SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 21, 1999
PAGE AMERICA GROUP, INC.
(Exact name of registrant as specified in charter)
NEW YORK 1-10682 13-2865787
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification
incorporation) No.)
c/o Bariston Associates, Inc.
ONE INTERNATIONAL PLACE, BOSTON, MASSACHUSETTS 02110
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 330-8950
(Former name or former address, if changed since last report)
<PAGE>
ITEM 3. BANKRUPTCY OR RECEIVERSHIP.
On December 21, 1999, the United States Bankruptcy Court for the
Southern District of New York confirmed a Prepackaged Liquidating Chapter 11
Plan for Page America Group, Inc. (the "Company") and its subsidiaries (the
"Plan"). The Plan became effective January 3, 2000. Pursuant to the Plan, the
Company will be dissolved on the Final Distribution Date. All creditors of the
Company, except for the holders of the Company's 15% Subordinated Notes due 2003
(the "Subordinated Notes"), will be paid all amounts due to them. The remaining
assets of the Company will then be distributed 70% to the holders of the
Subordinated Notes, 21% to the holders of Series One Preferred Stock and 9% to
the holders of Common Stock. A copy of the Plan is attached hereto as an exhibit
and the foregoing summary of the Plan is qualified in its entirety by such
exhibit.
The Company has outstanding 16,024,585 shares of Common Stock, 286,381
shares of Series One Preferred Stock and $13,000,000 original principal amount
of Subordinated Notes.
Immediately prior to confirmation of the Plan, the Company had assets
totaling approximately $10,400,000 and liabilities totaling approximately
$24,600,000.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
1. Findings of Fact, Conclusions of Law and Order Confirming
Prepackaged Liquidating Chapter 11 Plan for Page America Group, Inc.
2. Prepackaged Liquidating Chapter 11 Plan for Page America
Group, Inc. and Subsidiaries.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
PAGE AMERICA GROUP, INC.
By: /s/ David A. Barry
--------------------------
David A. Barry
Chairman of the Board
Dated: January 3, 2000
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE NO.
1 Findings of Fact, Conclusions of Law and Order Confirming
Prepackaged Liquidating Chapter 11 Plan for Page America
Group, Inc.
2 Prepackaged Liquidating Chapter 11 Plan for Page America
Group, Inc. and Subsidiaries.
EXHIBIT 1
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- ---------------------------------------------
IN RE: : CHAPTER 11 CASE NO.
: 99-10281 (JHG)
PAGE AMERICA GROUP, INC., ET AL., : 99-10284 (JHG)
: JOINTLY ADMINISTERED
DEBTORS. :
: TAX ID NO. 13-2865787
- --------------------------------------------
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
CONFIRMING PREPACKAGED LIQUIDATING CHAPTER 11
PLAN FOR PAGE AMERICA GROUP, INC. ET AL.
Page America Group, Inc. ("Page America"), Page America of New York,
Inc., Adirondack Radio Telephone Co., Inc. and Page America of Pennsylvania,
Inc., the above-captioned debtors and debtors-in-possession, (collectively, the
"Debtors"), having filed on June 16, 1999 (the "Petition Date") voluntary
petitions for relief under the provisions of Chapter 11 of Title 11 of the
United States Code, 11 U.S.C. ss.ss. 101 ET. seq. (the "Bankruptcy Code")
commencing these cases; and on the Petition Date, the Debtors having filed (i)
the Prepackaged Liquidating Chapter 11 Plan of Page America Group, Inc. ET AL.
(the "Plan"), (ii) the Disclosure Statement dated May 17, 1999 relating thereto
(the "Disclosure Statement"), and (iii) the certification of votes received on
the Plan pursuant to the prepetition solicitation of votes to accept or reject
the Plan (the "Prepetition Solicitation"); and the Court having entered an order
dated June 23, 1999 (the "Scheduling Order") that, INTER ALIA, established
December 21, 1999 at 9:30 a.m. as the date and time of a hearing (the
"Confirmation Hearing"), pursuant to Section 1129 of the Bankruptcy Code, to
consider confirmation of the Plan; and the Court having entered an order (the
"Disclosure Statement Order") dated October 5, 1999 that, INTER ALIA, approved
the Disclosure Statement and the procedures used in connection with the
Prepetition Solicitation; and due notice of the Confirmation Hearing having been
provided to all parties-in-interest in accordance with the Scheduling Order; and
the United States Trustee for the Southern District of New York (the "Trustee")
having filed an objection to the Disclosure Statement dated July 19, 1999; and
the Debtors having resolved such objection in connection with the Hearing on the
Disclosure Statement; and no objection to confirmation of the Plan having been
filed; and the Court having considered (i) the affidavit of Mark Greene dated
June 14, 1999 with respect to the transmittal of the Plan, the Disclosure
Statement and other solicitation materials to those entities entitled to vote on
the Plan, specifically (a) the holders of Class 1 Subordinated Note Claims and
(b) the holders of Class 3 Preferred Stock Interests; (ii) the affidavit of
Cindy Kehoe dated July 12, 1999 verifying that notice of the Confirmation
Hearing and the deadline for filing objections to the relief sought was
published in THE WALL STREET JOURNAL on July 2, 1999; (iii) the affidavits of
Jared S. Solomon dated June 30, 1999 with respect to the transmittal of the
Plan, the Disclosure Statement and other documents including notice of the
Confirmation Hearing and deadline for filing objections to the relief sought to
the Trustee, the Securities and Exchange Commission, all known creditors, all
persons filing a notice of appearance and requesting notice under Bankruptcy
Rule 2002, all parties to executory contracts and unexpired leases with the
Debtors, Secretaries of State in the Debtors' states of incorporation and all
governmental agencies and taxing authorities having an interest in the Debtors;
(iv) the affidavit of Christine Avena dated June 19, 1999 with respect to the
transmittal of the Plan, the Disclosure Statement and other documents including
notice of the Confirmation Hearing and deadline for filing objections to the
relief sought to all record holders of common stock of Page America Group, Inc.;
(v) the affidavit of Christine Avena dated June 19, 1999 with respect to the
transmittal of the Plan, the Disclosure Statement and other documents including
notice of the Confirmation Hearing and deadline for filing objections to the
relief sought to all non-objecting beneficial holders of common stock of Page
America Group, Inc.; (vi) the affidavit of Christine Avena dated August 19, 1999
with respect to the transmittal of the Plan, the Disclosure Statement and other
documents including notice of the Confirmation Hearing and deadline for filing
objections to the relief sought to all brokers listed on the Depository Trust
Company Participant List for objecting beneficial holders of Page America Group,
Inc.; and it appearing that no statutory committee of unsecured creditors has
been requested or appointed; and the Court having considered the evidence
adduced and arguments of counsel made at the Confirmation Hearing; and after due
deliberation and sufficient cause appearing therefor, the Court hereby makes the
following findings of fact and conclusions of law:
I. FINDINGS OF FACT
THE COURT HEREBY FINDS THAT:
1. All capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Plan or the Disclosure Statement.
A. JURISDICTION AND VENUE
2. This Court has jurisdiction over these Chapter 11 cases
pursuant to 28 U.S.C. ss.ss. 157 and 1334. Venue in the Bankruptcy Court for the
Southern District of New York for these Chapter 11 cases was proper as of the
Petition Date and continues to be proper.
B. COMPLIANCE WITH THE REQUIREMENTS OF SECTION 1129 OF THE
BANKRUPTCY CODE
1. SECTION 1129(A)(1) -- COMPLIANCE OF THE PLAN WITH APPLICABLE
PROVISIONS OF THE BANKRUPTCY CODE
3. The Plan complies with all applicable provisions of the
Bankruptcy Code, as required by Section 1129(a)(1) of the Bankruptcy Code,
including Sections 1122 and 1123.
a. SECTIONS 1122 AND 1123(A)(L)-(4) -- CLASSIFICATION AND
TREATMENT OF CLAIMS AND INTERESTS
4. The Plan designates two Classes of Claims (Classes 1 and 2)
and two Classes of Interests (Classes 3 and 4). The holders of Class 1
Subordinated Note Claims are impaired and have voted to accept the Plan.
Specifically, holders representing 100% of the Class 1 Subordinated Note Claims
voted to accept the Plan, and no holders of Class 1 Claims voted to reject the
Plan. The holders of Class 2 General Unsecured Claims are not impaired under the
Plan, and therefore, are conclusively presumed to have accepted the Plan
pursuant to Section 1126(f) of the Bankruptcy Code. The holders of Class 3
Preferred Stock Interests are impaired and have voted to accept the Plan.
Specifically, holders representing 84.3% of the Class 3 Preferred Stock
Interests voted to accept the Plan, and no holders of Class 3 Interests voted to
reject the Plan. The holders of Class 4 Common Stock Interests are impaired
under the Plan, and are deemed to have rejected the Plan pursuant to Section
1126(g) of the Bankruptcy Code.
5. As required by Sections 1122(a) of the Bankruptcy Code,
Article II of the Plan designates Classes of Claims (other than Administrative
Claims, Priority Claims and Priority Tax Claims) and Interests. As required by
Section 1122(a), each Claim in each Class of Claims is substantially similar to
the other Claims in such Class and each Interest in each Class of Interests is
substantially similar to the other Interests in such Class. In accordance with
Sections 1123(a)(2) and (3) of the Bankruptcy Code, Article III of the Plan
specifies all Classes of Claims and Interests that are not impaired under the
Plan and specifies the treatment of all Classes of Claims and Interests that are
impaired under the Plan. In accordance with Section 1123(a)(4) of the Bankruptcy
Code, Article III of the Plan also provides the same treatment for each Claim or
Interest within a particular Class, unless the holder of a Claim or Interest
agrees to less favorable treatment of its Claim or Interest. Accordingly, the
Plan satisfies the requirements of Sections 1122 and 1123(a)(1)-(4) of the
Bankruptcy Code.
b. SECTION 1123(A)(5) -- ADEQUATE MEANS FOR IMPLEMENTATION OF
THE PLAN
6. Articles VII and VIII and various other provisions of the Plan
provide adequate means for the Plan's implementation. Those provisions relate
to, among other things: (i) the distribution of the assets of the Debtors to
certain holders of Claims or Interests; (ii) the dissolution of the Debtors;
(iii) the cancellation of the Subordinated Notes and Preferred and Common Stock
Interests; (iv) the cancellation of the Indenture; (v) the establishment of the
duties and powers of the Disbursing Agent, and (vi) the establishment of
adequate reserves for Disputed Claims, and the expenses of the Disbursing Agent
in implementing the Plan. Accordingly, the Plan satisfies the requirements of
Section 1123(a)(5) of the Bankruptcy Code.
c. SECTION 1123(A)(6) -- PROHIBITION AGAINST THE ISSUANCE OF
NONVOTING EQUITY SECURITIES
7. Section 1123(a)(6) of the Bankruptcy Code is not applicable as
Section 8.3 of the Plan provides for the dissolution of the Debtors other than
Page America on the Effective Date and the dissolution of Page America on the
Final Distribution Date.
d. SECTION 1123(A)(7) -- SELECTION OF DIRECTORS AND OFFICERS
IN A MANNER CONSISTENT WITH THE INTERESTS OF CREDITORS
AND EQUITY SECURITY HOLDERS AND PUBLIC POLICY
8. Section 1123(a)(7) of the Bankruptcy Code is not applicable as
Section 8.3 of the Plan provides for the dissolution of those Debtors other than
Page America on the Effective Date and the dissolution of Page America on the
Final Distribution Date. Bariston Partners has been selected by the holders of
the Subordinated Notes to implement the distribution, and has agreed to post a
bond to secure its obligations under the Plan.
2. SECTION 1129(A)(2) - COMPLIANCE WITH APPLICABLE PROVISIONS OF
THE BANKRUPTCY CODE
9. The Debtors have complied with all applicable provisions of
the Bankruptcy Code, as required by Section 1129(a)(2) of the Bankruptcy Code,
including Sections 1125 and 1126 of the Bankruptcy Code. The procedures by which
ballots were distributed to holders of Class 1 Claims and Class 3 Interests and
tabulated were fair, properly conducted and in accordance with the Bankruptcy
Code, the Bankruptcy Rules, the local rules of the Court, and all other
applicable laws, rules and regulations. Accordingly, the Plan satisfies the
requirements of Section 1129(a)(2) of the Bankruptcy Code.
3. SECTION 1129(A)(3) -- PROPOSAL OF THE PLAN IN GOOD FAITH
10. Based on the uncontroverted evidence presented at the
Confirmation Hearing, this Court finds and concludes that the Debtors and their
officers and directors proposed the Plan in good faith and not by any means
forbidden by law, with the legitimate and honest purpose of finally resolving
claims against the Debtors, liquidating and dissolving Debtors and maximizing
the returns available to all holders of Allowed Claims or Interests.
Accordingly, the Plan satisfies the requirements of Section 1129(a)(3) of the
Bankruptcy Code.
4. SECTION 1129(A)(4) - BANKRUPTCY COURT APPROVAL OF CERTAIN
PAYMENTS AS REASONABLE
11. Section 5.1 of the Plan provides that Administrative Expense
Claims attributable to professional services rendered during the pendency of
these Chapter 11 cases shall only be paid upon the entry of an order of this
Court authorizing the payment of such claims; PROVIDED, HOWEVER, that
professional fees incurred subsequent to confirmation shall be paid without the
need for approval of this Court. The Debtors are not aware of any other out of
the ordinary course of business administrative expenses requiring court
approval. Accordingly, the Plan satisfies the requirements of Section 1129(a)(4)
of the Bankruptcy Code.
5. SECTION 1129(A)(5) - DISCLOSURES REGARDING PROPOSED DIRECTORS
AND OFFICERS, AND COMPENSATION OF INSIDERS AND CONSISTENCY
WITH THE INTERESTS OF CREDITORS AND PUBLIC POLICY
12. As the identity of officers and directors of the Debtors will
not change after confirmation of the Plan and Section 8.3 of the Plan provides
for the dissolution of those Debtors other than Page America on the Effective
Date and the dissolution of Page America on the Final Distribution Date, this
Court finds that the Plan satisfies the requirements of Section 1129(a)(5) of
the Bankruptcy Code.
6. SECTION 1129(A)(6) -- APPROVAL OF RATE CHANGES
13. The Plan does not change rates over which any regulatory
commission may have or will have jurisdiction after confirmation of the Plan.
Accordingly, the Plan satisfies the requirements of Section 1129(a)(6) of the
Bankruptcy Code.
