mg Doc 448 Filed 06/27/16 Entered 06/27/16 14:57:26 Main Document Pg 1 of 8. x : : : : : : :

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1 Pg 1 of 8 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re QUIRKY, INC., et al. 1 Debtors. x Chapter 11 Case No (mg) x ORDER APPROVING (I) DISCLOSURE STATEMENT, (II) FORM AND MANNER OF NOTICES, (III) FORM OF BALLOTS AND (IV) SOLICITATION MATERIALS AND SOLICITATION PROCEDURES Upon the motion of Quirky, Inc. ( Quirky ) Wink, Inc. ( Wink ); and Undercurrent Acquisition, LLC ( Undercurrent, and together with Wink, the Subsidiary Debtors, and collectively with Quirky, the Debtors ) in the above-captioned Chapter 11 Cases for the entry of an order approving (i) the Disclosure Statement 2 for the Plan, (ii) the form and manner of notices, (iii) the form of ballots and (iv) the solicitation materials and solicitation procedures (the Motion ); and it appearing that the relief requested is in the best interests of the Debtors estates, their creditors and other parties in interest; and it appearing that this Court has jurisdiction over this matter pursuant to 11 U.S.C. 157 and 1334; and it appearing that this proceeding is a core proceeding pursuant to 11 U.S.C. 158(a); and a hearing on the approval of the Disclosure Statement having been held on June 27, 2016 (the Hearing ); NOW, THEREFORE, the Court hereby finds as follows A. The Disclosure Statement complies with the requirements of the Bankruptcy Code, the Bankruptcy Rules and Local Bankruptcy Rules, and contains adequate information as such term is defined in section 1125 of the Bankruptcy Code. B. Proper and adequate notice of the time fixed for filing of objections to the 1 The Debtors in these chapter 11 cases and the last four digits of each Debtor s taxpayer identification number are as follows Quirky, Inc. (2873); Wink, Inc. (8826); and Undercurrent Acquisition, LLC (9692). 2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion or Plan, as applicable.

2 Pg 2 of 8 it is hereby Disclosure Statement and the Hearing on approval of the Disclosure Statement has been given to all parties in interest. C. The solicitation procedures proposed in the Motion are fair and reasonable. D. Service of the Disclosure Statement and Plan by June 30, 2016, with objections to the Plan due on July 13, 2016 at 1200 p.m., with a Certification of Ballots due by July 14, 2016 at 400 p.m. and with a Confirmation Hearing to occur on July 15, 2016 at 1000 a.m., shall constitute sufficient notice for purposes of Bankruptcy Rule 2002 and Local Bankruptcy Rules and ACCORDINGLY, after due deliberation and sufficient cause appearing therefor; ORDERED that the Motion is granted to the extent provided herein and the Disclosure Statement is hereby approved; and it is further ORDERED that the Confirmation Hearing will be held before The Honorable Martin Glenn, United States Bankruptcy Judge, at the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, Courtroom 523, New York, New York 10004, on July 15, 2016 at 1000 a.m. (prevailing Eastern time), as such date may be continued or adjourned by the Court; and it is further ORDERED that objections, if any, to the Plan must (i) be in writing, (ii) state the name and address of the objecting party and the amount and nature of the claim or interest of such party, (iii) state with particularity the basis and nature of any objection or proposed modification, and (iv) be filed with the Clerk of the Court, with a copy delivered to Chambers, and served so as to be received by (a) Klestadt Winters Jureller Southard & Stevens, LLP, 200 West 41 st Street, 17 th Floor, New York, New York 10036, Attn Sean C. Southard, Joseph C. Corneau and Lauren C. Kiss, conflicts counsel for the Debtors; (b), Cooley LLP, 1114 Avenue of

