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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) September 15, 1998
POWERTEL USA, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-14873 84-0897771
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
321 W. Lake Lansing Road, Asher Court, Suite 100, E. Lansing, MI 48823
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(Address of principal executive offices -- Zip Code)
Registrant's telephone number, including area code (517) 333-5277
(Former name or former address, if changed since last report)
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POWERTEL, USA, INC.
INDEX
Item Number and Caption Page Number
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Item 3. Bankruptcy or Receivership
Item 6. Resignation of Registrant's Directors.
On Tuesday, September 15, 1998, the United States Bankruptcy Court for the
District of Nevada, Reno Division, Case No. BK-97-30265-BMG, entered an Order
approving PowerTel USA, Inc.'s Plan of Reorganization.
Pursuant to the Plan, Director H. Lawrence Herth resigned as Director and
Secretary, effective September 15, 1998. Also pursuant to the Plan, Jeffrey L.
Hartman, a former Director from Reno, Nevada, accepted the board seat vacated by
Mr. Herth, effective at the same time.
The current Directors are Richard A. Cascarilla, Michael R. Kassouff and Jeffrey
L. Hartman. The Company currently has 16,092,058 shares issued and outstanding.
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EXHIBITS
(1) Summary of Proposed Plan of Reorganization (from the Disclosure
Statement)
(2) First Amended Plan of Reorganization as Confirmed
(3) Monthly Operating Report, August, 1998
(4) Order Confirming Plan of Reorganization
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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.
POWERTEL USA, INC.
Date: September 30, 1998 /s/ Michael R. Kassouff
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Michael R. Kassouff, Director
Date: September 30, 1998 /s/ Richard A. Cascarilla
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Richard A. Cascarilla, Director
Date: September 30, 1998 /s/ Jeffrey L. Hartman
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Jeffrey L. Hartman, Director
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Exhibit 1
STEPHEN R. HARRIS, ESQ.
BELDING & HARRIS
Nevada Bar No. 001463
417 West Plumb Lane
Reno, Nevada 89509
Telephone- (702) 786-7600
Facsimile: (702) 786-7764
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
IN RE:
POWERTEL USA, INC.,
formerly known as Case No. BK-97-30265-BMG
NEVADA ENERGY COMPANY, INC., (Chapter 11)
also formerly known as
MUNSON GEOTHERMAL, INC.,
Debtor. Hrg. DATE: June 29, 1998
and TIME: 2:00 p.m.
_____________________________________/
DEBTOR'S SECOND AMENDED DISCLOSURE STATEMENT PURSUANT TO
11 U.S.C. SECTION 1125
----------------------
IMPORTANT INFORMATION FOR CREDITORS AND SHAREHOLDERS
----------------------------------------------------
of
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POWERTEL USA, INC.
------------------
(formerly known as
Munson Geothermal, Inc. and
Nevada Energy Company, Inc.)
[MATERIAL HAS BEEN DELETED]
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6. WHAT IS THE NATURE OF THE PLAN?
Debtor has proposed a Plan which has four main components-
a. Creditors
Each Creditor will be assigned to one of eight classes of Creditors.
There is a ninth class for Disputed Claims of Creditors and a tenth class for
Equity Interest holders.
With the exception of four classes, all Creditors will be paid in full
in Cash on the Effective Date, which is one hundred twenty (120) days after the
Plan has been approved by the Court.
Four classes of Creditors (CLASS 4, Allowed Priority Tax Claims, CLASS
5, Allowed Claims of Secured Creditors, CLASS 7, Allowed Claims of general
Unsecured Creditors of Claims in Excess of $1,200, and CLASS 8, Claims of Nevada
Energy Partners, Ltd. and others) will be paid a percentage of their Claim based
upon the dollar amount of their Claim or will otherwise receive on the Payment
Date less than 100.0% of the amount of each Claim. Because Creditors in Classes
4, 5, 7 and 8 will not receive 100.0% of their Claims in Cash, the Creditors in
these Classes are considered to be "Impaired" and, therefore, Creditors in
Classes 4, 5, 7 and 8 are the only Creditors who will be allowed to vote on
acceptance or rejection of the proposed Plan.
As to the Creditors in CLASS 4, the Plan provides that these Claims
will be paid in Cash in sixteen (16) equal quarterly installments over a four
(4) year term with the first payment being made on the Payment Date.
As to Creditors in CLASS 5, the Plan provides that these Claims will be
paid in full in Cash on the Effective Date or, alternatively, at the Debtor's
sole option, in equal monthly installments, the first installment to be made on
the Payment Date and continuing over a term consisting of
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thirty (30) months, or upon such other terms as may be agreed upon between the
Creditor and Debtor.
As to the Creditors in CLASS 7, the Plan provides that the Creditor may
elect to receive either (1) a lump sum payment of $1,200 on the Effective Date,
(2) a combination of Cash and Class A Common Stock, or (3) all stock.
As to CLASS 8, which has multiple parties-in-interest, Debtor is
proposing the Court ratify its settlement of litigation and a compromise of
claims involving the Class 8 claimants.
As to CLASS 9, that class has been reserved for disputed claims.
b. EQUITY INTEREST HOLDERS
As to the Equity Interest Holders in CLASS 10, most shareholders owning
Class A Common Stock are also entitled to vote on acceptance of the Plan. These
shareholders entitled to vote are any shareholder of record holding Class A
Common Stock on May 21, 1998 except any shareholder who acquired Class A Common
Stock subsequent to May 3, 1996 and (a) who failed to file a Proof of Interest
or (b) filed a Proof of Interest which Proof of Interest has been disputed by
Debtor. The capitalization of Debtor will be significantly effected as follows:
i. Class B Common Stock will be converted to Class A
Common Stock, and there will be a reverse stock split to reduce the number of
shares to no less than 500,000 and no more than 20,000,000. Thereafter, the
Series A and Series C Preferred Shares and the Class 6 Common Stock shall be
deemed to be extinguished by Amendment to the Articles of Incorporation;
ii. The Series B Preferred Shares shall be repurchased
by Debtor. The Articles of Incorporation will be amended to extinguish Series B
Preferred Shares and to
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establish a new class of preferred shares called "Special Stock."
iii. All Class A Common Stock issued after May 3, 1996
will be rescinded and deemed to be null and void ab initio. except as to
shareholders who are (i) bona fide purchasers for value, and (ii) filed a Proof
of Interest on or before November 10, 1997, which Proof of Interest was not
disputed by the Debtor.
iv. The reverse stock split effect by NEC in January
1997 will be deemed null and void ab initio.
v. By virtue of the conversion of the Class B Common
Stock to Class A Common Stock and the issuance of Class A Common Stock in
conjunction with the acquisition of Diego Tel, there will be substantial
dilution of the equity interest of the Class A Common Stock shareholders of
record as of May 3, 1996, whose interest will be diluted from 100% of the issued
and outstanding Class A Common Stock to 15.0%.
c. JUDICIAL ACTIONS
Promptly after the Confirmation Date, the Bankruptcy Court shall enter,
an Order to the effect that:
i. All Common and Preferred Stock issued by Debtor
subsequent to May 3, 1996 is null and void ab initio, except as to shareholders
who (i) are bona fide purchasers for value, and (ii) have filed a Proof of
Interest on or before November 10, 1997, which Proof of Interest was not
contested by the Debtor;
ii. The election of Michael Kassouff as a Director is
hereby ratified and all subsequent elections of officers are also ratified.
iii. The 1:6 reverse stock split effected by Debtor
in January 1997 is null
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and void ab initio;
iv. The amendments to Debtors Articles of Incorporation
filed with the Secretary of State for the State of Delaware in January 1997 are
null and void ab initio;
v. Any claimed security interest of Brady Geothermal
Park Power Partners against any asset of Debtor is null and void.
vi. The following actions taken by the Debtor's Board of
Directors are null and void ab initio:
(a.) Proposal to Amend Corporate Name and Symbol
(b.) Proposal to Increase Authorized Shares
(c.) Proposal to Increase Authorized Class B
Shares
(d.) Proposal to Authorize Class C Stock
(e.) Proposal to Authorize Lease Guaranty for
Santa Barbara Property
(f.) Debtor reserves the right to amend,
supplement or modify this listing upon
further investigation of the corporate
records.
vii. The Debtor is authorized to retain and to enforce
any claims or interests which the Debtor has or may have pursuant to the
Bankruptcy Code, whether or not such claims or interests have, been lodged in
an adversary proceeding commenced prior to the Confirmation of the Plan.
viii. Debtor is granted 120 days from the confirmation
Date to cure all defaults, if any, to National Union Fire Insurance Company,
pursuant to policy number 445-5300, renewal of policy number 443-38-50, and is
authorized to reserve all rights to pursue any and all
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remedies covered by said policy.
ix. Debtor shall be authorized to take all necessary
steps to effect the above.
d. LITIGATION AND CLAIMS.
Debtor has entered into settlements with various creditors, litigants
and other parties, the most significant of which is the settlement with NEP. The
Court will (1) ratify those Settlements and (2) authorize the Debtor to retain
and to enforce any claims or interests which the Debtor has or may have pursuant
to the Bankruptcy Code.
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Exhibit 2
STEPHEN R. HARRIS, ESQ.
BELDING & HARRIS
Nevada Bar No. 001463
417 West Plumb Lane
Reno, Nevada 89509
Telephone: (702) 786-7600
Facsimile: (702) 786-7764
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
IN RE:
POWERTEL USA, INC.,
formerly known as Case No. BK-97-30265-BMG
NEVADA ENERGY COMPANY, INC., (Chapter 11)
also formerly known as
MUNSON GEOTHERMAL, INC.,
Debtor. Hrg. DATE: June 29, 1998
and TIME: 2:00 p.m.
Est Time:
Set By: Judge Goldwater
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DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION
PowerTel USA, Inc. (generally referred to as "Debtor" but sometimes
referred to as "PowerTel"), a Delaware corporation currently operating as
Debtor-in-Possession pursuant to 11 U.S.C. ss. 1107 of the United States
Bankruptcy Code (the "Bankruptcy Code"), does hereby propose the following
DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION ("Plan") for the resolution of
Debtor's outstanding Allowed Claims and Equity Interests.
NOTE: Capitalized terms are defined in Article II of this Plan.
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ARTICLE I: INTRODUCTION
Debtor is a Delaware corporation established in 1983. When
incorporated, the Debtor was known as Munson Geothermal, Inc. ("Munson"). In May
1988, Munson (together with its wholly owned subsidiary) filed a Petition for
Reorganization pursuant to Chapter 11 of the Bankruptcy Code (the "Munson
Reorganization"). The Munson Reorganization resulted in the confirmation of a
FIRST AMENDED PLAN OF REORGANIZATION submitted by Mr. Jeffrey Antisdel and Hot
Springs Power Company. The Plan was confirmed in or about November 1990, and the
Debtor's name was changed to Nevada Energy Company, Inc. ("Debtor").
From November 1990 through May 1996, Debtor conducted business under
the leadership of Mr. Antisdel. As of May 1996, Debtor existed as a publicly
traded company current with respect to all filings required to be made with the
Securities and Exchange Commission ("SEC") pursuant to the Securities Exchange
Act of 1934 ("Exchange Act"). In addition, Debtor was financially solvent with
net assets in excess of $4,000,000 and was intermittently profitable. In March
1996, Debtor entered into an agreement to sell preferred shares to Waterford
Trust Company, Ltd. As part of that transaction, the Shareholders and Directors
of Debtor consented to a change of control. As a result, in May 1996, the Board
of Directors of Debtor resigned and was replaced by Directors designated by
Waterford's nominee, Golden Chance, Ltd.
From May 1996 through February 13, 1997 (the day of the commencement of
this proceeding), the financial affairs of Debtor declined significantly. Among
other things, the Debtor Board, aided and abetted by various third parties,
entered into a series of contracts and transactions which dissipated corporate
assets; revenue declined significantly; the
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Company was unable to pay its debts as they became due; and the Company failed
to file reports mandated by the Exchange Act. There was even an attempt to amend
the Debtor's Articles of Incorporation without securing requisite shareholder
approval.
As a consequence of this decline in Debtor's financial condition,
pursuant to section 303 of the Bankruptcy Code, on February 13, 1997, multiple
creditors initiated a legal proceeding to cause the Debtor to be involuntarily
reorganized pursuant to Chapter 11 of the Bankruptcy Code. As a result of the
forced reorganization, the following events occurred:
1. On or about March 3, 1997, the Court appointed an interim Trustee to
administer the affairs of the Debtor.
2. There was a change of control with respect to the Debtor's Board of
Directors, and new management was elected.
3. On or about September 24, 1997, the Court authorized the Debtor to
function as a Debtor-in-Possession pursuant to section 1107 of the Bankruptcy
Code.
