UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
IN RE: ss.
ss.
PONDER INDUSTRIES, INC., ss. CASE NO. 99-21792-C-11
ss. (CHAPTER 11)
ss.
DEBTOR ss.
DEBTOR'S SECOND AMENDED PLAN OF REORGANIZATION, AS MODIFIED,
UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
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Joel P. Kay, Esq.
Robert K. Lum, Esq.
SHEINFELD, MALEY & KAY, P.C.
1001 Fannin Street, Suite 3700
Houston, Texas 77002-6797
Telephone: (713) 658-8881
Telecopy: (713) 658-9756
ATTORNEYS FOR DEBTOR,
PONDER INDUSTRIES, INC.
DATED: November _____, 2000
<PAGE>
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
IN RE: ss.
ss.
PONDER INDUSTRIES, INC., ss. CASE NO. 99-21792-C-11
ss. (CHAPTER 11)
ss.
DEBTOR ss.
DEBTOR'S SECOND AMENDED PLAN OF REORGANIZATION, AS MODIFIED
UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
This Second Amended Plan of Reorganization, As Modified, Under Chapter
11 of the United States Bankruptcy Code (the "Plan") is proposed by Ponder
Industries, Inc. ("Ponder," "Debtor" or "NEWCO," as applicable), pursuant to
Sections 1121(a) and 1127, Title 11, United States Code, as follows:
ARTICLE 1
DEFINITIONS
Unless the context otherwise requires, the following capitalized terms
shall have the following meanings in this Plan. Such meanings shall be equally
applicable to both the singular and plural forms of such terms. The words
"herein," "hereof," "hereunder" and other words of similar import refer to this
Plan as a whole and not to any particular section, subsection or clause
contained in this Plan unless the context requires otherwise. Whenever it
appears appropriate from the context, each term stated in either the singular or
the plural includes the singular and the plural, and pronouns stated in the
masculine, feminine or neuter gender include the masculine, feminine and neuter.
Any capitalized term in this Plan which is not defined herein shall have the
meaning assigned to such term by the Bankruptcy Code or the Bankruptcy Rules.
1.1 Adjusted Amount: With respect to a Disputed Claim,(a) to the extent
such Disputed Claim is a liquidated Claim, the maximum liquidated face amount of
such Disputed Claim as asserted in the relevant proof of claim or such other
amount as the Bankruptcy Court shall have determined on or prior to Effective
Date, in accordance with the Bankruptcy Code is adequate for determining the
amount of Cash or number of shares of NEWCO Common Stock to be deposited in the
Disputed Claims Reserve Account on account of such Disputed Claim; and (b) to
the extent that such Disputed Claim is a contingent or unliquidated Claim, an
amount that the Bankruptcy Court shall determine on or prior to Effective Date,
in accordance with the Debtor's Second Amended Plan of Reorganization Under
Chapter 11 of the United States Bankruptcy Code Page 1 Bankruptcy Code is
adequate for determining the amount of Cash or number of shares of NEWCO Common
Stock to be deposited in the Disputed Claims Reserve Account on account of such
Disputed Claim; in each case, such amount shall be the maximum allowable amount
of such Claim unless the Bankruptcy Court shall order otherwise.
<PAGE>
1.2 Administrative Claim: A Claim for payment of an administrative
expense of a kind specified in Section 503(b) of the Bankruptcy Code and
referred to in Sections 507(a)(1) and 1114 of the Bankruptcy Code, including,
without limitation, the actual, necessary costs and expenses incurred after the
commencement of the Chapter 11 Case for preserving the estate and operating the
business of the Debtor including wages, salaries or commissions for services,
compensation for legal and other services and reimbursement of expenses awarded
under Sections 330(a) or 331 of the Bankruptcy Code, costs of providing notices
and ballots in connection with the Plan and of making distributions hereunder,
taxes incurred after the Petition Date, and all fees and charges assessed
against the estate under Chapter 123, Title 28, United States Code.
1.3 Administrative Claims Bar Date: The last day for filing certain
Administrative Claims in the Chapter 11 Case, to the extent fixed pursuant to
an order of the Bankruptcy Court.
1.4 Allowed Administrative Claim: All or that portion of an
Administrative Claim which (a) has become an Allowed Claim or (b) was incurred
by the Debtor in the ordinary course of business during the Chapter 11 Case.
1.5 Allowed Claim: All or that portion of a Claim, other than a
Disputed Claim, as to which (a) on or by the Bar Date (i) no proof of claim was
filed with the Bankruptcy Court to evidence such Claim and (ii) the liquidated
and noncontingent amount is scheduled by the Debtor pursuant to the Bankruptcy
Code as undisputed; (b) a proof of claim has been filed in a liquidated amount
with the Court on or before the Bar Date or, in the case of an Administrative
Claim subject to the Administrative Claims Bar Date, a proof of Administrative
Claim has been filed on or before the Administrative Claims Bar Date, provided
that (i) no objection to the allowance of such Claim or a motion to expunge such
Claim has been interposed on or prior to the applicable Claims Objection
Deadline or (ii) if such objection or motion has been filed, such Claim has been
allowed in whole or in part by a Final Order; (c) a stipulation to the amount of
such Claim has been signed by the Debtor and the respective Creditor and
approved by a Final Order; or (d) is otherwise deemed allowed under this Plan.
1.6 Allowed Convenience Claim: All or that portion of a Convenience
Claim which has become an Allowed Claim.
<PAGE>
1.7 Allowed General Unsecured Claim: All or that portion of a General
Unsecured Claim that has become an Allowed Claim. "Allowed General Unsecured
Claim" shall not include interest on the principal amount of such claim or
attorneys' fees after the Petition Date.
1.8 Allowed Interest: Any Equity Interest exclusive of any shares of
such stock held in treasury, which is registered as of the Record Date in such
stock register as may be maintained by or on behalf of the Debtor and as to
which no objection has been made or which has been allowed (and only to the
extent allowed) by a Final Order.
1.9 Allowed Priority Claim: All or that portion of a Priority Claim
that has become an Allowed Claim.
1.10 Allowed Priority Tax Claim: All or that portion of a Priority
Tax Claim that has become an Allowed Claim.