7. SECTION 1129(A)(7) -- BEST INTERESTS OF HOLDERS OF CLAIMS AND
INTERESTS
14. With respect to each impaired Class of Claims and Interests,
each holder of a Claim or Interest in such impaired Classes has accepted the
Plan or will receive or retain under the Plan on account of such Claim or
Interest property of a value as of the Effective Date that is not less than the
amount such holder would receive or retain if the applicable Debtor were
liquidated on the Effective Date under Chapter 7 of the Bankruptcy Code.
8. SECTION 1129(A)(8) -- ACCEPTANCE OF THE PLAN BY EACH IMPAIRED
CLASS
15. Each impaired Class of Claims or Interests under the Plan
that was entitled to vote accepted the Plan by the requisite majorities in
amount and number. Specifically, Holders representing 100% of the Class 1
Subordinated Notes and 84.3% of the Class 3 Preferred Stock Interests voted to
accept the Plan, and no holders of Class 1 Claims or Class 3 Interests voted to
reject the Plan. In addition, the holders of Class 2 General Unsecured Claims
are unimpaired, and therefore, conclusively presumed to have accepted the Plan.
Accordingly, Section 1129(a)(8) of the Bankruptcy Code has been satisfied with
respect to all voting Classes of Claims and all unimpaired Classes of Claims.
16. Notwithstanding the fact that the holders of Class 4
Interests are entitled to receive a distribution under the Plan, such holders
are deemed to have rejected the Plan pursuant to Section 1126(g) of the
Bankruptcy Code. The Debtors have invoked the "cramdown" requirements of Section
1129(b) with respect to such Class.
9. SECTION 1129(A)(9) -- TREATMENT OF CLAIMS ENTITLED TO PRIORITY
PURSUANT TO SECTION 507(A) OF THE BANKRUPTCY CODE
17. The Plan provides for treatment of Allowed Administrative
Claims and Priority Claims in the manner required by Section 1129(a)(9) of the
Bankruptcy Code. Accordingly, the Plan satisfies the requirements of Section
1129(a)(9) of the Bankruptcy Code.
10. SECTION 1129(A)(10) -- ACCEPTANCE BY AT LEAST ONE IMPAIRED
CLASS
18. At least one impaired Class of Claims voted to accept the
Plan, which acceptance was determined without including any acceptance of the
Plan by any insider holding a Claim in such Class. Specifically, holders
representing 100% of the Class 1 Subordinated Note Claims voted to accept the
Plan, and no holders of such Claims voted to reject the Plan, and no holders of
such Claims are insiders of the Debtors. Accordingly, the Plan satisfies the
requirements of Section 1129(a)(10) of the Bankruptcy Code.
11. SECTION 1129(A)(11) - FEASIBILITY OF THE PLAN
19. Section 8.3 of the Plan provides for the dissolution of those
Debtors other than Page America on the Effective Date and the dissolution of
Page America on the Final Distribution Date. The Disbursing Agent will have
sufficient funds available to cover expenses incurred and to make distributions
of approximately $10 million, estimated to total approximately 25 to 30 cents on
the dollar to holders of Class 1 Subordinated Note Claims, approximately
$2,100,000 to holders of Class 3 Preferred Stock Interests, and approximately
$900,000 to holders of Class 4 Common Stock Interests. Accordingly, the Plan
satisfies the requirements of Section 1129(a)(11) of the Bankruptcy Code.
12. SECTION 1129(A)(12) - PAYMENT OF BANKRUPTCY FEES
20. Article XIV of the Plan provides that all fees payable
pursuant to 28 U.S.C. ss. 1930 will be paid on or before the Effective Date.
Accordingly, the Plan satisfies the requirements of Section 1129(a)(12) of the
Bankruptcy Code.
13. SECTION 1129(A)(13) -- RETIREE BENEFITS
21. As the Debtors are not obligated to and do not provide any
"retiree benefits" (a such term is defined in Section 1114 of the Bankruptcy
Code), no such benefits are required to be continued pursuant to the Plan. Thus
Section 1129(a)(13) is not applicable to the Plan.
14. SECTION 1129(B) - CONFIRMATION OF PLAN OVER NONACCEPTANCE OF
IMPAIRED CLASS
22. Pursuant to Section 1129(b)(1) of the Bankruptcy Code, the
Plan is confirmed notwithstanding the fact that Class 4 is impaired and that the
holders of Class 4 Interests are deemed to have rejected the Plan pursuant to
Section 1126(g) of the Bankruptcy Code. The Plan does not discriminate unfairly
and is fair and equitable with respect to the holders of Class 4 Interests.
There are no Claims or Interests junior to the Class 4 Interests, and no holder
of Claims or Interests senior to the Class 4 Interests will receive more than
full payment on account of such senior Claims or Interests.
15. SECTION 1129(D) - PURPOSE OF PLAN
23. The primary purpose of the Plan is not avoidance of taxes or
avoidance of the requirements of Section 5 of the Securities Act, and there has
been no objection filed by any governmental unit asserting such avoidance.
C. SATISFACTION OF CONDITIONS TO CONFIRMATION
24. Each of the conditions precedent to the entry of this
Confirmation Order, as set forth in Section 9.1 of the Plan, has been satisfied.
D. COMPLIANCE WITH SECTION 1125(E) OF THE BANKRUPTCY CODE
25. Pursuant to Section 1125(e) of the Bankruptcy Code, the
Prepetition Solicitation was in good faith and in compliance with applicable
provisions of the Bankruptcy Code. Accordingly, the Debtors and their respective
directors, officers and professionals are entitled to the protection of Section
1125(e) of the Bankruptcy Code.
E. MODIFICATION OF THE PLAN
26. Pursuant to the Disclosure Statement Order, the following
sentence was deemed to be added to the end of Section 5.4 of the Plan: "The
holders of Allowed Class 2 General Unsecured Claims shall receive the payment of
interest on such claims from the Filing Date through the Effective Date of the
Plan at the rate that the Company earns in its money market account at
Nationsbank, N.A."
27. Pursuant to the Disclosure Statement Order, the Plan was
deemed to be amended to provide for the creation of a reserve fund to pay all
post-confirmation Trustee quarterly fees due pursuant to 28 U.S.C. ss.
1930(a)(6).
28. Pursuant to the Disclosure Statement Order, the Plan was
deemed to be amended to provide for the bonding of Bariston Partners LLC, when
it becomes the Disbursing Agent. Such bond may canceled only upon 30 days notice
to this Court and the Trustee.
29. Pursuant to the Disclosure Statement Order, Section 10.2(a)
of the Plan was deemed amended to state the following (and the modification made
to this section has been bolded and underlined):
On the Effective Date, the Debtors, their Affiliates
(as such term is defined in Section 101(2) of the
Bankruptcy Code) and their shareholders derivatively
are hereby deemed to have forever waived and released
unconditionally each of the Debtors' present and former
directors, officers, employees, agents, consultants,
advisors, attorneys, accountants and other
representatives and their respective successors,
assigns or Affiliates (collectively, the "Company
Releasees"), from any and all claims, obligations,
suits, judgments, damages, rights, causes of action and
liabilities whatsoever, whether known or unknown,
foreseen, or unforeseen, existing or hereafter arising,
in law, equity or otherwise, based in whole or in part
upon any act or omission by, or any transaction,
agreement, event or other occurrence taking place prior
to, on or after the Confirmation Date in any way
relating to the Debtors, the Bankruptcy Case, the Plan,
or the treatment of liabilities arising prior to or
subsequent to the Confirmation Date (collectively, the
"Released Claims"); PROVIDED, HOWEVER, THAT NOTHING IN
THIS SECTION 10.2 OF THIS PLAN OF REORGANIZATION SHALL
EFFECT A RELEASE IN FAVOR OF ANY COMPANY RELEASEE WITH
RESPECT TO ANY DEBT OWED TO THE UNITED STATES
GOVERNMENT, OR ANY STATE, CITY OR MUNICIPALITY FOR
WHICH SUCH COMPANY RELEASEE HAS INDEPENDENT LIABILITY
ARISING UNDER (I) THE ENVIRONMENTAL LAWS OF THE UNITED
STATES, ANY STATE, CITY OR MUNICIPALITY OR (II) ANY
CRIMINAL LAWS OF THE UNITED STATES, ANY STATE, CITY OR
MUNICIPALITY. Persons deemed to have released claims
pursuant to this Section 10.2(a) shall be forever
precluded from asserting whether directly, derivatively
or otherwise, any such claims against any Company
Releasee.
30. Pursuant to the Disclosure Statement Order, Section 10.2(b)
of the Plan was deemed amended to state the following (and the modification made
to this section has been bolded and underlined):
On the Effective Date, except as otherwise provided in
the Plan, the Debtors, their Affiliates and their
shareholders derivatively are hereby deemed to have
forever waived and released unconditionally the holders
of Interests, the Indenture Trustee (except as
otherwise provided in the Indenture), the Disbursing
Agent (except as to acts of gross negligence or willful
misconduct), the Stock Transfer Agent and the holders
of Class 1 and Class 2 Claims (in their capacity as
holders of such Claims) (all of the foregoing
collectively referred to as the "Third Party
Releasees") from the Released Claims; PROVIDED,
HOWEVER, THAT NOTHING IN THIS SECTION 10.2 OF THIS PLAN
OF REORGANIZATION SHALL EFFECT A RELEASE IN FAVOR OF
ANY THIRD PARTY RELEASEE WITH RESPECT TO ANY DEBT OWED
TO THE UNITED STATES GOVERNMENT, OR ANY STATE, CITY OR
MUNICIPALITY FOR WHICH SUCH THIRD PARTY RELEASEE HAS
INDEPENDENT LIABILITY ARISING UNDER (I) THE
ENVIRONMENTAL LAWS OF THE UNITED STATES, ANY STATE,
CITY OR MUNICIPALITY OR (II) ANY CRIMINAL LAWS OF THE
UNITED STATES, ANY STATE, CITY OR MUNICIPALITY.
Entities deemed to have released claims pursuant to
this Section 10.2(b) shall be forever precluded from
asserting whether directly, derivatively or otherwise,
any such claims against the Third Party Releasees.
31. Pursuant to the Disclosure Statement Order, Section 10.3 of
the Plan was deemed amended to state the following (and the modification made to
this section has been bolded and underlined):
On the Effective Date, each holder (or representative
thereof) of a Claim or Interest (a) who has accepted
this Plan, (b) whose Claim or Interest is in a class
that has accepted or is deemed to have accepted this
Plan pursuant to Section 1126 of the Bankruptcy Code or
(c) who may be entitled to receive a distribution of
property pursuant to this Plan, shall be deemed to have
forever waived and released unconditionally the
Debtors, the Company Releasees and the Third Party
Releasees from the Released Claims; PROVIDED, HOWEVER,
that (i) this release shall not constitute a release of
(a) any Allowed Claims treated under this Plan, or (b)
any claims third parties may have against each other,
which claims are not related to the Debtors and the
Bankruptcy Case; AND (II) THAT NOTHING IN THIS SECTION
10.3 OF THIS PLAN OF REORGANIZATION SHALL EFFECT A
RELEASE IN FAVOR OF ANY COMPANY RELEASEE OR THIRD PARTY
RELEASEE WITH RESPECT TO ANY DEBT OWED TO THE UNITED
STATES GOVERNMENT, OR ANY STATE, CITY OR MUNICIPALITY
FOR WHICH SUCH COMPANY RELEASEE OR THIRD PARTY RELEASEE
HAS INDEPENDENT LIABILITY ARISING UNDER (I) THE
ENVIRONMENTAL LAWS OF THE UNITED STATES, ANY STATE,
CITY OR MUNICIPALITY OR (II) ANY CRIMINAL LAWS OF THE
UNITED STATES, ANY STATE, CITY OR MUNICIPALITY. Persons
deemed to have released claims pursuant to this Section
10.3 shall be forever precluded from asserting any such
claims against the Debtors, the Company Releasees or
the Third Party Releasees.
II. ORDER.
ACCORDINGLY, THE COURT HEREBY ORDERS, ADJUDGES AND
DECREES THAT:
A. CONFIRMATION OF THE PLAN
32. The Plan, as amended as set forth below, is hereby confirmed
pursuant to Section 1129 of the Bankruptcy Code.
B. EFFECTS OF CONFIRMATION
1. IMMEDIATE EFFECTIVENESS OF THE PLAN
33. Notwithstanding any otherwise applicable law, immediately
upon the entry of this Confirmation Order, the terms of the Plan and this
Confirmation Order shall be, and hereby are, deemed binding upon Debtors, any
and all holders of Claims or Interests (irrespective of whether such Claims or
Interests are impaired under the Plan or whether the holders of such Claims or
Interests accepted, rejected or are deemed to have accepted or rejected the
Plan), any and all non-debtor parties to executory contracts and unexpired
leases with any Debtors and the respective heirs, executors, administrators,
successors or assigns, if any, of any of the foregoing.
2. RELEASE, INDEMNIFICATION AND INJUNCTION
34. On the Effective Date, except as otherwise expressly provided
by the Plan as amended, the Releases provided for in Sections 10.2 and 10.3 of
the Plan as amended shall become valid and binding upon all affected parties.
35. In addition, except to the extent Avoidance Action claims
constitute a defense, counterclaim or offset to any Class 2 Claim asserted
against the Estate, the Debtors and the Disbursing Agent shall be deemed to have
released all Avoidance Action claims as of the Effective Date.
36. On the Effective Date, except as otherwise expressly provided
by the Plan as amended, the injunction provisions of Section 10.4 of the Plan
shall become valid and binding upon all affected parties.
37. As specified in Section 1125(e) of the Bankruptcy Code,
entities that solicit acceptances or rejections of the Plan in good faith and in
compliance with the applicable provisions of the Bankruptcy Code and applicable
non-bankruptcy law, are not liable on account of such solicitation for violation
of any applicable law, rule, or regulation governing the solicitation of
acceptances or rejections of the Plan.
38. On the Effective Date, except as otherwise expressly provided
by the Plan as amended, the limitation of liability provisions of Section 10.6
of the Plan shall become valid and binding upon all affected parties.
39. On the Effective Date, except as otherwise expressly provided
by the Plan as amended, the indemnification provisions of Section 10.7 of the
Plan shall become valid and binding upon all affected parties.
