Clovis Opt-Out Form for holders of Public Equity

 OPT-OUT ELECTION FORM 

            You are receiving this opt-out election form (this “Opt-Out Election Form”) because you are or may be a Holder of one or more Claims or Interests in Classes 5B, 5C, 6, 7, 8A or 8B under the First Amended Joint Chapter 11 Plan of Liquidation for Clovis Oncology, Inc. and Its Affiliated Debtors [D.I. 600] (as amended, supplemented or otherwise modified from time to time, according to its terms, the “Plan”)[1]

 Holders in Classes 5B, 5C, 6, 7, 8A and 8B are not entitled to any recovery under the Plan and are therefore deemed to reject the Plan.  Therefore, you will not be receiving a ballot to vote on the Plan.

            As of the Effective Date of the Plan, certain release, injunction and exculpation provisions set forth in the Plan will become effective, including a release by holders of Claims and Interests as set forth in section 11.15 of the Plan (the “Third-Party Release”).  These provisions are attached as Schedule A to this form.  You may choose to opt out of the Third-Party Release set forth in Section 11.5 of the Plan by following the instructions set forth in this Opt-Out Election Form.

IF YOU WISH TO OPT OUT OF THE THIRD-PARTY RELEASE SET FORTH IN SECTION 11.5 OF THE PLAN:

(1) PLEASE COMPLETE, SIGN, AND DATE THIS OPT-OUT ELECTION FORM AND RETURN IT TO KROLL RESTRUCTURING ADMINISTRATION LLC IN THE PREPAID, PRE-ADDRESSED BUSINESS REPLY ENVELOPE PROVIDED OR BY FIRST-CLASS MAIL, OVERNIGHT OR HAND DELIVERY TO:

OR

(2) SUBMIT YOUR CUSTOMIZED, ELECTRONIC OPT-OUT ELECTION FORM VIA THE CLAIMS AND BALLOTING AGENT’S ONLINE PORTAL AS FOLLOWS:

            Please visit the Debtors’ restructuring website at https://cases.ra.kroll.com/Clovis/.  Click on the “Submit E-Ballot” section of the website and follow the directions to submit the electronic version of your Opt-Out Election Form.  If you choose to submit your Opt-Out Election Form via the Claims and Balloting Agent’s online E-Ballot portal, you should not also return a hard copy of your Opt-Out Election Form.

The online E-Ballot portal is the sole manner in which your Opt-Out Election Form will be accepted via electronic or online transmission.  Out-Out Election Forms submitted by facsimile or email will not be counted.

            THIS OPT-OUT ELECTION FORM MUST BE ACTUALLY RECEIVED, REGARDLESS OF THE METHOD OF SUBMISSION, BY THE CLAIMS AND BALLOTING AGENT ON OR BEFORE THE VOTING DEADLINE OF MAY 17, 2023 AT 4:00 P.M. (PREVAILING EASTERN TIME) (THE “RELEASE OPT-OUT DEADLINE”).  IF THIS OPT-OUT ELECTION FORM IS RECEIVED AFTER THE RELEASE OPT-OUT DEADLINE, IT WILL NOT BE COUNTED BY THE CLAIMS AND BALLOTING AGENT AND YOU WILL BE DEEMED TO HAVE CONSENTED TO THE THIRD-PARTY RELEASE SET FORTH IN SECTION 11.5 OF THE PLAN.

11.5           Releases By Holders of Claims and Interests

As of the Effective Date, except (i) for the right to enforce the Plan and the Sale Transactions, and (ii) as otherwise expressly provided in the Plan or in the Confirmation Order, in exchange for good and valuable consideration, including the obligations of the Debtors under the Plan, to the fullest extent permissible under applicable law, as such law may be extended or integrated after the Effective Date, the Released Parties[1]  shall be deemed conclusively, absolutely, unconditionally, irrevocably and forever released by the Releasing Parties [2] in each case, from any and all Claims and Causes of Action, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, asserted or unasserted, accrued or unaccrued, existing or hereinafter arising, in law or equity, whether arising under federal or state statutory or common law, or any other applicable international, foreign, or domestic law, rule, statute, regulation, treaty, right, duty, requirement or otherwise, that such entity would have been legally entitled to assert in their own right (whether individually, derivatively, or collectively) or on behalf of the holder of any Claim or Interest or other Person, based on or relating to, or in any manner arising prior to the Effective Date, from, in whole or in part, the Debtors, the Chapter 11 Cases, the pre-and post-petition marketing and sale process, the Sale Transactions, the DIP Financing Agreement or any related agreements, instruments, and other documents relating thereto, the Prepetition Financing Agreement or any related agreements, instruments, and other documents relating thereto, the Unsecured Notes or any related agreements, instruments, and other documents relating thereto, the purchase, sale, or rescission of the purchase or sale of any securities issued by the Debtors, the ownership of any securities issued by the Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the administration or implementation of the Plan, including the issuance or distribution of the Liquidation Trust Assets pursuant to the Plan, the creation of the Liquidation Trust, the business or contractual arrangements between any Debtor and any Released Party, the Disclosure Statement, the Plan (including any Plan Supplement), or the solicitation of votes with respect to the Plan, or any other act or omission, in all cases based upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date related or relating to the foregoing.