This FIRST AMENDED PLAN OF REORGANIZATION is submitted by the Debtor
and is intended to constitute a full and final resolution of Debtor's Allowed
Claims and Equity Interests. Each Claim and Equity Interest will be allocated
into one of ten separate Classes. Eight of the Classes will be for Allowed
Claims, four of which will be Impaired. One Class will be for Disputed Claims.
One Class will be for Equity Interests.
In developing this Plan, the Board of Directors of Debtor examined the
affairs of Debtor and its predecessor-in-name - Debtor. Based upon that
examination, the Board has concluded that Debtor must develop a new business
plan and this business plan should seek to develop the telecommunications
business opportunities initially brought to Debtor through
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its acquisition of Telecom Technologies, Inc. ("TTI") in August 1996. Debtor
also plans to continue exploring business opportunities or its cogeneration
assets.
In designing its business plan, the Board took into consideration
various factors including, but not limited to, the substantial equity position
held by Nevada Energy Partners I, a Nevada limited partnership ("NEP") (which is
equal to 50.0% of the issued and outstanding Class A Common Stock of Debtor) and
the potential impact of the claim of $6,000,000 lodged by NEP upon the estate of
Debtor.
In negotiating with NEP and others, Debtor was not in a position of
economic strength and, therefore, some of the negotiations may not have been
conducted on an arm's length basis.
Nevertheless, on balance, taking all factors into consideration,
Debtor's Board has determined that the Plan, as presented, is reasonable and
fair and, in the business judgment of the Board, represents the best opportunity
for Debtor's Creditors and shareholders to recoup their investment.
The Plan is predicated upon several events transpiring as anticipated,
including (but not limited to) the following:
1. Successful implementation of the Debtor's new Business Plan,
which anticipates that the Debtor will shift emphasis from
energy co-generation to telecommunications. As part of this
new Business Plan, the Debtor anticipates that it may issue up
to 35.0% of its Class A Common Stock to one individual in
conjunction with a start-up telecommunications company;
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2. Execution of the Settlement and Release Agreement by all
Parties to that Agreement, including the Debtor, NEP, Nevada
Electric Power Company and others (the "NEP Settlement");
3. Ratification of the NEP Settlement by the Bankruptcy Court;
4. Confirmation of this Plan as submitted;
5. Utilization of the Debtor's co-generation assets as collateral
for Letters of Credit or otherwise securing working capital to
fund or secure payment of the Debtor's current and future
business operations, especially the telecommunication
business;
6. Preparation and filing of all reports required to be filed
pursuant to the Exchange Act;
7. Approval of an application to be filed by the Debtor with the
National Association of Securities Dealers, Inc. ("NASD")
relisting the Debtor's Class A Common Stock as a "small cap"
security;
8. The resumption of an active secondary market through the NASD
for the Debtor's Class A Common Stock; and
9. The recision of all Common and Preferred Stock allegedly
issued subsequent to May 3, 1996 by Debtor and recision of the
1:6 reverse stock split attempted in January 1997.
Should any one or more of these events not transpire, DEBTOR'S FIRST
AMENDED PLAN OF REORGANIZATION will have to be reconsidered and, perhaps,
revised and amended. There is, of course, no assurance or guaranty that any one
or all of the above events will transpire as desired.
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As a result of events 1 and 2 above, the Debtor will issue Class A
Common Stock to a total of 16 persons or entities in an amount equal to 50.0% of
the issued and outstanding Class A Common Stock on the Effective Date. An
additional 35.0% of the Class A Common Stock may be issued pursuant to the Diego
Tel share exchange agreement. These events may have long term implications for
the remaining shareholders. ARTICLE II: DEFINITIONS:
As used in the Plan, the following special terms have the respective
meanings set forth below:
2.1 ADMINISTRATION CLAIMANT: Any person entitled to payment of an
Administration Expense.
2.2 ADMINISTRATION EXPENSE: Any cost or expense of administration of
the Chapter 11 case entitled to priority pursuant to section 507(a)(1) and
allowed pursuant to section 503(b) of the Bankruptcy Code, including without
limitation, any actual and necessary expenses of preserving the Debtor's estate,
and actual and Debtor expenses of operating the business of the Debtor
(including the post-petition compensation of Officers and Directors of Debtor),
any indebtedness or obligations incurred by or assessed against the Debtor in
Debtor with the conduct of its business, or for the acquisition or lease of
property or for providing of services to the Debtor, and allowances of
compensation or reimbursement of expenses to the extent allowed by the
Bankruptcy Court under the Bankruptcy Code, and any fees or charges assessed
against the Debtor's estate pursuant to Title 28, Chapter 123 United States
Code.
2.3 AFFILIATES: Every other entity which is an "affiliate" of Debtor
within the meaning of section 101(2) of the Bankruptcy Code.
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2.4 ALLOWED CLAIM AND/OR ALLOWED EQUITY INTEREST: Any Claim against or
Equity Interest in the Debtor, proof of which was filed on or before the last
date designated by the Bankruptcy Court as the last date for filing Proofs of
Claims or Equity Interest or (if no proof of claim or Equity Interest is filed)
which has been or hereafter is listed by the Debtor as liquidated in amount and
not disputed or contingent and, in either case, a Claim or Equity Interest as to
which no objection to the allowance thereof has been interposed or such Claim or
Equity Interest has been allowed in whole or in part by a Final Order. Unless
otherwise specified in the Plan, "Allowed Claim" shall not, for the purposes of
computation of Distributions under the Plan, include post-petition interest on
the amount of such Claim.
2.5 ALLOWED PRIORITY TAX CLAIM: A Priority Tax Claim to the extent that
it is or has become an Allowed Claim, which in any event shall be reduced by the
amount of any offsets, credits, or refunds to which the Debtor or
Debtor-in-Possession shall be entitled on the Confirmation Date.
2.6 ALLOWED SECURED CLAIM: A Secured Claim to the extent it is or has
become an Allowed Claim.
2.7 ALLOWED UNSECURED CLAIM: An Unsecured Claim to the extent it is or
has become an Allowed Claim.
2.8 BANKRUPTCY CODE: The Bankruptcy Reform Act of 1978, as amended and
codified as Title 11, United States Code.
2.9 BANKRUPTCY COURT: The unit of the United States District Court for
the District of Nevada having jurisdiction over the Chapter 11 case, or in the
event such court ceases to exercise jurisdiction over the Chapter 11 case, such
court or adjunct thereof that exercises
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jurisdiction over Chapter 11 cases in lieu of the United States Bankruptcy Court
for the District of Nevada.
2.10 BANKRUPTCY RULES: The Federal Rules of Bankruptcy Procedure (as
amended), as applicable to the Chapter 11 cases.
2.11 CEC: Combustion Energy Company, a Nevada corporation with its
principal place of business in Reno, Nevada.
2.12 CASH: Cash, cash equivalents and other readily marketable
securities or instruments issued by a person other than Debtor, including,
without limitation, readily marketable direct obligations of the United States
of America, certificates of deposit issued by banks and commercial paper of any
entity, including interest accrued or earned thereon.
2.13 CHAPTER 11 CASE: The case being conducted pursuant to Chapter 11
of the United States Bankruptcy Code in which Debtor is the Debtor-in-Possession
and identified as Case No. 97-30265-BMG.
2.14 CLAIM: Any right to payment from the Debtor, which right arose on
or before the Petition Date, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
legal, equitable, secured or unsecured; or any right to an equitable remedy for
future performance if such breach gives rise to a right of payment from the
Debtor, whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, disputed, undisputed, secured or unsecured.
2.15 CLASS A COMMON STOCK: The Class A Common Stock of Debtor.
2.16 CLASS B COMMON STOCK: The Class B Common Stock of Debtor
previously issued by Debtor pursuant to the Munson Reorganization.
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2.17 CONFIRMATION DATE: The Date upon which the Bankruptcy Court shall
enter the Confirmation Order; provided, however, that if on motion the
Confirmation Order or consummation of the Plan is stayed pending appeal, then
the Confirmation Date shall be the date of entry of the Final Order vacating
such stay or the date on which such stay expires and is no longer in effect.
2.18 CREDITOR: Any person that has a Claim against the Debtor that
arose on or before the Petition Date.
2.19 DEBTOR: Debtor, formerly known as Nevada Energy Company, Inc.
("Debtor") and also formerly known as Munson Geothermal, Inc. ("Munson").
2.20 DEBTOR-IN-POSSESSION: Debtor, as Debtor-in-Possession.
2.21 "DEBTOR'S FIRST AMENDED DISCLOSURE STATEMENT" means the written
DEBTOR'S FIRST AMENDED DISCLOSURE STATEMENT with respect to this Second Amended
Plan which is approved by the Bankruptcy Court under Section 1125 of the
Bankruptcy Code.
2.22 DECLARATION DATE: The thirtieth (30th) day after the Confirmation
Date.
2.23 DIEGO TEL: Diego Tel, Inc. a Nevada corporation to be acquired by
Debtor.
2.24 DISPUTED CLAIM: Equity Interests or Claims against the Debtor
which (a) are listed in a "Schedule of Unresolved Claims" which may be filed
with the Bankruptcy Court by the Debtor on or before the Confirmation Date, or
(b) are the subject of an objection which has been filed on or before the
Effective Date by a party-in-interest and which objection has not been withdrawn
or resolved by entry of a Final Order on or before the Effective Date or (c) are
identified in the Debtor's Schedules as contingent, unliquidated or disputed.
2.25 DISTRIBUTIONS: The property required by the Plan to be distributed
to the holders of Allowed Claims and Allowed Equity Interests.
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2.26 EFFECTIVE DATE: Date upon which certain Distributions to be made
pursuant to the Plan will be effected, which date shall be on the first business
day following the expiration of one hundred twenty (120) days following the
Confirmation Date.
2.27 EQUITY INTEREST: Any interest in the Debtor represented by
ownership of Common and/or Preferred Stock.
2.28 EXCHANGE ACT: The Securities Exchange Act of 1934, as amended and
codified in 15 USC ss. 78b, et. seq.
2.29 FINAL ORDER: An order of judgment of the Bankruptcy Court which
has not been reversed, stayed, modified or amended and as to which (a) any
appeal that has been taken has been finally determined or dismissed, or (b) the
time for appeal has expired and no notice of appeal has been filed.
2.30 IMPAIRED: As defined by 28 U.S.C ss. 1124.
2.31 MUNSON REORGANIZATION: The 1988 Chapter 11 case involving Munson
Geothermal, Inc. and referenced as Case No. 88-278.
2.32 NEP: Nevada Energy Partners I, Limited Partnership, a limited
partnership organized pursuant to the laws of the State of Nevada. The general
partner is Nevada Electric Power Company.
2.33 NEP AGREEMENT: The August 16, 1996 Agreement between NEP and
Debtor.
2.34 NEP SETTLEMENT: The Settlement and Release Agreement dated as of
December 1, 1997 by and among the Debtor, NEP and others.
2.35 NEPC INDEMNIFICATION: The Indemnification Agreement dated as of
December 1, 1997 by and among Nevada Electric Power Company, the Debtor and
others.
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2.36 OWNERSHIP SETTLEMENT AGREEMENT: The Settlement and Release
Agreement dated as of February 10, 1998 by and among Mr. John Vogel, Mr. Dean
Chamberlain, the Debtor, Mr. David Wallace and others.
2.37 PAYMENT DATE: Date upon which certain payments to be made pursuant
to the Plan will be effected, which date shall be the first business day
following the expiration of the three hundred sixty five (365) days following
the Confirmation Date.
2.38 PERSON: An individual, a corporation, a partnership, an
association, a joint stock company, a joint venture, an estate, a trust, an
unincorporated organization or a government or any particular subdivision
thereon or other entity.
2.39 PETITION DATE: February 13, 1997, the date of filing of the
involuntary bankruptcy petition.
2.40 PLAN: This Debtor's First Amended Disclosure Statement, either in
its present form or as it may be altered, amended, or modified from time to
time.
2.41 DEBTOR: PowerTel USA, Inc., the Debtor.
2.42 PRE 1990 PRIORITY TAX CLAIM: Any Priority Tax Claim arising prior
to 1990 and which was the subject of the Debtor's First Amended Plan of
Reorganization adjusted in the Munson Reorganization.
2.43 PRIORITY TAX CLAIM: Any Claim entitled to priority in payment
under section 507(a)(8) of the Bankruptcy Code.
2.44 PRO RATA: Proportionately so that the ratio of the amount of a
particular claim or interest to the total amount of Allowed Claims or Allowed
Equity Interests of the class in which the particular Claim or Interest is
included is the same as the ratio of the amount of consideration distributed on
account of such particular claim or interest to the consideration
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distributed on account of Allowed Claim or Allowed Equity Interest of the class
in which the particular claim or interest is included.