40. The Disbursing Agent, its employees, consultants, advisors,
attorneys, accountants or other representatives shall be indemnified to the
extent of any funds in the Distribution Reserve against any and all losses,
claims, causes of action, damages, fees, expenses and liabilities (i) for any
act taken or omission made in good faith in connection with or in any way
related to the implementation of the Plan, contract, instrument, release or
other agreement or document created in connection with the Plan or the
administration of the Bankruptcy Case, or (ii) for any act or omission in
connection with or arising out of the administration of the Plan or the property
to be distributed under the Plan or the operations or activities of the
Disbursing Agent, except for gross negligence or willful misconduct as finally
determined by the Bankruptcy Court. All rights of the Persons indemnified
pursuant hereto shall survive after the Confirmation Date of the Plan.
3. SUBSTANTIVE CONSOLIDATION
41. The Plan assumes the substantive consolidation of the
Debtors. Accordingly, as of the Effective Date, (i) all intercompany claims
shall be canceled and no distributions shall be made on account thereof; (ii)
all assets and liabilities of all of the Debtors shall be treated as provided in
the Plan; (iii) all guarantees by any Debtor of the payment, performance or
collection of obligations of the other Debtors shall be eliminated and canceled;
(iv) any obligation of any Debtor and all guarantees thereof by any other Debtor
shall be treated as a single obligation of the consolidated Debtors; (v) all
joint obligations of the Debtors, and all multiple claims against such entities
on account of such joint obligations shall be treated and allowed as a single
claim against the consolidated Debtors; and (vi) each Claim filed in the Chapter
11 Case of any Debtor shall be deemed filed against the consolidated Debtors and
to be a single obligation of the consolidated Debtors.
4. DISSOLUTION OF THE DEBTORS
42. Without any further resolutions by the shareholders or
directors of the Debtors, the Debtors, other than Page America, shall be
dissolved on the Effective Date and Page America shall be dissolved on the Final
Distribution Date. The Debtors' officers shall file certificates of dissolution
for the Debtors pursuant to the Plan in the states of their incorporation.
5. CANCELLATION OF INDENTURE
43. As of the Effective Date, the Indenture shall, except as
provided in the Plan, be deemed canceled, terminated and of no further force or
effect. Notwithstanding the foregoing, such cancellation of the Indenture (a)
shall not impair the rights of holders of the holders of Class 1 Subordinated
Note Claims to receive distributions on account of such Claims pursuant to the
Plan, and (b) shall not impair the rights and duties under the Indenture as
between the Indenture Trustee, and the beneficiaries of the trust or
arrangements created thereby, as set forth in the applicable provisions of the
Indenture, including INTER ALIA, the rights of the Indenture Trustee to enforce
its Liens.
6. CANCELLATION OF SUBORDINATED NOTES AND PREFERRED AND COMMON
STOCK INTERESTS
44. On the Effective Date with respect to the Subordinated Notes,
and the Preferred and Common Stock Interests, all securities and all instruments
and agreements governing such Claims or Interests shall be deemed canceled and
of no further force or effect, provided, however, that except as otherwise
provided herein the Subordinated Notes, other evidences of Claims and Preferred
and Common Stock shall, effective upon the Effective Date, represent the right
to participate, to the extent such Claims or Interests are Allowed, in the
distributions contemplated by the Plan.
7. REJECTION OF EXECUTORY CONTRACT AND UNEXPIRED LEASE PROVISIONS
45. All executory contracts and unexpired leases of Debtors that
have not been previously assumed or rejected, pursuant to Section 365 of the
Bankruptcy Code, are hereby deemed rejected.
8. EXEMPTIONS FROM TAXATION
46. The issuance, transfer, or exchange of a security, or the
making or delivery of an instrument of transfer under the Plan shall not be
taxed under any law imposing a stamp tax or similar tax.
C. MATTERS RELATING TO IMPLEMENTATION OF THE PLAN
1. ESTABLISHMENT OF RECORD DATE
47. The Record Date for distributions to all classes of Claims
and Interests under the Plan shall be December 31, 1999.
2. DISTRIBUTION OF ASSETS
48. On the Effective Date, disbursements shall be made to holders
of Allowed Claims and Interests entitled to receive distributions on the
Effective Date, of the amounts owed to them under the Plan.
49. In order to fund distributions to be made to holders of
Administrative, Priority or Class 2 Claims, there shall be reserved from the
Initial Distributions under the Plan cash equal to the amount of any Disputed
Administrative, Priority or Class 2 Claims or such lesser amount as the Court
may have determined, which shall be held by the Disbursing Agent, on behalf of
the Debtors, pending determination of such Disputed Claims. Upon any such Claim
becoming an Allowed Claim by a Final Order or by agreement between the
Disbursing Agent and the holder of such Disputed Claim, any distribution then
due to be made in respect of such Claim shall be paid and distributed by the
Disbursing Agent within seven (7) Business Days in accordance with the
provisions hereof and of such Final Order. Any cash remaining after resolution
and payment of the Allowed Amount of any Disputed Administrative, Priority or
Class 2 Claims shall become available for distribution on a pro rata basis to
all other classes entitled to distributions under the Plan.
50. The Initial Class 1, 3 and 4 Distribution Amounts and any
Subsequent Class 1, 3 and 4 Distribution Amounts shall not include (a) any cash
reserves for Disputed Administrative, Priority or Class 2 Claims unless there is
an excess after such Disputed Claims have been resolved and paid; (b) cash
reserves for the expenses of the post-Effective Date distributions, including
amounts reserved for indemnification; or (c) any other amounts determined by the
Debtors or the Disbursing Agent or required by order of the Bankruptcy Court to
be reserved, unless and until the reserves referenced in subsections (a), (b) or
(c) are released for distribution. Distributions subsequent to the Initial
Distribution Date may be made by the Disbursing Agent at the end of each
calendar quarter after the Effective Date on which the Disbursing Agent has at
least $500,000 in cash and/or Metrocall Common Stock available for distribution
to Class 1, 3 and 4 Claims and Interests, provided, however, that the Disbursing
Agent shall not be obligated to make distributions after the Initial
Distribution Date and prior to the Final Distribution Date.
51. Attached hereto as Exhibit "A" is the expense budget proposed
by the Debtors for the post-confirmation liquidation of the Debtors. Such budget
is hereby approved.
3. APPOINTMENT OF DISBURSING AGENT AND TRANSFER AGENT
52. Bariston Partners LLC shall be appointed the Disbursing
Agent. After December 31, 2000, Bariston Partners LLC shall receive no fee for
performing the duties of the Disbursing Agent. Upon becoming the Disbursing
Agent, Bariston Partners LLC shall be bonded. Such bond may canceled only upon
30 days notice to the Court and the Trustee.
53. American Stock Transfer & Trust Company shall be appointed
the Transfer Agent. American Stock Transfer shall be paid in the ordinary course
of business for performing the duties of the Transfer Agent.
4. RIGHTS, POWERS, AND DUTIES OF THE DEBTORS, THE DISBURSING
AGENT, THE TRANSFER AGENT, THE INDENTURE TRUSTEE AND THE
PROFESSIONALS OR OTHER PERSONS RETAINED BY SUCH PARTIES
54. On the Effective Date, the Disbursing Agent shall distribute
Assets to holders of Claims or Interests entitled to distributions on that date,
and shall transfer the balance of the Assets to the Distribution Reserve, free
and clear of all Claims, Liens or contractually imposed restrictions, except as
otherwise provided in the Plan. The Distribution Reserve is being established
solely for the benefit of those Entities entitled to distributions after the
Effective Date under the terms of the Plan, including but not limited to holders
of obligations incurred by the Disbursing Agent, and no other Entity shall have
any interest therein.
55. From and after the Effective Date, the duties of the
Disbursing Agent designated by and acting on behalf of the Debtors shall
include: maintaining the Distribution Reserve; investing the cash held in the
Distribution Reserve; pursuing objection to, estimations and settlements of
Claims; prosecuting retained causes of action if any; calculating and
implementing all distributions to be made under the Plan to holders of Allowed
Claims and Interests; filing all required tax returns and paying all obligations
incurred by the Disbursing Agent in implementing the Plan from funds in the
Distribution Reserve; preparing and filing one or more reports to the Bankruptcy
Court on the implementation of the Plan, including a Final Report, and such
other responsibilities as may be vested in the Disbursing Agent pursuant to the
Plan, or Bankruptcy Court order or as may be necessary and proper to carry out
the provisions of the Plan.
56. The powers of the Disbursing Agent acting on behalf of the
Debtors shall, without Bankruptcy Court approval in each of the following cases,
include the power to invest funds in Permitted Investments, to make
distributions and pay taxes and other obligations owed by the Debtors or
incurred by the Disbursing Agent from, the Distribution Reserve including
withholding appropriate amounts from distributees under the Plan that are
required to but fail to furnish correct taxpayer identification numbers; the
power to engage employees and professional persons to assist the Disbursing
Agent with respect to its responsibilities; the authority to pay the fees and
expenses of the professional persons, agents and employees engaged by the
Disbursing Agent and to pay all other expenses for winding down the affairs of
the Debtors; the power to compromise and settle claims and causes of actions;
the authority to act on behalf of the Debtors in all adversary proceedings and
contested matters pending in the Court and in all actions and proceedings
pending elsewhere, and to settle, retain, enforce, dispute or adjust any Claim
or Interest and otherwise pursue actions involving assets of the Debtors that
could arise or be asserted at any time under the Bankruptcy Code; and such other
powers as may be vested in or assumed by the Disbursing Agent pursuant to the
Plan, or Bankruptcy Court order or as may be necessary and proper to carry out
the provisions of the Plan.
57. The Debtors, the Indenture Trustee, the Transfer Agent and
the Disbursing Agent shall take all actions and deliver all documents and
instruments which are appropriate and reasonably necessary for the
implementation and consummation of the Plan.
58. The Disbursing Agent and the Debtors are authorized to retain
attorneys, accountants and other persons to assist in the implementation and
consummation of the Plan. With respect to professional fees incurred after the
Effective Date, attorneys, accountants and other persons employed or retained by
the Disbursing Agent or the Debtors may be paid in the ordinary course of
business.
59. Upon completion of all duties allocated to them pursuant to
the Plan and this Confirmation Order, including the closing of these Chapter 11
cases, the professionals retained by the Debtors, pursuant to prior orders of
the Court shall be, and hereby are, discharged and terminated and shall have no
further responsibilities with respect to these Chapter 11 cases except with
respect to any then pending applications for compensation and reimbursement of
expenses.
D. RETENTION OF JURISDICTION
60. Notwithstanding the entry of this Confirmation Order or the
occurrence of the Effective Date, the Bankruptcy Court shall retain such
jurisdiction over these Chapter 11 Cases as is legally permissible, including
jurisdiction over the matters set forth in Article XII of the Plan, which
provisions are incorporated herein by reference.
E. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
61. As of the Effective Date, all executory contracts and
unexpired leases that exist between the Debtors and any third party that have
not previously been assumed or rejected are hereby specifically rejected.
62. Proofs of Claim for damages arising from the rejection
pursuant to the Plan or this Order of any executory contract or unexpired lease
must be filed with this Court no later than twenty-five days after service of
notice of entry of the confirmation order on such claimant. Any such rejection
claims not filed within that time shall be forever barred from assertion against
the Debtors, the Disbursing Agent, the Distribution Reserve, and any entity
receiving distributions under the Plan.
63. Objections to such proofs of claim shall be filed by the
Disbursing Agent within sixty days after such claims are filed and this Court
shall determine any such objection. Unsecured Claims arising out of the
rejection of executory contracts and unexpired leases shall be Class 2 Claims
under the Plan.
F. PAYMENT OF STATUTORY FEES
64. All fees payable pursuant to Section 1930 of Title 28 of the
United States Code shall be paid on or before the Effective Date. In addition,
the Debtors shall create a reserve fund to pay all post-confirmation fees
payable pursuant to Section 1930 of Title 28 of the United States Code.
G. MODIFICATION OF THE PLAN
65. Section 7.9 of the Plan shall be deemed to be amended to
state the following (and the modification made to this section has been bolded
and underlined):
No holder of Class 1 Claims shall be entitled to
receive any distribution from the Disbursing Agent
respecting its Claim unless and until such holder shall
have first either (i) surrendered or caused to be
surrendered to the Disbursing Agent the original
Subordinated Notes or certificates held by it or (ii)
in the event that such holder is unable to surrender
its original Subordinated Notes or certificates because
same have been lost, destroyed, stolen or mutilated,
(a) furnished the Disbursing Agent with an executed
affidavit of loss and indemnity with respect thereto in
form customarily utilized for such purposes that is
reasonably satisfactory to the Disbursing Agent and (b)
provided to the Disbursing Agent a bond in such amount
and form as the Disbursing Agent shall direct,
sufficient to indemnify the Disbursing Agent against
any claim that may be made against the Disbursing Agent
on account of the alleged loss, theft or distribution
of any such certificates or the distribution of
property hereunder. The method and procedure to be
followed for surrendering Subordinated Notes and for
providing affidavits and bonds shall be prescribed by
the Disbursing Agent upon reasonable notice to holders
of the Subordinated Notes. Promptly upon surrender of
such instruments, the Disbursing Agent shall cancel
such Subordinated Notes or otherwise dispose of them in
such manner as the Disbursing Agent may reasonably
determine. In the event a holder of a Subordinated Note
fails to surrender its Subordinated Note(s) or
certificate(s) or provide an affidavit and adequate
bond on or before DECEMBER 15, 2000 or within such
other time period as may be set by the Bankruptcy
Court, such holder shall be conclusively deemed to have
forfeited its distribution under this Plan, and that
distribution shall be retained in the Distribution
Reserve and made available for distribution to other
holders in accordance with Section 7.16 of this Plan.
66. Section 7.11 of the Plan shall be deemed to be amended to
state the following (and the modification made to this section has been bolded
and underlined):
No holder of Class 3 Interests shall be entitled to
receive any distribution respecting its Interests
unless and until such holder shall have first either
(i) surrendered or caused to be surrendered to the
Disbursing Agent the original certificates held by it
or (ii) in the event that such holder is unable to
surrender its original certificates because same have
been lost, destroyed, stolen or mutilated, (a)
furnished the Disbursing Agent with an executed
affidavit of loss and indemnity with respect thereto in
form customarily utilized for such purposes that is
reasonably satisfactory to the Disbursing Agent and (b)
provided to the Disbursing Agent a bond in such amount
and form as the Disbursing Agent shall direct,
sufficient to indemnify the Disbursing Agent against
any claim that may be made against the Disbursing Agent
on account of the alleged loss, theft or distribution
of any such certificates or the distribution of
property hereunder. The method and procedure to be
followed for surrendering certificates and for
providing affidavits and bonds shall be prescribed by
the Disbursing Agent upon reasonable notice to holders
of the Preferred Stock. In the event a holder fails to
surrender its certificate(s) or provide an affidavit
and adequate bond on or before DECEMBER 15, 2000 or
within such other time period as may be set by the
Bankruptcy Court, such holder shall be conclusively
deemed to have forfeited its distribution under this
Plan, and that distribution shall be retained in the
Distribution Reserve and made available for
distribution to other holders in accordance with
Section 7.16 of this Plan. All Preferred Stock
Interests and certificates evidencing such Interests
shall be canceled as of the Final Distribution Date.
