental or related thereto, in effecting distributions from the Creditor Trust shall be a charge against the Creditor Trust Assets remaining from time to time in the hands of the Trustee. Such expenses shall be paid in accordance with the provisions of this Full Payment Appeal Plan and the Creditor Trust Agreement.

O. Beneficiaries of the Creditor Trust

Holders of Allowed Class 9 Claims entitled to receive distributions shall be the only Creditor Trust Beneficiaries of the Creditor Trust. Such Creditor Trust Beneficiaries shall be bound by the terms and conditions of this Full Payment Appeal Plan and the Creditor Trust Agreement. The interests of the Creditor Trust Beneficiaries in the Creditor Trust shall be uncertificated and nontransferable. Distributions from the Creditor Trust shall be made from the Creditor Trust Assets. Distributions shall be made in accordance with the following priorities: (i) payment of the


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reimbursable expenses of the Creditor Trustee; and (ii) payment of Allowed Class 9 Claims an amount in Cash equal to the respective Holder’s Pro Rata share of the Creditor Trust.

P. Federal Income Tax Treatment of Creditor Trust

For federal income tax purposes, it is intended that the Creditor Trust be classified as a liquidating trust under § 301.7701-4 of the Treasury regulations and that such trust be owned by its Creditor Trust Beneficiaries. Accordingly, for federal income tax purposes, it is intended that the Creditor Trust Beneficiaries be treated as if they had received a distribution from the Debtors’ Estates of an undivided interest in each of the Creditor Trust Assets (to the extent of the value of their respective shares in the applicable assets) and then contributed such interests to the Creditor Trust, and the Creditor Trust Beneficiaries will be treated as grantors and owners thereof.

Q. Termination of the Creditor Trust

The Creditor Trust shall terminate upon the date on which all of the following events have occurred: (i) the Creditor Trust Assets are fully liquidated in accordance with the Full Payment Appeal Plan and Creditor Trust Agreement; (ii) the Cash proceeds have been completely distributed in accordance with the Full Payment Appeal Plan and Creditor Trust Agreement; (iii) all tax returns and any other filings or reports have been filed with the appropriate state or federal regulatory authorities; and (iv) the order closing the Bankruptcy Cases is a Final Order. Upon the occurrence of each of the foregoing events, the duties, responsibilities and powers of the Creditor Trustee shall terminate, and the Creditor Trustee shall be discharged. Except in the circumstances set forth below, the Creditor Trust shall terminate no later than nine (9) years after the Effective Date in accordance with IRS revenue procedures.

The Bankruptcy Court may extend the term of the Creditor Trust one or more times (not to exceed a total of four extensions, unless the Creditor Trustee receives a favorable ruling from the IRS that any further extension would not adversely affect the status of the Creditor Trust as a grantor trust for federal income tax purposes) for a finite period, not to exceed six (6) months per extension, upon a showing of good cause and based on the particular circumstance at issue. Each such extension must be approved by the Bankruptcy Court not less than thirty (30) days prior to the lapse of the term, or extended term, with notice thereof to all of the unpaid Creditor Trust Beneficiaries. In no event shall the Creditor Trust Beneficiaries be entitled to receive in-kind distributions from the Creditor Trust.

G. R. Corporate Action of the Debtors

On the Effective Date, all actions contemplated under the Full Payment Appeal PlanSettlement Plan, the Repeat Settlement, the Drury Settlement and the APA shall be deemed authorized and approved in all respects, including (i) the execution of the Creditor Trust Agreement and transfer of the Creditor Trust Assets to the Creditor Trust9019 Settlement Agreements; (ii) the rejection, assumption, or assumption and assignment, as applicable, of Executory Contracts and Unexpired Leases; and (iii) all other acts or actions contemplated or reasonably necessary or appropriate to promptly consummate the APA and the Full Payment AppealSettlement Plan (whether to occur before, on, or after the Effective Date).

All matters provided for in the Full Payment AppealSettlement Plan involving the corporate structure of the Debtors or the Reorganized Debtors, and any corporate action required by the Debtors or the Reorganized Debtors, as applicable, in connection with the Full Payment


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AppealSettlement Plan shall be deemed to have occurred and shall be in effect, without any requirement of further action by security holders, directors, or officers of the Debtors or the Reorganized Debtors, as applicable. On or prior to the Effective Date, the Board and current officers of the Debtors shall be authorized and (as applicable) directed to issue, execute, and deliver the agreements, documents, securities, and instruments contemplated under the Full Payment Appeal PlanSettlement Plan, the Repeat Settlement, the Drury Settlement and the APA (or necessary or desirable to effect the transactions contemplated under the Full Payment AppealSettlement Plan) in the name of and on behalf of the Reorganized Debtors. The authorizations and approvals contemplated by the Full Payment AppealSettlement Plan shall be effective notwithstanding any requirements under non-bankruptcy law.

H. S. Effectuating Documents; Further Transactions

Except as otherwise provided for in the Full Payment AppealSettlement Plan, on and after the Effective Date, the Reorganized Debtors, and the Current Directors and officers, arePlan Administrator is authorized to and may issue, execute, deliver, File, or record such contracts, securities, instruments, releases, and other agreements or documents and take such actions as may be necessary to effectuate, implement, and further evidence the terms and conditions of the Full Payment Appeal PlanSettlement Plan, the Repeat Settlement, the Drury Settlement and the APA in the name of, and on behalf of, the Reorganized Debtors, without the need for any approvals, authorization, or consents, except for those expressly required pursuant to the Full Payment AppealSettlement Plan.

I. T. Causes of Action

Except as otherwise provided in the Full Payment AppealSettlement Plan, the APA, the Full Payment AppealSettlement Plan Supplement Documents, Creditor Trust Agreement, the UMB Settlement, the Drury Settlement, ¶4.4 of the Repeat Settlement, or in any other contract, instrument, release, or other agreement entered into in connection with the Full Payment AppealSettlement Plan, in accordance with Bankruptcy Code § 1123(b)(3), the Reorganized DebtorsPlan Administrator shall retain and shall have the exclusive right, authority, and discretion to (without further order of the Bankruptcy Court) determine and to initiate, File, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any and all Causes of Action that the Debtors or their Estates may hold against any Entity, whether arising before or after the Petition Date. The Debtors reserve and shall retain the foregoing Causes of Action, notwithstanding the rejection of any Executory Contract or Unexpired Lease during the Bankruptcy Cases.

For the Causes of Action acquired by DBK Industries pursuant to the APA, and in accordance with Bankruptcy Code § 1123(b)(3) of the Bankruptcy Code, DBK Industries shall retain all Causes of Action, including Avoidance Actions, and other similar claims, counterclaims, rights, defenses, setoffs, recoupments, and actions in law or equity arising under the Bankruptcy Code or applicable nonbankruptcy law, and have the power, authority, and standing to prosecute such Causes of Action. This preservation includes all current and pending litigation in which the Debtors are or may be a party in the Bankruptcy Court or otherwise. DBK Industries shall have authority and standing to enforce, sue on, settle, or compromise (or decline to do any of the foregoing) any of the Causes of Actions and other similar claims, counterclaims, rights, defenses, setoffs, recoupments, and actions, and may prosecute and enforce all defenses, counterclaims, and rights that have been asserted or could be asserted by the Debtors against or with respect to all Claims asserted against such Debtors or property of the Estates.


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ARTICLE VII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

A. Assumption and Rejection of Executory Contracts and Unexpired Leases

On the Effective Date, except as otherwise provided in the Full Payment AppealSettlement Plan or Full Payment AppealSettlement Plan Supplement Documents, all Executory Contracts or Unexpired Leases that currently exist between the Debtors and another Person or Entity, and are not listed on the Schedule of Rejected Contracts, shall be deemed assumed by the applicable Debtor with a cure amount of zero dollars ($0.00) unless they (i) were previously assumed or rejected by that Debtor; or (ii) are subject to a motion to reject Executory Contracts or Unexpired Leases that is pending on the Confirmation Date. The Schedule of Rejected Contracts shall be an exhibit to the APA with DBK Industries, and the deadline to object to the $0.00 Cure Claim or cure amount shall be the same day as the day set by the Court to object to this Plan.

Entry of the Confirmation Order by the Bankruptcy Court shall constitute an order approving the assumptions or rejections of the Executory Contracts and Unexpired Leases set forth in the Schedule of Rejected Contracts and Leases pursuant to §§ 365(a) and 1123 of the Bankruptcy Code. Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by the Bankruptcy Court on or after the Effective Date by a Final Order. Each Executory Contract and Unexpired Lease assumed pursuant to the Full Payment AppealSettlement Plan, the APA, or by any order of the Bankruptcy Court, which has not been assigned to a third party prior to the Confirmation Date, shall re-vestrevest in and be fully enforceable by the applicable Reorganized DebtorDBK Industries in accordance with its terms, except as such terms are modified by the provisions of the Full Payment AppealSettlement Plan, the APA, or any order of the Bankruptcy Court authorizing and providing for its assumption under applicable federal law. Notwithstanding anything to the contrary in the Full Payment AppealSettlement Plan, the Debtors or the Reorganized DebtorsDBK Industries, as applicable, reserve the right to alter, amend, modify, or supplement the Schedules identified in the Full Payment AppealSettlement Plan or the APA at any time prior to the Effective Date.