1.11 Allowed Secured Claim: All or that portion of a Secured Claim that
(a) has become an Allowed Claim and as to which the Lien securing same is valid,
perfected and enforceable under applicable law and is not subject to avoidance
under the Bankruptcy Code or other applicable non-bankruptcy law; (b) which is
duly established in the Chapter 11 Case, but only to the extent of the value of
the interest of the holder of such Secured Claim in the Debtor's interest in the
Assets which the Bankruptcy Court finds to be valid Collateral for such Claim
(except if the class of which such Claim is a part validly and timely makes the
election provided for in Section 1111(b)(2) of the Bankruptcy Code, in which
case the entire amount of the Allowed Claim shall be an Allowed Secured Claim);
and (c) less all payments which have been made to the holder of such Claim on
account of such Claim on or after the Petition Date.
1.12 Assets: All right, title and interest in and to any and all
property of every kind or nature, owned by the Debtor as of the Effective Date,
including, but not limited to, property as defined in ss. 541 of the Bankruptcy
Code (each identified item of property being herein sometimes referred to as an
"asset") including, without limitation, Causes of Action, and Debtor's interest
in applicable insurance policies.
1.13 Balloting Agent: The Person approved by the Bankruptcy Court
to act as balloting agent with respect to the Plan.
1.14 Bankruptcy Code: The Bankruptcy Reform Act of 1978, as amended
and codified in Title 11, United States Code.
1.15 Bankruptcy Court or Court: The unit of the United States District
Court for the Southern District of Texas, Corpus Christi Division, 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
which exercises jurisdiction over the Chapter 11 Case in lieu of such unit of
the United States District Court for the Southern District of Texas.
<PAGE>
1.16 Bankruptcy Rules: The Federal Rules of Bankruptcy Procedure, as
amended and prescribed under 28 U.S.C.ss.2075, as applicable to the Chapter 11
Case, together with the Local Rules of the Bankruptcy Court.
1.17 Bar Date: The final date for the filing of proofs of claims in the
Chapter 11 Case, set by the Bankruptcy Court as December 12, 1999, or such other
date as may apply to a particular Claim pursuant to a duly-entered order of the
Bankruptcy Court.
1.18 Business Day: Any day other than a Saturday, Sunday or
"legal holiday" as defined in Bankruptcy Rule 9006(a).
1.19 Cash: Cash and cash equivalents including without limitation,
bank deposits, checks, government securities, and other similar items.
1.20 Causes of Action: Any and all causes of action, claims, rights of
action, suits or proceedings, whether in law or equity, whether known or
unknown, which have been or could be asserted, by the Debtor, including, without
limitation, causes of action under Sections 542, 543, 544, 545, 546, 547, 548,
549, 550, or 553(b) of the Bankruptcy Code.
1.21 Chapter 11 Case: The case under Chapter 11 of the Bankruptcy
Code in which Ponder is the Debtor-in-Possession.
1.22 Claim: As defined in Section 101(5) of the Bankruptcy Code.
1.23 Claimant or Creditor: A Person asserting a Claim.
1.24 Claims Objection Deadline: With respect to any Claim other than an
Administrative Claim, the date established by the Bankruptcy Court as the last
date for filing objections to, or motions contesting the allowance or seeking
the estimation of, such Claim.
1.25 Class: A group of Claims or Interests as classified by the Plan
1.26 Collateral: Any Asset subject to a valid and enforceable Lien
securing the payment of a Claim.
1.27 Committee: The Official Committee of Unsecured Creditors
appointed in the Chapter 11 Case of the Debtor.
<PAGE>
1.28 Common Stock: The common stock of Ponder Industries, Inc.
authorized and issued prior to the Petition Date.
1.29 Compensation Estimate: A good faith written estimate (a) to be
filed on or before three (3) calendar days before the first date set for the
hearing on the confirmation of the Plan of the maximum amount of compensation
and reimbursement of expenses to be requested for any period prior to the
Confirmation Date including, without limitation, any compensation for
substantial contribution in the Chapter 11 Case and for any fees or premiums in
addition to normal hourly charges or quoted fees and (b) to be filed on or
before five (5) calendar days before the first date scheduled for the Effective
Date of the maximum amount of compensation and reimbursement of expenses to be
requested for any period subsequent to the Confirmation Date but prior to the
Effective Date including, without limitation, any compensation for substantial
contribution in the Chapter 11 Case and for any fees or premiums in addition to
normal hourly charges or quoted fees.
1.30 Confirmation Date: The date of entry by the Bankruptcy Court of
the Confirmation Order on the docket of the Bankruptcy Court.
1.31 Confirmation Order: An order of the Bankruptcy Court and any
amendment thereto confirming the Plan in accordance with the provisions of
Chapter 11 of the Bankruptcy Code including Section 1129 of the Bankruptcy Code.
1.32 Convenience Claim: Any Unsecured Claim, the face amount or, if
lower, the allowed amount of which (whether upon filing, amendments, allowances
or otherwise) prior to any subdivision or assignment of any portion or portions
thereof, does not exceed $2,000 in amount. A Creditor shall be allowed to reduce
its Claim or Claims in order to satisfy the dollar limitation of Convenience
Claims, provided, however, that any reduction in such Claim shall completely
waive the right of the Creditor to assert any kind of Claim above the
Convenience Claim limit.
1.33 Conveyance Documents: Shall mean the assignments, bills of sale,
deeds and other instruments, including the Ponder Conveyance Documents, Fishing
Tools Conveyance Documents, pursuant to which all Assets of Ponder Fishing and
Ponder Energy Services, Inc., respectively, are transferred and conveyed to
Liquidating Trust and Ponder Energy Services, Inc. - Texas Conveyance Documents
to be executed in favor of the Liquidating Trust and delivered to the Trustee on
the Effective Date.
1.34 Debtor: Ponder Industries, Inc.,as Debtor and Debtor in Possession
in the Chapter 11 case.
1.35 Deficiency Claim: A Claim of a Creditor asserting a Secured Claim
equal to the amount by which the total Allowed Claim of such Creditor exceeds
the sum of (a) any setoff rights of the Creditor permitted under Section 553 of
the Bankruptcy Code as to such Claim, plus (b) the amount of the Claim which is
determined to be an Allowed Secured Claim of such Creditor; provided, however,
that if the holder of a Secured Claim or the Class of which such Claim is a
member validly makes the election provided in Section 1111(b)(2) of the
Bankruptcy Code, there shall be no Deficiency Claim with respect to such Claim.