67. Section 7.12 of the Plan shall be deemed to be amended to
state the following (and the modification made to this section has been bolded
and underlined):
No holder of Class 4 Interests shall be entitled to
receive any distribution respecting its Interests
unless and until such holder shall have first either
(i) surrendered or caused to be surrendered to the
Transfer Agent the original certificates held by it or
(ii) in the event that such holder is unable to
surrender its original certificates because same have
been lost, destroyed, stolen or mutilated, (a)
furnished the Transfer Agent with an executed affidavit
of loss and indemnity with respect thereto in form
customarily utilized for such purposes that is
reasonably satisfactory to the Transfer Agent and (b)
provided to the Transfer Agent a bond in such amount
and form as the Transfer Agent shall direct, sufficient
to indemnify the Transfer Agent against any claim that
may be made against the Transfer Agent on account of
the alleged loss, theft or distribution of any such
certificates or the distribution of property hereunder.
The method and procedure to be followed for
surrendering certificates and for providing affidavits
and bonds shall be prescribed by the Transfer Agent
upon reasonable notice to holders of the Common Stock.
The Transfer Agent shall retain all surrendered
certificates, and all Common Stock Interests and the
certificates evidencing those Interests shall be
canceled as of the Final Distribution Date. In the
event a holder of a certificate fails to surrender its
certificate(s) or provide an affidavit and adequate
bond on or before DECEMBER 15, 2000 or within such
other time period as may be set by the Bankruptcy
Court, such holder shall be conclusively deemed to have
forfeited its distribution under this Plan, and all
such property not claimed by such holder shall be
returned to the Disbursing Agent, retained in the
Distribution Reserve and made available for
distribution to other holders in accordance with
Section 7.16 of this Plan.
H. NOTICE OF ENTRY OF CONFIRMATION ORDER
68. Pursuant to Bankruptcy Rules 2002(l)(7) and 3020(c), Debtors
shall be, and hereby are, directed to serve a notice of the entry of this
Confirmation Order, substantially in the form of Exhibit "B" attached hereto and
incorporated herein by reference, on all parties that received notice of the
Confirmation Hearing, no later than 20 days after the Confirmation Date.
Dated: New York, New York
December 21, 1999
/s/ Jeffry H. Gallet
- --------------------------------
UNITED STATES BANKRUPTCY JUDGE
<PAGE>
EXHIBIT A
PAGE AMERICA GROUP INC.
EXPENSE BUDGET FOR THE PERIOD FROM CONFIRMATION HEARING TO FINAL LIQUIDATION
12/20/99
Legal Fees - Stroock & Covey (from inception $215,000
of case through Final Distribution Date)
Accounting - Perkowski & E&Y (from 100,000
inception of case through Final Distribution
Date)
401K Plan - Principal Financial 4,800
American Stock Transfer (annual fees) 15,000
American Stock Transfer (distributions to 15,000
shareholders)
United States Trustee's Fees 6,000 (estimated)
Class 2 Claims (including interest from
inception of case through Effective Date)
Allowed Amount 148,864 + interest
Disputed Amount 85,819 + interest
Potential Alternative Minimum Tax 300,000
Bariston distribution costs including bonding 50,000
fee
Indemnification reserve 50,000
Miscellaneous reserve 75,000
---------------------
$1,065,483 + interest
<PAGE>
EXHIBIT B
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- -----------------------------------------------
IN RE: : CHAPTER 11 CASE NO.
: 99-10281 (JHG)
PAGE AMERICA GROUP, INC., ET AL., : 99-10284 (JHG)
: JOINTLY ADMINISTERED
DEBTORS. :
: TAX ID NO. 13-2865787
- ----------------------------------------------
NOTICE OF ENTRY OF ORDER CONFIRMING THE PREPACKAGED
LIQUIDATING CHAPTER 11 PLAN FOR PAGE AMERICA GROUP, INC. ET AL.
PLEASE TAKE NOTICE that on December ___, 1999, the Honorable
Jeffry H. Gallet, United States Bankruptcy Judge of the United States Bankruptcy
Court for the Southern District of New York, entered an order (the "Confirmation
Order) confirming the Prepackaged Liquidating Chapter 11 Plan of Page America
Group, Inc. ET AL. (the "Plan").
PLEASE TAKE FURTHER NOTICE that capitalized terms not defined
herein shall have the meanings given such terms in the Plan.
PLEASE TAKE FURTHER NOTICE that except as otherwise expressly
provided in the Plan or the Confirmation Order, the issuance of the Confirmation
Order operates as a discharge, pursuant to section 1141(d) of the Bankruptcy
Code, of all Interests in and Claims against Debtors that arose prior to the
Confirmation Date.
PLEASE TAKE FURTHER NOTICE that in accordance with section 524 of
the Bankruptcy Code, the discharge provided by the Plan, the Confirmation Order
and section 1141 of the Bankruptcy Code acts as an injunction against the
commencement or continuation of any action, employment of process, or act to
collect, offset, or recover the Interests or Claims so discharged.
PLEASE TAKE FURTHER NOTICE that in accordance with section
1141(a) of the Bankruptcy Code, the Plan and the Confirmation Order bind all
holders of Interests in and Claims against Debtors, and any other
party-in-interest, regardless of whether the Claims or Interests of such holders
(i) are in a Class that is impaired under the Plan, (ii) have accepted the Plan,
or (ii) have filed a proof of claim or proof of interest.
PLEASE TAKE FURTHER NOTICE that proofs of claim for damages
arising from the rejection pursuant to the Plan or the Confirmation Order of any
executory contract or unexpired lease must be filed with the Bankruptcy Court no
later than twenty-five (25) days after the date of this notice. Any such
rejection claims not filed within that time shall be forever barred from
assertion against the Debtors, the Disbursing Agent, the Distribution Reserve,
and any entity receiving distributions under the Plan.
Dated: New York, New York
December ___, 1999
STROOCK & STROOCK & LAVAN LLP
Attorneys for Debtors and Debtors-in-Possession
-----------------------------------
Robin E. Keller (RK-7302)
180 Maiden Lane
New York, New York 10038
(212) 806-5400
EXHIBIT 2
- ---------------------------
UNITED STATES BANKRUPTCY JUDGE
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- ------------------------------------------
In re: : Jointly Administered
:
PAGE AMERICA GROUP, INC., : Chapter 11 Case No. 99-10281 (JHG)
PAGE AMERICA OF NEW YORK, INC., : Chapter 11 Case No. 99-10282 (JHG)
ADIRONDACK RADIO TELEPHONE CO., INC., : Chapter 11 Case No. 99-10283 (JHG)
PAGE AMERICA OF PENNSYLVANIA, INC., : Chapter 11 Case No. 99-10284 (JHG)
:
Debtors. : Tax ID No. 13-2865787
- ------------------------------------------
PREPACKAGED LIQUIDATING CHAPTER 11 PLAN
FOR
PAGE AMERICA GROUP, INC.
PAGE AMERICA OF NEW YORK, INC.
ADIRONDACK RADIO TELEPHONE CO., INC. AND
PAGE AMERICA OF PENNSYLVANIA, INC.
STROOCK & STROOCK & LAVAN LLP
180 MAIDEN LANE
NEW YORK, NY 10038
(212) 806-5400
ROBIN E. KELLER, ESQ.
COUNSEL TO DEBTORS
<PAGE>
TABLE OF CONTENTS
I. DEFINITIONS......................................................1
II. DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS...................7
III. CLAIMS AND INTERESTS IMPAIRED OR NOT IMPAIRED UNDER THE PLAN.....7
IV. ACCEPTANCE OR REJECTION OF THE PLAN..............................8
V. TREATMENT OF AND METHODS OF DISTRIBUTION TO HOLDERS OF
CLAIMS AND INTERESTS UNDER THE PLAN..............................8
VI. CRAMDOWN........................................................10
VII. PROVISIONS AS TO DISTRIBUTION AND DISPUTED CLAIMS...............10
VIII. MEANS FOR IMPLEMENTATION OF THE PLAN............................15
IX. CONDITIONS TO CONFIRMATION DATE AND EFFECTIVE DATE FOR
THE PLAN........................................................18
X. EFFECTS OF PLAN CONFIRMATION....................................19
XI. SUBSTANTIVE CONSOLIDATION.......................................21
XII. RETENTION OF JURISDICTION.......................................21
XIII. EXECUTORY CONTRACTS AND UNEXPIRED LEASES........................23
XIV. MISCELLANEOUS PROVISIONS........................................23
<PAGE>
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- -------------------------------------------
In re: : Jointly Administered
:
PAGE AMERICA GROUP, INC., : Chapter 11 Case No. 99-10281 (JHG)
PAGE AMERICA OF NEW YORK, INC., : Chapter 11 Case No. 99-10282 (JHG)
ADIRONDACK RADIO TELEPHONE CO., INC., : Chapter 11 Case No. 99-10283 (JHG)
PAGE AMERICA OF PENNSYLVANIA, INC., : Chapter 11 Case No. 99-10284 (JHG)
:
Debtors. : Tax ID No. 13-2865787
- -------------------------------------------P
PREPACKAGED LIQUIDATING CHAPTER 11 PLAN
FOR
PAGE AMERICA GROUP, INC.
PAGE AMERICA OF NEW YORK, INC.
ADIRONDACK RADIO TELEPHONE CO., INC. AND
PAGE AMERICA OF PENNSYLVANIA, INC.
Page America Group, Inc., Page America of New York, Inc., Adirondack
Radio Telephone Co., Inc. and Page America of Pennsylvania, Inc. hereby propose
the following prepackaged liquidating plan pursuant to the provisions of Chapter
11 of the United States Bankruptcy Code, 11 U.S.C. ss.ss. 101, ET seq.
I. DEFINITIONS
The following terms shall have the respective meanings set forth
below; unless otherwise indicated, the singular shall include the plural. ANY
CAPITALIZED TERM NOT DEFINED HEREIN WHICH IS DEFINED IN THE BANKRUPTCY CODE
SHALL HAVE THE MEANING ASCRIBED TO IT IN THE BANKRUPTCY CODE.
1.1 "Administrative Expense Claim" means a Claim arising on or after
the Filing Date through the Confirmation Date for payment of an expense of a
kind specified in Section 503(b), 507(a)(1) or 507(b) of the Bankruptcy Code,
including but not limited to the fees and expenses of professional persons
retained or to be compensated pursuant to the Bankruptcy Code, and any fees or
charges assessed against the Debtors' estate under Section 1930, Chapter 123,
Title 28, of the United States Code.
1.2 "Allowed Administrative Expense Claim" means all or that portion
of any Administrative Expense Claim which either (a) has been allowed by a Final
Order, (b) was incurred by the Debtors in the ordinary course of business after
the Filing Date and prior to the Confirmation Date, or (c) consists of fees and
charges assessed against the Debtors' estate under Section 1930, Chapter 123,
Title 28 of the United States Code.
1.3 "Allowed Claim" means any Claim against the Debtors to the extent
it has not been withdrawn, paid in full or otherwise deemed satisfied in full,
which has either been scheduled pursuant to Section 521(1) of the Bankruptcy
Code but is not listed as disputed, contingent or unliquidated on the Schedules,
or as to which a proof of claim has been filed on or before the last date set by
the Bankruptcy Court for filing proofs of claim, and as to which no objection to
the allowance thereof has been filed or is pending or has been determined by
Final Order, or which is specified in this Plan as an Allowed Claim. Unless
otherwise specified, "Allowed Claim" shall not include (i) interest accrued
after the Filing Date, (ii) punitive damages or (iii) any fine, penalty or
forfeiture.
1.4 "Allowed Subordinated Note Claims" means the claims under the
Subordinated Notes as set forth in Section 5.3 hereof.
1.5 "Assets" means all of the right, title and interest of the Company
or its Subsidiaries in and to property, consisting of cash primarily invested in
an institutional cash reserve account at NationsBank, N.A. and Metrocall Common
Stock.
1.6 "Avoidance Action" means an action which a trustee,
debtor-in-possession or other appropriate party-in-interest may assert under
Sections 542, 544, 545, 547, 548, 549, 550 or 551 of the Bankruptcy Code.
1.7 "Ballots" means the ballots accompanying the Disclosure Statement
and the Plan upon which holders of Impaired Claims shall have indicated their
acceptance or rejection of the Plan.
1.8 "Bankruptcy Case" means the case commenced by the Debtors'
voluntary Chapter 11 filing in the Bankruptcy Court.
1.9 "Bankruptcy Code" means Title 11, United States Codess ss.101 ET
SEQ., as amended, in effect at the Filing Date.
1.10 "Bankruptcy Court" means the United States Bankruptcy Court for
the Southern District of New York, or any other court with jurisdiction over the
Bankruptcy Case.
1.11 "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as amended and promulgated under Section 2075 of Title 28 of the
United States Code and the local rules of the Bankruptcy Court, as applicable
from time to time to the Chapter 11 Case.
1.12 "Beneficial Holder" means an Entity holding a beneficial interest
in the Subordinated Notes, the Preferred Stock or the Common Stock, which Entity
may also be a Record Holder.
1.13 "Business Day" means any day other than a Saturday, Sunday or
legal holiday as defined in Bankruptcy Rule 9006(a).
1.14 "Claim" means a claim against the Debtors, whether or not
asserted, as defined in Section 101(5) of the Bankruptcy Code.
1.15 "Class" means a category of holders of Claims or Interests as
designated in Article II of the Plan.
1.16 "Common Stock" means the common stock, par value $.10 per share,
authorized or issued by the Company.
1.17 "Company" means Page America Group, Inc. and its successors and
assigns.
1.18 "Company Releasees" has the meaning set forth in Section 10.2 of
the Plan.
1.19 "Confirmation Date" means the date of entry of the Confirmation
Order.
1.20 "Confirmation Hearing" means the hearing before the Bankruptcy
Court pursuant to Section 1128 of the Bankruptcy Code to consider confirmation
of this Plan.