B. Indemnification Obligations

All indemnification provisions, consistent with applicable law, currently in place (whether in the by-laws, certificates of incorporation or formation, limited liability company agreements, limited partnership agreements, other organizational documents, board resolutions, indemnification agreements, employment contracts, or otherwise) for the Current Directorsbenefit of the current directors and officers, managers, employees, attorneys, accountants, investment bankers, and other Professionals of the Debtors, as applicable, shall be reinstated and remain intact, irrevocable, and shall survive the Effective Date on terms no less favorable to such Current Directors and officers, managers, employees, attorneys, accountants, investment bankers, and other Professionals of the Debtors than the indemnification provisions in place prior to the Effective Date; provided, however, that all indemnification obligations arising prior to the Effective Date under the foregoing indemnification provisions shall not constitute obligations of the Reorganized Debtors. For the avoidance of all doubt, all indemnification obligations of the Debtors prior to the Effective Date, whether known or unknown, asserted or assertable, shall constitute General Unsecured Claims against the Debtors’ Estates and shall be subject to all terms, conditions and treatment of Class 7 Claims under the Full Payment Appeal Plan..


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The indemnification obligations set forth in ¶¶ 3.4, 3.7, and 4.4 of the Repeat Settlement Agreement under which Repeat Precision is obligated to indemnify Diamondback and its Affiliates and DBK Industries as set forth in the Repeat Settlement Agreement, together with the indemnification obligations set forth in in ¶ 6.6 of the Repeat Settlement Agreement, are expressly preserved pursuant to this Plan.

C. Claims Based on Rejection of Executory Contracts or Unexpired Leases

Unless otherwise provided by a Final Order of the Bankruptcy Court, all Proofs of Claim, with respect to Claims arising from the rejection of Executory Contracts or Unexpired Leases, pursuant to the Full Payment AppealSettlement Plan, the APA, or the Confirmation Order, if any, must be filed with the Bankruptcy Court within thirty (30) days after the later of (i) the date of entry of any order of the Bankruptcy Court (including the Confirmation Order) approving such rejection; (ii) the effective date of such rejection; or (iii) the Effective Date of the Full Payment AppealSettlement Plan. Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not filed with the Bankruptcy Court within such time will be automatically disallowed, forever barred from assertion, and shall not be enforceable against the Debtors or the Reorganized Debtors, DBK Industries, the Estates, or their property without the need for any objection by the Reorganized Debtorsany party or further notice to, or action, order, or approval of the Bankruptcy Court or any other Entity, and any Claim arising out of the rejection of the Executory Contract or Unexpired Lease shall be deemed fully satisfied, released, and discharged, notwithstanding anything in the Schedules or a Proof of Claim to the contrary. All Allowed Claims arising from the rejection of either Debtor’s Executory Contracts or Unexpired Leases shall be classified as General Unsecured Claims and shall be treated in accordance with Class 78 hereof.

D. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed

Any monetary default under each Executory Contract and Unexpired Lease to be assumed pursuant to the Full Payment AppealSettlement Plan and the APA shall be satisfied, pursuant to § 365(b)(1) of the Bankruptcy Code, by payment of the Cure Claim amount in Cash, subject to the limitation described belowabove, or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree.

Within thirty (30) days of the entry of the Effective Date, any counter-party to an Executory Contract or Unexpired Lease being assumed by the Debtors asserting a Cure Claim in connection with the assumption of any Unexpired Lease or Executory Contract (except those counter-parties whose Unexpired Leases or Executory Contracts have been previously assumed by a Final Order of the Bankruptcy Court), must file such Cure Claim with the Bankruptcy Court asserting all alleged amounts accrued or alleged defaults through the Effective Date. Any party that fails to file a Cure Claim by this deadline shall be forever barred from asserting, collecting or seeking to collect any amounts or defaults relating thereto against the Reorganized Debtors. The Reorganized Debtors shall have sixty (60) days from the Effective Date to file an objection to any Cure Claim. Any disputed Cure Claims shall be resolved either consensually or by the Bankruptcy Court. Except as may otherwise be agreed to by the parties, by no later than ninety (90) days following the Effective Date, the Reorganized Debtors shall cure all undisputed Cure Claims. All disputed Cure Claims shall be cured either within one hundred thirty (30) days after the entry of a Final Order determining the amount, if any, of the Reorganized Debtors’ liability with respect thereto or as may otherwise be agreed to by the parties.


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As noted above, the Cure Claim or cure amount for all Unexpired Leases and Executory Contracts shall be $0.00. The deadline to object to this $0.00 Cure Claim or cure amount (the “Cure Objection”) shall be the same day as the day set by the Court to object to this Plan.

In the event of a dispute regarding (i) All Cure Objections must (i) assert all alleged amounts accrued or alleged defaults through the Effective Date, (ii) whether the objector challenges the ability of the Reorganized DebtorsDBK Industries or any assignee to provide “adequate assurance of future performance” (within the meaning of § 365 of the Bankruptcy Code) under the Executory Contract or Unexpired Lease to be assumed, orand (iiiii) any other matter pertaining to assumption, the cure payments required by § 365(b)(1) of the Bankruptcy Code shall be made following the entry of a Final Order or orders resolving the dispute and approving the assumption. The Debtors shall provide for notices of proposed assumption and proposed cure amounts and for procedures for objecting thereto and resolution of disputes by the Bankruptcy Court..

Any party that fails to file an objection to this $0.00 Cure Claim or cure amount shall be forever barred from asserting, collecting, or seeking to collect any amounts or defaults relating to the Unexpired Lease or Executory Contract against the Estates or DBK Industries.

Assumption of any Executory Contract or Unexpired Lease pursuant to the Full Payment AppealSettlement Plan and the APA or otherwise shall result in the full release and satisfaction of any Claims or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date of such assumption. Any Proofs of Claim filed with respect to an Executory Contract or Unexpired Lease that has been assumed shall be deemed disallowed and expunged, without further notice to or action, order, or approval of the Bankruptcy Court.

E. Preexisting Obligations to Debtors

Rejection of any Executory Contract or Unexpired Lease pursuant to the Full Payment AppealSettlement Plan or otherwise shall not constitute a termination of preexisting obligations owed to the applicable Debtors or the Reorganized Debtors under such Executory Contracts or Unexpired Leases. In particular, notwithstanding any non-bankruptcy law to the contrary, the Reorganized Debtors expressly reserve and do not waive any right to receive, or any continuing obligation of a counterparty to provide, warranties or continued maintenance obligations on goods previously purchased by the Debtors contracting from non-Debtor counterparties to rejected Executory Contracts or Unexpired Leases.

F. Modifications, Amendments, Supplements, Restatements, or Other

Agreements

Unless otherwise provided in the Full Payment AppealSettlement Plan, each Executory Contract or Unexpired Lease that is assumed shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, and all Executory Contracts and Unexpired Leases related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal,


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and any other interests, unless any of the foregoing agreements has been previously rejected or repudiated or is rejected or repudiated under this Full Payment AppealSettlement Plan.

G. Reservation of Rights

Neither the exclusion nor inclusion of any Executory Contract or Unexpired Lease on the Schedule of Rejected Contracts and Leases, nor anything contained in the Full Payment AppealSettlement Plan, shall constitute an admission by the Debtors or DBK Industries that any such contract or lease is in fact an Executory Contract or Unexpired Lease or that the Reorganized Debtors have any liability thereunder. If there is a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption or rejection, the Debtor or Reorganized DebtorDBK Industries, as applicable, shall have thirty (30) days following entry of a Final Order resolving such dispute to alter the treatment of such contract or lease under the Full Payment AppealSettlement Plan.

H. Nonoccurrence of Effective Date

In the event that the Effective Date does not occur, the Bankruptcy Court shall retain jurisdiction with respect to any request to extend the deadline for assuming or rejecting Executory Contracts and Unexpired Leases pursuant to § 365(d)(4) of the Bankruptcy Code.

I. Contracts and Leases Entered Into After the Petition Date

Contracts and leases entered into after the Petition Date, if any, including any Executory Contract and Unexpired Leases assumed by either Debtor during the Bankruptcy Cases, will be performed by such Debtor in the ordinary course of business. Accordingly, such contracts and leases (including any assumed Executory Contracts and Unexpired Leases) will survive and remain unaffected by entry of the Confirmation Order.

ARTICLE VIII. PROVISIONS GOVERNING DISTRIBUTIONS

A. Timing and Calculation of Distributions

As soon as reasonably practicable (as determined by the Debtors and DBK Industries) after the Effective Date, in accordance with the terms and conditions of this Full Payment AppealSettlement Plan, the Reorganized DebtorsDBK Industries shall make distributions to Holders of Allowed Administrative Expense Claims (including Allowed Professional Compensation Claims), Allowed Priority Non-Tax Claims in Class 1, Allowed Secured Claims in Classes 2, 3, 4, 5, 6, and 7 and Allowed General Unsecured Claims in Class 8 and on all other Assumed Liabilities as set forth in and consistent with the APA.

Unless otherwise provided in the Full Payment AppealSettlement Plan, on the Effective Date or as soon as reasonably practicable thereafter (or if a Claim is not an Allowed Claim or Allowed Interest on the Effective Date, on the date that such Claim or Interest becomes an Allowed Claim or Allowed Interest), each Holder of an Allowed Claim shall receive the full amount of the distributions that the Full Payment AppealSettlement Plan provides for Allowed Claims or Allowed Interests (as applicable) in the applicable Class. If any payment or act under the Full Payment AppealSettlement


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Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business Day, but shall be deemed to have been completed as of the required date. If and to the extent that there are Disputed Claims, distributions on account of any such Disputed Claims shall be made pursuant to the provisions set forth in the Full Payment AppealSettlement Plan.