<PAGE>
1.36 Discharge or Discharged: Except as otherwise provided in the Plan,
the release and discharge of the Debtor of any and all Claims and obligations,
liabilities, responsibilities, burdens, debts, or contingencies given rise to
the same, arising out of, or related to , any Claim, including the discharge of
all Claims and matters referred to, or relating to matters Discharged by
operation of Bankruptcy Code sections 349, 502, 523, 524, 727, 1141 and 1144 and
28 U.S.C. ss. 157. It shall be conclusively determined by confirmation of the
Plan as evidenced by the Confirmation Order that Debtor shall be deemed as of
the Confirmation Date to be continuing to engage in business pursuant to section
1141(d)(3)(B) of the Bankruptcy Code.
1.37 Disclosure Statement: The Disclosure Statement, as amended,
issued in connection with the Plan, and approved by the Bankruptcy Court,
together with all supplements thereto approved by the Bankruptcy Court
1.38 Disputed Claim: A Claim against the Debtor as to which an
objection or motion pursuant to Section 502 of the Bankruptcy Code has been
timely filed, which objection or motion has not been withdrawn or resolved by
entry of an order of the Bankruptcy Court. To the extent that such objection or
motion relates to the allowance of any part of a Claim, such Claim shall be a
Disputed Claim only to the extent of the objection or motion. Prior to the time
that an objection has been or may be timely filed, for the purposes of the Plan,
a Claim shall be considered a Disputed Claim to the extent that (a) the Debtor's
Schedules do not list such Claim or list such Claim as contingent, unliquidated,
or disputed, or (b) the amount of the Claim specified in the relevant proof of
claim exceeds the amount that the Debtor's Schedules list as undisputed,
liquidated and not contingent.
1.39 Disputed Claims Reserve Account: The escrow accounts maintained
by the Trustee as described in Article 16.5 of this Plan.
1.40 Distribution Record Date: The date established by the Bankruptcy
Court as the record date for making Distributions under the Plan, which shall be
no earlier than the Voting Deadline.
1.41 Distributions: The Cash and NEWCO Common Stock required by the
Plan to be delivered to the holders of Allowed Claims and Allowed Equity
Interests.
1.42 District Court: The United States District Court for the Southern
District of Texas.
<PAGE>
1.43 Effective Date: The date no less than ten (10) days after the
entry of the Confirmation Order and the filing of documents and/or completion of
those actions necessary to effectuate the Merger Agreement.
1.44 Equity Interests or Interests: Rights of the owners of the
issued and outstanding shares of the Preferred Stock and Common Stock, Ponder
Warrants, and Ponder Stock Options.
1.45 Fee Claim: A Claim for professional fees and expenses under
Sections 330 or 503 of the Bankruptcy Code in the Chapter 11 case.
1.46 Final Order: An order or judgment of the Bankruptcy Court (or any
other Court of competent jurisdiction) which is conclusive of all matters
adjudicated thereby and is in full force and effect and has not been reversed,
stayed, modified or amended and as to which (a) any appeal that has been filed
has been finally determined or dismissed, or (b) the time for appeal has expired
and no notice of appeal has been filed.
1.47 Fishing Tools Conveyance Documents: Fishing Tools Conveyance
Documents shall mean the documents substantially in the form and with the terms
and provisions of the instruments by that title included as a Plan Document and
dated as of the Consummation Date.
1.48 Fishing Tools, Inc.: A wholly owned subsidiary of Ponder
Industries, Inc.
1.49 General Unsecured Claims: Any and all Claims held by Creditors of
the Debtor which Claims are not secured by Assets of the Debtor, including, but
not limited to, Deficiency Claims, Claims arising from rejection of executory
contracts and unexpired leases which are not otherwise secured by Liens, and
Claims arising from litigation or suits against Ponder. For purposes of the
definition, "Unsecured Claims" do not include Administrative Claims, Priority
Claims, Priority Tax Claims, or Secured Claims.
1.50 Interim Pro Rata Share: The proportion, calculated as of any given
date, that a given Allowed Claim in a particular Class of Claims bears to the
sum of (a) the amount of all Allowed Claims within such Class, (b) the Adjusted
Amount of all Disputed Claims within such Class and (c) the Adjusted Amount of
all Claims potentially within such Class which the Trustee, in their sole and
absolute discretion, determine should be included in such calculation.
1.51 Insured Claims: All Claims based on legally defined torts,
including, but not limited to Claims arising out of or related to personal
injuries, wrongful death, physical damage to property, and rights of
contribution and indemnity arising therefrom, together with all resulting or
related damages as to any such Claims which may be asserted pursuant to
applicable laws.
1.52 Lien: As defined in Section 101(37) of the Bankruptcy Code.
<PAGE>
1.53 Liquidating Trust: Shall mean the Trust created pursuant to
Article 20.
1.54 Merger Agreement: That document entitled Plan and Agreement
of Merger of Ponder Industries, Inc. and N-Vision Technology, Inc to be entered
into pursuant to Article 21.2.
1.55 N-Vision Technology, Inc. ("N-Vision"): A corporation duly
organized and validly existing under the laws of the State of Nevada with its
registered office at Corporate Trust of Nevada, 6001 Neil Road, Reno, NV 89511,
and the principal executive office at 11931 Wickchester, Suite 201, Houston,
Texas 77043.
1.56 NEWCO: From and after the Effective Date, Ponder as reorganized
pursuant to this Plan and shall be,like its predecessor Ponder Industries, Inc.,
a Delaware corporation, however, consisting of the assets and liabilities of
N-Vision Technology, Inc.
1.57 NEWCO Common Stock: 10,784,253 shares of common stock of NEWCO,
to be authorized and issued in part, in accordance,with the terms and conditions
of this Plan.
1.58 Panther Oil Tools (UK) Ltd.: A wholly owned subsidiary of Ponder
Energy Services, Inc.
1.59 Person: An individual, corporation, partnership, association,
joint stock company, joint venture, estate, trust, unincorporated organization
or governmental entity or any particular subdivision thereof or other entity.
1.60 Petition Date: June 15, 1999, the date of filing of the Chapter 11
Case by Ponder.
1.61 Plan: This Plan of Reorganization and all exhibits and schedules
annexed hereto or referred to herein, either in its or their present form(s) or
as it or they may be altered, amended, or modified from time to time.
1.62 Plan Administration Committee: Means the committee established
pursuant to this Plan to monitor implementation of the Plan, and take such
other actions as set forth in the Plan or as may be approved by the Bankruptcy
Court.
1.63 Plan Documents: Plan Documents means the exhibits to the Plan
filed with the Bankruptcy Court at least five (5) days prior to the Confirmation
Hearing.