1.21 "Confirmation Order" means an order of the Bankruptcy Court
confirming the Plan.
1.22 "Debtors" means collectively, Page America Group, Inc., Page
America of New York, Inc., Adirondack Radio Telephone Co., Inc. and Page America
of Pennsylvania, Inc. and their successors and assigns.
1.23 "Disbursing Agent" means Bariston Associates, Inc.
1.24 "Disclosure Statement" means the Disclosure Statement provided in
accordance with the requirements of Sections 1125 and 1126 of the Bankruptcy
Code that relates to the Plan.
1.25 "Disputed Claim" means any Claim: (i) listed as disputed,
contingent or unliquidated on any Schedules required to be filed with the
Bankruptcy Court, or (ii) as to which an objection to the allowance thereof has
been interposed and not determined by a Final Order.
1.26 "Distribution Date" means the Effective Date and any subsequent
date on which distributions of cash or other assets are to be made under the
terms of the Plan.
1.27 "Distribution Reserve" means the account or accounts created by
the Disbursing Agent to hold cash and Metrocall Common Stock available for
distribution by the Debtors after the Effective Date.
1.28 "Effective Date" means the later of (i) the eleventh day
following entry of the Confirmation Order, if such order is not subject to a
stay, or (ii) the date on which all conditions to the effectiveness of the Plan
have been satisfied.
1.29 "Entity" shall have the meaning set forth in Section 101(15) of
the Bankruptcy Code.
1.30 "Estate" means the estate created for the Debtors in their
Bankruptcy Case pursuant to Section 541 of the Bankruptcy Code.
1.31 "Filing Date" means the date on which the Debtors file a Chapter
11 petition with the Bankruptcy Court.
1.32 "Final Distribution" means the distribution which after giving
effect to such distribution, results in Cash and/or Metrocall Common Stock
remaining in the Distribution Reserve with a value of $25,000 or such lesser
amount as the Disbursing Agent determines necessary to cover wind-up costs after
the Final Distribution.
1.33 "Final Distribution Date" means the date on which all Disputed
Claims have been finally resolved and all amounts held in reserve are
distributed as provided in the Plan.
1.34 "Final Order" means an order or a judgment which has not been
reversed or stayed and as to which: (i) the time to appeal or seek review or
certiorari has expired pursuant to Bankruptcy Rule 8002 and no appeal or
petition for review or certiorari is pending; and (ii) the time to seek
rehearing pursuant to Bankruptcy Rule 8015 has expired and no petition for
rehearing pursuant to Bankruptcy Rule 8015 is pending.
1.35 "Forbearance Agreement" means the forbearance agreement dated as
of July 1, 1997 by and among the Debtors and the Record Holders of the
Subordinated Notes, as amended.
1.36 "General Unsecured Claim" means a Claim as of the Filing Date
which is not (i) an Administrative Expense Claim or (ii) a Priority Claim. For
purposes of this Plan, General Unsecured Claims do not include any deficiency
Claim of the holders of the Subordinated Notes.
1.37 "Impaired" when used with respect to any Claim, Interest or
Class, has the meaning set forth in Section 1124 of the Bankruptcy Code.
1.38 "Indenture Trustee" means American Stock Transfer & Trust
Company, as Trustee under the Indenture.
1.39 "Indenture" means the Subordinated Notes Indenture.
1.40 "Initial Distribution Amounts" means the amount available for
distributions to holders of Allowed Class 1, 3 and 4 Claims or Interests on the
Effective Date.
1.41 "Initial Distribution Date" means the Effective Date.
1.42 "Interests" means the rights of the holders of Common Stock and
Preferred Stock.
1.43 "Metrocall" means Metrocall, Inc., a Delaware corporation.
1.44 "Metrocall Common Stock" means shares of common stock of
Metrocall.
1.45 "Plan" means this prepackaged liquidating Chapter 11 plan, and
all exhibits hereto, as the same may be modified or amended from time to time as
and to the extent permitted herein and by the Bankruptcy Code.
1.46 "Permitted Investments" means (a) short term obligations of, or
guaranteed by, the United States of America or any state or agency thereof, (b)
commercial paper rated A-1 or P-1 by Standard & Poor's or Moody's Investors
Service; (c) time deposits, certificates of deposit and acceptances, maturing
within ninety (90) days from the date of acquisition thereof, issued by banks
located in the United States of America having capital, surplus and profits
aggregating at least one hundred million dollars ($100,000,000); (d) repurchase
agreements fully collateralized by obligations described in clauses (a), (b) or
(c) hereof; and (e) shares of investment companies registered under the
Investment Company Act of 1940 which invest primarily in any of the obligations
described in clauses (a)-(d) hereof.
1.47 "Preferred Stock" means the Series One Preferred Stock of the
Company, par value $.01 per share.
1.48 "Priority Claim" means a Claim entitled to priority in repayment
pursuant to 11 U.S.C. Section 507(a) as of the Filing Date.
1.49 "Professional" means any professional employed or to be
compensated pursuant to Section 327, 328, 330, 331, 503(b) or 1103 of the
Bankruptcy Code.
1.50 "Professional Claim" means a Claim for compensation and/or
reimbursement of expenses pursuant to Section 327, 328, 330, 331 or 503(b) of
the Bankruptcy Code in connection with an application made to the Bankruptcy
Court in the Chapter 11 Case.
1.51 "Pro Rata Share" means, (a) with respect to any distribution to a
Class (other than Class 3 or 4) under this Plan, proportionate sharing pursuant
to which the ratio of the amount distributed on account of an Allowed Claim to
the amount of such Allowed Claim is the same as the ratio of the total amount
distributed to such Class to the total amount of all Allowed Claims and Disputed
Claims in such Class and (b) with respect to any distribution to Class 3 or 4
under this Plan, proportionate sharing based on the number of shares of
Preferred Stock or Common Stock held divided by the number of issued and
outstanding shares of Preferred Stock or Common Stock on the Record Date.
1.52 "Record Date" means, with respect to distributions to be made
under the Plan, the Confirmation Date or such other date as may be set by a
Bankruptcy Court order.
1.53 "Record Holder" means, with respect to the Allowed Class 1 Claims
or Class 3 or 4 Interests, the Entities listed as of the Record Date as
registered holders on the appropriate ledger or record book.
1.54 "Released Claims" shall have the meaning set forth in Article X
of the Plan.
1.55 "Schedules" means the schedules of assets and liabilities in
accordance with Bankruptcy Rule 1007(b), filed by the Debtors with the
Bankruptcy Court (as they may be amended from time to time in accordance with
Bankruptcy Rule 1009).
1.56 "Solicitation" means the solicitation of votes with respect to
the Plan.
1.57 "Solicitation Agent" means Bariston Associates, Inc.
1.58 "Subordinated Notes" means the 15% Subordinated Notes due in 2003
issued and outstanding from time to time under the Subordinated Notes Indenture.
1.59 "Subordinated Notes Indenture" means the Indenture dated as of
June 15, 1994, among the Debtors, as Issuer, and American Stock Transfer & Trust
Company, as Trustee, pursuant to which the Subordinated Notes were issued, as
amended or supplemented.
1.60 "Subsequent Distribution Amounts" means amounts available from
time to time after the Effective Date for distribution to holders of Class 1, 3
and 4 Claims or Interests, as provided in Section 7.3 of the Plan.
1.61 "Subsidiaries" means the Company's wholly-owned subsidiaries,
Page America of New York, Inc., Adirondack Radio Telephone Co., Inc. and Page
America of Pennsylvania, Inc. .
1.62 "Transfer Agent" means American Stock Transfer & Trust Company,
as transfer agent for the Common Stock.
1.63 "Third Party Releasees" has the meaning set forth in Section 10.2
of the Plan.
1.64 "Voting Record Date" means 5:00 PM New York City time on May 17,
1999.
1.65 "Rules of Interpretation." Unless otherwise specified, all
section, article, and exhibit references in this Plan are to the respective
section in, article of, or exhibit to this Plan, as the same may be amended,
waived, or modified from time to time. The headings in this Plan are for
convenience of reference only and shall not limit or otherwise affect the
provisions hereof. The rules of construction set forth in Section 102 of the
Bankruptcy Code shall apply. In computing any period of time prescribed or
allowed by this Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
II. DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS
2.1 The following Classes of Claims and Interests are designated
pursuant to and in accordance with ss. 1123(a)(1) of the Bankruptcy Code:
(a) "Class 1 Claims" shall consist of the Subordinated Notes Claims.
(b) "Class 2 Claims" shall consist of the Allowed General Unsecured
Claims.
(c) "Class 3 Interests" shall consist of the Interests of the
Preferred Stock.
(d) "Class 4 Interests" shall consist of the Interests of the Common
Stock.
2.2 Administrative Claims and Priority Claims are not separately
classified under this Plan, but shall receive the treatment specified in Article
V.
2.3 An Allowed Claim is part of a particular Class only to the extent
that the Allowed Claim qualifies within the definition of that Class and such
Claim shall be part of a different Class to the extent that the remainder of the
Claim qualifies within the description of a different Class.
III. CLAIMS AND INTERESTS IMPAIRED OR NOT IMPAIRED UNDER THE PLAN
3.1 Allowed Administrative and Priority Claims are not Impaired under
the Plan. Class 2 Claims are not Impaired under the Plan.
3.2 Class 1 Claims are treated as Impaired under the Plan.
3.3 Class 3 Interests and Class 4 Interests are treated as Impaired
under the Plan.
3.4 If a controversy arises as to whether any Claim or Interest, or
any Class of Claims or Interests, is impaired under this Plan, such Class shall
be treated as specified in this Plan unless the Bankruptcy Court shall determine
such controversy differently on motion of the party challenging the
characterization of a particular Class of Claims or Interests.
IV. ACCEPTANCE OR REJECTION OF THE PLAN
4.1 VOTING CLASSES. The holders of the Class 1 Claims and Class 3
Interests as of the Voting Record Date are entitled to vote to accept or reject
the Plan. For voting purposes, each Beneficial Holder in Class 1 and Class 3
shall be deemed to have an Allowed Claim in the principal face amount of the
Subordinated Notes or number of shares of Preferred Stock, respectively, in
which the Beneficial Holder has an interest as of the Voting Record Date unless,
at least five (5) business days prior to the Confirmation Hearing on this Plan,
the Debtors have filed an objection to the vote of any such holder with the
Bankruptcy Court.
Upon commencement of the Bankruptcy Case, unless the Bankruptcy Court
subsequently determines that Ballots which were cast prior to the commencement
of the case may be withdrawn, such Ballots will remain in full force and effect
until the Bankruptcy Court determines whether such Ballots constitute
appropriate acceptances or rejections of the Plan.
4.2 ACCEPTANCE BY CLASS 1. Class 1 shall have accepted the Plan if
Beneficial Holders, as of the Voting Record Date (other than any such holder
designated under subsection 1126(e) of the Bankruptcy Code), of at least
two-thirds in amount and more than one-half in number of the Allowed Claims
actually voting in the Class have voted to accept the Plan.
4.3 ACCEPTANCE BY CLASS 3. Class 3 shall have accepted the Plan if
Beneficial Holders, as of the Voting Record Date (other than any such holder
designated under subsection 1126(e) of the Bankruptcy Code), of at least
two-thirds in amount of the Allowed Interests actually voting in the class have
voted to accept the Plan.
4.4 PRESUMED ACCEPTANCE OF NON-VOTING CLASSES. Allowed Administrative
Expense Claims, Allowed Priority Claims, and Allowed Class 2 General Unsecured
Claims are unimpaired under the Plan and are conclusively presumed to accept the
Plan pursuant to Section 1126(f) of the Bankruptcy Code, subject to the
provisions of Section 6.2 of the Plan.
4.5 PRESUMED REJECTION BY CLASSES OF INTERESTS. Class 4 Interests are
deemed to have rejected the Plan.
V. TREATMENT OF AND METHODS OF DISTRIBUTION TO
HOLDERS OF CLAIMS AND INTERESTS UNDER THE PLAN
5.1 ADMINISTRATIVE EXPENSE CLAIMS. The holders of Allowed
Administrative Expense Claims, to the extent not previously paid, shall receive
in full satisfaction thereof (A) one hundred percent (100%) of their Allowed
Claims in cash on the later of: (i) the Effective Date; (ii) the date such
claims are Allowed or come due; or (iii) in the case of Claims of professionals,
upon entry of an order of the Court authorizing the payment of such claims,
PROVIDED, HOWEVER, that (x) professional fees incurred subsequent to the
Confirmation Date shall be paid without the need for Bankruptcy Court approval
and (y) claims, liabilities or obligations incurred in the ordinary course of
business of the Debtors will be paid or performed in accordance with their
terms; or (B) such other treatment as may be agreed upon in writing by the
holder of the Claim and the Debtors.
5.2 PRIORITY CLAIMS. The holders of Allowed Priority Claims, to the
extent not previously paid, shall receive in full satisfaction thereof one
hundred percent (100%) of their Allowed Claims in cash on the later of (i) the
Effective Date, (ii) the date such Claims are Allowed or on which an Allowed
Claim comes due or (iii) as otherwise agreed to by the holders of such Claims
and the Debtors or the Disbursing Agent, or as may be ordered by the Bankruptcy
Court.
5.3 CLASS 1 CLAIMS. The Allowed Subordinated Notes Claims are
Unsecured Claims in the principal amount of $21,287,500 as of March 31, 1999
plus interest at the non-default rate set forth in the Indenture through the
Filing Date. The Beneficial Holders of the Allowed Class 1 Claims shall receive
in full satisfaction thereof their Pro Rata share of 70% of all Assets available
for distribution after all other Allowed Claims have been paid until $19 million
has been indefeasibly paid to the holders of Class 1 Claims, and thereafter
shall receive 50% of all other Assets available for distribution. The Class 1
Claims shall be paid in cash, to the extent available, with the balance payable
in Metrocall Common Stock, which Common Stock shall be valued at the average of
the closing prices for the ten trading days ended five days prior to the
Effective Date. The payment of cash and Metrocall Common Stock shall be made on
a pro rata basis with the Class 3 Interests and shall be distributed to Record
Holders in accordance with the provisions of Articles VII and VIII of the Plan.
In addition, holders of Class 1 Claims shall receive unclaimed funds as set
forth in Section 7.16 of the Plan.
5.4 CLASS 2 CLAIMS. The holders of Allowed Class 2 General Unsecured
Claims shall receive payment in full in cash of the principal amount of their
Allowed Claims plus interest, if required under the terms of the agreement
creating the Class 2 Claim, through the Filing Date.