B. Rights and Powers of the Reorganized DebtorsDBK Industries and the Plan

Administrator to Make Distributions

Subject to other provisions of the Full Payment AppealSettlement Plan and consistent with the APA, all distributions under the Full Payment Settlement Plan on Assumed Liabilities shall be made by DBK Industries. Subject to other provisions of the Full Payment Settlement Plan, all distributions under the Full Payment Appeal Plan, except those to be made to Class 9 from the Creditor TrustSettlement Plan on Excluded Liabilities, if any, shall be made by the Reorganized Debtors. The Reorganized DebtorsPlan Administrator. Neither DBK Industries nor the Plan Administrator shall not be required to give any bond or surety or other security for the performance of their duties unless otherwise ordered by the Bankruptcy Court.

The Reorganized Debtors, DBK Industries and the Plan Administrator shall be empowered to: (i) affect all actions and execute all agreements, instruments, and other documents necessary to perform their duties under the Full Payment AppealSettlement Plan; (ii) make all distributions contemplated hereby; and (iii) exercise such powers as may be vested in the Reorganized Debtorssuch party by order of the Bankruptcy Court, pursuant to the Full Payment AppealSettlement Plan, pursuant to the APA or as deemed by the Reorganized Debtors to be necessary and proper to implement the provisions hereof.

C. Delivery of Distributions; Undeliverable or Unclaimed Distributions

1. Record Date for Distribution. As of the close of business on the Distribution Record Date, the various transfer registers for each of the Classes of Claims or Interests as maintained by the Debtors or their respective agents shall be closed, and the Debtors or their respective agents shall not be required to make any further changes in the record holders of any of the Claims or Interests. The Debtors or the Creditor Trustee (as applicable) shall have no obligation to recognize any transfer of the Claims or Interests occurring on or after the Distribution Record Date. The Debtors or the Creditor Trustee shall be entitled to recognize and deal for all purposes hereunder only with those record holders stated on the transfer ledgers as of the close of business on the Distribution Record Date, to the extent applicable.

2. Delivery of Distributions in General. Except as otherwise provided herein, the Debtors or the Creditor Trustee (as applicable) shall make distributions to Holders of Allowed Claims and Allowed Interests as of the Distribution Record Date at the address for each such Holder as indicated in the Debtors’ records as of the date of any such distribution; provided, however, that the manner of such distributions shall be determined at the Reorganized DebtorsDBK Industries’ or the Plan Administrators’ discretion; provided further, however, that the address for each Holder of an Allowed Claim shall be deemed to be the address set forth in any Proof of Claim filed by that Holder.


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3. Minimum Distributions. To the extent Cash is distributed under the Full Payment AppealSettlement Plan, no Cash payment of less than $50.00 shall be made to a Holder of an Allowed Claim on account of such Allowed Claim, and such amounts shall be retained by the Reorganized Debtors or Creditor Trust, depending on the Class of the Holder’s ClaimDBK Industries or the Plan Administrator, as the case may be.

4. Undeliverable Distributions and Unclaimed Property. If any distribution to any Holder of Allowed Claims or Allowed Interests is returned as undeliverable, no distribution to such Holder shall be made unless and until the Debtors or Creditor Trustee (as applicable) have determined the then-current address of such Holder, at which time such distribution shall be made to such Holder without interest; provided, however, that such distributions shall be deemed unclaimed property under § 347(b) of the Bankruptcy Code at the expiration of one (1) year from the Effective Date. After such date, all unclaimed property or interests in property shall revert to the Reorganized Debtors or Creditor Trust (as applicable)DBK Industries automatically and without need for a further order by the Bankruptcy Court (notwithstanding any applicable federal, provincial or state escheat, abandoned, or unclaimed property laws to the contrary), and the Claim of any Holder of Claims and Interests to such property or Interest in property shall be discharged and forever barred.

D. Manner of Payment

Any distribution under the Full Payment AppealSettlement Plan to Holders of Allowed Claims, whether from the Reorganized Debtors or the Creditor Trustee, shall be made in Cash. At the option of the Reorganized Debtors or Creditor Trustee, as applicableDBK Industries or the Plan Administrator, as the case may be, any Cash payment to be made hereunder may be made by check or wire transfer or as otherwise required or provided in applicable Full Payment AppealSettlement Plan Supplement Documents, Creditor Trust Agreement, or ancillary agreements.

E. Distributions to Holders of Disputed Claims

Except as otherwise provided in the Full Payment AppealSettlement Plan or Creditor Trust Agreement, distributions on account of Disputed Claims shall be withheld by the Debtors or Creditor TrusteePlan Administrator until such Claims have been either Allowed or Disallowed. To the extent a Disputed Claim becomes Allowed, the distribution reserved for such Claim shall be distributed to the Holder thereof as soon as practicable in accordance with the Full Payment AppealSettlement Plan. To the extent a Disputed Claim becomes Disallowed, the distribution reserved for such Claim shall revert to the Reorganized Debtors or Creditor Trust (as applicable)DBK Industries automatically and without need for a further order by the Bankruptcy Court.

F. Compliance with Tax Requirements

In connection with the Full Payment AppealSettlement Plan and the APA, to the extent applicable, the Reorganized Debtors and Creditor TrusteeDBK Industries shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all distributions made pursuant to the Full Payment AppealSettlement Plan shall be subject to such withholding and reporting requirements. Notwithstanding any provision in the Full Payment AppealSettlement Plan to the contrary, the Reorganized Debtors and Creditor TrusteeDBK Industries shall be authorized to take all actions necessary to comply with such withholding and reporting requirements, including liquidating a portion of the distribution to be made under the Full Payment


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AppealSettlement Plan to generate sufficient funds to pay applicable withholding taxes, withholding distributions pending receipt of information necessary to facilitate such distributions, or establishing any other mechanisms they believe are reasonable and appropriate. To the extent the Reorganized Debtors or Creditor Trustee makeDBK Industries makes distributions to Holders of Allowed Claims or Interests, the Reorganized Debtors and Creditor Trustee reserve pursuant to the Full Payment Settlement Plan and the APA, DBK Industries reserves their right to allocate all distributions made under the Full Payment AppealSettlement Plan and the APA in compliance with all applicable wage garnishments, alimony, child support, and other spousal awards, liens, and encumbrances.

G. Allocations

Distributions with respect to Allowed Claims shall be allocated first to the principal amount of such Claims (as determined for federal income tax purposes) and then, to the extent the consideration exceeds the principal amount of the Claims, to any portion of such Claims for accrued but unpaid interest.

H. Foreign Currency Exchange Rate

Except as otherwise provided in a Bankruptcy Court order, as of the Effective Date, any Claim asserted in currency other than U.S. dollars shall be automatically deemed converted to the equivalent U.S. dollar value using the exchange rate for the applicable currency as published in The Wall Street Journal, National Edition, on the Petition Date.

I. Setoffs and Recoupment

Except as expressly provided in the Full Payment AppealSettlement Plan, the Reorganized Debtors may, pursuant to § 553 of the Bankruptcy Code, set off and/or recoup against any Full Payment AppealSettlement Plan distributions to be made on account of any Allowed Claim, any and all claims, rights, and Causes of Action that the Reorganized DebtorsEstates may hold against the Holder of such Allowed Claim to the extent such setoff or recoupment is either (i) agreed in amount by the Reorganized Debtors and Holder of such Allowed Claim or (ii) otherwise adjudicated by the Bankruptcy Court or another court of competent jurisdiction; provided, however, that neither the failure to effectuate a setoff or recoupment nor the allowance of any Claim hereunder shall constitute a waiver or release by the Reorganized DebtorsEstates or their successors of any and all claims, rights, and Causes of Action that Reorganized Debtorsthe Estates or their successors may possess against the applicable Holder. In no event shall any Holder of Claims against, or Interests in, the Debtors be entitled to recoup any such Claim or Interest against any claim, right, or Cause of Action of the Debtors or the Reorganized Debtors, as applicable, unless such Holder has actually performed such recoupment and provided notice thereof in writing to the Debtors on or before the Effective Date, notwithstanding any indication in any Proof of Claim or otherwise that such Holder asserts, has, or intends to preserve any right of recoupment.

J. Claims Paid or Payable by Third Parties

1. Claims Paid by Third Parties. The Debtors, the Reorganized DebtorsDBK Industries or the Creditor TrusteePlan Administrator, as applicable, shall reduce in full a Claim, and such Claim shall be disallowed without a Claim objection having to be filed and without any further notice to or action, order, or approval of the Bankruptcy Court, to the extent that the Holder of such


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Claim receives payment in full on account of such Claim from a party that is not the Debtors, Reorganized Debtors or Creditor TrusteeDBK Industries or the Plan Administrator. Subject to the last sentence of this paragraph, to the extent a Holder of a Claim receives a distribution under the Full Payment AppealSettlement Plan on account of such Claim and receives payment from a third party that is not the Debtors, Reorganized Debtors or Creditor TrusteeDBK Industries or the Plan Administrator on account of such Claim, such Holder shall, within fourteen (14) days of receipt thereof, repay or return the distribution received from the Reorganized Debtors or Creditor Trustee, as applicable,, DBK Industries or the Plan Administrator to the extent the Holder’s total recovery on exceeds the amount of such Holder was entitled to receive under the Full Payment AppealSettlement Plan on account of the Claim. The failure of such Holder to timely repay or return such distribution shall result in the Holder owing the applicable Reorganized Debtor or Creditor TrustDebtors, DBK Industries or the Plan Administrator annualized interest at the Federal Judgment Rate on such amount owed for each Business Day after the 14-day grace period specified above until the amount is repaid.

2. Claims Payable by Third Parties. No distributions under the Full Payment AppealSettlement Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors’ insurance policies until the Holder of such Allowed Claim has exhausted all remedies with respect to such insurance policy. To the extent that one or more of the Debtors’ insurers agrees to satisfy in full or in part a Claim (if and to the extent the underlying claim forming the basis of the Claim against the Debtors is adjudicated by a court of competent jurisdiction), then immediately upon such insurers’ agreement to satisfy all or part of the Claim, the applicable portion of such Claim against the Debtors shall be deemed expunged without a Claims objection having to be filed and without any further notice to or action, order, or approval of the Bankruptcy Court.