2.45 SECURED CLAIM: A right to payment from the Debtor, other than an
Administration Expense or Priority Tax Claim, for a prepetition debt to the
extent that it is validly and properly secured, in accordance with applicable
law, by any form of collateral, real, personal, intangible or tangible, which is
evidenced by a timely filed proof of claim or by Debtor's Schedules.
2.46 SEC: The United States Securities and Exchange Commission.
2.47 SCHEDULES: Schedules and Statement of Affairs, as amended, filed
by the Debtor with the Bankruptcy Court listing liabilities and assets.
2.48 UNSECURED CREDITOR: Any Creditor that holds a Claim which is not a
Secured Claim.
2.49 VIVATEL: Viva Telecommunications, Inc., a Nevada corporation to be
acquired by the Debtor.
2.50 VOTING SHAREHOLDER: Any shareholder of record on May 21, 1998
holding Class A Common Stock except any shareholder who acquired Class A Common
Stock subsequent to May 3, 1996 and who (a) failed to file a Proof of Interest;
or (b) has filed a Proof of Interest which Proof of Interest has been disputed
by Debtor.
2.51. WAGE CLAIM: A claim for wages due, payable and earned prior to
the Petition Date.
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ARTICLE III. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
Claims and Equity Interests are classified as follows:
Class 1 - Administration Expenses.
Class 2 - Allowed Wage Claims.
Class 3 - Allowed Munson Reorganization Priority Tax Claims.
Class 4 - Allowed Priority Tax Claims.*
Class 5 - Allowed Claims of Secured Creditors.*
Class 6 - Allowed Unsecured Claims Not in Excess of $1,200.
Class 7 - Allowed Unsecured Claims in Excess of $1,200.*
Class 8 - Claims of NEP, NEPC and others.*
Class 9 - Disputed Claims.
Class 10 - Allowed Equity Interests.
* Denotes a class whose Claims are deemed to be "Impaired" pursuant to
section 1124 of the Bankruptcy Code.
ARTICLE IV. PROVISIONS FOR PAYMENT OF ADMINISTRATION EXPENSES CLAIM (CLASS 1)
4.1 100% PAYMENT. On the Effective Date, each Allowed Administration
Expense shall be paid in full in Cash or upon such other terms as may be agreed
upon by and between any Administration Claimant and the Debtor, provided,
however, that Administration Expenses representing indebtedness or other
obligations incurred or assumed by the Debtor-in-Possession shall be assumed
and paid or performed by the Debtor in accordance with the terms and conditions
of any agreements relating thereto.
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4.2 POST-CONFIRMATION ADMINISTRATION EXPENSES. Debtor shall pay post-
confirmation Administration Expenses, including fees for professional services,
out of cash flow from operations and other assets without further approval of
the Bankruptcy Court.
4.3 BAR DATE FOR FEE CLAIM. The Confirmation Order shall provide a Bar
Date for filing of claims by those entities asserting claims for compensation
pursuant to section 330 and/or section 503 of the Bankruptcy Code.
ARTICLE V. PROVISIONS FOR PAYMENT OF ALLOWED WAGE CLAIMS (CLASS 2)
5.1 100% PAYMENT. On the Effective Date, each Allowed Wage Claim shall
be paid in full in Cash or upon such other terms as may be agreed upon by and
between any Allowed Wage Claimant and the Debtor.
ARTICLE VI. PROVISIONS FOR PAYMENT OF ALLOWED MUNSON REORGANIZATION PRIORITY
TAX CLAIMS (CLASS 3)
6.1 100% PAYMENT. On the Effective Date, each Munson Reorganization
Allowed Priority Tax Claim that arose prior to 1990 and which was Allowed in the
Munson DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION shall be paid in full in
Cash or upon such other terms as may be agreed upon by and between any Munson
Reorganization Allowed Priority Tax Claimant and the Debtor.
ARTICLE VII. PROVISIONS FOR PAYMENT OF ALLOWED PRIORITY TAX CLAIMS (CLASS 4)
7.1 AMORTIZED PAYMENT OF ALLOWED PRIORITY TAX CLAIMS. The Allowed
Priority Tax Claims not included in Article VI of this Plan shall be paid in
full in Cash together with interest at a rate to be determined by the Bankruptcy
Court in equal quarterly installments, the first installment to be made on the
Payment Date over a term consisting of sixteen (16) consecutive quarters ending
four (4) years after the Payment Date or upon such other
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<PAGE> 15
terms as may be agreed upon by and between any Allowed Priority Tax Claimant and
the Debtor.
ARTICLE VIII. PROVISIONS FOR PAYMENT OF ALLOWED SECURED CLAIMS (CLASS 5)
8.1 PAYMENT TO ALLOWED SECURED CREDITORS. Each Allowed Secured Claim
will be paid in full in Cash on the Effective Date. Alternatively, at the
Debtor's sole option, any Allowed Secured Claim, together with interest at a
rate to be determined by the Bankruptcy Court, shall be paid in equal monthly
installments, the first installment to be made on the Payment Date and
continuing over a term consisting of thirty (30) months or upon such other terms
as may be agreed upon by and between the Secured Creditor(s) and the Debtor.
ARTICLE IX. PROVISIONS FOR PAYMENT OF ALLOWED UNSECURED CLAIMS NOT EXCEEDING
$1,200 (CLASS 6)
9.1 100% PAYMENT. On the Effective Date, each Allowed Unsecured Claim
not in excess of $1,200 (a "Class 6 Claim") shall be paid in full in Cash or
upon such other terms as may be agreed upon by and between any Claimant holding
a Class 6 Claim and the Debtor.
9.2 ELECTION TO RECEIVE CLASS A COMMON STOCK. Each Claimant holding a
Class 6 Claim, in lieu of a Cash payment as provided in Section 9.1 of this
Plan, may elect in writing as provided in Article XII of the Disclosure
Statement on or before the Declaration Date to receive Class A Common Stock
computed as follows:
C6 x 120% = F
F/(divided by) AVP = NS
where:
C6 = The dollar amount of the Allowed Class 6 Claim
F = Proceeds to be converted into Class A Common Stock
AVP = An average of the closing price per share of Class A
Common Stock for the 15 trading days immediately
preceding the Effective Date.
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NS = Number of Shares of Class A Common Stock to be issued
The Class A Common Stock to be issued pursuant to this Article IX will
be issued on the Effective Date, but subsequent to a reverse stock split to be
effected by the Debtor pursuant to this Plan. Said reverse stock split will
occur on a date to be designated by the Debtor's Board of Directors, which date
will be subsequent to the Declaration Date but at least twenty (20) trading days
prior to the Effective Date.
X. PROVISIONS FOR PAYMENT OF ALLOWED UNSECURED CLAIMS IN EXCESS OF $1,200
(CLASS 7)
10.1 ELECTION OF PAYMENT MODE. Each Claimant holding an Allowed
Unsecured Claim in excess of $1,200 (i.e., a Class 7 Claim) shall elect to be
paid pursuant to one of the three following payment modes (Option A, B or C). If
Option B is selected, the Class 7 Claimant must elect between Plan #1 and Plan
#2.
OPTION A. The Allowed Unsecured Claim shall be reduced to
$1,200 and shall be deemed to be a Class 6 Claim to be paid
pursuant to the provisions of Article IX of this Plan.
OPTION B. The Allowed Unsecured Claim shall be paid partly in
Cash and partly in Class A Common Stock pursuant to Plan #1 or
Plan #2 below:
PLAN 1: The Claimant will receive both Cash and Class
A Common Stock computed as follows:
1. On the Payment Date, the Claimant
will receive a Cash payment equal to
20.0% of the Class 7 Allowed
Unsecured Claim;
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2. The balance of the Class 7 Allowed
Unsecured Claim (i.e. 80%) will be
paid in Cash in sixteen (16)
quarterly payments with the first
payment being made on the Payment
Date and the final payment being
made four (4) years after the
Payment Date, but no interest shall
be paid by Debtor; and
3. On the Effective Date, the Claimant
will receive Class A Common Stock
computed pursuant to the following
formula:
C7 x 80% = NP
NP x 20% = F
F/(divided by) AVP = NS
where
C7 = The dollar amount
of the Class 7 Claim.
NP = The dollar amount of
the Class 7 Allowed
Claim that was not
scheduled to be paid
in lump sum on the
Payment Date.
F = Dollar amount of
funds allocated for
purchase of Class A
Common Stock.
AVP = An average of the
closing price per
share of Class A
Common Stock for the
15 trading days
immediately preceding
the Effective Date.
NS = Number of Shares of
Class A Common Stock
to be issued.
PLAN 2: The Claimant will receive both Cash and Class
A Common Stock computed as follows:
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1. On the Payment Date, the Claimant
will receive a Cash payment equal to
20.0% of the Class 7 Allowed
Unsecured Claim, and
2. On the Effective Date, the Claimant
will receive Class A Common Stock
computed pursuant to the following
formula:
C7 X 80% = NP
NP x 120% = F
F/(divided by) AVP = NS
where
C7 = The dollar amount of
the Class 7 Allowed
Claim.
NP = The dollar amount of
the Class 7 Allowed
Claim that was not
scheduled to be paid
in lump sum on the
Payment Date.
F = Dollar amount of
funds allocated for
purchase of Class A
Common Stock.
AVP = An average of the
closing price per
share of Class A
Common Stock for the
15 trading days
immediately preceding
the Effective Date.
NS = Number of shares of
Class A Common Stock
to be issued.
OPTION C: On the Effective Date, the Claimant holding a Class
7 Allowed Unsecured Claim shall receive Class A Common Stock
computed as follows:
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<PAGE> 19
C7 x 200% = F
F/(divided by) AVP = NS
where:
C7 = Dollar amount of the Class 7 Allowed
Unsecured Claim.
F = Dollar amount of funds allocated for
purchase of Class A Common Stock.
AVP = An average of the closing price per share
of Class A Common Stock for the 15 trading
days immediately preceding the Effective
Date.
NS = Number of Shares of Class A Common Stock to
be issued.
Option C does NOT provide for any Cash payment.
10.2 ELECT ALTERNATIVE WHEN VOTING. When the Class 7 Claimant votes to
accept or reject the Plan, the Claimant shall elect which payment alternative
shall apply to his/her/its Class 7 Claim.
If no election is made, the Claimant shall be deemed to have consented
to receive payment pursuant to Option C. The Claimant may revoke the election in
writing at any time and effect a new election provided that the Debtor receives
the written revocation prior to noon Cleveland, Ohio time on the Declaration
Date with notice being sent to Debtor as provided in Article XII of the
Disclosure Statement.
10.3 REVERSE STOCK SPLIT. The Class A Common Stock to be issued
pursuant to this Article X will be issued on the Effective Date, which will be
subsequent to a reverse stock split to be effected by the Debtor pursuant to
this Plan. The reverse stock split will occur on a date to be designated by the
Debtor's Board of Directors, which date will be after the Declaration Date, but
at least twenty (20) trading days prior to the Effective Date.
ARTICLE XI. PROVISIONS FOR PAYMENT OF CLAIMS OF NEVADA ENERGY PARTNERS, LTD.,
NEVADA ELECTRIC POWER COMPANY AND OTHERS (CLASS 8)
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11.1 NEP, Nevada Energy Power Company ("NEPC"), the Debtor and others
have entered into a Settlement and Release Agreement ("NEP Settlement") pursuant
to the terms of which the following will transpire:
A. Subject to approval of the Bankruptcy Court and
confirmation of this Plan, the NEP Agreement between
NEP and amended and restated. As a result of this
rescission of conveyances, the Debtor shall receive
100% of the issued and outstanding Common Stock of
Combustion Energy Company and title to a parcel of
real property situated in Reno, Nevada.
B. Debtor will stipulate that NEP shall be deemed to be
the shareholder of record of 13,245,958 shares of
Class B Common Stock, which is convertible into
13,245,958 shares of Class A Common Stock as of
August 16, 1996. NEP, as of December 1, 1997, will be
deemed to have converted Class B Common Stock into
Class A Common Stock such that NEP owns 13,245,958
shares of Class A Common Stock which is equal to
50.0% of the issued and outstanding Class A Common
Stock of Debtor as of August 16, 1996.
C. Debtor will stipulate that the Class A Common Stock
held of record by NEP is beneficially owned by
sixteen (16) separate corporations who are also
deemed to be Creditors of the Debtor.
D. Debtor will agree to permit the transfer of the Class
A Common Stock from NEP to the sixteen (16)
beneficial owners and will stipulate that these
sixteen corporate entities shall be issued (if
Debtor) additional Class A Common Stock such that
they own 50.0% of the issued and outstanding Class A
Common Stock of Power Tel computed as of ten (10)
business days after the Effective Date, which will be
subsequent to the reverse stock split to be effected
by the Debtor pursuant to this Plan, subsequent to
the issuance of Class A Common Stock to Creditors
pursuant to this Plan, and subsequent to the issuance
of Class A Common Stock to acquire Diego Tel. In the
event, however, that Creditors with a Disputed Claim
receive Class A Common Stock pursuant to the Disputed
Claims Reserve, there will not be any additional
distributions of Class A Common Stock pursuant to the
NEP Settlement.
