HTML Document View

Full title: Stipulation to Approve Document Stipulation and Proposed Order Regarding Resolution of Avago's Claim Filed by Debtor Wave Computing, Inc. (RE: related document(s)552 Objection to Claim filed by Debtor Wave Computing, Inc., 815 Notice of Appeal filed by Debtor Wave Computing, Inc., 868 Appellant Designation filed by Debtor Wave Computing, Inc., Statement of Issues on Appeal, 947 Appellee Designation filed by Creditor Avago Technologies International Sales Pte. Ltd.). (Attachments: # 1 Exhibit A) (Newman, Samuel) (Entered: 02/03/2021)

Document posted on Feb 2, 2021 in the bankruptcy, 5 pages and 0 tables.

Bankrupt11 Summary (Automatically Generated)

The Debtors, the Committee, Tallwood Technology Partners LLC, and certain holder7 preferred stock of Wave entered into the First Amended and Restated Plan Support Agreem8 effective as of November 16, 2020 (including all exhibits and schedules attached thereto, and as 9 be amended from time to time, the “PSA”).The PSA provides that Supporting Creditors (as defined in the PSA) shall, among ot11 things, not object to or otherwise impede confirmation of the Plan, timely vote to accept the Plan, 12 cease any support, directly or indirectly, for any alternative transaction, including a sale.Additional creditors may enter into the PSA with the Debtors, and thereby become 14 Release of All Known and Unknown Claims against Avago – In exchange for conditioned upon receipt of the reduction of Avago’s claim in this Stipulation, the Debtors and 19 Committee, on behalf of themselves and anyone acting by, through, or under them, and on behalany past and present affiliates, and to the fullest extent that they have authority to do so, on behal20 all related entities, partners, employees, shareholders, beneficiaries, creditors, officers, directors, bomembers, advisors, consultants, attorneys, insurers, predecessors, agents, trusts, trust21 representatives, and assigns claiming by or through them, and all others of those who do or may asany claim by or through any or all of them (collectively, the “Estate Releasors”), agree uncondition22 and forever to release and discharge Avago, Broadcom Inc., and each of their present or forsubsidiaries, affiliates, parents, attorneys, agents, representatives, partners, predecessors, success23 assigns, insurers, owners, employees, officers, directors, creditors, board members, and all persacting by, through, under, or in concert with them, or any of them (the “Avago Releasees”), from 24 and all manner of claims, actions, causes of action, demands, rights, or damages of any kind or natwhich the Estate Releasors had, may now have, or ever will have, whether in law or equity, know25 unknown, fixed or contingent, directly or indirectly, against the Avago Releasees (including, withlimitation, all avoidance claims arising under the Bankruptcy Code) arising out of, in connection w26 or relating to the above-referenced bankruptcy case. Avago Support of Plan – Avago agrees to enter into the PSA with the Debtors11 signing a joinder agreement concurrently herewith and, thereafter, subject to the Debtors’ satisfact12 of the conditions set forth in the joinder agreement, to comply with the terms of the PSA, includby not objecting to or otherwise impeding the confirmation of the Plan, timely delivering a d13 executed ballot accepting the Plan, and withdrawing any direct or indirect support for any alternattransaction, including a sale.