5.5 CLASS 3 INTERESTS. The holders of the Class 3 Interests shall
receive twenty-one (21%) percent of all Assets available for distribution after
all Allowed Claims (other than Class 1 Claims) have been paid, until the Class 1
Claims have indefeasibly received $19 million, and thereafter 35% of all other
Assets available for distribution, and their Interests shall be canceled as of
the Final Distribution Date. Payments shall be made in cash and Metrocall Common
Stock, pro rata with the payments to Class 1, which Metrocall Common Stock shall
be valued as set forth in Section 5.3. In addition, holders of Class 3 Interests
shall receive unclaimed funds as set forth in Section 7.16 of the Plan.
5.6 CLASS 4 INTERESTS. The holders of the Class 4 Interests shall
receive nine (9%) percent of all Assets available for distribution after all
Allowed Claims (other than Class 1 Claims) have been paid, until the Class 1
Claims have indefeasibly received $19 million and thereafter 15% of all other
Assets available for distribution, and their Interests shall be canceled as of
the Final Distribution Date. All payments to holders of Class 4 Interests shall
be made in cash. In addition, holders of Class 4 Interests shall receive
unclaimed funds as set forth in Section 7.16 of the Plan.
5.7 Unless otherwise specified herein (including, without limitation,
with respect to payment of the Allowed Subordinated Notes Claims), distributions
or transfers designated in the Plan to take place on the Effective Date or other
date of payment or transfer, shall be deemed timely if they occur within ten
(10) days after the designated date of payment or transfer.
VI. CRAMDOWN
6.1 If all applicable requirements for confirmation of this Plan are
met as set forth in Bankruptcy Code Section 1129(a)(1) through (13) except
subsection (8) thereof, the Debtors may request that the Bankruptcy Court
confirm this Plan in accordance with Section 1129(b) of the Bankruptcy Code, so
long as Classes 1 and 3 have accepted this Plan, on the basis that the Plan is
fair and equitable and does not discriminate unfairly with respect to any
non-accepting, Impaired Class.
6.2 Should the Bankruptcy Court determine that any Class treated as
unimpaired under the Plan is in fact Impaired, such Class will be deemed to have
rejected the Plan, and the Debtors may seek to confirm the Plan notwithstanding
the rejection of the Plan by such Class.
VII. PROVISIONS AS TO DISTRIBUTION AND DISPUTED CLAIMS
7.1 On the Effective Date, the Disbursing Agent shall disburse to
holders of Allowed Claims and Interests entitled to receive distributions on the
Effective Date, the amounts owed to them under this Plan.
7.2 In order to fund distributions to be made to holders of
Administrative, Priority or Class 2 Claims, there shall be reserved from the
Initial Distributions under this Plan cash equal to the amount of any Disputed
Administrative, Priority or Class 2 Claims or such lesser amount as the Court
may have determined, which shall be held by the Disbursing Agent, on behalf of
the Debtors, pending determination of such Disputed Claims. Upon any such Claim
becoming an Allowed Claim by a Final Order or by agreement between the
Disbursing Agent and the holder of such Disputed Claim, any distribution then
due to be made in respect of such Claim shall be paid and distributed by the
Disbursing Agent within seven (7) Business Days in accordance with the
provisions hereof and of such Final Order. Any cash remaining after resolution
and payment of the Allowed Amount of any Disputed Administrative, Priority or
Class 2 Claims shall become available for distribution on a pro rata basis to
all other classes entitled to distributions under the Plan.
7.3 The Initial Class 1, 3 and 4 Distribution Amounts and any
Subsequent Class 1, 3 and 4 Distribution Amounts shall not include (a) any cash
reserves for Disputed Administrative, Priority or Class 2 Claims unless there is
an excess after such Disputed Claims have been resolved and paid; (b) cash
reserves for the expenses of the post-Effective Date distributions; or (c) any
other amounts determined by the Debtors or the Disbursing Agent or required by
order of the Bankruptcy Court to be reserved, unless and until the reserves
referenced in subsections (a), (b) or (c) are released for distribution.
Distributions subsequent to the Initial Distribution Date may be made by the
Disbursing Agent at the end of each calendar quarter after the Effective Date on
which the Disbursing Agent has at least $500,000 in cash and/or Metrocall Common
Stock available for distribution to Class 1, 3 and 4 Claims and Interests,
provided, however, that the Disbursing Agent shall not be obligated to make
distributions after the Initial Distribution Date and prior to the Final
Distribution Date.
7.4 In no event shall the Disbursing Agent be obligated to make
distributions to holders of Class 4 Common Stock Interests if (a) the aggregate
amount to be distributed to Beneficial Holders would be less than $5.00 in the
aggregate for all shares beneficially owned by such holder, or (b) less than
$150,000 is available for distribution to Class 4 Interests at that time. In the
event that less than $150,000 remains available for distribution to holders of
Class 4 Interests as of the time of the Final Distribution, the Disbursing Agent
may distribute such amount to holders of Class 1 Claims and Class 3 Interests,
in the ratio of 70% and 30% respectively, and no holder of Class 4 Interests
shall have any further rights in or claims to such amounts.
7.5 Except as otherwise provided in the Plan, all distributions shall
be made to the holder of a Claim or Interest as of the Record Date. The holder
of a Priority or Class 2 Claim as of the Record Date shall be deemed to be the
Entity who (a) filed the most recent timely proof of claim relating thereto,
provided no evidence of the transfer of such Claim was filed on or before the
Record Date, or (b) if evidence of the transfer of a timely filed proof of claim
was filed on or before the Record Date, (i) the transferee named therein if the
transferor named therein does not file a timely objection pursuant to Bankruptcy
Rule 3001(e) or (ii) the Person so designated by a Final Order of the Bankruptcy
Court if a timely objection to the evidence of transfer was filed, or (c) is
reflected in the Schedules as the holder of such Claim if no timely proof of
claim related thereto was filed. Except as otherwise provided in the Plan, cash
payments shall be made by check and distributed by first-class mail.
7.6 Distributions to holders of Class 1 Claims shall be made by the
Disbursing Agent to Record Holders as reflected in the Debtors' books as of the
Record Date.
7.7 Distributions to holders of Class 3 Preferred Stock shall be made
by the Disbursing Agent to Record Holders as reflected in the Debtors' books as
of the Record Date.
7.8 Holders of Class 4 Common Stock Interests shall be deemed to
appoint American Stock Transfer & Trust Company to act as nominee with respect
to distributions under the Plan. All distributions to such holders shall be made
by the Disbursing Agent to American Stock Transfer & Trust Company for further
distribution to Record Holders, and thereafter, if applicable, by Record Holders
to Beneficial Holders as of the Record Date.
7.9 No holder of Class 1 Claims shall be entitled to receive any
distribution from the Disbursing Agent respecting its Claim unless and until
such holder shall have first either (i) surrendered or caused to be surrendered
to the Disbursing Agent the original Subordinated Notes or certificates held by
it or (ii) in the event that such holder is unable to surrender its original
Subordinated Notes or certificates because same have been lost, destroyed,
stolen or mutilated, (a) furnished the Disbursing Agent with an executed
affidavit of loss and indemnity with respect thereto in form customarily
utilized for such purposes that is reasonably satisfactory to the Disbursing
Agent and (b) provided to the Disbursing Agent a bond in such amount and form as
the Disbursing Agent shall direct, sufficient to indemnify the Disbursing Agent
against any claim that may be made against the Disbursing Agent on account of
the alleged loss, theft or distribution of any such certificates or the
distribution of property hereunder. The method and procedure to be followed for
surrendering Subordinated Notes and for providing affidavits and bonds shall be
prescribed by the Disbursing Agent upon reasonable notice to holders of the
Subordinated Notes. Promptly upon surrender of such instruments, the Disbursing
Agent shall cancel such Subordinated Notes or otherwise dispose of them in such
manner as the Disbursing Agent may reasonably determine. In the event a holder
of a Subordinated Note fails to surrender its Subordinated Note(s) or
certificate(s) or provide an affidavit and adequate bond on or before the first
anniversary of the Effective Date or within such other time period as may be set
by the Bankruptcy Court, such holder shall be conclusively deemed to have
forfeited its distribution under this Plan, and that distribution shall be
retained in the Distribution Reserve and made available for distribution to
other holders in accordance with Section 7.16 of this Plan.
7.10 As of the Effective Date, the Indenture shall, except as provided
in this Plan, be deemed canceled, terminated and of no further force or effect.
Notwithstanding the foregoing, such cancellation of the Indenture (a) shall not
impair the rights of holders of the Subordinated Notes to receive distributions
on account of such Claims pursuant to this Plan, and (b) shall not impair the
rights and duties under the Indenture as between the Indenture Trustee, and the
beneficiaries of the trust or arrangements created thereby, as set forth in the
applicable provisions of the Indenture, including INTER ALIA, the rights of the
Indenture Trustee to enforce its Liens. The Subordinated Notes shall not be
canceled other than pursuant to this Section of this Plan and, until such
cancellation, such Subordinated Notes shall be evidence of the entitlement of
the holder thereof to receive distributions pursuant to this Plan.
Notwithstanding the cancellation of the Subordinated Notes held by holders of
Class 1 Claims, such holders, as established on the Record Date or their
transferees, successors or assigns as established to the satisfaction of the
Disbursing Agent shall be entitled to receive Subsequent Class 1 Distribution
Amounts whenever available for distribution. On the Filing Date, the Forbearance
Period Expiration Date (as defined in the Forbearance Agreement) shall
automatically be deemed extended to the Final Distribution Date and any
provisions of the Forbearance Agreement or the Indenture which are in conflict
with this Plan shall automatically be deemed to have been waived.
7.11 No holder of Class 3 Interests shall be entitled to receive any
distribution respecting its Interests unless and until such holder shall have
first either (i) surrendered or caused to be surrendered to the Disbursing Agent
the original certificates held by it or (ii) in the event that such holder is
unable to surrender its original certificates because same have been lost,
destroyed, stolen or mutilated, (a) furnished the Disbursing Agent with an
executed affidavit of loss and indemnity with respect thereto in form
customarily utilized for such purposes that is reasonably satisfactory to the
Disbursing Agent and (b) provided to the Disbursing Agent a bond in such amount
and form as the Disbursing Agent shall direct, sufficient to indemnify the
Disbursing Agent against any claim that may be made against the Disbursing Agent
on account of the alleged loss, theft or distribution of any such certificates
or the distribution of property hereunder. The method and procedure to be
followed for surrendering certificates and for providing affidavits and bonds
shall be prescribed by the Disbursing Agent upon reasonable notice to holders of
the Preferred Stock. In the event a holder fails to surrender its certificate(s)
or provide an affidavit and adequate bond on or before the first anniversary of
the Effective Date or within such other time period as may be set by the
Bankruptcy Court, such holder shall be conclusively deemed to have forfeited its
distribution under this Plan, and that distribution shall be retained in the
Distribution Reserve and made available for distribution to other holders in
accordance with Section 7.16 of this Plan. All Preferred Stock Interests and
certificates evidencing such Interests shall be canceled as of the Final
Distribution Date.
7.12 No holder of Class 4 Interests shall be entitled to receive any
distribution respecting its Interests unless and until such holder shall have
first either (i) surrendered or caused to be surrendered to the Transfer Agent
the original certificates held by it or (ii) in the event that such holder is
unable to surrender its original certificates because same have been lost,
destroyed, stolen or mutilated, (a) furnished the Transfer Agent with an
executed affidavit of loss and indemnity with respect thereto in form
customarily utilized for such purposes that is reasonably satisfactory to the
Transfer Agent and (b) provided to the Transfer Agent a bond in such amount and
form as the Transfer Agent shall direct, sufficient to indemnify the Transfer
Agent against any claim that may be made against the Transfer Agent on account
of the alleged loss, theft or distribution of any such certificates or the
distribution of property hereunder. The method and procedure to be followed for
surrendering certificates and for providing affidavits and bonds shall be
prescribed by the Transfer Agent upon reasonable notice to holders of the Common
Stock. The Transfer Agent shall retain all surrendered certificates, and all
Common Stock Interests and the certificates evidencing those Interests shall be
canceled as of the Final Distribution Date. In the event a holder of a
certificate fails to surrender its certificate(s) or provide an affidavit and
adequate bond on or before the first anniversary of the Effective Date or within
such other time period as may be set by the Bankruptcy Court, such holder shall
be conclusively deemed to have forfeited its distribution under this Plan, and
all such property not claimed by such holder shall be returned to the Disbursing
Agent, retained in the Distribution Reserve and made available for distribution
to other holders in accordance with Section 7.16 of this Plan.
7.13 As of the Record Date, the transfer registers for the
Subordinated Notes, Preferred Stock and Common Stock will be closed, and the
Debtors, the Disbursing Agent, the Indenture Trustee and the Transfer Agent will
have no obligation to recognize the transfer of any Subordinated Notes,
Preferred Stock or Common Stock occurring after the close of business on the
Record Date and will be entitled, for purposes of distributions under the Plan,
to recognize and deal only with Record Holders as of the close of business on
the Record Date, or with such Entities that establish to the satisfaction of the
Disbursing Agent, the Indenture Trustee or the Transfer Agent that they are the
legal successors to such holders.
7.14 In the event of any dispute between and among any holders of
Claims as to the right of any Entity to receive or retain any payment or
distribution to be made to such Entity under the Plan, the Debtors, the
Disbursing Agent, the Indenture Trustee or the Transfer Agent, as applicable,
may, in lieu of making such payment or distribution to such Person, instead hold
such payment or distribution until the disposition thereof shall be determined
by a Final Order of the Bankruptcy Court or other court with appropriate
jurisdiction.
7.15 In the event that any distribution to any holder is returned as
undeliverable, the Disbursing Agent or the Transfer Agent, as applicable, shall
use reasonable efforts to determine the current address of such holder, but no
distribution to such holder shall be made unless and until the Disbursing Agent
or the Transfer Agent as applicable, have determined the then current address of
such holder, at which time such distribution shall be made to such holder
without interest.