E. The limited partnership agreement for NEP is deemed
to be amended and modified such that 99.0% of all
profits and losses are allocated to the capital
account of the limited partner effective as of
January 1, 1995. The general partner (NEPC) will
stipulate that Debtor is the sole limited partner.
Any and all distributions of cash and property are to
be
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allocated 60.0% to the limited partner and 40.0% to
the general partner.
F. All parties to the NEP Settlement do forever settle,
release and compromise all claims and causes of
action which they have or may bring against any other
party as of the date of that Agreement, and NEP
specifically waives and commits to extinguish its
Proof of Claim for $6,000,000.00.
ARTICLE XII. PROVISIONS FOR ADJUDICATION OF DISPUTED CLAIMS
(CLASS 9)
12.1 The Debtor has disputed certain Claims submitted by various
alleged Creditors. If and when any such disputed Claim becomes an Allowed Claim
or Equity Interest, such Allowed Claim or Equity Interest shall be treated as if
it was an Allowed Claim or Equity Interest with respect to the classification of
Claims and Equity Interest provided in Article III of this Plan.
ARTICLE XIII. PROVISIONS FOR TREATMENT OF ALLOWED EQUITY INTEREST
(CLASS 10)
13.1 Upon Confirmation of the Plan, the Debtor will initiate various
actions which will affect the Equity Interests of Shareholder who own either (a)
Class A or Class B Common Stock, or (b) Series A, Series B or Series C Preferred
Stock.
13.2 It is the Debtor's position that certain actions taken by the
Board of Directors of Debtor subsequent to May 3, 1996 and prior to February 13,
1997 are void, illegal and/or invalid including, but not limited to, all offers
and sales of Common or Preferred Shares of Debtor. Accordingly, all Common and
Preferred Shares of Debtor issued subsequent to May 3, 1996 are deemed to be
void ab initio except as to any Shareholder who (i) is a bona fide purchaser for
value, and (ii) filed a Proof of Interest on or before November 10, 1997, which
Proof of Interest has not been disputed by the Debtor. In addition, the
attempted 1:6 reverse
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<PAGE> 22
stock split purportedly implemented by the Debtor Board of Directors in January
1997 is also void ab initio. It is the express intent of this Plan to reinstate
all Class A Common Stockholders of record to the same share ownership which
existed as of May 3, 1996 immediately prior to the sale of the Series A
Preferred Shares to Waterford/Golden Chance.
13.3 After the Confirmation Date, the Debtor shall effect the actions
set forth in Article XIX of this plan. As a consequence of such events, the
following shall occur:
A. The Series A and Series C Preferred Shares and the
Class B Common Stock shall be deemed to be
extinguished through amendment to the Debtor's
Articles of Incorporation (Series B Preferred and the
Class B Common Stock will also be extinguished
through amendment following the actions described
below).
B. The five (5) shares of Series B Preferred Shares
owned by Messrs. Rick Cascarilla (2 shares), Jeff
Hartman, Michael Kassouff and Jeff Modesitt (all
former Directors of Debtor who acquired the Series B
as part of the May 1996 transaction with
Waterford/Golden Chance) shall be repurchased by the
Debtor for a per share price of (i) 100,000 shares of
Class A Common Stock; and (ii) a 24 month option to
purchase an additional 100,000 shares of Class A
Common Stock at an exercise price of $0.10 per share.
The Series B Preferred Shares thereafter shall be
extinguished by means of an amendment to the Articles
of Incorporation, which amendment, among other
things, shall establish a new class of preferred
shares to be known as "Special Stock." The Special
Stock has the right to elect two (2) Directors of the
Debtor's Board of Directors. One share each of
Special Stock, as set forth in the amended Articles
of Incorporation, shall be issued to Richard
Cascarilla, Jeffrey Hartman and Michael Kassouff as
partial consideration for their serving on the Board
of Directors. The Articles of Incorporation and By-
Laws will be amended so that the Board will be
authorized to set additional terms of the Special
Stock.
C. All holders of Class A Common Stock will be
reinstated to the exact same share ownership which
existed as of May 3, 1996, immediately prior to the
sale of the Series A Preferred Shares to
Waterford/Golden Chance.
D. The Debtor will convert the Class B Common Stock to
Class A Common Stock pursuant to the NEP Settlement
(see Article XI of this Plan) and
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<PAGE> 23
will issue Class A Common Stock in an amount equal to
50.0% of the outstanding Class A Common Stock
pursuant to the NEP Settlement.
E. Debtor will affect a reverse stock split at a ratio
to be designated by the Board of Directors such that
the total number of shares of Class A Common Stock
outstanding subsequent to the reverse stock split is
no less than 500,000 shares nor more than 20,000,000
shares.
. Subsequent to the reverse stock split and the
issuance of Class A Common Stock to creditors, the
Debtor will adjust the number of shares of Class A
Common Stock issued per the NEP settlement to
maintain that figure at 50.0% of the issued and
outstanding Class A.
. Up to a maximum of 35.0% of additional shares of
Class A Common Stock may be issued in conjunction
with the acquisition of DiegoTel.
13.4 REORGANIZATION OF CLASS A COMMON STOCK. In addition to consenting
to the transfer of Class A Common Stock from NEP to the sixteen entities as set
forth in Section 11.2, Debtor anticipates that it may issue additional shares of
Class A Common Stock in conjunction with its acquisition of DiegoTel. At this
time, based upon current negotiations, the Debtor anticipates that it may issue
Class A Common Stock equal to 35.0% of the issued and outstanding Class A Common
Stock. The Class A Common Stock will be issued by the Debtor once certain
revenue projections are satisfied. The Debtor and Mr. Wallace have executed an
Agreement which has been amended and restated. The amended Agreement will be
filed with the Court and ratified as part of the Plan.
ARTICLE XIV. PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS
14.1 AUTHORITY TO OBJECT. The Debtor and any party-in-interest shall
have the authority to object to and contest the allowance of any Claim filed
with the Bankruptcy Court in respect of any Claim listed as disputed,
contingent, or unliquidated on the Debtor's schedules, except as to any Claim
otherwise treated by the Plan or previously allowed or disallowed by final order
of the Bankruptcy Court.
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<PAGE> 24
14.2 OBJECTIONS TO CLAIMS TO BE FILED WITHIN SIXTY DAYS AFTER
CONFIRMATION DATE. Unless otherwise ordered by the Court, after notice and a
hearing, objections to Claims and Equity Interests shall be made and filed by
the Debtor or by any party-in-interest and shall be served upon each holder of
the Claim or Equity Interest to which objections are made (and upon the Debtor's
attorney if the Debtor is not the objecting party) and filed with the Bankruptcy
Court as soon as practicable, but in no event later than sixty (60) days
subsequent to the Confirmation Date.
14.3 PROSECUTION OF OBJECTIONS TO CLAIMS.
A. The objecting party shall litigate to judgment,
settle, or withdraw objections to Disputed Claims.
B. All legal fees and expenses of the Debtor incurred in
the prosecution of claim objections and in the
consummation of the Plan shall be paid first by the
Debtor as a Post-Confirmation Administrative Expense
pursuant to Article 4.2 of this Plan.
14.4 FINAL ORDER. Except as may be otherwise agreed with respect to any
Disputed Claim, no payments or Distributions shall be made with respect to all
or any portion of a Disputed Claim unless and until all objections to such
Disputed Claim have been determined by a Final Order of the Bankruptcy Court.
Payments and Distributions to each holder of a Disputed Claim or Disputed Equity
Interest to the extent that it ultimately becomes an Allowed Claim or Allowed
Equity Interest shall be made in accordance with the provisions of the Plan with
respect to the Class of Creditors or Equity Interest to which the respective
holder of an Allowed Claim or Allowed Equity Interest belongs, unless otherwise
provided in Section 14.5 herein below.
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<PAGE> 25
14.5 DISPUTED CLAIMS RESERVE.
A. In determining the amount of Distributions due the
holders of Allowed Claims, the appropriate Pro Rata
calculations required by the Plan shall be made as if
all Disputed Claims were Allowed Claims in the full
amount claimed by the holders thereof. Debtor will
presume, for purposes of the Disputed Claims Reserve,
that all Disputed Claim Creditors elect to receive
Class A Common Stock.
B. On the Effective Date, the Debtor shall compute the
number of shares of Class A Common Stock to which the
Disputed Claim Creditors may be entitled and shall
disburse such shares (hereinafter the "Disputed
Claims Reserve") to be held in trust by the Debtor
for the benefit of the holders of Allowed Claims
whose Distributions are unclaimed and the holders of
Disputed Claims pending determination of their
entitlement thereto under the terms of the Plan. The
Class A Common Stock held in the Disputed Claims
Reserve shall be deemed to be "treasury" stock of the
Debtor and thus non-voting during the period within
which it is held in the Disputed Claims Reserve.
C. As soon as practicable after a Disputed Claim becomes
an Allowed Claim, the Class A Common Stock reserved
for such Allowed Claim shall be released by the
Debtor from the Disputed Claims Reserve and delivered
to the holder of such Allowed Claim. In the event
that the Disputed Claim is disallowed, the Class A
Common Stock provided for such claim shall be
released to Debtor for use in the course of its
business, as deemed appropriate by its Board of
Directors.
In the event that a Disputed Claim becomes an Allowed
Claim and the Creditor is entitled to receive Cash,
the Debtor shall pay such Cash upon the later of (i)
the Payment Date, or (ii) ninety (90) days after the
Disputed Claim becomes an Allowed Claim.
D. In the event any Class A Common Stock held in the
Disputed Claims Reserve remain unclaimed upon
expiration of five years following the Effective
Date, such Class A Common Stock shall be released to
Debtor.
If Class A Common Stock is issued pursuant to this
Article XIV, such action shall not be a basis for an
adjustment with respect to the number of shares of
Class A Common Stock issued pursuant to the NEP
Settlement or for the acquisition of Diego Tel.
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ARTICLE XV. CRAMDOWN OF PLAN
15.1 In the event that any one or more classes of impaired Claims does
not approve the Plan by the requisite vote and the Plan is not confirmed, the
Debtor shall seek confirmation of the Plan pursuant to the provisions of section
1129(b) of the Bankruptcy Code. In the event that the Bankruptcy Court refuses
to approve the Plan pursuant to section 1129(b) of the Bankruptcy Code, the NEP
Settlement, the agreement for the acquisition of VivaTel and Diego Tel and the
Ownership Settlement Agreement shall be deemed null and void and the parties
thereto shall be returned to their respective positions, status quo ante.
ARTICLE XVI. IDENTIFICATION OF CLAIMS AND EQUITY INTEREST NOT
IMPAIRED BY THE PLAN
16.1 UNIMPAIRED CLASSES. Claims of classes 1, 2, 3 and 6 are not
impaired under the Plan.
16.2 IMPAIRED CLASSES TO VOTE ON PLAN. Claims in the classes specified
in Classes 4, 5, 7 and 8 of the Plan are impaired and therefore Creditors
holding Claims in these classes are entitled to vote whether to accept or reject
the Plan. Voting Shareholders are also entitled to vote.
16.3 CONTROVERSY CONCERNING IMPAIRMENT. In the event of a controversy
as to whether any Creditors or holders of Equity Interest or class of Creditors
or class of holders of Equity Interest are impaired under the Plan or otherwise
entitled to vote, the Bankruptcy Court shall, after notice and a hearing,
determine such controversy.
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ARTICLE XVII. ACCEPTANCE OR REJECTION OF PLAN: EFFECT OF REJECTION
BY ONE OR MORE CLASSES OF CLAIMS
17.1 ACCEPTANCE BY CLASS OF CREDITORS. A Class of Creditors shall have
accepted the Plan if the Plan is accepted by at least 2/3 in amount and more
than 1/2 in number of the Allowed Claims of such class that have voted.
17.2 CRAMDOWN. In the event that any impaired class of Creditors with
Claims against any of the Debtor's estate shall fail to accept the Plan, in
accordance with section 1129(a) of the Bankruptcy Code, the Debtors shall
request the Bankruptcy Court to confirm the Plan in accordance with section
1129(b) of the Bankruptcy Code.
ARTICLE XVIII. JUDICIAL ACTIONS
18.1 Promptly after the Confirmation Date, the Bankruptcy Court shall
enter an Order to the effect that:
A. All Common and Preferred Stock issued by Debtor
subsequent to May 3, 1996 was issued in violation of
the Company's Articles of Incorporation or without
requisite approval of the Board of Directors and,
therefore, is null and void ab initio except as to
Shareholders who (i) are bona fide purchasers for
value, and (ii) filed a Proof of Interest on or
before November 10, 1997, which Proof of Interest was
not disputed by the Debtor.