3. Applicability of Insurance Policies. Except as otherwise provided in the Full Payment AppealSettlement Plan, distributions to Holders of Allowed Claims shall be in accordance with the provisions of any applicable insurance policy. Nothing contained in the Full Payment AppealSettlement Plan shall constitute or be deemed a waiver of any Cause of Action that a Debtor or any Entity may hold against any other Entity, including insurers under any policies of insurance, nor shall anything contained herein constitute or be deemed a waiver by such insurers of any defenses, including coverage defenses, held by such insurers.

ARTICLE IX. PROCEDURES FOR RESOLVING

CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS

A. Claims-Administration Responsibilities

Except as otherwise specifically provided in the Full Payment AppealSettlement Plan or Creditor Trust Agreement, after the Effective Date, the Reorganized Debtors (a) DBK Industries, with respect to all Assumed Liabilities that are Claims in Classes 1, 2, 3, 4, 5, 6, 7, 8 and 910, and (b) the Plan Administrator with respect to all Excluded Liabilities that are Claims in Classes 1, 2, 3, 4, 5, 6, 7, 8 and 10, shall have the authority to: (i) file, withdraw, or litigate to judgment, objections to Claims or Interests; (ii) settle or compromise any Disputed Claim without any further notice to or action, order, or approval by the Bankruptcy Court; and (iii) administer and adjust the Claims Register to reflect any such settlements or compromises without any further notice to or action, order, or approval by the Bankruptcy Court. After the Effective Date, the Reorganized DebtorsDBK Industries and the Plan Administrator, as the case may be, shall have and retain any and all rights and


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defenses the Debtors had with respect to any Interests or Claims immediately prior to the Effective Date. Specifically with regard to the, other than Judgment Claims in Class 9, the Reorganized Debtors shall have the authority to: (i) liquidate and Allow the Class 9 Judgment Claims pursuant to the Patent Judgment Appeal, or (ii) settle or compromise the Class 9 Judgment Claims without any further notice to or action, order, or approval by the Bankruptcy Court. which will be liquidated and Allowed pursuant to the Repeat Settlement.

B. Estimation of Claims and Interests

Before or after the Effective Date, the Debtors or Creditor Trustee (as applicable), DBK Industries or the Plan Administrator, as the case may be, may at any time request that the Bankruptcy Court estimate any Disputed Claim or Disputed Interest that is contingent or unliquidated pursuant to § 502(c) of the Bankruptcy Code for any reason, regardless of whether any party previously objected to such Claim or Interest or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim or Interest, including during the litigation of any objection to any Claim or Interest and any appeal relating to such objection. Notwithstanding any provision to the contrary in the Full Payment AppealSettlement Plan or Creditor Trust Agreement, a Claim or Interest that has been expunged from the Claims Register, but that either is subject to appeal or has not been the subject of a Final Order, shall be deemed to be estimated at zero dollars ($0.00) unless otherwise ordered by the Bankruptcy Court. In the event thatIf the Bankruptcy Court estimates any contingent or unliquidated Claim or Interest, that estimated amount shall constitute a maximum limitation on such Claim or Interest for all purposes under the Full Payment AppealSettlement Plan (including for purposes of distributions), and the Reorganized Debtors or Creditor Trustee, DBK Industries or the Plan Administrator, as the case may be, may elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim or Interest.

C. Adjustment to Claims or Interests Without Objection

Any Claim or Interest that has been paid or satisfied, or any Claim or Interest that has been amended or superseded, may be adjusted or expunged on the Claims Register by the Reorganized Debtors or Creditor Trustee, as applicable, DBK Industries or the Plan Administrator, as the case may be, without any further notice to or action, order, or approval of the Bankruptcy Court.

D. Time to File Objections to Claims

Except as otherwise specifically provided in the Full Payment AppealSettlement Plan, any objections to Claims shall be filed on or before the later of: (i) one hundred twentyeighty (120180) days after the Effective Date, or (ii) such other period of limitation as may be specifically fixed by a Final Order of the Bankruptcy Court for objecting to such Claims.

E. Disallowance of Claims or Interests– Specifically Claims 18 and 38

Except as otherwise specifically provided in the Full Payment AppealSettlement Plan, any Claims or Interests held by Entities from which property is recoverable under §§ 542, 543, 550, or 553 of the Bankruptcy Code, or that is a transferee of a transfer avoidable under §§ 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code, if any, shall be deemed disallowed pursuant to § 502(d) of the Bankruptcy Code, and Holders of such Claims or Interests may not receive any


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distributions on account of such Claims until such time as any objection to those Claims or Interests have been settled or a Bankruptcy Court Final Order with respect thereto has been entered.

Further, Claim No. 16 was filed against the Debtors on September 8, 2020, by the IRS in the amount of $1,243,369.80. The Debtors dispute Claim No. 18 and assert that they owe NOTHING to the IRS. This Plan serves as an objection to all claims asserted against the Debtors and their current and former officers and directors by the IRS, including Claim No. 16. Upon the Effective Date, Claim No. 16 shall be disallowed and expunged from the Bankruptcy Cases.

Claim No. 38 was filed against the Debtors on August 26, 2020 by Starke Machine Company in the amount of $68,333.94. The Debtors dispute Claim 38 and assert that they owe NOTHING to Starke Machine Company. This Plan serves as an objection to all claims asserted against the Debtors and their current and former officers and directors by Starke Machine Company, including Claim No. 38. Upon the Effective Date, Claim No. 38 shall be disallowed and expunged from the Bankruptcy Cases.

ExceptFurther, except as provided herein or otherwise agreed, any and all Proofs of Claim filed after the Bar Date shall be deemed disallowed and expunged from the Case as of the Effective Date without any further notice to or action, order, or approval of the Bankruptcy Court, and Holders of such Claims may not receive any distributions on account of such Claims, unless on or before the Confirmation Hearing such late Claim has been deemed timely filed by a Final Order.

F. Amendments to Claims or Interests

On or after the Effective Date, a Claim or Interest may not be filed or amended without the express prior authorization of the Bankruptcy Court or the Reorganized Debtors and any such new or amended Claim or Interest that is filed shall be deemed disallowed in full and expunged without any further action.

G. No Distributions Pending Allowance

If any objection to a Claim or Interest or portion thereof is filed, no payment or distribution provided under the Full Payment AppealSettlement Plan shall be made on account of such Claim or Interest or portion thereof unless and until such Disputed Claim or Interest becomes an Allowed Claim or Interest.

H. Distributions After Allowance

To the extent that a Disputed Claim ultimately becomes an Allowed Claim or Allowed Interest, distributions (if any) shall be made to the Holder of such Allowed Claim or Allowed Interest (as applicable) in accordance with the provisions of the Full Payment AppealSettlement Plan. As soon as practicable after the date that the order or judgment of the Bankruptcy Court allowing any Disputed Claim or Disputed Interest becomes a Final Order, the Reorganized Debtors (, DBK Industries or the Creditor TrusteePlan Administrator, as the case may be), shall provide to the Holder of such Claim or Interest the distribution (if any) to which such Holder is entitled under the Full Payment AppealSettlement Plan as of the Effective Date, without any interest, dividends, or accruals to be paid on account of such Claim or Interest unless required under applicable bankruptcy law.


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ARTICLE X. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS

A. Release and Discharge of Debtors, Reorganized Debtors, DBK Industries

Pursuant to Bankruptcy Code § 1141(d)ON THE EFFECTIVE DATE, AND EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THE FULL PAYMENT AppealSETTLEMENT PLAN, Creditor Trust AgreementTHE APA, OR IN ANY CONTRACT, INSTRUMENT, OR OTHER AGREEMENT OR DOCUMENT CREATED PURSUANT TO THE FULL PAYMENT AppealSETTLEMENT PLAN, THE DISTRIBUTIONS, RIGHTS, AND TREATMENT THAT ARE PROVIDED FOR IN THE FULL PAYMENT AppealSETTLEMENT PLAN SHALL BE IN COMPLETE SATISFACTION, DISCHARGE, AND RELEASE, EFFECTIVE AS OF THE EFFECTIVE DATE, OF CLAIMS, INTERESTS, AND CAUSES OF ACTION OF ANY NATURE WHATSOEVER, INCLUDING ANY INTEREST ACCRUED ON CLAIMS OR INTERESTS FROM AND AFTER THE PETITION DATE, WHETHER KNOWN OR UNKNOWN, AGAINST, LIABILITIES OF, LIENS ON, OBLIGATIONS OF, RIGHTS AGAINST, AND INTERESTS IN, THE DEBTORS or, ALL SUCCESSORS, DBK INDUSTRIES, AND ANY OF THEIR ASSETS OR PROPERTIES, INCLUDING THE BUSINESS ASSETS, REGARDLESS OF WHETHER ANY PROPERTY SHALL HAVE BEEN DISTRIBUTED, SOLD, TRANSFERRED, OR RETAINED PURSUANT TO THE FULL PAYMENT AppealSETTLEMENT PLAN OR THE APA ON ACCOUNT OF SUCH CLAIMS AND INTERESTS, INCLUDING DEMANDS, LIABILITIES, AND CAUSES OF ACTION THAT AROSE BEFORE THE EFFECTIVE DATE, ANY LIABILITY (INCLUDING WITHDRAWAL LIABILITY) TO THE EXTENT SUCH CLAIMS OR INTERESTS RELATED TO SERVICES PERFORMED BY EMPLOYEES OF THE DEBTORS PRIOR TO THE EFFECTIVE DATE AND THAT ARISE FROM A TERMINATION OF WARRANTIES ISSUED ON OR BEFORE THE EFFECTIVE DATE, AND ALL DEBTS OF THE KIND SPECIFIED IN §§ 502(G), 502(H), OR 502(I) OF THE BANKRUPTCY CODE, IN EACH CASE WHETHER OR NOT: (1) A PROOF OF CLAIM BASED uponON SUCH DEBT OR RIGHT IS FILED OR DEEMED FILED PURSUANT TO § 501 OF THE BANKRUPTCY CODE; OR (2) A CLAIM OR INTEREST BASED uponON SUCH DEBT, RIGHT, OR INTEREST IS ALLOWED PURSUANT TO § 502 OF THE BANKRUPTCY CODE. THE CONFIRMATION ORDER SHALL BE A JUDICIAL DETERMINATION OF THE DISCHARGE AND RELEASE OF ALL CLAIMS AND INTERESTS AGAINST AND IN THE DEBTORS, ALL SUCCESSORS, DBK INDUSTRIES, AND ANY OF THEIR ASSETS OR PROPERTIES, INCLUDING THE BUSINESS ASSETS, SUBJECT TO THE OCCURRENCE OF THE EFFECTIVE DATE.