3 Pg 3 of 8 the Americas, New York, New York 10036, Attn Jeffrey L. Cohen, Michael A. Klein and Max Schlan, counsel for the Debtors; (c) Otterbourg P.C., 230 Park Avenue, New York, New York 10169, Attn Melanie L. Cyganowski, Stanley L. Lane, Jr. and Kevin Zuzolo, attorneys for the Official Committee of Unsecured Creditors; (d) Sheppard, Mullin, Richter & Hampton LLP, 30 Rockefeller Plaza, New York, New York 10112, Attn William R. Wyatt, Malani Cademartori and Michael Driscoll, counsel to Comerica Bank, N.A., (e) the Office of the United States Trustee, U.S. Federal Office Building, 201 Varick Street, Suite 1006, New York, New York 10004, Attention Paul K. Schwartzberg; and (f) all parties having filed a notice of appearance herein, no later than 400 p.m. (prevailing Eastern time) on July 13, 2016 at 1200 p.m. (the Plan Objection Deadline ); and it is further ORDERED that the Solicitation Procedures are hereby approved; and it is further ORDERED that the Debtors shall cause the Voting Agent, by June 30, 2016 (the Solicitation Date ), to mail the Solicitation Package to all known holders of claims in Class 1 and Class 4, provided, however, that the Debtors shall cause the Voting Agent to only the Confirmation Hearing Notice to Community Members; and it is further ORDERED that consistent with section 1126 of the Bankruptcy Code and Bankruptcy Rule 3017(d), the Solicitation Package will not be distributed to holders of claims against or interests in the Debtors that are placed in a class under the Plan that is conclusively presumed to accept or deemed to reject the Plan under section 1126 of the Bankruptcy Code; provided however, that the Debtors will distribute (in addition to the Confirmation Hearing Notice), by the Solicitation Date, a Notification of Non-Voting Status to holders of claims that are deemed to accept or deemed to reject the Plan substantially in the form annexed to the Motion, as applicable, and it is further

4 Pg 4 of 8 ORDERED that by the Solicitation Date, the Debtors shall cause the Voting Agent to mail the Confirmation Hearing Notice to all known holders of Administrative Expense Claims and Priority Tax Claims; and it is further ORDERED that the Debtors and the Voting Agent are authorized to, prior to solicitation, (a) make non-material and conforming changes (including, but not limited to correcting typographical errors, altering formatting and inserting missing or changed dates) to the Plan, the Disclosure Statement, and related solicitation documents and forms and (b) revise the Disclosure Statement and related documents (including, without limitation, the exhibits thereto) to add further disclosure, including disclosure concerning events occurring at or after the Hearing; and it is further ORDERED that the first calendar date set for the hearing to approve the Disclosure Statement shall be the record date (the Voting Record Date ) for purposes of determining which creditors are entitled to vote on the Plan; and it is further ORDERED that Ballots completed by holders of claims in Class 1 and Class 4 must be actually received by the Voting Agent on or before 1200 p.m. (prevailing Eastern time) on July 13, 2016 at 1200 p.m. (the Voting Deadline ) either by (a) mail, overnight courier or hand delivery to Quirky, Inc. et al., Balloting, c/o Rust Consulting/Omni Bankruptcy, 4955 De Soto Avenue, Suite 100, Woodland Hills, CA 91367; (b) by to quirkyvoting@omnimgt.com; or (c) by facsimile to (818) ; and it is further ORDERED that for voting purposes only, and not for the purpose of determining who has an allowed claim or who is entitled to receive a distribution under the Plan each holder of a voting claim shall have an allowed claim, solely for the purpose of voting on the Plan, in an amount equal to (i) the amount of such claim as allowed by order of Court or as allowed pursuant

5 Pg 5 of 8 to the Plan; (ii) if (i) does not apply, then the amount of any timely filed proof of claim that is not the subject of an objection; or (iii) if neither (i) nor (ii) applies, then the non-contingent, liquidated, and undisputed amount set forth on the Debtors schedule of liabilities as filed in the Chapter 11 Cases; and it is further ORDERED that holders of filed claims that are wholly unliquidated or are in a zero or unknown amount are entitled to vote in the amount of $1.00; and it is further ORDERED that for purposes of the Voting Record Date, no transfer of claims pursuant to Bankruptcy Rule 3001 shall be recognized unless (i) documentation evidencing such transfer was filed with the Court on or before twenty-one (21) days prior to the Voting Record Date; and (ii) no timely objection with respect to such transfer was filed by the transferor; and it is further ORDERED that if a proof of claim clearly (i) is duplicative of another proof of claim filed by or on behalf of the same holder, or (ii) amends or supersedes a prior proof of claim filed by or on behalf of the same holder, such later-filed proof of claim shall supersede the duplicative, amended, or superseded claim (as applicable) for voting and tabulation purposes and the holder shall have one (1) claim for voting purposes; and it is further ORDERED that if the Debtors or another party in interest has filed and served an objection to a voting claim at least fourteen (14) days prior to the Voting Deadline, such claim shall be disallowed for voting purposes only and not for the purpose of allowance or distribution; and it is further ORDERED, that if any holder of a claim seeks to challenge the allowance of its Claim for voting purposes, such creditor shall serve on the Debtors and file with the Court (with a copy to Chambers) a motion for an order pursuant to Bankruptcy Rule 3018(a) temporarily