B. The election of Michael Kassouff as a Director by the
Series B Preferred Shareholders is ratified. The
election by Michael Kassouff, as the sole Director,
of Messrs. Richard Cascarilla and Lawrence Herth as
Directors is ratified. Also ratified are all
elections of officers by the Debtor's Board of
Directors;
C. The 1:6 reverse stock split effected by Debtor in
January 1997 was conducted without requisite
shareholder approval and is null and void ab initio;
D. The amendments to Debtor's Articles of Incorporation
filed with the Secretary of State for the State of
Delaware in January 1997 were not
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<PAGE> 28
adopted by Debtor's shareholders and, therefore, are
null and void ab initio;
E. Any claimed security interest of Brady Geothermal
Park Power Partners against any assets of Debtor is
null and void;
F. The following actions taken by the Debtor's Board of
Directors are null and void ab initio due to
violations of applicable provisions of Delaware law:
i. Proposal to Amend Corporate Name and
Symbol,
ii. Proposal to Increase Authorized
Shares,
iii. Proposal to Increase Authorized
Class B Shares,
iv. Proposal to Authorize Class C Stock,
and
v. Proposal to Authorize Lease Guaranty
for Santa Barbara Property;
G. Pursuant to section 1123(b)(3) of the Bankruptcy
Code, Debtor is authorized to amend, supplement or
modify this listing upon further investigation of the
corporate records;
H. Pursuant to section 1123(b)(3) the Debtor will have
the exclusive right to enforce any and all causes of
action against any person in rights of the Debtor
that arose before or after the petition date,
including but not limited to the rights and powers of
a trustee and debtor in possession, against any
person whatsoever, including but not limited to all
avoidance powers granted to the debtor under the
Bankruptcy Code and all causes of actions and
remedies granted pursuant to sections 502, 510, 541,
544, 545, 547 through 551 and 533 of the Bankruptcy
Code.
I. Pursuant to section 1123(a)(5)(g), the Debtor is
granted a 120 day period commencing on the
Confirmation Date within which to cure the default(s)
by Debtor, if any, with respect to a policy of
insurance previously issued by National Union Fire
Insurance Company, and identified as policy number
445-53-00 (being a renewal of policy number
443-38-50) and the Debtor is authorized to reserve
all rights to pursue any and all remedies, benefits
and contractual rights established by said policy;
J. Debtor, through its Board of Directors, is authorized
to take all Debtor actions to effect the above as
well as the actions set forth in Article XIX.;
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K. The NEP indemnification, in which NEP and Mr. Jeff
Antisdel agree to indemnify Debtor against any tax
penalties resulting from the amended and restated NEP
Settlement, shall be deemed to be ratified and in
full force and effect; and
L. The Ownership Settlement Agreement, in which Messrs.
Vogel and Chamberlain give up all claims, if any, to
any interest in VivaTel shall be deemed to be
ratified and in full force and effect.
ARTICLE XIX. MEANS FOR EXECUTION OF THE PLAN
19.1 The Plan will be implemented utilizing the following resources
and by means of the following events:
A. Cash accrued from operations and Class A Common Stock
will be used to satisfy Claims of Classes 1 through 8
and Class A Common Stock will be used to satisfy
Class 10.
B. The Debtor owns ten binary cycle energy co-generation
units ("Ormats") and Classes 4, 5 and 7 shall be
granted a secured interest in one unit to secure
repayment of those obligations.
C. Promptly after the Confirmation Date, the Debtor
shall take the following action;
1. File a notice with the Secretary of State
for the State of Delaware to the effect that
the amendment(s) to Debtor's Articles of
Incorporation as filed in January 1997, were
filed without requisite shareholder approval
and are, therefore, invalid and void ab
initio;
2. Subsequent to its repurchase of the Series B
Preferred, file Amended and Restated
Articles of Incorporation with the Secretary
of State for the State of Delaware which
Amended Articles of Incorporation shall
(among other things): (i) extinguish the
existing Series A, Series B and Series C
Preferred Shares and the Class B Common
Stock; (ii) create a new class of preferred
stock be known as "Special Stock" which
shall be entitled to elect two (2) Directors
to the Debtor's Board of Directors; (iii)
provide that the affirmative vote of 65.0%
of the issued and outstanding Class A Common
Stock is required to amend the Articles of
Incorporation , and (iv) change the name of
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<PAGE> 30
the Debtor to Worldcall, Inc. Thereafter,
new stock certificates will be issued; and
3. Adopt amended and restated By-Laws.
D. Subsequent to the Declaration Date but at least 20
trading days prior to the Effective Date, the Debtor
shall effect a reverse stock split such that the
number of shares of Class A Common Stock outstanding
shall be no less than 500,000 shares nor more than
20,000,000 shares, the exact ratio to be set by the
Debtor's Board of Directors.
E. The Debtor shall acquire 100% of the issued and
outstanding Common Stock of VivaTel in exchange for
$500.00. Debtor will acquire DiegoTel for Class A
Common Stock. The number of Shares of Class A Common
Stock is predicted to be equal to 35.0% of the issued
and outstanding Class A Common Stock.
F. Debtor shall consent to the transfer of Class A
Common Stock in conjunction with the amended and
restated NEP Settlement Agreement such that sixteen
(16) corporate entities shall receive Class A Common
Stock equal to 50.0% of the issued and outstanding
Class A Common Stock of Debtor computed ten (10) days
after the Effective Date.
G. All Class A Common Stock issued to a Creditor
pursuant to this Plan, shall be issued pursuant to
section 1145 of the Bankruptcy Code and shall be
issued without a restrictive legend if the Creditor
establishes that the Creditor is not an "underwriter"
as defined in section 1145(b) of the Bankruptcy Code.
The Class A Common Stock to be issued to the
exchanging shareholder of Diego Tel shall be
restricted and subject to significant restraints on
transfer as set forth in this Plan and in the
acquisition agreements.
ARTICLE XX. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
20.1 ASSUMPTION OF EXECUTORY CONTRACTS UNDER PRIMARY PLAN. Any
executory contracts or unexpired leases not rejected by the Debtor with the
Bankruptcy Court prior to the Confirmation Date or within sixty (60) days
thereafter or which are not the subject of a motion to reject the same pending
as of the Confirmation Date shall be deemed to have been
30
<PAGE> 31
assumed by the Debtor upon the Confirmation Date, in accordance with section 365
of the Bankruptcy Code.
20.2 FILING OF CLAIMS ARISING OUT OF REJECTION OR ASSUMPTION OF
CONTRACTS. In the event the rejection or assumption of an existing contract
effected pursuant to Section 20.1 above gives rise to a Claim not otherwise
provided for herein, the holder of such Claim may file such Claim within 30 days
following the Confirmation Date or if the contract is not rejected by Debtor
prior to the Confirmation Date, within thirty days after the rejection or
assumption which gives rise to the Claim. Such Claim shall, in addition to its
filing with the Bankruptcy Court, be served upon the undersigned attorneys for
the Debtor. Any objection to claims filed pursuant to this provision shall be
governed by the procedures provided in Article XIV hereof.
20.3 EXECUTORY CONTRACTS OF INDEMNIFICATION WITH DIRECTORS. Debtor has
executory contracts in effect with its past and current Board of Directors and
Officers, some of which it is accepting and some of which are being rejected as
follows:
<TABLE>
<CAPTION>
Name Position Acceptance or Rejection
---- -------- of Executory Contract
---------------------
<S> <C> <C>
Jeffrey Antisdel Director/Officer Accept
Kenton Bowers Officer Reject
Peter Cannell Director Reject
Charles Cain Director Reject
Richard Cascarilla Director/Officer Accept
John Goold Director Reject
Jeffery Hartman Director Accept
Lawrence Herth Director/Officer Accept
Pattinson Hayton, III Officer/Consultant Reject
Michael Kassouff Director Accept
Jeffery Modesitt Director Accept
Stefan Tevis Director/Officer Reject
</TABLE>
31
<PAGE> 32
By rejecting the executory contracts set forth above, it is Debtor's
specific intent to rescind any express or implied obligation (if any) which it
has or may have to such individuals to indemnify or to hold them harmless for
damages or expenses which they may incur as a result of Claims of wrongdoing
lodged against them from any source whatsoever.
ARTICLE XXI. PROVISIONS COVERING DISTRIBUTIONS
21.1 PAYMENTS TO BE MADE ON EFFECTIVE DATE OR PAYMENT DATE. Payments to
be made by the Debtor on the Effective Date or on the Payment Date pursuant to
the Plan shall be made on the Effective Date or on the Payment Date, as
applicable, except as otherwise provided for in the Plan, or as may be ordered
by the Bankruptcy Court.
21.2 DISTRIBUTIONS MADE ON THE EFFECTIVE DATE. Distributions of Class A
Common Stock to be made on the Effective Date shall be made on the Effective
Date, except as otherwise provided for in this Plan or as may be ordered by the
Bankruptcy Court.
21.3 METHOD OF PAYMENT. Cash payments to be made by the Debtor pursuant
to the Plan shall be made by check drawn on a domestic bank or by wire transfer
from a domestic bank.
21.4 PAYMENTS TO BE MADE BY DEBTOR. Payments to be made to Creditors
and Equity Interests under the Plan shall be made by Debtor.
21.5 CLASS A COMMON STOCK. Distributions of Class A Common Stock shall
be made through Corporate Stock Transfer Company or the then transfer agent for
Debtor.
32
<PAGE> 33
ARTICLE XXII. ARTICLES OF INCORPORATION AND BY-LAWS OF THE DEBTOR
22.1 AMENDMENT OF ARTICLES OF INCORPORATION AND BY-LAWS. The Articles
of Incorporation and By-Laws of the Debtor shall be amended after the
Confirmation Date in order to effectuate the provisions of the Plan and section
1123(a)(6) of the Bankruptcy Code.
22.2 RESTRICTION ON TRANSFER OF SHARES. Unless otherwise set forth in
this Article XXII, all Class A shares to be issued by the Debtor shall be issued
pursuant to section 1145(a) of the Bankruptcy Code, without registration
pursuant to Section 5 of the Securities Act of 1933.
The following Class A Common Shares shall be restricted from transfer:
A. All Class A Common Stock issued to acquire the common
stock Diego Tel; and
B. All Class A Common Stock to be issued pursuant to the
amended and restated NEP settlement, and
C. The Class A Common Stock issued to any person who is
deemed to be an "underwriter" for purposes of section
1145(b) of the Bankruptcy Code.
22.3 RESTRICTIVE LEGEND: All Class A Common Shares which are restricted
pursuant to section 22.2 of this Plan shall bear the following restrictive
legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED PURSUANT TO SECTION 5 OF THE
SECURITIES ACT OF 1933, NOR HAVE THESE SECURITIES
BEEN REGISTERED PURSUANT TO ANY COMPARABLE STATE
SECURITIES ACT OR REGULATION. ACCORDINGLY, TRANSFER,
SALE, PLEDGE, HYPOTHECATION OR CONVEYANCE OF THE
SHARES REPRESENTED BY THIS CERTIFICATE IS PROHIBITED
UNLESS AND UNTIL (1) THE SHARES REPRESENTED HEREBY
HAVE BEEN REGISTERED PURSUANT TO SECTION 5 OF THE
SECURITIES ACT OF 1933 AND, AS REQUIRED, PURSUANT TO
A SIMILAR STATE STATUTE OR
33
<PAGE> 34
REGULATION, OR (2) THE SHAREHOLDER SUBSTANTIATES THAT
THERE IS A VALID EXEMPTION FROM THE REGISTRATION
REQUIREMENT PROVIDED BY SECTION 5 OF THE SECURITIES
ACT OF 1933 AND SUBSTANTIATES SUCH EXEMPTION BY MEANS
OF A LEGAL OPINION ACCEPTABLE TO THE ISSUER AND ITS
LEGAL COUNSEL. THE SHARES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED IN CONJUNCTION WITH A
DEBTORS FIRST AMENDED PLAN OF REORGANIZATION
CONFIRMED BY THE UNITED STATES BANKRUPTCY COURT FOR
NEVADA AND THIS RESTRICTION ON TRANSFER HAS BEEN
INCLUDED AS PART OF THE TERMS AND CONDITIONS OF THE
CONFIRMED DEBTOR'S FIRST AMENDED PLAN OF
REORGANIZATION. FOR ADDITIONAL INFORMATION CONCERNING
THIS RESTRICTION, INQUIRIES SHOULD BE DIRECTED TO:
Van P. Carter, Esq.
Walter & Haverfield P.L.L.