1.64 Ponder Conveyance Documents: Ponder Conveyance Documents shall
mean the documents substantially in the form and with the terms and provisions
of the instruments by that title included as a Plan Document and dated as of the
Consummation Date.
<PAGE>
1.65 Ponder Energy Services, Inc.: A wholly owned subsidiary of Ponder
Industries, Inc.
1.66 Ponder Energy Services, Inc. - Texas Conveyance Documents:
Ponder Energy Services, Inc. - Texas Conveyance Documents shall mean the
documents substantially in the form and with the terms and provisions of the
instruments by that title included as a Plan Document and dated as of the
Consummation Date.
1.67 Ponder Industries, Inc. ("Ponder"): A corporation and Debtor in
the Chapter 11 case.
1.68 Ponder Stock Options: Options authorized and granted by Debtor
prior to the Petition Date, giving the holders thereof the right to purchase
Common Stock of Ponder.
1.69 Ponder Warrants: Warrants authorized and granted by Debtor prior
to the Petition Date, giving the holders thereof the right to purchase Common
Stock of Ponder.
1.70 Preferred Stock: Preferred Stock of Debtor authorized prior to the
Petition Date.
1.71 Priority Claim: Any Claim entitled to priority in payment under
Sections 507(a)(3) through 507(a)(7) of the Bankruptcy Code.
1.72 Priority Tax Claim: Any Claim entitled to priority in payment
under Section 507(a)(8) of the Bankruptcy Code, excluding penalties not in
compensation for actual pecuniary loss and interest accrued after the Petition
Date, except as otherwise provided in the Plan.
1.73 Pro Rata Share: The proportion, calculated after the date on which
all Disputed Claims within a particular Class and all other Disputed Claims
potentially within such Class have been either allowed or disallowed by Final
Order, that a given Allowed Claim in such Class bears to the amount of all
Allowed Claims within such Class.
1.74 Record Date: The date set by the Bankruptcy Court as the date for
determining (a) record holders of Claims against the Debtor, Common Stock and
Preferred Stock for purposes of voting on the Plan, and (b) the holders of
Claims and Interests who are entitled to receive distributions pursuant to the
provisions of the Plan.
1.75 Reserve Amount: The number of shares of NEWCO Common Stock and the
amount of Cash required to be deposited in the appropriate Disputed Claims
Reserve Account on account of a Disputed Claim or Claims, in each case
determined on the basis of the Adjusted Amount of such Disputed Claim or Claims.
<PAGE>
1.76 Schedules: The Schedules and Statement of Affairs, as amended,
filed by the Debtor with the Bankruptcy Court listing liabilities and assets.
1.77 Secured Claim: A Claim subject to setoff under Section 553 of the
Bankruptcy Code or secured by a Lien on Assets of the Debtor which Lien is
valid, perfected and enforceable under applicable law and is not subject to
avoidance under the Bankruptcy Code or applicable non-bankruptcy law and which
is duly established in the Chapter 11 Case, but only to the extent of the value
of the Collateral that secures payment of the Claim or to the extent of the
amount subject to setoff, as the case may be.
1.78 Secured Creditor: The holder of a Secured Claim.
1.79 Stock Transfer Agent: Shall mean the person approved by the
Court to act as stock transfer agent.
1.80 Trust Agreement: Means an agreement substantially in the form
and with the terms and provisions of the instrument by that title filed as a
Plan Document.
1.81 Trustee: Shall mean the person approved by the Court pursuant
to 11 U.S.C.ss. 1104 to administer the Liquidating Trust pursuant to the terms
of the Plan.
1.82 Unclaimed Distribution: Any Distribution (together with any
interest earned thereon) which is unclaimed six (6) months following the date on
which the Trustee makes or attempts to make payment in respect of such
Distribution. Unclaimed Distributions shall include (a) checks (and the funds
represented thereby) that have been returned as undeliverable without a proper
forwarding address, (b) funds for checks that have not cleared, (c) checks (and
the funds represented thereby) that were not mailed or delivered because of the
absence of a proper address to which to mail or deliver such property and (d)
NEWCO Common Stock that the Trustee has been unable to deliver.
1.83 Unsecured Claims: Any and all Claims held by Creditors of the
Debtor which Claims are not secured by Assets of the Debtor, including, but not
limited to, Deficiency Claims, Claims arising from rejection of executory
contracts and unexpired leases which are not otherwise secured by Liens, and
Claims arising from litigation or suits against Ponder. For purposes of the
definition, "Unsecured Claims" do not include Administrative Claims, Priority
Claims, Priority Tax Claims, or Secured Claims.
1.84 Unsecured Creditor: Any Creditor that holds an Unsecured Claim.
1.85 Voting Deadline: The date set by the Bankruptcy Court by which
the Balloting Agent must receive ballots for accepting or rejecting the Plan.
<PAGE>
ARTICLE 2
CLASSIFICATION OF CLAIMS AND INTERESTS
2.1 Classification Generally: All Claims and Equity Interests, except
Administrative Claims and Priority Tax Claims are placed in the following
Classes. A Claim or Equity Interest is classified in a particular Class only to
the extent that the Claim or Equity Interest qualifies within the description of
the Class and is classified in a different Class to the extent that the Claim or
Equity Interest qualifies within the description of that Class. A proof of Claim
or Equity Interest which asserts a Claim or an Equity Interest which is properly
includible in more than one Class is in the Class asserted only to the extent it
qualifies within the description of such Class and is in a different Class to
the extent it qualifies within a description of such different Class.
UNCLASSIFIED CLAIMS
Allowed Administrative Claims
Allowed Priority Tax Claims
CLASSIFIED CLAIMS
PRIORITY CLAIMS:
Class 1: Allowed Priority Claims
SECURED CLAIMS
Class 2 : Secured Claim of KBK Financial, Inc.
Class 3 : Secured Ad Valorem Tax Claims
Class 4 : Other Allowed Secured Claims
UNSECURED CLAIMS:
Class 5 : Allowed Convenience Claims
Class 6 : Insured Claims
Class 7 : Allowed General Unsecured Claims
EQUITY INTERESTS:
Class 8 : Common Stock
Class 9 : Ponder Warrants
Class 10: Ponder Stock Options
<PAGE>
ARTICLE 3
PROVISIONS FOR PAYMENT
OF UNCLASSIFIED CLAIMS
3.1 Payment in Full to Administrative Claimants: Unless otherwise
agreed, each Allowed Administrative Claim shall be paid in full in Cash and
Discharged by no later than the later of (a) the Effective Date or (b) fifteen
(15) days after the Administrative Claim becomes an Allowed Administrative
Claim; provided, however, that Administrative Claims that represent liabilities
incurred by the Debtor in the ordinary course of business during the Chapter 11
Case shall be paid in the ordinary course of business in accordance with any
related agreements.