7.16 Checks issued in respect of distributions under this Plan shall
be null and void if not negotiated within sixty (60) days after the date of
issuance. Any amounts retained by the Disbursing Agent in respect of such
non-negotiated checks shall be held in the Distribution Reserve. Requests for
reissuance for any such check must be made directly to the Disbursing Agent by
the holder of the Allowed Claim with respect to which such check originally was
issued. Any Entity that fails to claim its distributions within the later of one
year from the Effective Date or sixty days after a Claim becomes an Allowed
Claim or within such other time period as may be set by the Bankruptcy Court,
shall forfeit all rights to any distribution under the Plan. Upon forfeiture,
such distributions (including interest thereon) shall be retained by the
Disbursing Agent or remitted to the Disbursing Agent by the Transfer Agent for
further distribution as follows:
(a) If there are unclaimed funds with respect to Class 4
Interests, those unclaimed funds shall be distributed to
Class 1 Claims, Class 3 Interests and Class 4 Interests
(other than those Class 4 Interests which did not originally
claim the money) in the ratio of 70%, 21% and 9%,
respectively.
(b) Unclaimed funds with respect to Class 3 Interests shall be
paid to holders of Class 1 Claims and Class 3 Interests
(other than those Class 3 Interests which did not originally
claim the money) in the ratio of 70% and 30%, respectively.
(c) Unclaimed Funds with respect to Class 1 Claims shall be
distributed to holders of Class 1 Claims (other than those
holders of Class 1 Claims that did not originally claim the
money).
Entities that fail to claim their distributions forfeit their rights thereto
and shall have no claim whatsoever against the Debtors, the Disbursing
Agent, the Indenture Trustee or the Transfer Agent, as applicable, or against
any holder of an Allowed Claim to whom distributions are made.
7.17 (a) For the purposes of effectuating the provisions of this
Article VII, the Bankruptcy Court, on or prior to the Effective Date or such
date or dates thereafter as the Bankruptcy Court shall set, may fix or liquidate
the amount of Disputed Claims pursuant to Section 502(c) of the Bankruptcy Code,
in which event the amounts so fixed or liquidated shall be deemed the maximum
amounts of the Disputed Claims pursuant to Section 502(c) of the Bankruptcy Code
for purposes of distribution under the Plan. On motion of the Debtors, the
Bankruptcy Court shall determine the amount of any Disputed Priority Claim filed
including, if necessary, by estimation of any such Claim under 11 U.S.C. Section
502(c) and 11 U.S.C. Section 505. The Debtors may fund distributions on the
Effective Date in reliance on any such orders determining or estimating Disputed
Claims, so long as no stay of such orders is in effect.
(b) The Debtors or the Disbursing Agent may utilize any defenses,
counterclaims or offsets to Disputed Claims arising in connection with the
Avoidance Action sections of the Bankruptcy Code, but otherwise shall not
commence or assert any Avoidance Action claims.
(c) When a Disputed Claim becomes an Allowed Claim, the
Disbursing Agent shall distribute to the holder of such Allowed Claim, the
property distributable to such holder as provided in this Plan.
7.18 The Disbursing Agent or the Transfer Agent, as applicable, shall
be entitled to withhold distributions otherwise due to a holder of an Allowed
Claim or Interest pending receipt of appropriate tax information or
certifications, or may deduct any Federal, State or local withholding taxes from
any payments made with respect to Allowed Claims or Interests, as appropriate.
7.19 Cash held by the Disbursing Agent shall be invested in Permitted
Investments, until needed for distributions or the payment of expenses of the
Disbursing Agent. All investments, the proceeds of which are necessary to fund
the payments required to be made on a Distribution Date or to otherwise fund the
expenses of implementation of this Plan, shall be converted into cash on or
prior to each Distribution Date or as necessary.
VIII. MEANS FOR IMPLEMENTATION OF THE PLAN
8.1 The funds required for the implementation of this Plan shall be
provided from the Assets.
8.2 On the Effective Date, the Disbursing Agent shall distribute
Assets to holders of Claims or Interests entitled to distributions on that date,
and shall transfer the balance of the Assets to the Distribution Reserve, free
and clear of all Claims, Liens or contractually imposed restrictions, except as
otherwise provided in this Plan. The Distribution Reserve is being established
solely for the benefit of those Entities entitled to distributions after the
Effective Date under the terms of the Plan, including but not limited to holders
of obligations incurred by the Disbursing Agent, and no other Entity shall have
any interest therein.
8.3 On the Effective Date (for the Subsidiaries) and the Final
Distribution Date (for Page America Group, Inc.), without any further
resolutions by the shareholders or directors of the Debtors, the Debtors shall
be dissolved. The Debtors' officers shall file certificates of dissolution for
the Debtors pursuant to this Plan in the states of their incorporation.
8.4 On the Effective Date with respect to the Subordinated Notes, and
on the Final Distribution Date with respect to Preferred and Common Stock
Interests, all securities and all instruments and agreements governing such
Claims or Interests shall be deemed canceled and of no further force or effect,
provided, however, that except as otherwise provided herein the Subordinated
Notes, other evidences of Claims and Preferred and Common Stock shall, effective
upon the Effective Date, represent the right to participate, to the extent such
Claims or Interests are Allowed, in the distributions contemplated by this Plan.
8.5 From and after the Effective Date, the duties of the Disbursing
Agent designated by and acting on behalf of the Debtors shall include:
maintaining the Distribution Reserve; investing the cash held in the
Distribution Reserve; pursuing objection to, estimations and settlements of
Claims; prosecuting retained causes of action if any; calculating and
implementing all distributions to be made under this Plan to holders of Allowed
Claims and Interests; filing all required tax returns and paying all obligations
incurred by the Disbursing Agent in implementing the Plan from funds in the
Distribution Reserve; preparing and filing one or more reports to the Bankruptcy
Court on the implementation of the Plan, including a Final Report, and such
other responsibilities as may be vested in the Disbursing Agent pursuant to this
Plan, or Bankruptcy Court order or as may be necessary and proper to carry out
the provisions of this Plan.
8.6 The powers of the Disbursing Agent acting on behalf of the Debtors
shall, without Bankruptcy Court approval in each of the following cases, include
the power to invest funds in Permitted Investments, to make distributions and
pay taxes and other obligations owed by the Debtors or incurred by the
Disbursing Agent from, the Distribution Reserve including withholding
appropriate amounts from distributees under the Plan that are required to but
fail to furnish correct taxpayer identification numbers; the power to engage
employees and professional persons to assist the Disbursing Agent with respect
to its responsibilities; the authority to pay the fees and expenses of the
professional persons, agents and employees engaged by the Disbursing Agent and
to pay all other expenses for winding down the affairs of the Debtors; the power
to compromise and settle claims and causes of actions; the authority to act on
behalf of the Debtors in all adversary proceedings and contested matters pending
in the Court and in all actions and proceedings pending elsewhere, and to
settle, retain, enforce, dispute or adjust any Claim or Interest and otherwise
pursue actions involving assets of the Debtors that could arise or be asserted
at any time under the Bankruptcy Code; and such other powers as may be vested in
or assumed by the Disbursing Agent pursuant to the Plan, or Bankruptcy Court
order or as may be necessary and proper to carry out the provisions of the Plan.
8.7 Unless they determine otherwise, the Debtors and the Disbursing
Agent shall treat the assets held in the Distribution Reserve as held by a
grantor trust for the benefit of the Company or as otherwise owned by the
Company for tax purposes. Income earned by the Distribution Reserve shall be
treated as earned by and taxable to the Company.
8.8 The Disbursing Agent shall be paid a fee of $9,087 per month
through December 31, 1999 (plus reimbursement for expenses) from the
Distribution Reserve in connection with the rendering of services after the
Effective Date. Thereafter, the Disbursing Agent's compensation shall be in an
amount approved by the Bankruptcy Court.
8.9 All distributions under the Plan required to be made after the
Effective Date shall be made by the Disbursing Agent or the Transfer Agent
pursuant to, and in accordance with, the terms of the Plan.
8.10 All transfers occurring under the Plan shall be free and clear of
all Liens, equities and interests of any nature or kind, and shall be exempt
under any law imposing a stamp or similar tax pursuant to Section 1146 of the
Bankruptcy Code.
8.11 If the Court does not approve the payment by the Debtors or the
Disbursing Agent of compensation and expense reimbursement claims made by the
Indenture Trustee under the Indenture or the Transfer Agent as a Class 2 Claim,
then the Indenture Trustee and Transfer Agent shall be entitled to assert their
rights against a portion of the cash distribution payable to holders of the
Subordinated Notes or Common Stock Interests under this Plan until their
compensation and expense reimbursement claims are satisfied in full pursuant to
a Lien for this purpose granted to the Indenture Trustee under the Indenture and
to the Transfer Agent under the agreement pursuant to which the Transfer Agent
was appointed as transfer agent. Consequently, amounts actually received by
holders of the Subordinated Notes or Common Stock Interests may be less than the
gross distributions provided for under this Plan by the amount of distributions
applied by the Indenture Trustee or the Transfer Agent to their compensation and
expense reimbursement claims.
8.12 The Debtors reserve the right to modify the Plan prior to or
subsequent to the Confirmation Date in accordance with Section 1127 of the
Bankruptcy Code and Bankruptcy Rule 3019. After the Confirmation Date and prior
to the substantial consummation of this Plan, the Debtors and any
party-in-interest may, so long as the treatment of holders of Claims under the
Plan is not adversely affected, institute proceedings in the Bankruptcy Court to
remedy any defect or omission or to reconcile any inconsistencies in this Plan,
the Disclosure Statement or the Confirmation Order and any other matters as may
be necessary to carry out the purposes and effects of this Plan; PROVIDED,
HOWEVER, prior notice of such proceedings shall be served in accordance with
Bankruptcy Rule 2002.
8.13 The Debtors reserve the right to revoke or withdraw this Plan at
any time prior to the Confirmation Date. If the Debtors revoke or withdraw this
Plan prior to the Confirmation Date then this Plan shall be deemed null and
void. In such event, nothing contained herein shall be deemed to constitute a
waiver or release of any Claims by or against the Debtors or any other Person or
to prejudice in any manner the rights of the Debtors or any Person in any
further proceedings involving the Debtors.
8.14 Except as otherwise provided by order of the Bankruptcy Court,
all objections to Disputed Administrative, Priority or Class 2 Claims shall be
commenced, filed or asserted by the Debtors or the Disbursing Agent no later
than forty-five (45) days after the Effective Date, or such extended date as the
Court may fix upon application for extension by the Debtors or the Disbursing
Agent, which may be granted without notice or a hearing.
8.15 The Debtors, the Indenture Trustee, the Transfer Agent and the
Disbursing Agent shall take all actions and deliver all documents and
instruments which are appropriate and reasonably necessary for the
implementation and consummation of the Plan.
8.16 Any amounts the Debtors are obligated to pay on the Effective
Date shall be deemed timely made if paid within ten (10) days following the
Effective Date. Any payments made on or subsequent to the Effective Date shall
be made by the Disbursing Agent.
8.17 Except as otherwise prohibited by applicable tax law, the
consideration received by holders of Allowed Claims shall, for all income tax
purposes, be allocated and applied first to the unpaid principal amount of such
Claims, and thereafter to the unpaid accrued interest, if any.
IX. CONDITIONS TO CONFIRMATION DATE
AND EFFECTIVE DATE FOR THE PLAN
9.1 The Confirmation Date shall not occur unless the following are
satisfied or, if waivable pursuant to Section 9.3, waived:
(a) An order approving the adequacy of the Disclosure Statement
shall have been entered;
(b) The Confirmation Order, in form and substance acceptable to
the Debtors, shall have been entered by the Bankruptcy Court which provides,
INTER ALIA, that all applicable requirements of Section 1129 of the Bankruptcy
Code have been satisfied and that the Subsidiaries shall be dissolved as of the
Effective Date, and Page America Group, Inc. shall be dissolved as of the Final
Distribution Date;
(c) The Bankruptcy Court shall have approved the identity and
appointment of the Disbursing Agent and shall have determined that the
Disbursing Agent is duly authorized to take the actions contemplated to be taken
pursuant to the Plan effective on the Effective Date; and
(d) The Confirmation Order shall not have modified, amended or
deleted the provisions of Article X of this Plan.
9.2 The Effective Date shall not occur unless:
(a) The Confirmation Order shall have become a Final Order, or
shall not have been reversed, revoked, modified in any manner unacceptable to
the Debtors, or stayed; and
(b) The Bankruptcy Court shall have approved the amounts proposed
to be reserved by the Disbursing Agent on account of Disputed Claims.
9.3 The Debtors may, in their sole discretion, waive the provisions of
Section 9.1(d) of the Plan.
X. EFFECTS OF PLAN CONFIRMATION
10.1 EXTENT OF RELEASE. Except as expressly set forth in this Plan,
nothing contained in this Plan shall affect any right of any Entity to assert or
pursue any claim or cause of action against any Entity other than the Debtors or
the Disbursing Agent.
10.2 RELEASE BY DEBTORS.
(a) On the Effective Date, the Debtors, their Affiliates (as such
term is defined in Section 101(2) of the Bankruptcy Code) and their shareholders
derivatively are hereby deemed to have forever waived and released
unconditionally each of the Debtors' present and former directors, officers,
employees, agents, consultants, advisors, attorneys, accountants and other
representatives and their respective successors, assigns or Affiliates
(collectively, the "Company Releasees"), from any and all claims, obligations,
suits, judgments, damages, rights, causes of action and liabilities whatsoever,
whether known or unknown, foreseen, or unforeseen, existing or hereafter
arising, in law, equity or otherwise, based in whole or in part upon any act or
omission by, or any transaction, agreement, event or other occurrence taking
place prior to, on or after the Confirmation Date in any way relating to the
Debtors, the Bankruptcy Case, the Plan, or the treatment of liabilities arising
prior to or subsequent to the Confirmation Date (collectively, the "Released
Claims"). Persons deemed to have released claims pursuant to this Section
10.2(a) shall be forever precluded from asserting whether directly, derivatively
or otherwise, any such claims against any Company Releasee.
(b) On the Effective Date, except as otherwise provided in the
Plan, the Debtors, their Affiliates and their shareholders derivatively are
hereby deemed to have forever waived and released unconditionally the holders of
Interests, the Indenture Trustee (except as otherwise provided in the
Indenture), the Disbursing Agent (except as to acts of gross negligence or
willful misconduct), and the holders of Class 1 and Class 2 Claims (in their
capacity as holders of such Claims) (all of the foregoing collectively referred
to as the "Third Party Releasees") from the Released Claims. Entities deemed to
have released claims pursuant to this Section 10.2(b) shall be forever precluded
from asserting whether directly, derivatively or otherwise, any such claims
against the Third Party Releasees.
(c) In addition, except to the extent Avoidance Action claims
constitute a defense, counterclaim or offset to any Class 2 Claim asserted
against the Estate, the Debtors and the Disbursing Agent shall be deemed to have
released all Avoidance Action claims as of the Effective Date.