B. Discharge of Liabilities

ON THE EFFECTIVE DATE, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE PLAN, THE DEBTORS SHALL BE DISCHARGED FROM ALL CLAIMS AND CAUSES OF ACTION TO THE FULLEST EXTENT PERMITTED BY § 1141 OF THE BANKRUPTCY CODE, AND ALL HOLDERS OF CLAIMS AND INTERESTS SHALL BE PRECLUDED FROM ASSERTING AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, DBK INDUSTRIES, THE ESTATES, THE BUSINESS ASSETS, OR ANY PROPERTY DEAL WITH UNDER THE PLAN, ANY FURTHER OR OTHER CAUSE OF ACTION BASED ON ANY ACT OR OMISSION, TRANSACTION, EVENT, THING, OR


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OTHER ACTIVITY OF ANY KIND OR NATURE THAT OCCURRED OR CAME INTO EXISTENCE PRIOR TO THE EFFECTIVE DATE.

EXCEPT AS OTHERWISE PROVIDED IN THE PLAN, NEITHER THE REORGANIZED DEBTORS NOR DBK INDUSTRIES SHALL HAVE, AND SHALL NOT BE CONSTRUED TO HAVE OR MAINTAIN ANY LIABILITY, CLAIM, OR OBLIGATION, THAT IS BASED IN WHOLE OR IN PART ON ANY ACT, OMISSION, TRANSACTION, EVENT, OTHER OCCURRENCE, OR THING OCCURING OR IN EXISTENCE ON OR PRIOR TO THE EFFECTIVE DATE (INCLUDING, WITHOUT LIMIATION, ANY LIABLITY OR CLAIM BY ANY CREDITOR OR HOLDER OF A CLAIM OR INTEREST ARISING UNDER NON-BANKRUPTCY LAW AS A SUCCESSOR TO THE DEBTORS) AND NO SUCH LIABILITIES, CLAIMS, OR OBLIGATIONS FOR ANY ACTS SHALL ATTACH TO THE REORGANIZED DEBTORS OR DBK INDUSTRIES.

C. B. Release of Liens

Except as otherwise provided in the Full Payment AppealSettlement Plan, the Creditor Trust Agreement, any 9019 settlementSettlement Agreement, or any contract, instrument, release, or other agreement or document created pursuant to the Full Payment AppealSettlement Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to the Full Payment AppealSettlement Plan and, in the case of a Secured Claim, satisfaction in full of the portion of the Secured Claim that is Allowed as of the Effective Date, except for Secured Claims that the Debtors elect to Reinstate, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estate shall be fully released and discharged, and all of the right, title, and interest of any Holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the applicable Reorganized Debtor and itstheir successors and assigns. On and after the Effective Date, any Holder of such Secured Claim (and the applicable agents for such Holder), at the expense of the Reorganized Debtors, shall be authorized and directed to release any collateral or other property of eitherany Debtor (including any Cash collateral and possessory collateral) held by such Holder (and the applicable agents for such Holder), and to take such actions as may be reasonably requested by the Reorganized Debtors and their successors and assigns to evidence the release of such Lien, including the execution, delivery, and filing or recording of such releases. The presentation or Filing of the Confirmation Order to or with any federal, state, provincial, or local agency or department shall constitute good and sufficient evidence of, but shall not be required to effect, the termination of such Liens.

D. C. Releases by the Debtors: Released Parties

PURSUANT TO § 1123(B) OF THE BANKRUPTCY CODE, FOR GOOD AND VALUABLE CONSIDERATION, ON AND AFTER THE EFFECTIVE DATE, EACH RELEASED PARTY IS DEEMED RELEASED AND DISCHARGED BY THE DEBTORS, THE REORGANIZED DEBTORS, AND THE ESTATES, IN EACH CASE ON BEHALF OF THEMSELVES AND THEIR RESPECTIVE SUCCESSORS, ASSIGNS, AND REPRESENTATIVES, AND ANY AND ALL OTHER ENTITIES WHO MAY PURPORT TO ASSERT ANY CAUSE OF ACTION, DIRECTLY OR DERIVATIVELY, BY, THROUGH, FOR, OR BECAUSE OF THE FOREGOING ENTITIES, FROM ANY AND ALL CAUSES OF ACTION, INCLUDING ANY DERIVATIVE CLAIMS, ASSERTED ON BEHALF OF THE DEBTORS, THAT THE DEBTORS, OR THE REORGANIZED DEBTORS, OR THE


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ESTATES WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT IN THEIR OWN RIGHT (WHETHER INDIVIDUALLY OR COLLECTIVELY) OR ON BEHALF OF THE HOLDER OF ANY CLAIM AGAINST, OR INTEREST IN, THE DEBTORS OR OTHER ENTITY, BASED ON OR RELATING TO, OR IN ANY MANNER ARISING FROM, IN WHOLE OR IN PART, THE DEBTORS’ IN- OR OUT-OF-COURT RESTRUCTURING EFFORTS, THE BANKRUPTCY CASES, THE FULL PAYMENT APPEALSETTLEMENT PLAN, THE CREDITOR TRUSTTHE 9019 SETTLEMENT AGREEMENTS, OR ANY CONTRACT, INSTRUMENT, RELEASE, OR OTHER AGREEMENT OR DOCUMENT CREATED OR ENTERED INTO IN CONNECTION WITH THE FULL PAYMENT APPEALSETTLEMENT PLAN, THE CREDITOR TRUST AGREEMENT, THE FILING OF THE BANKRUPTCY CASES, THE PURSUIT OF CONFIRMATION, THE PURSUIT OF CONSUMMATION, THE ADMINISTRATION AND IMPLEMENTATION OF THE FULL PAYMENT APPEALSETTLEMENT PLAN, THE 9019 SETTLEMENT AGREEMENTS, OR THE DISTRIBUTION OF PROPERTY UNDER THE FULL PAYMENT APPEALSETTLEMENT PLAN, CREDITOR TRUST AGREEMENT, OR ANY OTHER RELATED AGREEMENT, OR UPON ANY OTHER ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE FOREGOING RELEASE DOES NOT RELEASE ANY OBLIGATIONS OF ANY PARTY UNDER THE FULL PAYMENT APPEALSETTLEMENT PLAN OR ANY DOCUMENT, INSTRUMENT, OR AGREEMENT EXECUTED TO IMPLEMENT THE FULL PAYMENT APPEALSETTLEMENT PLAN.

E. D. Releases by Holders of Claims and Interests: Released Parties

EXCEPT AS OTHERWISE PROVIDED IN ANY 9019 SETTLEMENT, AS OF THE EFFECTIVE DATE, EACH RELEASING PARTY IS DEEMED TO HAVE RELEASED AND DISCHARGED THE DEBTORS, REORGANIZED DEBTORS, AND RELEASED PARTIES FROM ANY AND ALL CAUSES OF ACTION, WHETHER KNOWN OR UNKNOWN, INCLUDING DERIVATIVE CLAIMS ASSERTED ON BEHALF OF THE DEBTORS, THAT SUCH ENTITY WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT (WHETHER INDIVIDUALLY OR COLLECTIVELY), BASED ON OR RELATING TO, OR IN ANY MANNER ARISING FROM, IN WHOLE OR IN PART, THE DEBTORS’ IN- OR OUT-OF-COURT RESTRUCTURING EFFORTS, THE BANKRUPTCY CASES, THE FORMULATION, PREPARATION DISSEMINATION, NEGOTIATION, OR FILING OF THE FULL PAYMENT APPEALSETTLEMENT PLAN, THE CREDITOR TRUST AGREEMENT9019 AGREEMENTS, OR THE PURSUIT OF CONFIRMATION, THE PURSUIT OF CONSUMMATION, THE ADMINISTRATION AND IMPLEMENTATION OF THE FULL PAYMENT APPEALSETTLEMENT PLAN, THE 9019 SETTLEMENT AGREEMENTS, OR THE DISTRIBUTION OF PROPERTY UNDER THE FULL PAYMENT APPEALSETTLEMENT PLAN OR ANY OTHER RELATED AGREEMENT, OR UPON ANY OTHER RELATED ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE FOREGOING RELEASE DOES NOT RELEASE ANY OBLIGATIONS OF ANY PARTY UNDER THE FULL PAYMENT APPEALSETTLEMENT PLAN OR ANY DOCUMENT, INSTRUMENT, OR AGREEMENT EXECUTED TO IMPLEMENT THE FULL PAYMENT APPEALSETTLEMENT PLAN.