Notwithstanding anything to the contrary to the foregoing, the release set forth above does not release any post-Effective Date obligations of any Person under the Plan or any document, instrument, or agreement (including those set forth in the Plan Supplement) executed to implement the Plan. Moreover, the foregoing release shall have no effect on the liability of, or any Causes of Action against, any Entity that results from any act or omission that is determined in a Final Order to have constituted actual fraud, willful misconduct, criminal acts, or gross negligence.

11.6     Exculpation.

To the maximum extent permitted by applicable law, no Exculpated Party[3] will have or incur, and each of the Exculpated Parties are hereby released and exculpated from, any claim, obligation, suit, judgment, damage, demand, debt, right, cause of action, remedy, loss, and liability for any claim arising on or after the Petition Date in connection with or arising out of the filing or administration of the Chapter 11 Cases, the postpetition marketing and sale process, the postpetition purchase, sale, or rescission of the purchase or sale of any security or asset of the Debtors; the negotiation and pursuit of the Disclosure Statement, the Sale Transactions, the Plan, or the solicitation of votes for, or confirmation of, the Plan; the funding or consummation of the Plan; the occurrence of the Effective Date; the DIP Financing Agreement; the post-Effective Date administration of the Plan or the property to be distributed under the Plan (including Liquidation Trust Assets); the creation of the Liquidation Trust; or the transactions in furtherance of any of the foregoing; except for actual fraud, gross negligence, criminal acts or willful misconduct, as determined by a Final Order.  This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities, exculpations and any other applicable law or rules protecting such Exculpated Parties from liability.  Notwithstanding anything to the contrary in the foregoing, the exculpation set forth herein does not release any post-Effective Date obligation or liability of any Entity under the Plan or any document, instrument, or agreement (including those set forth in the Plan Supplement) executed to implement the Plan.

11.7     Injunction.

Upon entry of the Confirmation Order, all holders of Claims and Interests and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates, shall be enjoined from taking any actions to interfere with the implementation or Consummation of the Plan in relation to any Claim extinguished, or released pursuant to the Plan.

Except as expressly provided in the Plan, the Confirmation Order, or a separate order of the Bankruptcy Court or as agreed to by the Debtors and a holder of a Claim against or Interest in the Debtors, all Entities who have held, hold, or may hold Claims against or Interests in the Debtors (whether or not proof of such Claims or Interests has been filed and whether or not such Entities vote in favor of, against or abstain from voting on the Plan or are presumed to have accepted or deemed to have rejected the Plan) and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates are permanently enjoined, on and after the Effective Date, solely with respect to any Claims, Interests, and Causes of Action that will be or are extinguished, or released pursuant to the Plan from (i) commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral, administrative or other forum) against or affecting the Debtors, the Liquidation Trust, or the property of any of the Debtors or the Liquidation Trust; (ii) enforcing, levying, attaching (including, without limitation, any prejudgment attachment), collecting, or otherwise recovering by any manner or means, whether directly or indirectly, any judgment, award, decree, or order against the Debtors, and the Liquidation Trust; or the property of any of the Debtors or the Liquidation Trust; (iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any encumbrance of any kind against the Debtors or the Liquidation Trust, or the property of any of the Debtors or the Liquidation Trust; (iv) asserting any right of setoff, directly or indirectly, against any obligation due from the Debtors or the Liquidation Trust, or against property or interests in property of any of the Debtors or the Liquidation Trust except as contemplated or allowed by the Plan; and (v) acting or proceeding in any manner, in any place whatsoever, that does not conform to or comply with the provisions of the Plan.

By accepting distributions pursuant to the Plan, each holder of an Allowed Claim or Interest extinguished, or released pursuant to the Plan shall be deemed to have affirmatively and specifically consented to be bound by the Plan, including, without limitation, the injunctions set forth in this Section 11.7.

The injunctions in this Section 11.7 shall extend to any successors of the Debtors, the Liquidation Trust, and their respective property and interests in property. 

By signing this Opt-Out Election Form, the undersigned certifies to the Bankruptcy Court and the Debtors that:

a)       the undersigned is either (i) the Holder of Claims or Interests as set forth above or (ii) an authorized signatory for an entity that is the Holder of the Claims or Interests set forth above;

b)      the undersigned has submitted the same election concerning the releases with respect to all Claims or Interests in a single Class as set forth above; and

c)       no other Opt-Out Election Form with respect to the Holder’s Claims or Interests has been completed or, if any other Opt-Out Election Forms have been submitted with respect to such Claims, then any such Opt-Out Election Forms are hereby revoked.