3.2 Bar Date for Administrative Claims:
(a) Compensation Estimate. Any Person retained or requesting compensation
or expense reimbursement pursuant to Sections 328, 330, 503(b)(2)
through (6) or 1103 of the Bankruptcy Code shall file a Compensation
Estimate (i) on or before three (3) calendar days before the first
date set for the hearing on the confirmation of this Plan and (ii) on
or before five (5) calendar days before the first date scheduled for
the Effective Date, ten (10) calendar days notice of which shall be
provided to all persons filing compensation estimates under clause (i)
of this Article 3.2(a); and
(b) Filing and Allowance of Administrative Claims. The holder of an
Administrative Claim other than (i) an Allowed Administrative Claim or
(ii) an Administrative Claim that represents a liability incurred by
the Debtor in the ordinary course of business, must (a) file a proof
of Administrative Claim (or, in the case of a Fee Claim, an
application seeking the Bankruptcy Court's approval of such Fee Claim)
on or before the Administrative Claims Bar Date and (b) serve a copy
of such proof of Administrative Claim or the application for the
approval of such Fee Claim upon the parties set forth in the order of
the Bankruptcy Court establishing the Administrative Claims Bar Date.
Failure to timely file such proof of Administrative Claim (or
application) shall result in the Administrative Claim being forever
barred and discharged. An Administrative Claim other than a Fee Claim,
proof of which has been timely filed, shall become an Allowed
Administrative Claim if no objection thereto is filed within thirty
(30) days after the later of the Confirmation Date and the date of
filing and service of such proof of Administrative Claim or
application, as the case may be . If an objection is filed within such
thirty (30) day period, the Administrative Claim shall only become an
Allowed Administrative Claim to the extent allowed by Final Order. A
Fee Claim with respect to which an application is timely filed shall
become an Allowed Administrative Claim only to the extent allowed by
Final Order. Notwithstanding the foregoing, for reasonable services
rendered after the Confirmation Date, the Trustee shall promptly pay
any professional person retained by the Debtor or the Committee, and
any member of the Committee, upon submission of proper written
invoices detailing the reasonable services rendered and expenses
incurred for which compensation or reimbursement is sought.
<PAGE>
3.3 (a) Priority Tax Claimants: Unless otherwise agreed, each Allowed
Priority Tax Claim shall be paid in full, subject to the applicable priorities
of Claims as set forth in Section 507 of the Bankruptcy Code, out of the net
proceeds from the Assets and Discharged, provided however that the net proceeds
from the sale of tools and equipment of Fishing Tools, Inc. ("Net FTI Proceeds")
shall be paid first to Allowed Claims for priority wage claims under Section
507(a)(3)(A) of the Bankruptcy Code, second to Allowed Administrative
Convenience Claims, third to Allowed Priority Tax Claims less than $1,200,
fourth to remaining Allowed Priority Tax Claims, and fifth to interest accrued
on Allowed Priority Tax Claims after the Effective Date, as set forth below.
Holders of such remaining Allowed Priority Tax Claims shall receive such payment
of Net FTI Proceeds on a pro-rata basis. Distribution of the Net FTI Proceeds,
pursuant to the foregoing, shall occur no earlier than at such time that the
validity and priority of claims against proceeds from the sale of the tools and
equipment of Fishing Tools, Inc. is determined by the entry of a Final Order in
the adversary proceeding styled KBK Financial, Inc. v. Ponder Industries, et
al., Adversary No. 00-2074 pending in the Bankruptcy Court. All payments to
Allowed Priority Tax Claims shall be made during a period which is not more than
six (6) years after the date of assessment of each Allowed Priority Tax Claim.
If such payment(s) are made after the Effective Date of the Plan, then and in
such event the Allowed Priority Tax Claim shall bear interest at the rate of 16%
per annum from the Effective Date, provided, however, that Allowed Priority Tax
Claims of the Internal Revenue Service shall accrue interest, if any, at 9% per
annum from the Effective Date.
(b) N-Vision will convey 750,00 shares of NEWCO Common Stock to the
Trustee (the "N-Vision Stock Contribution") and Eugene Butler and Gerald
Slaughter (the "Contributing Parties") will convey to the Trustee any and all
shares of NEWCO Common Stock each of those individuals is entitled to receive as
a result of the Plan for any claims they have or may assert in the case, less
NEWCO Common Stock required to be sold to pay any federal income taxes that may
be payable as a consequence of their receipt and sale of such Stock, (the
"Officer Stock Contribution") to be held in trust for the benefit of any
unsatisfied Allowed Priority Tax Claims in this Article 3.3 and Allowed Priority
Claims pursuant to Article 4.1 in the event that Net FTI Proceeds are
insufficient to pay in full all Allowed Priority Tax Claims and Allowed Priority
Claims. The Trustee will hold such stock for a period of one (1) year from the
Effective Date, after which he shall be authorized to liquidate such stock in
the public market, during an additional period of time not to exceed one year,
in amounts necessary to satisfy unpaid Allowed Priority Tax Claims and Allowed
Priority Claims in the priority set forth in Article 3.3(a). In the event that
the Allowed Priority Tax Claims and Allowed Priority Claims are fully satisfied
by sales of only a portion of the NEWCO Common Stock, the Trustee shall reconvey
to N-Vision and the Contributing Parties, the balance, if any, of the NEWCO
Common Stock originally conveyed to the Trustee under this Article. Payment of
Allowed Priority Tax Claims from the proceeds of the sale of the Officer Stock
Contribution shall first be applied to the portion of the Allowed Priority Tax
Claims which are denominated as trust.
<PAGE>
To the extent that it is necessary to sell both the Officer Stock
Contribution and the N-Vision Stock Contribution to satisfy the claims provided
above, the Officer Stock Contribution shall be sold first and N-Vision Stock
Contribution will be sold only to the extent that additional funds are required
after all the Officer Stock Contribution has been sold.