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F. E. Drurys’ Releases by the Estates, UMB, and the Judgment Creditors

IN EXCHANGE FOR THE DRURY 9019 SETTLEMENT PAYMENT AND THE EXECUTION OF THE STOCK PLEDGE AGREEMENT, THE DRURY/REPEAT NOTE AND OTHER GOOD AND VALUABLE CONSIDERATION AS SET FORTH IN THE REPEAT SETTLEMENT AGREEMENT, THE DRURYS SHALL BE RELEASED BY THE ESTATES, UMB, AND THE JUDGMENT CREDITORS, AND ALL SIGNATORIES TO THE REPEAT SETTLEMENT AGREEMENT OF ALL CLAIMS AND CAUSES OF ACTION EACH HOLDS OR OWNS AGAINST THE DRURYS; PROVIDED, HOWEVER, THE RELEASE OF THE DRURYS SHALL ONLY BE EFFECTIVE WHEN ALLOWED CLAIMS IN CLASSES 2, 8, AND 9 ARE PAID IN FULL AND THE DRURY AFFILIATES.

F. UMB Releases by the Estates, the Drurys, and the Judgment Creditors

THE DEBTORS, REORGANIZED DEBTORS, THE ESTATES, AND EACH HOLDER OF A CLAIM THAT DOES NOT VOTE OR DOES NOT VOTE TO REJECT THE FULL PAYMENT APPEAL PLAN, SHALL RELEASE UMB OF AND FROM ANY CLAIMS, ACTIONS, DEMANDS, AND CAUSES OF ACTION, ASSERTED OR UNASSERTED, RELATING IN ANY WAY TO UMB’S LENDING RELATIONSHIP WITH THE DEBTORS, THE REORGANIZED DEBTORS, AND/OR THE ESTATES, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ASSERTED OR THAT COULD HAVE BEEN ASSERTED IN THE BANKRUPTCY CASES, OR ARISING OUT OF OR IN ANY WAY RELATED TO THE NEGOTIATION, FORMULATION, OR PREPARATION OF THE FULL PAYMENT APPEAL PLAN, THE BANKRUPTCY CASE, AS WELL AS CLAIMS ARISING UNDER ANY CIRCUMSTANCE KNOWN AND EXISTING AS OF CONFIRMATION, SAVE AND EXCEPT FOR THE OBLIGATIONS SPECIFICALLY OUTLINED UNDER THE FULL PAYMENT APPEAL PLAN, AND ANY CLAIMS AND/OR CAUSES OF ACTION, THAT ARE OR MAY BE RELATED TO ANY BREACH, ENFORCEMENT, OR INTERPRETATION OF THE FULL PAYMENT APPEAL PLAN OR THE OBLIGATIONS OF THE PARTIES THEREUNDER; PROVIDED, HOWEVER, THAT THE RELEASE FROM THE JUDGMENT CREDITORS SHALL NOT BECOME EFFECTIVE UNTIL ALLOWED CLASS 9 CLAIMS ARE PAID IN FULL, ALL AS PROVIDED UNDER THE UMB SETTLEMENT.

G. Exculpation

THE EXCULPATED PARTIES SHALL NOT HAVE OR INCUR ANY LIABILITY TO ANY HOLDER OF A CLAIM OR INTEREST, FOR ANY ACT, EVENT, OR OMISSION FROM THE PETITION DATE TO THE EFFECTIVE DATE IN CONNECTION WITH OR ARISING OUT OF THE BANKRUPTCY CASES, THE CONFIRMATION OF THE FULL PAYMENT APPEALSETTLEMENT PLAN, THE CONSUMMATION OF THE FULL PAYMENT APPEALSETTLEMENT PLAN, THE ADMINISTRATION OF THE FULL PAYMENT APPEALSETTLEMENT PLAN, THE CREATION OR TRANSFER OF ESTATE PROPERTY TO THE CREDITOR TRUSTPURSUANT TO THE 9019 SETTLEMENT AGREEMENTS, OR THE ASSETS AND PROPERTY TO BE DISTRIBUTED PURSUANT TO THE FULL PAYMENT APPEALSETTLEMENT PLAN OR CREDITOR TRUSTAND THE APA (INCLUDING UNCLAIMED PROPERTY UNDER THE FULL PAYMENT APPEALSETTLEMENT PLAN), UNLESS SUCH EXCULPATED PARTY’S ACTION IS DETERMINED AS: (I) BAD FAITH; (II) ACTUAL FRAUD; (III) WILLFUL MISCONDUCT;


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OR (IV) GROSS NEGLIGENCE, IN EACH CASE BY A FINAL ORDER OF A COURT OF COMPETENT JURISDICTION. EACH EXCULPATED PARTY MAY REASONABLY RELY ON THE OPINIONS OF COUNSEL, CERTIFIED PUBLIC ACCOUNTANTS, AND OTHER EXPERTS OR PROFESSIONALS EMPLOYED BY THE DEBTORS.

H. Injunction

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE FULL PAYMENT APPEALSETTLEMENT PLAN OR FOR OBLIGATIONS ISSUED OR REQUIRED TO BE PAID PURSUANT TO THE FULL PAYMENT APPEALSETTLEMENT PLAN OR THE CONFIRMATION ORDER, ALL ENTITIES WHO HAVE HELD, HOLD, OR MAY HOLD CLAIMS OR INTERESTS THAT HAVE BEEN SATISFIED, RELEASED, DISCHARGED, OR ARE SUBJECT TO EXCULPATION ARE PERMANENTLY ENJOINED, FROM AND AFTER THE EFFECTIVE DATE, FROM TAKING ANY OF THE FOLLOWING ACTIONS AGAINST, AS APPLICABLE, THE DEBTORS, THE REORGANIZED DEBTORS, THE CREDITOR TRUSTEE, THE EXCULPATED PARTIES, OR THE RELEASED PARTIES: (1) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR OTHER PROCEEDING OF ANY KIND ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS; (2) ENFORCING, ATTACHING, COLLECTING, OR RECOVERING BY ANY MANNER OR MEANS ANY JUDGMENT, AWARD, DECREE, OR ORDER AGAINST SUCH ENTITIES ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS; (3) CREATING, PERFECTING, OR ENFORCING ANY ENCUMBRANCE OF ANY KIND AGAINST SUCH ENTITIES OR THE PROPERTY OR THE ESTATES OF SUCH ENTITIES ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS; (4) ASSERTING ANY RIGHT OF SETOFF, SUBROGATION, OR RECOUPMENT OF ANY KIND AGAINST ANY OBLIGATION DUE FROM SUCH ENTITIES OR AGAINST THE PROPERTY OF SUCH ENTITIES ON ACCOUNT OF, IN CONNECTION WITH, OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS UNLESS SUCH HOLDER HAS FILED A MOTION REQUESTING THE RIGHT TO PERFORM SUCH SETOFF ON OR BEFORE THE EFFECTIVE DATE, AND NOTWITHSTANDING AN INDICATION OF A CLAIM OR INTEREST OR OTHERWISE THAT SUCH HOLDER ASSERTS, HAS, OR INTENDS TO PRESERVE ANY RIGHT OF SETOFF PURSUANT TO APPLICABLE LAW OR OTHERWISE; AND (5) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR OTHER PROCEEDING OF ANY KIND ON ACCOUNT OF, IN CONNECTION WITH, OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS RELEASED OR SETTLED PURSUANT TO THE FULL PAYMENT APPEALSETTLEMENT PLAN.

UPON CONFIRMATION OF THE FULL PAYMENT APPEALSETTLEMENT PLAN, ALL HOLDERS OF CLAIMS AND INTERESTS AND THEIR RESPECTIVE CURRENT AND FORMER EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, PRINCIPALS, AND DIRECT AND INDIRECT AFFILIATES SHALL BE ENJOINED FROM TAKING ANY ACTIONS TO INTERFERE WITH THE IMPLEMENTATION OR CONSUMMATION OF THE FULL PAYMENT APPEALSETTLEMENT PLAN. EACH HOLDER OF ANY ALLOWED CLAIM OR ALLOWED INTEREST, AS APPLICABLE, BY ACCEPTING, OR BEING ELIGIBLE TO ACCEPT, DISTRIBUTIONS UNDER OR REINSTATEMENT OF SUCH CLAIM OR INTEREST, AS APPLICABLE, PURSUANT TO THE FULL PAYMENT


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APPEALSETTLEMENT PLAN, SHALL BE DEEMED TO HAVE CONSENTED TO THE INJUNCTION PROVISIONS SET FORTH IN THE FULL PAYMENT APPEALSETTLEMENT PLAN.

I. Judgment Creditor Injunction / Abatement

UNTIL THE EARLIER OF (I) THE INJUNCTION TERMINATION DATE AND (II) THE DATE ON WHICH THE REORGANIZED DEBTORS DEFAULT ON THEIR OBLIGATIONS OWED TO UMB OR THE JUDGMENT CREDITORS UNDER THE FULL PAYMENT APPEAL PLAN, UMB AND THE JUDGMENT CREDITORS WILL EACH BE ENJOINED FROM SUING THE OTHER OR THE DRURYS, AND THE DRURYS WILL BE ENJOINED FROM SUING UMB OR THE JUDGMENT CREDITORS, FOR ANY CAUSE OF ACTION ARISING PRIOR TO THE PETITION DATE. ALL STATUTES OF LIMITATION FOR ANY CAUSE OF ACTION ENJOINED AGAINST THE ESTATES, THE DRURYS, UMB, AND THE JUDGMENT CREDITORS ARE TOLLED UNTIL ONE YEAR AFTER (I) THE INJUNCTION TERMINATION DATE OR (II) THE DATE ON WHICH THE REORGANIZED DEBTORS DEFAULT ON THEIR OBLIGATIONS OWED TO UMB OR THE JUDGMENT CREDITORS UNDER THE FULL PAYMENT APPEAL PLAN, WHICHEVER OCCURS FIRST.