1300 Terminal Tower
Cleveland, Ohio 44113
(216) 781-1212
ARTICLE XXIII. PROVISIONS FOR EXECUTION AND SUPERVISION OF THE PLAN
23.1 RETENTION OF JURISDICTION. The Bankruptcy Court shall retain and
have exclusive jurisdiction over the Chapter 11 case for the following purposes:
A. to determine any and all objections to the allowance
of Claims or Equity Interests;
B. to determine any and all pending applications for the
rejection or assumption of executory contracts or
unexpired leases to which the Debtor is a party or
with respect to which it may be liable, and to hear
and determine, and if need be to liquidate, any and
all Claims arising therefrom;
C. to determine any and all applications, adversary
proceedings and contested or litigated matters that
may be pending on the Confirmation Date, except as
provided in the Confirmation Order;
34
<PAGE> 35
D. to consider any modifications of the Plan, any defect
or omission or reconcile any inconsistency in any
order of the Bankruptcy Court, including the
Confirmation Order, to the extent authorized by the
Bankruptcy Court;
E. to determine all controversies, suits and disputes
that may arise in connection with the interpretation,
enforcement or consummation of the Plan, to include
disputes between classes of claimants under the Plan
regarding allocations or payment of Distribution
hereunder;
F. to consider and act on the compromise and settlement
of any Claim against or cause of action by or against
the Debtor's estate;
G. to issue such orders in aid of execution of the Plan
to the extent authorized by section 1142 of the
Bankruptcy Code; and
H. to determine such other matters which may be set
forth in the Confirmation Order or which may arise in
connection with the Plan or the Confirmation Order,
including, but not limited to, extending deadlines
and time limits provided in the Plan.
23.2 AMENDMENT OF PLAN. The Plan may be amended by the Debtor before or
after the Effective Date as provided in section 1127 of the Bankruptcy Code.
ARTICLE XXIV. PROVISIONS FOR MANAGEMENT
24.1 DIRECTORS. Upon confirmation of the Plan, subject to the
Bankruptcy Court's approval under Bankruptcy Code section 1129(a)(5), the
reorganized Debtor shall have as directors of Debtor the directors for Debtor as
identified in the Disclosure Statement. These directors shall serve as directors
of Debtor after the Confirmation Date until removed or replaced by the
post-confirmation stockholders of Debtor. The tenure and manner of selection of
directors of Debtor shall be as provided in the Articles of Incorporation and
By-Laws, as may be amended pursuant to Article XXII hereof.
24.2 OFFICERS. Upon confirmation of the Plan, subject to the Bankruptcy
Court's approval under Bankruptcy Code section 1129(a)(5), the officers of
reorganized Debtor, as
35
<PAGE> 36
identified in the Disclosure Statement, shall serve as officers of Debtor after
the Effective Date. The Board of Directors shall elect the officers of Debtor
and shall specify the tenure of the individuals holding those offices.
24.3 EMPLOYMENT CONTRACTS. Debtor may enter into employment contracts
with its respective officers, employees or others which shall only be operative
if the Plan is confirmed. Copies of any employment contracts that are to take
effect immediately after the Confirmation Date were filed with the Bankruptcy
Court fifteen (15) days prior to the commencement of the hearing to consider the
Disclosure Statement. The employment contracts contain sufficient information to
comply with Bankruptcy Code section 1129(a)(5)(B) as to disclosure of
compensation to be paid to insiders who are the subject of contracts and are
subject to the approval of the Bankruptcy Court.
ARTICLE XXV. EVENTS OF DEFAULT
25.1 In the event that Debtor defaults under the provisions of the
Plan, any Creditor or party-in-interest desiring to assert such a default shall
provide Debtor with written notice of the alleged default. Debtor shall have 30
days from receipt of the written notice in which to cure the default. Such
notice shall be delivered by certified mail (return receipt requested) to the
attorneys for Debtor at the address stated on the final page hereof. If the
default is not cured within the 30-day cure period, any Creditor or
party-in-interest may thereafter file and serve upon counsel for Debtor a motion
to compel compliance with the applicable provision of the Plan. The Bankruptcy
Court, upon finding a material default, shall issue an order compelling
compliance with the applicable provisions of the Plan.
36
<PAGE> 37
ARTICLE XXVI. MISCELLANEOUS PROVISIONS
26.1 DISCHARGE OF DEBTORS. The rights afforded in the Plan and the
treatment of all Creditors therein shall be in exchange for and in complete
satisfaction, discharge and release of all Claims or Equity Interests of any
nature whatsoever, including any interest accrued thereon from and after the
Petition Date against the Debtor or any of its assets or properties. Except as
otherwise provided herein, upon the Confirmation Date, in accordance with
section 1141 of the Bankruptcy Code, all such Claims or Equity Interests against
the Debtor shall be satisfied, discharged and released in full. All Creditors
and holders of Equity Interests shall be precluded from asserting against the
Debtor or its respective assets or properties any other or further Claims based
upon any acts or omission, transaction or other activity of any kind or nature
that occurred prior to the Confirmation Date.
26.2 TITLE TO ASSETS; DISCHARGE OF LIABILITIES. Except as otherwise
provided by the Plan, on the Confirmation Date, title to all assets and
properties dealt with by the Plan shall vest in Debtor in accordance with
section 1141 of the Bankruptcy Code, free and clear of all Claims and Equity
Interests; and the order confirming the Plan shall be a judicial determination
of discharge of the Debtor's liabilities except as provided in the Plan.
26.3 EFFECT OF DISCHARGE ON RIGHTS BETWEEN THIRD PARTIES. If the Plan
is confirmed, the provisions of the Plan will bind the Debtor and all Creditors
and Equity Interest holders, whether or not they accept the Plan. Confirmation
will also discharge the Debtor from all debts that arose before confirmation as
of the Confirmation Date, including intercompany obligations (if any) owing by
the Debtor to an affiliate, whether such affiliate is itself a debtor.
37
<PAGE> 38
The classification and the manner of satisfying all Claims under the
Plan takes into consideration the existence of any guarantees by the Debtor of
any obligation of any person and the fact that the Debtor may be a joint obligor
with another person or persons, with respect to the same obligation. The Plan
also takes into account any contentions by Creditors or holders of Equity
Interests that the Claims of other Creditors or other holders of Equity Interest
may be subordinated by contract or pursuant to the Articles of Incorporation or
By-Laws of the Debtor. All Claims against the Debtor based upon any such
guarantees will be discharged in the manner provided in the Plan. Each Creditor
and stockholder will receive the distribution provided in the Plan, which will
not be subject to any Claim of another Creditor or stockholder by reason of any
claimed contractual right of subordination based upon any defaults occurring
prior to the Confirmation Date.
The distributions of consideration provided for in the Plan will be in
exchange for and in complete satisfaction, discharge and release of all Claims
and Equity Interests, including any Claim for interest after the Petition Date.
On the Confirmation Date, all Creditors and existing Equity Interest holders
shall be precluded form asserting any Claim against the Debtor or its assets or
properties based upon any transaction or other activity of any kind that
occurred prior to the Confirmation Date; provided, however, that nothing
contained in the Plan will alter the legal, equitable and contractual right of
the holder of any Claim or Equity Interest specifically designated as being
unimpaired in the Plan, it being specifically intended that all such rights are
to remain unaltered by the Plan.
26.4 FILING OF ADDITIONAL DOCUMENTS. On or before the Effective Date,
the Debtor shall file with the Bankruptcy Court such agreements, indentures,
supplemental indentures
38
<PAGE> 39
and other documents as may be necessary or appropriate to effectuate and further
evidence the terms and conditions of the Plan.
26.5 POST CONFIRMATION ACQUISITIONS, MERGERS AND STOCK SPLITS. In order
to fulfill its financial obligations to Creditors and to expand its operations,
it is anticipated that the Debtor will effect one or more acquisitions or
mergers subsequent to the Confirmation Date. For a two (2) year period
commencing with the Effective Date, Debtor will be permitted pursuant to this
Plan to effect acquisitions and mergers, additional stock splits and reverse
stock splits based solely upon the affirmative vote of its Board of Directors
and without the necessity of requesting and receiving the consent of the Debtor
shareholders.
26.6 CLASS A COMMON STOCK IN LIEU OF CASH. Any Creditor entitled to
receive Cash pursuant to this Plan may, by mutual agreement of the Creditor and
the Debtor, receive Class A Common Stock pursuant to terms and conditions to be
negotiated between the Creditor and the Debtor and agreed to by the Debtor and
the Creditor.
26.7 RATIFICATION OF SETTLEMENTS. Pursuant to Section 1123(b)(3)(A) of
the Bankruptcy Code, upon Confirmation of the Plan, the following settlements
are deemed to have been ratified by the Bankruptcy Court and are in full force
and effect: (1) the amended and restated NEP Settlement, (2) Ownership
Settlement Agreement, (3) the NEPC Indemnification, and (4) the settlements
entered into with respect to the claims set forth in Article III, Section G of
the Disclosure Statement.
26.8 RATIFICATION OF AGREEMENTS. Upon Confirmation of the Plan, the
following contracts and agreements will be deemed to have been ratified by the
Bankruptcy Court: (1) the Agreement for the Exchange of Stock for the
acquisition of Viva Telecommunications, Inc.
39
<PAGE> 40
and (2) the amended and restated Agreement for the Exchange of Stock for the
Acquisition of Diego Tel, Inc. if and when amended and filed with the Bankruptcy
Court.
26.9 SET OFFS. Debtor may, but shall not be required, to set off
against any claim and the distribution to any holder under the Plan, claims of
any nature that Debtor may have against the holder of such claim. Allowance of a
claim or failure to exercise any right of set off with respect to a claim does
not constitute a waiver or release by Debtor of any rights or claims the Debtor
may have against the holder of such claim. Debtor's rights of set off may be
limited in the manner provided for in the Plan if such rights are not exercised
on or before the Effective Date. Debtor may exercise right of set off with
respect to claims for which it has payment responsibility.
26.10 FRACTIONAL SHARES. Debtor will not issue fractional shares of
Class A Common Stock. In the event that a Claimant is entitled to receive
fractional shares, the fractional share will be deemed to have been repurchased
from the Creditor by the Debtor based upon a per share purchase price of $.10
per share.
26.11. SECTION HEADINGS. The section headings contained in the Plan are
for reference purposes only and shall not affect in any way the meaning or
interpretation of the Plan.
DATED: Reno, Nevada
July 16, 1998
Respectfully submitted,
WALTER & HAVERFIELD P.L.L.
/S/ Van P. Carter, Esq.
--------------------------------------
Van P. Carter, Esq.
40
<PAGE> 41
1300 Terminal Tower
Cleveland, Ohio 44113-2253
BELDING & HARRIS
/S/ Stephen R. Harris, Esq.
--------------------------------------
Stephen R. Harris, Esq.
BELDING & HARRIS
Nevada Bar No. 001463
417 W. Plumb Lane
Reno, NV 89509
41
<PAGE> 42
CONSENT
-------
On behalf of PowerTel USA, Inc., the undersigned represents that the
Board of Directors of PowerTel has read, reviewed, and approved the foregoing
DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION and authorizes the filing of this
Plan with the United States Bankruptcy Court for the District of Nevada.
PowerTel USA, Inc.
By: /S/ Richard Cascarilla
-----------------------------
Richard Cascarilla, President
42
<PAGE> 1
Exhibit 3
POWERTEL USA, INC.
97-30265
CHAPTER 11
MONTHLY OPERATING REPORT
AUGUST 1998
The Debtor in Possession is filing an incomplete Monthly Operating Report due to
the lack of complete records. The former officers of PowerTel USA, Inc. have not
cooperated with the Debtor by providing the necessary information. The Books and
Records are missing. Therefore, it is impossible for the Debtor to file a
complete Monthly Operating Report.
------------------------------------
RICHARD A. CASCARILLA, PRESIDENT
DEBTOR IN POSSESSION
<PAGE> 2
<TABLE>
<CAPTION>
BALANCE SHEET
AUGUST 31, 1998
Assets
Current Assets:
<S> <C> <C>
Cash $1,240.25
Accounts Receivable $____________
Allowance for Doubtful
Accounts $____________
Accounts Receivable (Net) $____________
Inventory $____________
Prepaid Expenses $____________
Total Current Assets $1,240.25
---------
Property and Equipment (Fair Market Value)
Real Property $____________
Machinery and Equipment $5,700,000.00
Furniture and Fixtures $____________
Office Equipment $____________
Leasehold Improvements $____________
Vehicles $____________
Other ____________ $____________
____________ $____________
Total. Property and Equipment $5,700,000.00
-------------
Investments:
Herth Printing and Business Supply
Stock (at Book Value) $3,876.29
---------
Total Assets: $6,088,869.25
-------------
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Liabilities
-----------
AUGUST 31, 1998
Postpetition Liabilities (Accrued and Unpaid)
<S> <C> <C>
Salaries $____________
Payroll Taxes $2,219. 20
Sales Taxes $____________
Income Taxes $____________
Real Property Taxes $____________
Personal Property Taxes $____________
Accounts Payable $____________
Postpetition Real Property
Lease Arrearages $____________
Postpetition Equipment.