ARTICLE 4
PROVISIONS FOR TREATMENT OF
ALLOWED PRIORITY CLAIMS (CLASS 1)
4.1 Payment in Full to Priority Claimants: Unless otherwise agreed,
each Allowed Priority Claim shall be paid in full subject to the applicable
priorities of claims as set forth in Section 507 of the Bankruptcy Code, in Cash
out of the net proceeds from the Assets and Discharged.
In the event that insufficient funds are held by the Trustee to pay in
full Allowed Priority Claims, as provided in section 3.3 above, N-Vision will
convey 750,000 shares of NEWCO Common Stock to the Trustee (the "N-Vision Stock
Contribution") and Eugene Butler and Gerald Slaughter (the "Contributing
Parties") will convey to the Trustee any and all shares of NEWCO Common Stock
each of those individuals is entitled to receive pursuant to the Plan for any
claims they have or may assert in the case, less NEWCO Common Stock required to
be sold to pay any federal income taxes that may be payable as a consequence of
their receipt and sale of such Stock (the "Officer Stock Contribution") to be
held in trust for the benefit of any unsatisfied Allowed Priority Tax Claims
pursuant to Article 3.3 and Allowed Priority Claims pursuant to this Article
4.1. The Trustee will hold such stock for a period of one (1) year from the
Effective Date, after which he shall be authorized to liquidate such stock in
the public market, during an additional period of time not to exceed one (1)
year, in amounts necessary to satisfy unpaid Allowed Priority Tax Claims and
Allowed Priority Claims in the priority set forth in Article 3.3(a). In the
event that the Allowed Priority Tax Claims and Allowed Priority Claims are fully
satisfied by sales of only a portion of the NEWCO Common Stock, the Trustee
shall reconvey to N-Vision and the Contributing Parties, the balance, if any, of
the NEWCO Common Stock originally conveyed to the Trustee under this Article.
To the extent that it is necessary to liquidate both the Officer Stock
Contribution and the N-Vision Stock Contribution to satisfy the claims provided
above, the Officer Stock Contribution shall be sold first and N-Vision Stock
Contribution will be sold only to the extent that additional funds are required
after all the Officer Stock Contribution has been sold.
2
<PAGE>
4.2 Status of Class: Class 1 is unimpaired. Therefore, votes for
acceptance or rejection of the Plan from members of such Class will not be
solicited.
ARTICLE 5
PROVISIONS FOR TREATMENT OF
ALLOWED SECURED CLAIM OF KBK FINANCIAL, INC. (CLASS 2)
5.1 Payment of Allowed Secured Claim of KBK Financial, Inc: KBK
Financial, Inc. ("KBK") asserts secured claims under loan documents that provide
for security in account receivables and equipment. At the Trustee's option, the
Trustee may, in satisfaction of KBK's Allowed Secured Claim, to the extent of
its priority with regard to other Allowed Secured Claims with interest in the
Collateral, either (i) on or subsequent to the Effective Date convey all or part
of the Collateral to KBK, or (ii) sell the Collateral with liens attaching to
the proceeds which will be subsequently disbursed to KBK.
5.2 Release of Lien: The transfer of Collateral and/or proceeds
pursuant to Article 5.1 shall be in full satisfaction and Discharge of KBK's
Claim and KBK shall promptly provide all such documents to release liens and
security interests.
5.3 Status of Class: Class 2 is impaired. Therefore, a vote for
acceptance or rejection of the Plan from the Claimant within such Class will
be solicited.
ARTICLE 6
PROVISIONS FOR TREATMENT OF ALLOWED
SECURED AD VALOREM TAX CLAIMS (CLASS 3)
6.1 Payment of Allowed Secured Ad Valorem Tax Claims: Class 3 are
secured claims of state taxing authorities for non payment of ad valorem taxes.
At the Trustee's option, the Trustee may, in satisfaction of Class 3 Allowed
Secured Claims, to the extent of such Claimant's priority with regards to other
holders of Allowed Secured Claims with interest in such Collateral, either (i)
on or before the Effective Date convey the Collateral to Class 3 Claimants, or
(ii) sell the Collateral, subject to the Court's approval with liens attaching
to the proceeds, and distribute such proceeds to Class 3 Claimants as soon as
practical. To the extent Class 3 Claims are not fully satisfied pursuant to this
Article, resulting in any deficiency Claims, the provisions of Section 502(b)(3)
shall control.
<PAGE>
6.2 Release of Lien: Transfer of Collateral and/or proceeds pursuant to
Article 6.1 shall be in full satisfaction and Discharge of Class 3 Claims and
Class 3 claimants shall promptly provide all such documents to release liens and
security interest
6.3 Status of Class: Class 3 is unimpaired. Therefore, a vote for
acceptance or rejection of the Plan from the Claimant within such Class will not
be solicited.
ARTICLE 7
PROVISIONS FOR TREATMENT OF
OTHER SECURED CLAIMS (CLASS 4)
7.1 Payment of Other Secured Claims: At the Trustee's option, the
Trustee may, in satisfaction of Class 4 Allowed Secured Claims, to the extent of
their priority with regard to other Allowed Secured Claims with interests in the
Collateral, either (i) on or subsequent to the Effective Date convey all or part
of the Collateral to Class 4 claimants, or (ii) sell the Collateral with liens
attaching to the proceeds which will be subsequently disbursed to Class 4
claimants.
7.2 Release of Lien: Transfer of Collateral and/or proceeds pursuant to
Article 7.1 shall be in full satisfaction and Discharge of Class 4 Claims and
Class 4 claimants shall promptly provide all such documents to release liens and
security interest.
7.3 Status of Class: Class 4 is impaired. Therefore, a vote for
acceptance or rejection of the Plan from the Claimant within such Class will
be solicited.
ARTICLE 8
PROVISIONS FOR TREATMENT OF
ALLOWED CONVENIENCE CLAIMS (CLASS 5)
8.1 Partial Payment in Cash: In full satisfaction and Discharge of its
Claim, each holder of an Allowed Convenience Claim shall be paid twenty-five
percent (25%) of such Allowed Claim in Cash by no later than the later of (a)
one hundred twenty (120) days following satisfaction of Priority Tax Claims, or
(b) fifteen (15) days after the Unsecured Claim becomes an Allowed Convenience
Claim.
8.2 Status of Creditors: Class 5 is impaired. Therefore, votes for
acceptance or rejection of the Plan will be solicited from Claimants within such
Class.