I. J. Protections Against Discriminatory Treatment

Consistent with § 525 of the Bankruptcy Code and the Supremacy Clause of the U.S. Constitution, all Entities, including Governmental Units, shall not discriminate against the Reorganized Debtors and/or their successors and assigns as applicable under the APA or deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, the Reorganized Debtors and/or their successors and assigns as applicable under the APA, or another Entity with whom the Reorganized Debtors have been associated, solely because the Reorganized Debtors have been debtors under chapter 11 of the Bankruptcy Code, have been insolvent before the commencement of the Bankruptcy Cases (or during the Bankruptcy Cases but before the Debtors are granted or denied a discharge), or have not paid a debt that is dischargeable in the Bankruptcy Cases.

J. K. Reimbursement or Contribution

If the Bankruptcy Court disallowsan Entity asserts a Claim for reimbursement, indemnification, or contribution of an Entity, then such Claim shall be forever disallowed and expunged pursuant to § 502(e)(1)(B) of the Bankruptcy Code, then to the extent that such Claim is contingent as of the time of allowance or disallowance, such Claim shall be forever disallowed and expunged notwithstanding § 502(j) of the Bankruptcy Code, unless prior to the ConfirmationEffective Date: (i) such Claim has been adjudicated as non-contingent; or (ii) the relevant Holder of a Claim has filed a non-contingent Proof of Claim on account of such Claim and and Allowed by a Final Order has been entered by the Bankruptcy Court prior to the Confirmation Date determining such Claim is no longer contingentEffective Date.


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ARTICLE XI. CONDITIONS PRECEDENT TO

CONFIRMATION AND CONSUMMATION

A. Conditions Precedent to Confirmation

The following areAs conditions precedent to Confirmationconfirmation of the Full Payment Appeal Plan that shall be satisfied or waived Settlement Plan, the Bankruptcy Court shall have entered an order or orders:

1. approving the Disclosure Statement as containing “adequate information” pursuant to § 1125 of the Bankruptcy Code;

2. authorizing the solicitation of votes on the Plan;

3. determining that all votes are binding and have been properly tabulated as acceptances or rejections of the Full Payment Settlement Plan;

4. in writing in accordance with the Full Payment Appeal Plan: The Full Payment Appeal Plan and Confirmation Order shall be in form and substance acceptable to the Debtors. and DBK Industries, in their reasonable discretion, confirming and giving effect to the terms and provision of the Full Payment Settlement Plan, the APA, and the Full Payment Settlement Plan Documents;

5. determining that all applicable tests, standards, and burdens in connection with the Plan have been duly satisfied and met by the Debtors and the Plan; and

6. authorizing the Debtors to execute, enter into, and deliver the APA and the Full Payment Settlement Plan Documents and to execute, implement, and to take all actions otherwise necessary or appropriate to give effect to, the transactions contemplated by the Full Payment Settlement Plan and the Full Payment Settlement Plan Documents.

B. Conditions Precedent to Effectiveness

1. The Bankruptcy Court shall have entered the Confirmation Order in a form and substance acceptable to the Debtors and DBK Industries and shall not (a) have been reversed or vacated, (b) be subject to a then-effective stay, or (c) have been modified or amended;

2. The Full Payment AppealSettlement Plan, including any amendments, modifications, or supplements thereto, and inclusive of any amendments, modifications, or supplements made after the Confirmation Date but before the Effective Date, shall be in form and substance acceptable to the Debtors; and

3. The Creditor Trust Agreement shall be in form and substance acceptable to the Debtors; and

3. The APA shall have been executed as of the Effective Date;

3. 4. The Exit Financing Documents shall have been executed as of the Effective Date.;


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4. Closing of any Exit Financing shall have occurred; and

5. All necessary consents, authorizations, and approvals for the transfers of the property, including the assumption of Executory Contracts and Unexpired Leases, and the payments provided for or contemplated by the Plan shall have been given.

C. Waiver of Conditions

The conditions to Confirmation and the Effective Date set forth in this Article may be waived only with the prior written consent of the Debtors or DBK Industries, if applicable, without notice, leave, or order of the Bankruptcy Court or any formal action other than proceedings to confirm or consummate the Full Payment AppealSettlement Plan.

D. Effect of Failure of Conditions

If Consummation does not occur, then the Full Payment AppealSettlement Plan and Creditor Trust Agreement shall be null and void in all respects and nothing contained in the Full Payment AppealSettlement Plan shall: (i) constitute a waiver or release of Claims, Interests, or Causes of Action by the Debtors; (ii) prejudice in any manner the rights of the Debtors, any Holders of Claims or Interests, or any other Person or Entity; or (iii) constitute an admission, acknowledgement, offer, or undertaking by the Debtors, any Holders of Claims or Interests, or any other Person or Entity.

ARTICLE XII. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE FULL PAYMENT

APPEALSETTLEMENT PLAN

A. Modifications and Amendments

Except as otherwise specifically provided in the Full Payment AppealSettlement Plan, the Debtors reserve the right to modify the Full Payment AppealSettlement Plan, whether such modification is material or immaterial, and seek Confirmation consistent with the Bankruptcy Code. Subject to those restrictions on modifications set forth in the Full Payment AppealSettlement Plan and the requirements of § 1127 of the Bankruptcy Code, Bankruptcy Rule 3019, and, to the extent applicable, 1122, 1123 and 1125 of the Bankruptcy Code, the Debtors expressly reserve their rights to revoke or withdraw, or, to alter, amend, or modify the Full Payment AppealSettlement Plan, one or more times, after Confirmation, and, to the extent necessary may initiate proceedings in the Bankruptcy Court to so alter, amend, or modify the Full Payment AppealSettlement Plan, or remedy any defect or omission, or reconcile any inconsistencies in the Full Payment AppealSettlement Plan, or the Confirmation Order, in such matters as may be necessary to carry out the purposes and intent of the Full Payment AppealSettlement Plan.

B. Effect of Confirmation on Modifications

Entry of a Confirmation Order shall mean that all modifications or amendments to the Full Payment AppealSettlement Plan are approved pursuant to Bankruptcy Code § 1127(a) and do not require additional disclosure under Bankruptcy Rule 3019.


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C. Revocation or Withdrawal of Full Payment AppealSettlement Plan

The Debtors reserve their rights to revoke or withdraw the Full Payment AppealSettlement Plan prior to the Confirmation Date and to file subsequent plans of reorganization. If the Debtors revoke or withdraw the Full Payment AppealSettlement Plan, then: (i) the Full Payment AppealSettlement Plan shall be null and void in all respects; (ii) any settlement or compromise embodied in the Full Payment AppealSettlement Plan (including the fixing or limiting to an amount certain of any Claim or Interests or Class of Claims or Interests), assumption or rejection of Executory Contracts and Unexpired Leases effected under the Full Payment AppealSettlement Plan, and any document or agreement executed pursuant to the Full Payment AppealSettlement Plan, shall be deemed null and void; and (iii) nothing contained in the Full Payment AppealSettlement Plan shall (a) constitute a waiver or release of any Claims or Interests; (b) prejudice in any manner the rights of the Debtors or any other Entity; or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtors or any other Person or Entity.

ARTICLE XIII. RETENTION OF JURISDICTION

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, on and after the Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction over all matters arising out of, or relating to, the Bankruptcy Cases and the Full Payment AppealSettlement Plan pursuant to §§ 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:

1. Allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim or Interest, including the resolution of any requests for payment of any Administrative Claim and the resolution of any objections to the secured or unsecured status, priority, amount, or allowance of Claims or Interests;

2. Decide and resolve all matters related to the granting and denying, in whole or in part, any applications for allowance of compensation or reimbursement of expenses to Professionals authorized pursuant to the Bankruptcy Code or the Full Payment AppealSettlement Plan;

3. Resolve any matters related to: (a) the assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to which either Debtor is a party or with respect to which either Debtor may be liable and to hear, determine, and, if necessary, liquidate, any Claims arising therefrom, including Cure Claims pursuant to § 365 of the Bankruptcy Code; (b) any potential contractual obligation under any Executory Contract or Unexpired Lease that is assumed; (c) the Reorganized Debtors and/or their successors and assigns as applicable under the APA amending, modifying, or supplementing, after the Effective Date, the Schedules of Executory Contracts and Unexpired Leases to be assumed or rejected or otherwise; and (d) any dispute regarding whether a contract or lease is or was executory or expired;

4. Ensure that distributions to Holders of Allowed Claims and Allowed Interests (as applicable) are accomplished pursuant to the provisions of the Full Payment AppealSettlement Plan and Creditor Trust Agreement;


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5. Adjudicate, decide, or resolve any motions, adversary proceedings, any other contested or litigated matters, and grant or deny any applications involving the Debtors or property of the Debtors that may be pending on the Effective Date;

6. Adjudicate, decide, or resolve all matters related to §§ 541 and 1141 of the Bankruptcy Code;

7. Enter and implement such orders as may be necessary to execute, implement, or consummate the provisions of the Full Payment AppealSettlement Plan, the Creditor Trust Agreement, and all contracts, instruments, releases, indentures, and other agreements or documents created in connection with the Full Payment AppealSettlement Plan;

8. Enter and enforce any order for the sale of property pursuant to §§ 363, 1123, or 1146(a) of the Bankruptcy Code;

9. Resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the Consummation, interpretation, or enforcement of the Full Payment AppealSettlement Plan or any Entity’s obligations incurred in connection with the Full Payment AppealSettlement Plan;