Lease Arrearages $____________
Accrued Professional Fees $____________
Other __________ $____________
__________ $____________
Total Postpetition Liabilities $2, 219. 20
-----------
Prepetition Liabilities
Priority Debt (Schedule A-1) $____________
Secured Debt (Schedule A-2) $____________
Unsecured Debt (Schedule A-3) $____________
Total Prepetition Liabilities $____________
Shareholder's Equity
Common Stock $____________
Paid-In Capital $6,131,096.00
Retained Earnings $(44,445.95)
Total Shareholder's Equity $6,086,650.05
-------------
Total Liabilities & Equity $6,088,869.25
-------------
</TABLE>
<PAGE> 4
Recapitulation
--------------
AUGUST, 1998
Balance from Prior Month
General Account $6,882.64
Bank FIRST OF AMERICA BANK, N.A. MICHIGAN
Branch OKEMOS, MICHIGAN
Account # 62-30079367
General Account
Bank
Branch
Account #
Tax Account
Bank
Branch
Account #
Balance to Carry Forward to Next Month
General Account $1,240.25
General Account $____________
Tax Account $____________
<PAGE> 5
<TABLE>
<CAPTION>
POWERTEL USA, INC.
EAST LANSING, MICHIGAN
BANK ACCOUNT SUMMARIES
097-30265
AUGUST, 1998
FIRST OF
DATE DESCRIPTION AMERICA
---- ----------- -------
<S> <C> <C>
08/01/98 BEGINNING BALANCE $ 6,882.64
08/19/98 HERTH PRINTING INC. DISTRIBUTION 6,000.00
08/31/98 TOTAL DEPOSITS 6,000.00
08/31/98 CHECKS WRITTEN PER ATTACHED 11,642.39
08/31/98 BALANCE $ 1,240.25
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
SOURCE POSTING CREDIT
JOURNAL DATE ACCOUNT NO BATCH TOTAL JOURNAL COMMENT
CD-0001 08/31/98 1020-000-00 DISBURSEMENTS
CHECK NO DATE COMMENT DEBIT ACCT TRANS AMOUNT
- -------- ---- ------- ---------- ------------
<S> <C> <C> <C> <C>
0001162 08/03/98 CASEY & BOUG PLC 6600-000-00 95.00
0001163 08/03/98 UPS 6000-000-00 78.25
0001164 08/04/98 KNUTSEN TRAVEL PORT 7900-000-00 550.00
0001165 08/04/98 AMERITECH 7800-000-00 18.82
0001166 08/06/98 STATE OF NEVADA 7600-000-00 389.96
0001167 08/07/98 CASEY & BOGG PLC 6500-000-00 25.68
0001168 08/14/98 FIRST OF AMERICA 2110-001-00 474.30
001168 08/14/98 FIRST OF AMERICA 2110-002-00 810.00
0001168 08/14/98 FIRST OF AMERICA 2110-005-00 474.30
------
CHECKING 001168 TOTALS 1,758.60
0001169 09/14/98 UPS 6000-000-00 12.00
0001170 08/14/98 FED EX 6000-000-00 44.75
0001171 08/18/98 MICHAEL KASSOUFF 7900-000-00 327.00
0001172 08/17/98 LAURIE WEBB &
ASSOCIATES 6200-000-00 442.50
0001173 08/18/98 KNUTSEN TRAVEL PORT 7900-000-00 1,167.00
0001174 08/18/98 CORPORATE STOCK
TRANSFER 7900-000-00 213.96
0001175 08/18/98 CASEY & BOUG 6600-000-00 90.00
0001176 08/18/98 US TRUSTEE 6200-000-00 250.00
0001177 08/18/98 AT&T 7800-000-00 4.91
0001178 08/27/98 H. LAWRENCE HERTH 8100-000-00 991.20
0001179 08/27/98 RICHARD A CASCARILLA 8100-000-00 3,723.00
0001180 08/28/98 AMERITECH 7800-000-00 18.82
0001181 08/28/98 UPS 6000-000-00 12.00
0001182 08/28/98 FLEET 7900-000-00 1,138.15
0001183 08/31/98 FIRST UNION 7900-000-00 290.79
------
JOURNAL CD-0001 TOTALS: 11,642.39
SOURCE CD TOTALS: 11,642.39
REPORT TOTALS: 11,642.39
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
INCOME STATEMENT
----------------
(Accrual Basis)
OCTOBER 1, 1997 TO AUGUST 31, 1998
CURRENT YEAR TO
MONTH DATE
<S> <C> <C>
Income $__________ $__________
Cost of Goods Sold $__________ $__________
Beginning Inventory $__________ $__________
Inventory Purchases $__________ $__________
Ending Inventory $__________ $__________
Total Costs of Goods Sold $__________ $__________
Operating Expenses
Salaries and Wages $6,200.00 $73,200.00
Employee Benefits $__________ $__________
Shipping & Freight $147.00 $1,571.82
Rent $__________ $__________
Secured Debt Payments $__________ $__________
Outside Services $185.00 $3,039.93
Telephone $42.55 $905.89
Repairs & maintenance $__________ $__________
Miscellaneous Office Expense $25.68 $2,085.14
Advertising $__________ $__________
Travel & Entertainment $3,686.90 $19,780.99
Professional Fees $692.50 $52,127.77
Court Costs $__________ $19,372.00
Insurance: Liability $__________ $__________
Property $__________ $__________
Vehicle $__________ $__________
Worker's Compensation $__________ $__________
Other: Bond $__________ $ (920.00)
Taxes: Payroll $893.06 $6,956.96
Sales $__________ $__________
Income $__________ $__________
Real Property $__________ $__________
Personal Property $__________ $__________
Total Operating Expenses $11,872.69 $178,120.50
Total Profit (Loss) from Operations $(11,872.69) $ (178,120.50)
Other Income (Expense) $__________ $__________
Gain (Loss) on Sale of Assets $__________ $__________
Interest Expense $__________ $__________
Interest Income $__________ $__________
Dividend Income $__________ $16.34
Herth Printing Income (loss) $12,044.00 $(30,467.00)
Total $12,044.00 $(30,450.66)
Total Profit (Loss) for Month $171.31 $ (208,571.16)
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
CASH FLOW STATEMENT
-------------------
AUGUST, 1998
PROJECTED
CURRENT FOR CURRENT
MONTH MONTH
Receipts:
<S> <C> <C>
Sales (Cash only) $__________ $__________
Collections of Accounts Receivable $__________ $__________
Other Income - Herth Printing Dividend $6,000.00 $__________
Total Receipts $6,000.00 $__________
Disbursements:
Purchase and Inventory $__________ $__________
Salaries and Wages $4,714.20 $__________
Employee Benefits $__________ $__________
Shipping & Freight $147.00 $__________
Rent $__________ $__________
Secured Debt Payments $__________ $__________
Outside Services $185.00 $__________
Telephone $ 42.55 $__________
Repairs & Maintenance $__________ $__________
Miscellaneous Office Expense $25.68 $__________
Advertising $__________ $__________
Travel & Entertainment $3,686.90 $__________
Professional Fees $692.50 $__________
Court Costs $__________ $__________
Insurance: Liability $__________ $__________
Property $__________ $__________
Vehicle $__________ $__________
Worker's Compensation $__________ $__________
Other: Bond $__________ $__________
Taxes: Payroll $2,148.56 $__________
Sales $__________ $__________
Income $__________ $__________
Real Property $__________ $__________
Personal Property $__________ $__________
Total Disbursements $11,642.39 $__________
Cash Flow $(5,642.39) $__________
</TABLE>
<PAGE> 9
Monthly Questionnaire
I. Accounts Payable and Receivable Aging:
Attach an Accounts Payable and Receivable Aging Schedule, identifying in
chronological (or reverse chronological) order every debt which came due after
the commencement of the bankruptcy case but has not been paid, and specifying
the creditor by name and address, the nature of the debt (e.g., rent,
advertising, wages, etc.), the amount owed and the date on which the obligation
came due. Provide summary information below for both accounts payable and
accounts receivable:
<TABLE>
<CAPTION>
Accounts Accounts
Payable Receivable
<S> <C> <C>
Less Than 31 Days Past Due
31 to 60 Days Past Due
61 to 90 Days Past Due
91 to 120 Days Past Due
Over 120 Days Past Due
</TABLE>
II. Payments to Secured Creditors and Lessors:
Identify every secured Creditor and lessor by name and address, and provide the
requested information. Where there is a postpetition stipulation or court order
governing the creditor's treatment, respond on the basis of that stipulation or
order; otherwise, respond on the basis of the prepetition contract or lease.
<TABLE>
<CAPTION>
Post Petition Payments
Made Missed
Creditor Name and Address Payment Period Periodic Date of No. Amount No. Amount
(mo/wk) Payment Last
Amount Payment
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
Monthly Questionnaire
Page 2
III. Tax Liability
<S> <C> <C>
Gross Payroll Expense for Report Month: $6,200.00
Gross Sales Subject to Sales Tax for Report Month: $-0-
<CAPTION>
POSTPETITION TAXES
Date Paid AMOUNT PAID Due But Accrued But
NOT PAID - NOT DUE
<S> <C>
Federal Payroll & Withholding 1,758.60
STATE PAYROLL & WITHHOLDING 460.60
STATE SALES & USE
<CAPTION>
IV. Insurance Coverage
CARRIER/AGENT AMOUNT OF POLICY EXPIRATION POLICY PAID
NAME COVERAGE DATE THROUGH DATE
<S> <C> <C> <C> <C>
Worker's Compensation
Liability
Fire & Extended Coverage
Property
Theft
Vehicle
Life (Beneficiary):
Other (specify):
</TABLE>
V. Postpetition Payments
A. Has the Debtor made any payments outside of the ordinary
course of business to any officers, shareholders, directors,
other principals or insider-employees or to professionals
without specific authorization under a Bankruptcy Court order?
No
----
If the answer is yes, identify each person paid, the date and
amount of such payment(s) and the basis for each such payment.
B. Has the Debtor, following the commencement of the
bankruptcy case, made any payments on account of prepetition
unsecured debts, except as specifically authorized by the
Bankruptcy Court? No
---
<PAGE> 11
Monthly Questionnaire
Page 3
If the answer is yes, identify each person paid, the date and
amount of such payment(s) and the basis for each such payment.
VI. Narrative
Provide a brief narrative report of any significant events
outside of the ordinary course of business which occurred
during the Report Month:
<TABLE>
<CAPTION>
VII. U.S. Trustee Fees
Quarter Ending Total Quarterly Fee Amount Paid Date Paid Total Quarterly
Disbursements Fees Due But
During Quarter Not Paid
<S> <C> <C> <C> <C> <C>
</TABLE>
I declare under penalty of perjury that I have reviewed the income
statement, cash flow statement, projections, balance sheet and monthly
questionnaire attached hereto and, after making reasonable inquiry, believe that
these documents are accurate and correct.
Dated this ___18___ day of __September____, 1997.
By:_______________/S/ _____________________
<PAGE> 1
Exhibit 4
STEPHEN R. HARRIS, ESQ.
BELDING, HARRIS & PETRONI, LTD.
Nevada Bar No. 001463
417 West Plumb Lane
Reno, Nevada 89509
Telephone: (702) 786-7600
Facsimile: (702) 786-7764
Attorney for Debtor
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
IN RE:
POWERTEL USA, INC. formerly known Case No. 97-30265-BMG
as NEVADA ENERGY, INC., also formerly (Chapter 11)
known as MUNSON GEOTHERMAL, INC.,
Hrg. DATE- August 25, 1998
Debtor. and TIME: 10:00 a.m.