10.3 RELEASE BY CREDITORS. On the Effective Date, each holder (or
representative thereof) of a Claim or Interest (a) who has accepted this Plan,
(b) whose Claim or Interest is in a class that has accepted or is deemed to have
accepted this Plan pursuant to Section 1126 of the Bankruptcy Code or (c) who
may be entitled to receive a distribution of property pursuant to this Plan,
shall be deemed to have forever waived and released unconditionally the Debtors,
the Company Releasees and the Third Party Releasees from the Released Claims;
PROVIDED, HOWEVER, that this release shall not constitute a release of (i) any
Allowed Claims treated under this Plan, or (ii) any claims third parties may
have against each other, which claims are not related to the Debtors and the
Bankruptcy Case. Persons deemed to have released claims pursuant to this Section
10.3 shall be forever precluded from asserting any such claims against the
Debtors, the Company Releasees or the Third Party Releasees.
10.4 INJUNCTION. Except as otherwise expressly provided herein,
confirmation of this Plan shall, provided that the Effective Date occurs,
permanently enjoin all Entities that have held, currently hold, or may hold a
Claim against or other debt or liability of the Debtors, whether arising before,
on or after the Effective Date, or that hold any Interest in the Debtors from
taking any of the following actions with respect to such Claim, Interest, debt
or liability against the Debtors, the Company Releasees, or the Third Party
Releasees: (i) commencing, conducting or continuing in any manner, directly or
indirectly, any suit, action or other proceeding of any kind; (ii) enforcing,
levying, attaching, collecting or otherwise recovering in any manner or by any
means, whether directly or indirectly, any judgment, award, decree or order;
(iii) creating, perfecting or enforcing in any manner directly or indirectly,
any Lien or encumbrance of any kind; (iv) asserting any setoff, right of
subrogation or recoupment of any kind, directly or indirectly; and (v)
proceeding in any manner in any place whatsoever that does not conform to or
comply with or is inconsistent with the provisions of this Plan; PROVIDED,
HOWEVER, that this injunction shall not apply to (x) any Allowed Claims that may
be asserted under this Plan, or (y) any claims holders of Claims or other third
parties may have against each other, which claims are not related to the Debtors
and the Bankruptcy Case, it being understood, however, that any defenses,
offsets or counterclaims of any kind or nature whatsoever which the Debtors may
have or assert in respect of any of the claims of the type described in (x) or
(y) of this proviso to the extent not otherwise waived in the Plan, are fully
preserved.
10.5 NO LIABILITY FOR SOLICITATION. As specified in Section 1125(e) of
the Bankruptcy Code, Entities that solicit acceptances or rejections of this
Plan in good faith and in compliance with the applicable provisions of the
Bankruptcy Code and applicable non-bankruptcy law, are not liable on account of
such solicitation for violation of any applicable law, rule, or regulation
governing the solicitation of acceptances or rejections of this Plan.
10.6 LIMITATION OF LIABILITY. Neither the Debtors, the Company
Releasees or the Third Party Releasees or any of their respective Affiliates or
any of their respective officers, directors, employees, members or agents, or
any Professional employed by any of them (collectively, the "Exculpated
Persons"), shall have or incur any liability to any Entity for any act taken or
not taken in good faith in connection with or in any way related to the
negotiation, formulation, implementation, confirmation or consummation of this
Plan, the Disclosure Statement, or any contract, instrument, release or other
agreement or document created in connection with or related to this Plan or the
administration of the Bankruptcy Case. The Exculpated Persons shall have no
liability to any holder of a Claim, holder of an Interest or other
party-in-interest herein or any other person for actions taken under this Plan,
in connection therewith or with respect thereto, in good faith, including,
without limitation, failure to satisfy any condition or conditions, or refusal
to waive any condition or conditions precedent to the Confirmation Date or the
Effective Date. Further, the Exculpated Persons will not have or incur any
liability to any holder of a Claim, holder of an Interest, or other
party-in-interest herein or any other Person for any act or omission in
connection with or arising out of their administration of this Plan or the
property to be distributed under this Plan, except for gross negligence or
willful misconduct as finally determined by the Bankruptcy Court, and the
Exculpated Persons are entitled to rely on, and act or refrain from acting on,
all information provided by other Exculpated Persons without any duty to
investigate the veracity or accuracy of such information.
10.7 INDEMNIFICATION. The Disbursing Agent, its employees,
consultants, advisors, attorneys, accountants or other representatives shall be
indemnified to the extent of any funds in the Distribution Reserve against any
and all losses, claims, causes of action, damages, fees, expenses and
liabilities (i) for any act taken or omission made in good faith in connection
with or in any way related to the implementation of this Plan, contract,
instrument, release or other agreement or document created in connection with
this Plan or the administration of the Bankruptcy Case, or (ii) for any act or
omission in connection with or arising out of the administration of this Plan or
the property to be distributed under this Plan or the operations or activities
of the Disbursing Agent, except for gross negligence or willful misconduct as
finally determined by the Bankruptcy Court. All rights of the Persons
indemnified pursuant hereto shall survive after the Confirmation Date of this
Plan.
10.8 OTHER DOCUMENTS AND ACTIONS. The Debtors and the Disbursing Agent
may execute such documents and take such other action as is necessary to
effectuate the transactions provided for in this Plan.
10.9 TRANSFER TAX EXEMPTION. The issuance, transfer, or exchange of a
security, or the making or delivery of an instrument of transfer under the Plan
shall not be taxed under any law imposing a stamp tax or similar tax.
XI. SUBSTANTIVE CONSOLIDATION
11.1 The Plan assumes the substantive consolidation of the Debtors. As
of the Effective Date (i) all intercompany claims shall be canceled and no
distributions shall be made on account thereof; (ii) all assets and liabilities
of all of the Debtors shall be treated as provided in this Plan; (iii) all
guarantees by any Debtor of the payment, performance or collection of
obligations of the other Debtors shall be eliminated and canceled; (iv) any
obligation of any Debtor and all guarantees thereof by any other Debtor shall be
treated as a single obligation of the consolidated Debtors; (v) all joint
obligations of the Debtors, and all multiple claims against such entities on
account of such joint obligations shall be treated and allowed as a single claim
against the consolidated Debtors; and (vi) each Claim filed in the Chapter 11
Case of any Debtor shall be deemed filed against the consolidated Debtors and to
be a single obligation of the consolidated Debtors.
XII. RETENTION OF JURISDICTION
12.1 The Bankruptcy Court shall retain exclusive jurisdiction of this
case after the Effective Date for the following purposes:
(a) To determine any and all objections to the allowance,
disallowance or subordination of Claims or any controversy as to the
classification of Claims;
(b) To liquidate any disputed, contingent, or unliquidated Claims
including through estimation under Section 502(c) of the Bankruptcy Code, and
finally determine damages and other amounts in connection with such disputed,
contingent or unliquidated claims;
(c) To determine any and all applications for professional and
similar fees and for the reimbursement of disbursements and expenses with
respect to services rendered and expenses incurred prior to the Confirmation
Date;
(d) To determine any and all pending motions and applications for
assumption or rejection of executory contracts and leases and the allowance and
classification of any Claims resulting from the rejection of executory contracts
and leases;
(e) To determine any and all motions, applications, adversary
proceedings, contested and litigated matters or such other matters over which
the Bankruptcy Court has jurisdiction prior to the Confirmation Date, including
the enforcement, prosecution, litigation, settlement and/or other disposition of
claims and counterclaims of the Debtors;
(f) To enforce the provisions of, and resolve any and all
disputes under or pertaining to the Plan;
(g) To determine the amount or legality of any tax, any fine or
penalty relating to a tax or any addition to a tax pursuant to Sections 346, 505
and 1146 of the Bankruptcy Code;
(h) To modify the Plan or correct any defect, cure any omission
or reconcile any inconsistency in the Plan or in the order of the Bankruptcy
Court confirming the Plan, or to enter such orders as may be necessary to
effectuate the terms and conditions of the Plan to the extent authorized by the
Bankruptcy Code as may be necessary to carry out the purpose and intent of the
Plan;
(i) To hear and determine all controversies, suits and disputes,
if any, as may arise with regard to orders of this Court in the Bankruptcy Case;
(j) To hear and determine any and all controversies and disputes
arising under, or in connection with, the Plan or the order confirming the Plan;
(k) To adjudicate all Claims to a security or ownership interest
in any property of the Debtors or in any proceeds thereof;
(l) To adjudicate all Claims or controversies arising out of any
purchases, sales or contracts made or undertaken by the Debtors during the
pendency of this Bankruptcy Case;
(m) To recover all assets and properties of the Debtors wherever
located, including the prosecution and adjudication of all causes of action
available to the Debtors;
(n) To determine all questions and disputes regarding recovery of
and entitlement to the Debtors' assets and determine all claims and disputes
between the Debtors and any other Entity, whether or not subject to an action
pending as of the Confirmation Date;
(o) To enter any order, including injunctions, necessary to
enforce the title, rights and powers of the Debtors and to impose such
limitations, restrictions, terms and conditions on such title, rights and powers
as the Court may deem necessary or appropriate;
(p) To enter an order or final decree closing and terminating the
Bankruptcy Case; and
(q) To make such orders as are necessary or appropriate to carry
out the provisions of this Plan, including but not limited to orders
interpreting, clarifying or enforcing the provisions thereof.
XIII. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
13.1 As of the Effective Date, all executory contracts and unexpired
leases that exist between the Debtors and any third party that have not
previously been assumed or rejected are hereby specifically rejected.
13.2 Proofs of Claim for damages arising from the rejection pursuant
to this Plan or the Confirmation Order of any executory contract or unexpired
lease must be filed with the Bankruptcy Court no later than twenty-five (25)
days after service of notice of entry of the confirmation order on such
claimant. Any such rejection claims not filed within that time shall be forever
barred from assertion against the Debtors, the Disbursing Agent, the
Distribution Reserve, and any entity receiving distributions under the Plan.
13.3 Objections to such proofs of claim shall be filed by the
Disbursing Agent within sixty (60) days after such claims are filed, or by such
later date as the Bankruptcy Court may approve, and the Bankruptcy Court shall
determine any such objection. Unsecured Claims arising out of the rejection of
executory contracts and unexpired leases shall be Class 2 Claims under the Plan.
XIV. MISCELLANEOUS PROVISIONS
14.1 PAYMENT OF STATUTORY FEES. All fees payable pursuant to Section
1930 of Title 28 of the United States Code, as determined by the Bankruptcy
Court at the hearing pursuant to Section 1128 of the Bankruptcy Code, shall be
paid on or before the Effective Date.
14.2 NO PENALTIES. No penalties or late charges are to be allowed on
any Claim or Interest subsequent to the Filing Date except as expressly stated
in this Plan, or allowed by a Final Order of a court of competent jurisdiction.
14.3 NO ATTORNEY'S FEES. No attorneys' fees will be paid by any Debtor
with respect to any Claim or Interest except as expressly stated in this Plan,
or allowed by a Final Order of a court of competent jurisdiction.
14.4 RIGHTS OF ACTION. With the exception of the commencement of
Avoidance Actions, nothing contained in this Plan shall constitute a waiver or
release by the Debtors of any right of set-off, defense or counterclaim the
Debtors may have against any Person other than the Company Releasees and the
Third Party Releasees. The Disbursing Agent may pursue those rights and causes
of action, as appropriate, in accordance with what is in the best interests, and
for the benefit of, parties entitled to distributions under the Plan.
14.5 NO ADMISSIONS. Notwithstanding anything herein to the contrary,
nothing contained in this Plan shall be deemed an admission by the Debtors with
respect to any matter set forth herein, including, without limitation, liability
on any Claim or Interest or the propriety of any classification of any Claim or
Interest.
14.6 GOVERNING LAW. Except to the extent the Bankruptcy Code, the
Bankruptcy Rules or other federal laws are applicable, the laws of the State of
New York shall govern the construction, implementation and enforcement of this
Plan and all rights and obligations arising under this Plan, without giving
effect to the principles of conflicts of laws.
14.7 SUCCESSORS AND ASSIGNS. The rights, benefits and obligations of
any Person named or referred to in this Plan will be binding upon, and will
inure to the benefit of, the heir, executor, administrator, representative,
successor or assign of such Person.
14.8 SEVERABILITY. Should the Bankruptcy Court determine, prior to the
Confirmation Date, that any provision of this Plan is either illegal on its face
or illegal as applied to any Claim or Interest, such provision shall be
unenforceable as to all holders of Claims or Interests or to the specific holder
of such Claim or Interest, as the case may be, as to which the provision is
illegal. Unless otherwise determined by the Bankruptcy Court, such a
determination of unenforceability shall in no way limit or affect the
enforceability and operative effect of any other provision of this Plan.
However, the Debtors reserve the right not to proceed with confirmation or
consummation of this Plan if any such ruling occurs.
14.9 INCONSISTENCIES. To the extent of any inconsistency among the
Confirmation Order, the Plan or the Disclosure Statement, this Plan controls the
Disclosure Statement and the Confirmation Order controls this Plan.
14.10 NOTICES. All notices, requests, elections or demands in
connection with this Plan shall be in writing and shall be mailed by registered
or certified mail, return receipt requested, to:
Page America Group, Inc.
c/o Bariston Associates, Inc.
One International Place
Boston, MA 02110
copies to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
Attention: Robin Keller, Esq.
Martin Neidell, Esq.
14.11 WITHHOLDING AND REPORTING. In connection with the Plan and all
instruments issued in connection therewith and distributions thereon, the
Debtors, the Disbursing Agent, the Transfer Agent and the Indenture Trustee
shall comply with all withholding and reporting requirements imposed by any
Federal, State, local or foreign taxing authority and all distributions
hereunder shall, to the extent applicable, be subject to any such withholding
and reporting requirements.
Dated: May 17, 1999
Boston, Massachusetts
PAGE AMERICA GROUP, INC.
PAGE AMERICA OF NEW YORK, INC.
ADIRONDACK RADIO TELEPHONE CO., INC.
PAGE AMERICA OF PENNSYLVANIA, INC.
One International Place
Boston, MA 02110
By: /s/ DAVID A. BARRY
-----------------------
Name: David A. Barry
Title: President and CEO
STROOCK & STROOCK & LAVAN LLP
Counsel to the Debtors
180 Maiden Lane
New York, New York 10038
(212) 806-5400
By: /S/ ROBIN E. KELLER
A Member of the Firm