10. Issue injunctions, enter and implement other orders, or take such other actions as may be necessary to restrain interference by any Person or Entity with respect to Consummation or enforcement of the Full Payment AppealSettlement Plan;

11. Resolve any cases, controversies, suits, disputes or Causes of Action with respect to the settlements, injunctions, and other provisions contained in herein and enter such orders as may be necessary to implement such releases, injunctions and other provisions;

12. Resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the repayment or return of distributions and the recovery of additional amounts owed by the Holder of a Claim or Interest for amounts not timely repaid pursuant to this Full Payment AppealSettlement Plan;

13. Enter and implement such orders as are necessary if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;

14. Determine any other matters that may arise in connection with or related to the Full Payment AppealSettlement Plan, the Creditor Trust Agreement, the Confirmation Order, or any contract, instrument, release, indenture, or other agreement or document created in connection with the Full Payment AppealSettlement Plan;

15. Enter an order closing the Bankruptcy Cases;

16. Adjudicate any and all disputes arising from or relating to distributions under the Full Payment AppealSettlement Plan;

17. Consider any modifications of the Full Payment AppealSettlement Plan, to cure any defect or omission, or to reconcile any inconsistency in any Court order, including the Confirmation Order;


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18. Determine requests for the payment of Claims and Interests entitled to priority pursuant to § 507 of the Bankruptcy Code;

19. Hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Full Payment AppealSettlement Plan or the Confirmation Order, including disputes arising under agreements, documents, or instruments executed in connection with the Full Payment AppealSettlement Plan;

20. Hear and determine matters concerning state, local, and federal taxes in accordance with §§ 363, 505, and 1146 of the Bankruptcy Code;

21. Hear and determine all disputes involving the existence, nature, scope, or enforcement of any exculpations, discharges, injunctions and releases granted in the Full Payment AppealSettlement Plan;

22. Enforce all orders previously entered by the Bankruptcy Court; and

23. Hear any other matter not inconsistent with the Bankruptcy Code.

ARTICLE XIV. MISCELLANEOUS PROVISIONS

A. Immediate Binding Effect

Notwithstanding Bankruptcy Rules 3020(e), 6004(h), 7062, or otherwise, upon the occurrence of the Effective Date, the terms of the Full Payment AppealSettlement Plan shall be immediately effective and enforceable and deemed binding upon: (1) the Estates; (2) the Reorganized Debtors and/or their successors and assigns as applicable under the APA; (3) all Holders of Claims or Interests (regardless of whether such Holders are deemed to have accepted the Full Payment AppealSettlement Plan); (4) all Entities that are parties to or are subject to the settlements, compromises, releases, discharges, and injunctions described in the Full Payment AppealSettlement Plan; (5) each Entity acquiring property under the Full Payment AppealSettlement Plan or Creditor Trust Agreement; and (6) any and all non-Debtor parties to Executory Contracts and Unexpired Leases.

B. Additional Documents

The Debtors will file with the Bankruptcy Court the Full Payment AppealSettlement Plan Supplement Documents, including Exit Financing Documents, and other documents or agreements as may be necessary to effectuate and further evidence the terms and conditions of the Full Payment AppealSettlement Plan or Creditor Trust Agreement, at least ten (10) days prior to the Voting Deadline or such later date as may be approved by the Bankruptcy Court on notice to parties in interest (unless already on file with the Bankruptcy Court or attached as Exhibits to the Full Payment AppealSettlement Plan or the Disclosure Statement) provided, however, that the Debtors may amend the Full Payment AppealSettlement Plan Supplement Documents through and including the Confirmation Date. The Debtors or the Reorganized Debtorsand/or their successors and assigns as applicable under the APA, as applicable, and all Holders of Claims or Interests receiving distributions pursuant to the Full Payment AppealSettlement Plan and Creditor Trust Agreement and all other parties in interest shall, from time to time, prepare, execute, and deliver any agreements or documents


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and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Full Payment AppealSettlement Plan.

C. Payment of Statutory Fees

All fees payable pursuant to § 1930(a) of the Judicial Code, as determined by the Bankruptcy Court at a hearing pursuant to § 1128 of the Bankruptcy Code, shall be paid by the Reorganized DebtorsPlan Administrator for each quarter (including any fraction thereof) until the Bankruptcy Cases are converted, dismissed, or closed – whichever occurs first.

D. Reservation of Rights

Except as expressly set forth in the Full Payment AppealSettlement Plan, the Full Payment AppealSettlement Plan shall have no force or effect unless the Bankruptcy Court shall enter the Confirmation Order, and the Confirmation Order shall have no force or effect if the Effective Date does not occur. None of the Filing of the Full Payment AppealSettlement Plan, any statement or provision contained in the Full Payment AppealSettlement Plan, or the taking of an action by the Debtors with respect to the Full Payment AppealSettlement Plan, or the Creditor Trust Agreement shall be, or shall be deemed to be, an admission or waiver of any rights of the Debtors with respect to the Holders of Claims or Interests prior to the Effective Date.

E. Successors & Assigns

The rights, benefits, and obligations of any Entity named or referred to in the Full Payment AppealSettlement Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, Affiliate, officer, director, agent, representative, attorney, beneficiaries, or guardian, if any, of each Entity.

F. Notices

All notices, requests, and demands to or upon the Debtors to be effective shall be in writing (including any facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered, or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:

Marcus A. Helt (TX 24052187) C. Ashley Ellis (TX 00794824) FOLEY & LARDNER, LLP

2021 McKinney Avenue, Suite 1600 Dallas, TX 75201

Telephone: (214) 999-3000 Facsimile: (214) 999-4667

[email protected] [email protected]


mailto:[email protected]

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G. Term of Injunctions or Stays

Unless otherwise provided in the Full Payment AppealSettlement Plan or in the Confirmation Order, all injunctions or stays in effect in the Bankruptcy Cases pursuant to §§ 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any injunctions or stays contained in the Full Payment AppealSettlement Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Full Payment AppealSettlement Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.

H. Entire Agreement

Except as otherwise indicated, the Full Payment AppealSettlement Plan (including, for the avoidance of doubt, the Full Payment AppealSettlement Plan Supplement Documents) supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which are deemed merged and integrated into the Full Payment AppealSettlement Plan.

I. Exhibits

All Exhibits and documents attached to the Full Payment AppealSettlement Plan are incorporated into and are a part of the Full Payment AppealSettlement Plan as if set forth in full in the Full Payment AppealSettlement Plan. After the Exhibits and documents are filed, copies of such Exhibits and documents shall be available upon written request to the Debtors’ counsel at the address set forth herein or by downloading such Exhibits and documents from the Court’s CM/ECF filing system or the website maintained by the Debtors’ notice and claim agent, Bankruptcy Management Solutions, Inc. d/b/a Stretto at https://cases.stretto.com/diamondback. To the extent any Exhibit or document is inconsistent with the terms of the Full Payment AppealSettlement Plan, unless otherwise ordered by the Bankruptcy Court, the non-exhibit or non-document portion of the Full Payment AppealSettlement Plan shall control.

J. Nonseverability of Full Payment AppealSettlement Plan Provisions

If, prior to Confirmation, any term or provision of the Full Payment AppealSettlement Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Full Payment AppealSettlement Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Full Payment AppealSettlement Plan, as it may have been altered or interpreted in accordance with the foregoing, is: (1) valid and enforceable pursuant to its terms; (2) integral to the Full Payment AppealSettlement Plan and may not be deleted or modified without the Debtor’s consent; and (3) nonseverable and mutually dependent.


https://cases.stretto.com/diamondback

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K. Full Payment AppealSettlement Plan Proposed in Good Faith

Upon entry of the Confirmation Order, the Debtors will be deemed to have proposed the Full Payment AppealSettlement Plan in good faith and in compliance with the Bankruptcy Code, and pursuant to § 1125(e) of the Bankruptcy Code, the Debtors and each of their Affiliates, agents, representatives, members, principals, shareholders, officers, directors, employees, advisors, and attorneys will be deemed to have participated in good faith and in compliance with the Bankruptcy Code, and, therefore, neither any of such individuals or Entities, or the Reorganized Debtors and/or their successors and assigns as applicable under the APA, will have any liability for the violation of any applicable law, rule, or regulation governing the proposal of the Full Payment AppealSettlement Plan or participation in the Bankruptcy Cases.

L. Closing the Bankruptcy Cases

The Reorganized DebtorsPlan Administrator shall, promptly after the administration of the Bankruptcy Cases, File with the Bankruptcy Court all documents required by Bankruptcy Rule 3022 and any applicable order of the Bankruptcy Court to close the Bankruptcy Cases.

M. Waiver or Estoppel

Each Holder of a Claim or an Interest shall be deemed to have waived any right to assert any arguments, including the right to argue that its Claim or Interest should be Allowed in a certain amount, in a certain priority, secured or not subordinated by virtue of an agreement made with the Debtors, Creditor Trustee, or or their counsel, or any other Entity, if such agreement was not disclosed in the Full Payment AppealSettlement Plan or papers filed with the Bankruptcy Court prior to the Confirmation Date.

N. Controlling Document

If there is an inconsistency between the Confirmation Order and the Full Payment AppealSettlement Plan, the Confirmation Order shall control.


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Respectfully submitted on the ___ of AugustOctober, 2020.

DIAMONDBACK

By: /s/ Cade Kennedy Cade Kennedy Chief Restructuring Officer

DEBTOR


DEBTOR


Prepared by: Marcus A. Helt (TX 24052187) C. Ashley Ellis (TX 00794824) FOLEY & LARDNER 2021 McKinney Avenue, Suite 1600 Dallas, TX 75201 Telephone: (214) 999-3000 Facsimile: (214) 999-4667 COUNSEL FOR DEBTORS AND DEBTORS-IN-POSSESSION


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