<PAGE>
ARTICLE 9
PROVISIONS FOR TREATMENT
OF INSURED CLAIMS (CLASS 6)
9.1 Payment of Insured Claims: In full satisfaction of any and all
Claims, each holder of an Insured Claim against the Debtor shall be treated as
follows:
1. Payment through Insurance Only. The holder of a Class 6
Allowed Claim shall only receive payment from insurance policies held
by the Debtor and shall receive no payment of any amount or kind
directly from the Debtor or the Trustee, including any payment on
account of a deductible or retention provision and any payment on
account of any portion of such Claim that may exceed the amount of the
Debtor's available insurance. On the Effective Date, the stay shall be
terminated to allow for the liquidation of Insured Claims in any
appropriate forum other than the Bankruptcy Court. The Debtor may be a
nominal party to such action, but shall not be required to participate
therein except as may be necessary to cooperate with any insurance
carrier to preserve coverage.
2. Effect of Retention Provisions. If insurance proceeds become
payable as a consequence of the allowance of a Class 6 Claim and the
particular insurance policy involved contains a retention or
deductible provision that has not been previously paid by the Debtor,
then, and in such event, the amount of proceeds to be paid to the
holder of the Class 6 Claim by the insurer shall be reduced by a
credit in an amount equal to the unpaid retention or deductible. The
holder of such Claim shall receive nothing on account of such credit
attributable to or equal to such unpaid retention or deductible. The
credit upon the Class 6 Claim in the amount of the deductible or
retention shall conclusively be deemed to have satisfied such
deductible or retention provisions within any and all insurance
policies of the Debtor immediately as of the Effective Date and
therefore to have eliminated any obligation of the Debtor to fund any
further costs of defense.
3. Right to Opt Out of Class. In the event that a holder of a
Class 6 Claim believes that the Plan has treated such Claim in a
manner that unfairly discriminates between such Claim and a holder of
a Claim in Class 7, such Claimant may opt out of Class 6 by filing
written notice of such with the Bankruptcy Court and serving such
notice of opt-out on counsel for the Debtor and counsel for the
Committee before the Effective Date. Holders of Insured Claims shall
be considered Class 6 Claims for purposes of voting on the Plan
without regard to any such opt-out, unless such opt-out is made prior
to the Voting Deadline, in which event such Claim shall be treated as
a Class 7 Claim. Upon making such opt-out election, the holder of such
Claim shall have waived any right or ability to receive any proceeds
of the Debtor's insurance coverage; instead, such opt-out Claimant
shall be treated as a Class 7 Claim to the extent the opt-out Claim
becomes an Allowed Claim.
<PAGE>
4. Duty of Cooperation; Effect of Non-Payment of Deductible. The
Trustee shall have a continuing duty to cooperate with and assist the
insurers issuing or having issued policies to the Debtor in defense of
Claims, to the extent that such duty existed prior to the Petition
Date; provided, however, that the obligation to pay any policy
retention or deductible shall be Discharged. The Discharge of such
obligation shall have no effect on the validity and enforceability of
any insurance policies in which the Debtor is the insured party; such
policies shall remain in full force and effect.
9.2 Status of Creditors: Class 6 is impaired. Therefore, votes for
acceptance or rejection of the Plan will be solicited from Claimants within such
Class.
ARTICLE 10
PROVISIONS FOR TREATMENT OF
ALLOWED GENERAL UNSECURED CLAIMS (CLASS 7)
10.1 Distributions of Stock and Proceeds: In full and final
satisfaction and Discharge of its Claim, each holder of an Allowed Claim within
Class 7 shall receive (a) its Pro Rata Share of the 1,428,381 shares of NEWCO
Common Stock; and (b) its Pro Rata Share of Distributions by the Liquidating
Trust after the full payment of Administrative Claims, Allowed Priority Claims,
Allowed Priority Tax Claims, allowed Class 1 Claims and Class 5 Claims.
10.2 Status of Creditors: Class 7 is impaired. Therefore, votes
for acceptance or rejection of the Plan will be solicited from Claimants within
such Class.
ARTICLE 11
PROVISIONS FOR TREATMENT OF INTERESTS
OF HOLDERS OF COMMON STOCK (CLASS 8)
11.1 Contingent Distribution: If Classes 5 and 7 accept the Plan, in
full and final satisfaction and Discharge of their Interests, each holder of an
Allowed Interest in Class 8 as of the Distribution Record Date shall receive
NEWCO Common Stock in the amount of 1 share of NEWCO Common Stock for every 20
shares of Ponder Common Stock currently held.
11.2 Rejection by Classes 5 or 7: If Class 5 or 7 reject the Plan, then
Class 8 Interests shall receive no distributions in satisfaction of its
Interests.
<PAGE>
11.3 Status of Class: Class 8 is impaired. Therefore, votes for
acceptance or rejection of the Plan from holders of Equity Interests in such
Class will be solicited.
ARTICLE 12
PROVISIONS FOR TREATMENT OF INTERESTS
OF HOLDERS OF PONDER WARRANTS (CLASS 9)
12.1 No Distribution: Holders of Ponder Warrants shall receive no
Distribution under the Plan. All obligations pursuant to Ponder Warrants shall
be Discharged.
12.2 Status of Class: Class 9 is impaired. Because holders of Ponder
Warrants in Class 9 are deemed to have rejected the Plan by virtue of Section
1126(g) of the Bankruptcy Code, their votes for acceptance or rejection of the
Plan will not be solicited.
ARTICLE 13
PROVISIONS FOR TREATMENT OF INTERESTS
OF HOLDERS OF PONDER STOCK OPTIONS (CLASS 10)
13.1 No Distribution: Holders of Ponder Stock Options shall
receive no Distribution under the Plan. All obligations pursuant to Ponder
Stock Options shall be Discharged.
13.2 Status of Class: Class 10 is impaired. Because holders of Ponder
Stock Options in Class 10 Interest Holders are deemed to have rejected the Plan
by virtue of Section 1126(g) of the Bankruptcy Code, their votes for acceptance
or rejection of the Plan will not be solicited.
ARTICLE 14
IDENTIFICATION OF CLAIMS AND
INTERESTS NOT IMPAIRED BY THE PLAN
14.1 Unimpaired Classes: Classes 1 and 3 are not impaired under the
Plan and, therefore, votes for the Plan by the holders of Claims in such Classes
will not be solicited due to the presumed acceptance of the Plan by such holders
pursuant to Section 1126(f) of the Bankruptcy Code.