Page 1

1 SIDLEY AUSTIN LLP Samuel A. Newman (SBN 217042) 2 (sam.newman@sidley.com) Genevieve G. Weiner (SBN 254272) 3 (gweiner@sidley.com) Julia Philips Roth (SBN 324987) 4 (julia.roth@sidley.com) 555 West Fifth Street 5 Los Angeles, CA 90013 Telephone: 213.896.6000 6 Facsimile: 213.896.6600 7 SIDLEY AUSTIN LLP Charles M. Persons (admitted pro hac vice) 8 (cpersons@sidley.com) Juliana Hoffman (admitted pro hac vice) 9 (jhoffman@sidley.com) Jeri Leigh Miller (admitted pro hac vice) 10 (jeri.miller@sidley.com) 2021 McKinney Avenue, Suite 2000 11 Dallas, TX 75201 Telephone: 214.981.3300 12 Facsimile: 214.981.3400 13 Attorneys for Debtors and Debtors in Possession 14 UNITED STATES BANKRUPTCY COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN JOSE DIVISION 17 18 In re: ) Case No. 20-50682 (MEH) ) 19 WAVE COMPUTING, INC., et al., ) Chapter 11 (Jointly Administered) ) 20 Debtors.1 ) STIPULATION AND PROPOSED ORD ) 21 REGARDING RESOLUTION OF ) AVAGO’S CLAIM 22 ) ) Related to Docket Nos.: 552, 815, 868, 947 23 ) ) [No Hearing Requested] 24 ) ) 25 ) 26 1 The Debtors in these chapter 11 cases are Wave Computing, Inc., MIPS Tech, Inc., Hellosoft, I27 Wave Computing (UK) Limited, Imagination Technologies, Inc., Caustic Graphics, Inc., and M

Page 2

1 This stipulation (the “Stipulation”) regarding the resolution of the claim of Av 2 Technologies International Sales Pte. Ltd. (“Avago”) is made and entered into by and between W 3 Computing, Inc. and its debtor affiliates (as debtors and debtors-in-possession, collectiv4 the “Debtors”), the Official Committee of Unsecured Creditors (the “Committee”), and Av5 (collectively with the Debtors, and the Committee, the “Parties” and, each, a “Party”), by and thro6 their respective undersigned counsel. 7 RECITALS 8 A. The Avago Claim and Debtors’ Claim Objection 9 1. On September 28, 2020, Debtors objected to Proof of Claim No. 31-1 filed by Avag10 the amount of Twelve Million Five Hundred Thousand Dollars ($12,500,000). Bankr. Dkt. No. 5511 2. On November 6, 2020, the Bankruptcy Court denied Debtors’ objection to Proof of Cl12 No. 31-1. Bankr. Dkt. No. 714. 13 3. On November 20, 2020, Debtors timely filed their notice of appeal from the Bankrup14 Court’s order denying the objection to Proof of Claim No. 31-1. Bankr. Dkt. No. 815; Fed. R. Ba15 P. 8002(a)(1) (the “Appeal”). 16 4. On December 4, 2020, Debtors timely filed their designation of the items to be inclu17 in the record on appeal and statement of the issues to be presented. Bankr. Dkt. No. 868; Fed. R. Ba18 P. 8009(a)(1)(A). 19 5. On December 18, 2020, Appellee Avago timely filed its designation of the items to20 included in the record on appeal and a counter-statement of issues to be presented. Bankr. Dkt. 921 Fed. R. Bankr. P. 8009(a)(2). 22 6. On December 28, 2020, the Clerk of the Bankruptcy Court electronically transmitted 23 record on appeal to the Clerk of this Court. ECF No. 3. 24 7. After an extension, Appellants’ Opening Brief and Appendix are currently due 25 February 26, 2021. 26 8. On February 10, 2021, the Bankruptcy Court is scheduled to conduct a confirmat27 hearing on the Debtors’ joint chapter 11 plan of reorganization (the “Plan”).