E.I.N. 84-0897771
ORDER APPROVING AND CONFIRMING DEBTOR'S FIRST AMENDED
PLAN OF REORGANIZATION, AS REVISED AND AMENDED
----------------------------------------------
POWERTEL USA, INC., a Delaware corporation, formerly known as NEVADA
ENERGY, INC., also formerly known as MUNSON GEOTHERMAL, INC., the Debtor and
Debtor-in-Possession in this Chapter 11 bankruptcy reorganization case
("Debtor"), by and through its attorney, STEPHEN R. HARRIS, ESQ., of Belding,
Harris & Petroni, Ltd., having filed its DEBTOR'S FIRST AMENDED PLAN OF
REORGANIZATION (dated July 24, 1998), and commonly referred to herein as the
Plan; with the Plan being attached hereto as Exhibit "A" and
<PAGE> 2
incorporated herein by that reference, and the Plan having been duly filed,
served and noticed for an 11 U.S.C. sec. 1129 Confirmation Hearing, together
with (1) the DEBTOR'S SECOND AMENDED DISCLOSURE STATEMENT (dated July 24, 1998),
and (2) the ORDER APPROVING DEBTOR'S FIRST AMENDED DISCLOSURE STATEMENT, AS
AMENDED, AS CONTAINING ADEQUATE INFORMATION (11 U.S.C. sec. 1125), AND FIXING
TIME FOR FILING ACCEPTANCES OR REJECTIONS OF PLAN, on July 27, 1998, to all
creditors and parties requesting notice thereof; and having filed its ERRATA TO
BALLOT AND TO DEBTOR'S SECOND AMENDED DISCLOSURE STATEMENT PURSUANT TO 11 U.S.C.
sec. 1125, on August 17,1998, and its AMENDED ERRATA TO BALLOT AND TO DEBTOR'S
SECOND AMENDED DISCLOSURE STATEMENT PURSUANT TO 11 U.S.C. sec. 1125, on August
17, 1998, and served on August 18, 1998, with the duly noticed hearing to
consider confirmation of the Debtor's Plan, conducted on August 25, 1998, at
10:00 a.m.; with STEPHEN R. HARRIS, ESQ., of BELDING, HARRIS & PETRONI, LTD.,
appearing on behalf of the Debtor, POWERTEL USA, INC., a Delaware corporation;
and Richard Cascarilla, President of the Debtor, also present; NICHOLAS STROZZA,
Assistant U.S. Trustee, appearing on behalf of the Office of the United States
Trustee; and the Court also noting the appearances of other attorneys for
creditors, creditors and interested parties; and the Court having considered all
papers and pleadings on file; and no opposition having been filed;
<PAGE> 3
It having been determined after hearing on notice that:
1. The Plan has been accepted in writing by the creditors whose acceptance
is required by law:
2. The provisions of Chapter 11 of the Code have been complied with; that
the Plan has been proposed in good faith and not by any means forbidden by law;
and that the proponent of the Plan complies with the applicable provisions of
the Bankruptcy Code;
3. Each holder of a claim has accepted the Plan or will receive or retain
under the Plan property of a value, on account of such claim, as of the
Effective Date of the Plan, that is not less than the amount that such holder
would receive or retain if the Debtor POWERTEL USA, INC., a Delaware
corporation, was liquidated under Chapter 7 of the Code on such date, and
further, the Plan does not discriminate unfairly, and is fair and equitable,
with respect to each class of claims that is impaired under, and had not
accepted the Plan;
4. All payments made or promised by the Debtor POWERTEL USA, INC., a
Delaware corporation, or by a person(s) issuing securities or acquiring property
under the Plan or by any other person for services or for costs and expenses in,
or in connection with, the Plan and incident to this case, have been fully
disclosed to the Court and are reasonable or, if to be fixed after confirmation
of the Plan, will be subject to the approval of the Court:
5. The identity, qualifications, and affiliations of the persons who are to
be directors or officers of the successor to the Debtor POWERTEL USA, INC., a
<PAGE> 4
Delaware corporation, under the Plan, have been disclosed, if any;
6. The identity of any insider that will be employed or retained by the
Debtor and their compensation has been fully disclosed, if any;
7. Confirmation of the Plan is not likely to be followed by the need for
further financial reorganization of the Debtor or any successor to it under the
Plan, and the Plan is feasible;
8. At least one impaired class of claims has accepted the Plan, determined
without including any acceptances of the Plan by an insider holder of a claim of
such class; and
9. That all creditors, by virtue of acceptance of the Plan by the requisite
number and amount of members in each class, those accepting classes being the
following Class 6 General Unsecured Allowed Creditors' Claims of $1,200.00 or
Less (deemed to have accepted the Plan by their affirmative class vote), Class 7
General Unsecured Allowed Creditors' Claims of More than $1,200.00 (deemed to
have accepted the Plan by their affirmative class vote), Class 8 Claims of
Nevada Energy Partners, Ltd. (affirmative class vote) and Class 10 Equity
Security Holders (deemed to have accepted the Plan by their affirmative class
vote); and those creditors in Class 6 and 7 (General Allowed Unsecured
Creditors) that have not voted to accept or reject the plan are deemed to have
accepted by reason of the class acceptance resulting from the majority voting in
number with two-thirds (2/3) the claims amount of the Class 6 and Class 7
General Unsecured Creditors having voted for acceptance; and good cause
appearing,
<PAGE> 5
IT IS HEREBY ORDERED that the DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION
(dated July 24,1998), filed with the Court on July 24, 1998, and attached hereto
as Exhibit "A" and incorporated herein by that reference, be and the same hereby
is approved and confirmed, and its terms and conditions set forth therein are
binding on all Equity Interest Holders, Creditors and parties-in-interest in the
above-captioned bankruptcy case; and
IT IS FURTHER ORDERED that the interests of the Class 10 Equity Interest
Holders will be modified pursuant to the Plan, and further, Class 10 Equity
Interest Holders shall not receive any dividends or monetary distributions until
all allowed creditors' claims are paid in full and/or sufficient monies are on
deposit with the Disbursing Agent to pay disputed claims in the event of
allowance of same; and
IT IS FURTHER ORDERED that the Effective Date of the Plan shall be the
first business day occurring one-hundred and twenty (120) days after the date on
which the Order Confirming the Plan is entered by the Clerk's Office; and
IT IS FURTHER ORDERED that Debtor POWERTEL USA, INC., a Delaware
corporation, shall withhold payment to any Class of creditors until the
Effective Date, and thereafter paid as stated in the Plan, as amended and
revised herein, except Administrative Claims, which Administrative Claims shall
be paid by the Effective Date, unless otherwise agreed to in writing; and
IT IS FURTHER ORDERED that this Court shall retain jurisdiction to
adjudicate all matters (except to the extent contrary to the terms of the Plan)
pertinent to the administration of the Debtor and the Reorganized Debtor, and
enforcement of
<PAGE> 6
the Plan, including, but not limited to, the discharge of any and all claim(s)
of Creditors and interest(s) of Equity Interest Holders, to the extent provided
by law and under the terms of the Plan; and
IT IS FURTHER ORDERED that the Reorganized and Revested Debtor is
authorized to take all actions necessary to effectuate the DEBTOR'S FIRST
AMENDED PLAN OF REORGANIZATION (dated July 24,1998), as revised and amended
herein; and
IT IS FURTHER ORDERED that the assets of the bankrupt estate shall vest in
the Reorganized Debtor, as well as any remaining assets being liquidated and/or
distributed to the allowed secured and unsecured creditors' claims; and
IT IS FURTHER ORDERED that in accordance with 11 U.S.C. sec. 1123 (b)(2),
the Debtor rejects those executory contracts of indemnification identified to be
rejected in Article VIII, Section G(3) of the DEBTOR'S SECOND AMENDED DISCLOSURE
STATEMENT, and accepts those identified to be accepted, and further, as to the
Independent Contractor Agreement with Stone Brothers Welding and Equipment
Sales, the Debtor shall have sixty (60) days from the Confirmation Date within
which to place that contract at issue with the Bankruptcy Court, and
IT IS FURTHER ORDERED that in accordance with 11 U.S.C. sec. 1123(b)(3)(A),
a plan of reorganization may provide for the settlement of any claim(s)
belonging to the estate, and in that regard, the Plan contemplates the approval
of four (4) settlement agreements detailed as follows: (1) the Agreement between
and among PowerTel, Nevada Electric Power Company and Nevada Energy
<PAGE> 7
Partners, Ltd. ("the NEP Settlement"), specifically, the NEP Settlement is
described in detail at Section 11.1 of the Plan, which Plan was sent to all
creditors and to which no creditor had objected, and further, the NEP Settlement
resolves litigation and a $6 million claim against the Debtor without any
monetary obligation, and the Debtor receives 100% of the stock ownership in
Combustion Energy Company and the benefit of said corporation's assets, and
further, taking into consideration all of the factors of In re A & C Properties,
784 F.2d 1377 (9th Cir. 1986), the Court finds and concludes that the NEP
Settlement is hereby ratified and approved, and is reasonable, fair and
equitable and in the best interest of creditors; (2) the Agreement with John
Vogel and Dean Chamberlain (the "VivaTel Settlement Agreement and Mutual
Release"), which VivaTel Settlement Agreement and Mutual Release previously has
been approved by the Court, in that certain Stipulated Judgment and Order, filed
in adversary proceeding 97-31518MG, and entered on the docket on March 16, 1998,
which VivaTel Settlement Agreement and Mutual Release is hereby ratified and
approved; (3) the First Amended Agreement for the Exchange of Stock, dated April
22, 1998, between David Wallace and PowerTel USA, Inc., regarding DiegoTel,
Inc., is hereby ratified and approved; and (4) the First Amended Agreement for
the Exchange of Stock, dated February 19, 1998, between David Wallace and
PowerTel USA, Inc., regarding VivaTel, Inc., is hereby ratified and approved;
and
IT IS FURTHER ORDERED that in accordance with 11 U.S.C. sec. 1123(b)(3)(B),
a plan may provide for the appointment of the debtor for the retention and
enforcement of any claim belonging to the estate. In accordance with
<PAGE> 8
such provision, the Court hereby appoints PowerTel, the Reorganized Debtor, as
the entity to pursue all claims belonging to the estate, as identified in
Article V, Section E of the DEBTOR'S SECOND AMENDED DISCLOSURE STATEMENT,
including but not limited to, Pattinson Heyton, his alter egos, employees,
affiliates, agents and attorneys-in-fact, first for the benefit of the
Reorganized Debtor's administrative and unsecured creditors and then for the
benefit of the Reorganized Debtor; and
IT IS FURTHER ORDERED that pursuant to 11 U.S.C. sec. 1146(c) of Title
11, the revesting, transfer and sale of any real or personal property of the
Debtor in accordance with the DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION, as
amended and revised herein, shall become vested of public record in any
purchaser/transferee, free from the imposition of any state or local tax, fee or
imposition, including transfer taxes pursuant to N.R.S. sec. 357.090; and
IT IS FURTHER ORDERED that the confirmation of this DEBTOR'S FIRST AMENDED
PLAN OF REORGANIZATION, as revised and amended herein, constitutes a discharge
set forth in 11 U.S.C. sec. 1141 (d) of the Bankruptcy Code, except as noted
herein; and
IT IS FURTHER ORDERED that pursuant to 11 U.S.C. sec. 1106(a)(7), the
Debtor shall file with the Clerk, not later than 180 days after the entry of
this order, a report of the action taken by the Reorganized Debtor and the
progress made toward consummation of its confirmed Plan, as amended and revised
herein and further, said report shall include, as a minimum, the following
information:
<PAGE> 9
(1) A schedule of any real property, and its cost, acquired
since confirmation of the plan, and a schedule of each item of personal
property acquired at a cost of more than $20,000.00 since confirmation
of the plan.
(2) A schedule of each debt and each class, listing the total
amount of the plan required to be paid, the amount required to be paid
to date, the amount actually paid to date, and the amount unpaid.
(3) A schedule of executory contracts entered into or assumed
after plan confirmation.
(4) A statement indicating that post-petition taxes of every
kind have been paid current, identifying each type of tax which has
been paid and is current (i.e., income, payroll, property sales, etc.),
or a detailed explanation of any and all delinquencies, by type of tax,
and dollar amount.
(5) An estimate of the time for plan consummation and
application for final decree.
(6) Any other pertinent information needed to explain the
progress toward completion of the confirmed plan; and
IT IS FURTHER ORDERED that effective August 25, 1998, for professional
services rendered from that date forward, the Debtor's duly appointed
professionals do not need court approval, after notice and hearing, for payment
of professional fees and costs, and that the Reorganized Debtor may pay said
professionals for the times spent and costs incurred in the ordinary course of
its business; and
IT IS FURTHER ORDERED that the Debtor has sixty (60) days after the
Confirmation Date within which to file objection(s) to any disputed claims of
creditors; and
<PAGE> 10
IT IS FURTHER ORDERED that Debtor POWERTEL USA, INC., a Delaware
corporation, shall pay such fees to the Office of the United States Trustee as
are required by 28 U.S.C. sec. 1930(a)(6) until such time a final decree is
entered closing its case; and
IT IS FURTHER ORDERED that the Debtor's stock transfer agent may rely
on this Order as a basis to establish shareholders of record ("Equity Interest
Holders"), and may compute a reconfigured shareholder ledger.
DATED: September 15, 1998.
/s/
-------------------------------
BERT M. GOLDWATER
UNITED STATES BANKRUPTCY
JUDGE
Prepared by:
STEPHEN R. HARRIS, ESQ.
BELDING, HARRIS & PETRONI, LTD.
417 West Plumb Lane Reno, NV 89509
(702) 786-7600
Attorneys for Debtor
Approved and accepted Approved as to form this _____ day of
this __9__ day of September, 1998 September, 1998
_____________/s/_____________ _________________/s/_________________
RICHARD CASCARILLA, President NICHOLAS STROZZA, ESQ.
POWERTEL USA, INC., Debtor Assistant U.S. Trustee
Office of the United States Trustee