6 Pg 6 of 8 allowing such claim in a different amount for purposes of voting to accept or reject the Plan on or before the Voting Deadline, and that in accordance with Bankruptcy Rule 3018, and such holder s Ballot should not be counted unless temporarily allowed by the Court for voting purposes; and it is further ORDERED that to ensure that its vote is counted, each holder of a claim in Class 1 and Class 4 must (a) complete a Ballot; (b) indicate the holder s decision whether to accept or reject the Plan in the boxes provided in the Ballot; and (c) sign and return the Ballot, by the Voting Deadline; and it is further ORDERED that the following Solicitation Procedures are hereby approved a. Except to the extent allowed by the Court, Ballots received after the Voting Deadline will not be accepted or counted in connection with the Debtors request for confirmation of the Plan; b. Creditors shall not split their vote within a claim; thus each creditor shall be deemed to have voted the full amount of its claim either to accept or reject the Plan; c. Any Ballots that partially reject and partially accept the Plan shall not be counted; d. The method of delivery of Ballots to be sent to the Voting Agent is at the election and risk of each holder of a claim; e. Completed ballots may be transmitted to the Voting Agent by (a) mail, overnight courier, or hand delivery to Quirky, Inc., et al. Balloting, c/o Rust Consulting/Omni Bankruptcy, 5955 De Soto Avenue, Suite 100, Woodland Hills, CA 91367; (b) by to quirkyvoting@omnimgt.com; or (c) by fax to (818) ; f. No Ballot should be sent to the Debtors, their attorneys or any of their respective agents (other than the Voting Agent); g. The Debtors reserve the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify the Plan at any time prior to the entry of the Confirmation Order. If the Debtors make material changes in the terms of the Plan or the Debtors waive a material condition (except the waiver of conditions for the occurrence of the Effective Date (as defined in the Plan)) for which no Court direction or approval shall be required, the Debtors will disseminate additional solicitation materials and will extend the solicitation, in each case to the extent directed by the Court; h. If multiple Ballots are received from or on behalf of an individual holder of a claim with respect to the same claim prior to the Voting Deadline, and the later received Ballot(s) do not reflect a change in said individuals acceptance or rejection of the Plan, the last valid Ballot timely received will be deemed to

7 Pg 7 of 8 reflect the voter s intent and to supersede and revoke any prior Ballot; otherwise, any holder of a claim that seeks to change or withdraw an acceptance or rejection of the Plan must comply with the requirements set forth in Bankruptcy Rule 3018(a); i. If a Ballot is signed by a trustee, executor, administrator, guardian, attorney-infact, officer of a corporation, or other person acting in a fiduciary or representative capacity, such person shall be required to indicate such capacity when signing and, upon request of the Debtors, submit proper evidence satisfactory to the Debtors to so act on behalf of a beneficial interest holder; j. Upon further approval of the Court, the Debtors may waive any defect in any Ballot at any time, either before or after the close of voting; k. Any holder of impaired claims who has delivered a valid Ballot voting on the Plan may withdraw such vote solely in accordance with Bankruptcy Rule 3018(a); l. Any Ballot received that does not indicate either an acceptance or rejection of the Plan, but includes a valid signature, will not be counted except as approved by further order of the Court; m. Any Ballot that is unsigned, is tendered by a claimant in a class to which the corresponding Claim is not classified or is filed after the Voting Deadline will not be counted except as agreed in writing by the Debtors; n. Neither the Debtors, nor any other person or entity, will be under any duty to provide notification of defects or irregularities with respect to any Ballots nor will any of them incur any liabilities for failure to provide such notification; and o. The Voting Agent shall maintain and tabulate all Ballots received in accordance with the aforementioned procedures. The requirement of Local Rule 3018 that a certificate of the votes accepting and rejecting the Plan be filed seven (7) days prior to the Confirmation Hearing is waived. The Voting Agent shall file a certification of the votes accepting and rejecting the Plan on July 14, Ballots shall remain with the Voting Agent and shall not be filed with the Court. ORDERED that the Debtors shall not be required to r undelivered Solicitation Packages or other undeliverable solicitation-related notices that were returned marked undeliverable or moved - no forwarding address or for a similar reason, unless the Debtors have been informed in writing by such person of that person s new address; and it is further ORDERED that the Debtors are authorized and empowered to take all actions and execute such other documents as may be necessary to implement the relief granted herein; and it is further

8 Pg 8 of 8 ORDERED that this Court shall retain jurisdiction to hear and determine all matters arising from the implementation of this order. IT IS SO ORDERED. Dated June 27, 2016 New York, New York /s/martin Glenn MARTIN GLENN United States Bankruptcy Judge