Page 3

1 9. Since the filing of the Appeal, the Parties have been negotiating in good faith with e2 other in an attempt to settle the dispute, and desire to stipulate as to the allowed amount of Proo 3 Claim No. 31-1, subject to the conditions described herein and to entry of the proposed order attac4 hereto as Exhibit A (the “Order”). 5 B. The Plan Support Agreement 6 1. The Debtors, the Committee, Tallwood Technology Partners LLC, and certain holder7 preferred stock of Wave entered into the First Amended and Restated Plan Support Agreem8 effective as of November 16, 2020 (including all exhibits and schedules attached thereto, and as 9 be amended from time to time, the “PSA”). 10 2. The PSA provides that Supporting Creditors (as defined in the PSA) shall, among ot11 things, not object to or otherwise impede confirmation of the Plan, timely vote to accept the Plan, 12 cease any support, directly or indirectly, for any alternative transaction, including a sale. 13 3. Additional creditors may enter into the PSA with the Debtors, and thereby become 14 Supporting Creditors that are subject to the rights and obligations provided for under the PSA. 15 NOW THEREFORE, 16 1. Claim Amount – Avago’s Claim shall be fixed in the amount of Eleven Million N17 Hundred Thousand Dollars ($11,900,000). 18 2. Release of All Known and Unknown Claims against Avago – In exchange for conditioned upon receipt of the reduction of Avago’s claim in this Stipulation, the Debtors and 19 Committee, on behalf of themselves and anyone acting by, through, or under them, and on behalany past and present affiliates, and to the fullest extent that they have authority to do so, on behal20 all related entities, partners, employees, shareholders, beneficiaries, creditors, officers, directors, bomembers, advisors, consultants, attorneys, insurers, predecessors, agents, trusts, trust21 representatives, and assigns claiming by or through them, and all others of those who do or may asany claim by or through any or all of them (collectively, the “Estate Releasors”), agree uncondition22 and forever to release and discharge Avago, Broadcom Inc., and each of their present or forsubsidiaries, affiliates, parents, attorneys, agents, representatives, partners, predecessors, success23 assigns, insurers, owners, employees, officers, directors, creditors, board members, and all persacting by, through, under, or in concert with them, or any of them (the “Avago Releasees”), from 24 and all manner of claims, actions, causes of action, demands, rights, or damages of any kind or natwhich the Estate Releasors had, may now have, or ever will have, whether in law or equity, know25 unknown, fixed or contingent, directly or indirectly, against the Avago Releasees (including, withlimitation, all avoidance claims arising under the Bankruptcy Code) arising out of, in connection w26 or relating to the above-referenced bankruptcy case. The Estate Releasors expressly acknowledge tthey are familiar with principles of law such as Section 1542 of the Civil Code of the State27 California, which provides as follows:

Page 4

1 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR 2 SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR 3 HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. 4 The Estate Releasors acknowledge that they may discover facts different from, or in addition to, th5 facts which they now know or believe to be true, but agree that this release is now and shall remeffective notwithstanding the existence of the discovery of additional or different facts. The Es 6 Releasors hereby intentionally waive and relinquish all rights and benefits under any law of jurisdiction providing to the contrary, or any public policy that would limit or render void, voida7 or unenforceable any provision of this release. 8 3. Dismissal of Appeal – Debtors agree to file a stipulation of dismissal of the Appea9 dismiss the Appeal with prejudice within five (5) business days of when this Stipulation and Ordeentered. 10 4. Avago Support of Plan – Avago agrees to enter into the PSA with the Debtors11 signing a joinder agreement concurrently herewith and, thereafter, subject to the Debtors’ satisfact12 of the conditions set forth in the joinder agreement, to comply with the terms of the PSA, includby not objecting to or otherwise impeding the confirmation of the Plan, timely delivering a d13 executed ballot accepting the Plan, and withdrawing any direct or indirect support for any alternattransaction, including a sale. 14 5. Retention of Jurisdiction – The Court shall retain jurisdiction with respect to15 matters arising from or related to the implementation, interpretation, and/or enforcement of Stipulation and Order. 16 17 / / / 18 19 20 21 22 23 24 25 26 27

Page 5

1 SO STIPULATED: 2 SIDLEY AUSTIN LLP HOGAN LOVELLS US LLP 3 By: /s/ Samuel A. Newman By: /s/ Edward J. McNeilly 4 Samuel A. Newman Richard L. Wynne Genevieve G. Weiner Edward J. McNeilly 5 6 Attorneys for the Debtors and Debtors in Attorneys for the Committee Possession 7 8 LATHAM & WATKINS LLP 9 By: /s/ Peter M. Gilhuly 10 Peter M. Gilhuly 11 Attorney for Avago Technologies 12 International Sales Pte. Ltd. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27