14.2 Impaired Classes Entitled to Vote on Plan: Classes 2, 4, 5, 6, 7
and 8 are impaired and holders of Allowed Claims or Allowed Equity Interests in
such Classes are, therefore, entitled to vote for acceptance or rejection of the
Plan, and their votes will be solicited.
<PAGE>
14.3 Deemed Rejections by Holders of Equity Interests: Notwithstanding
votes which are actually cast by holders of Equity Interests and Claims within
Class 8, if Class 5 or 7 rejects the Plan, then Class 8 shall be deemed to have
rejected the Plan in accordance with Section 1126(g) of the Bankruptcy Code.
Classes 9 and 10 are deemed to have rejected the Plan.
ARTICLE 15
ACCEPTANCE OR REJECTION OF THE PLAN; EFFECT
OF REJECTION BY ONE OR MORE CLASSES OF IMPAIRED CLAIMS
15.1 Acceptance of Plan by Class of Creditors: A Class of Creditors
shall have accepted the Plan if the Plan is accepted by holders of Claims of at
least 2/3 in amount and more than 1/2 in number in such Class who vote to accept
or reject the Plan.
15.2 Acceptance of Plan by Class of Equity Interests: A Class of Equity
Interests shall have accepted the Plan if the Plan is accepted by holders of
Equity Interests of at least 2/3 in amount of such Interests who vote to accept
or reject the Plan.
15.3 Cramdown: In the event that one or more Classes of Creditors or
Equity Interests rejects the Plan, as long as at least one impaired Class of
Creditors votes to accept the Plan (disregarding the votes of insiders), the
Debtor shall request the Bankruptcy Court to confirm the Plan in accordance with
Section 1129(b) of the Bankruptcy Code.
ARTICLE 16
DISTRIBUTIONS UNDER THE PLAN AND MEANS OF EXECUTING PLAN
16.1 Delivery of Distributions to Trustee: On the Effective Date, NEWCO
shall (a) issue shares of NEWCO Common Stock in an amount sufficient to make all
Distributions under the Plan constituting NEWCO Common Stock and (b) deliver to
the Trustee such NEWCO Common Stock and all Assets, for distribution to the
holders of Allowed Claims and Allowed Interests in accordance with the terms of
this Plan. NEWCO shall cooperate with the Trustee in providing certificates for
the appropriate number of NEWCO Common Stock required to be distributed to each
holder of an Allowed Claim or Allowed Equity Interest.
16.2 Initial Distributions: All Distributions under this Plan shall be
made to, or in the case of Disputed Claims, reserved on behalf of holders of
Claims and Equity Interests determined as of the Distribution Record Date. On
the Effective Date, or as soon thereafter as is reasonably practicable, but in
no event more than thirty (30) Business Days after the Effective Date, the
Trustee shall make all Distributions and payments required under this Plan, and
shall deposit the Reserve Amounts in the Disputed Claims Reserve Accounts to the
extent required by this Plan or the Bankruptcy Court in respect of Disputed
Claims. The Trustee shall distribute to each holder of an Allowed Claim in Class
7 determined as of the Distribution Record Date the number of shares of NEWCO
Common Stock equal to the sum of such holder's Interim Pro Rata Share of the
NEWCO Common Stock allocated to Unsecured Creditors pursuant to Article 10.1.
The Trustee shall distribute Pro Rata to holders of Allowed Class 7 Claims,
funds (net of Trust expenses) collected on account of the liquidation of Trust
Assets acquired pursuant to the Ponder Conveyance Documents not otherwise
encumbered subject to the following: (i) distributions of such funds shall be
made first to Allowed Administrative Claims as provided in Article 3.1 to the
extent not theretofore paid by the Debtor, and after same have been paid, shall
then be made to Allowed Priority Tax Claims, as provided in Article 3.3 and
Class 1 Claims, as provided in Article 4.1. After all of the same have been
paid, distribution shall then be made to Classes 5 and 7 Claims as set forth in
Articles 8.1 and 10.1 above. The Trustee shall distribute Pro Rata to holders of
Allowed Class 7 Claims, funds (net of Trust expenses) collected on account of
the liquidation of Trust assets acquired pursuant to the Ponder Conveyance
Documents, Fishing Tools Conveyance Documents and Ponder Energy Services, Inc. -
Texas Conveyance Documents not otherwise encumbered.
<PAGE>
16.3 Interim and Final Distributions to Class 7: The Trustee may, from
time to time, make additional distributions to holders of Allowed Claims in
Class 7, by distributing to each such holder shares of NEWCO Common Stock equal
to the recalculation, at the time, of such holder's Interim Pro Rata Share of
the NEWCO Common Stock allocated to Unsecured Creditors pursuant to article 10.1
less the number of shares of NEWCO Common Stock previously received by such
holder, and such holder's Interim Pro Rata Share of proceeds related to
liquidation of Assets less such proceeds previously received by such holder.
Unless otherwise instructed by the Plan Administration Committee, the Trustee
shall make such an interim distribution (i) in the case of NEWCO Common Stock,
at any time that at least fifty thousand (50,000) shares of NEWCO Common Stock
would be distributed as a result of such interim distribution, and (ii) in the
case of proceeds from liquidation of Assets no less frequently than every 6
months. The Trustee shall make such interim distributions until such time as all
Disputed Claims within or potentially within Class 7 have been allowed or
disallowed by Final Order. As soon as practicable, but in any event within
twenty (20) Business Days after the first date on which all Disputed Claims
within or potentially within Class 7 have been allowed or disallowed by Final
Order, the Trustee shall (a) make a final distribution to holders of Allowed
Claims in Class 7, by distributing the each such holder such holder's Pro Rata
Share of the NEWCO Common Stock allocated to Unsecured Creditors Pursuant to
Article 10.1 less the number of shares of NEWCO Common Stock previously received
by such holder, (b) make a final distribution to each holder of an Allowed Claim
in Class 7 Pro Rata Share of proceeds from liquidation of the Liquidating Trust
property less such proceeds previously received by such holder.
16.4 Delivery of Distributions by Trustee: Subject to Bankruptcy Rule
9010, distributions to holders of Allowed Claims or Allowed Interests shall be
made at the address of each such holder as set forth in the proofs of Claim or
proofs of Equity Interest filed by such holders (or at the last known address of
such a holder if no proof of Claim or proof of Equity Interest is filed or if
the Trustee has been notified in writing of a change of address). If any
holder's Distribution is returned as undeliverable, no further distribution to
such holder shall be made unless and until NEWCO or the Trustee is notified of
such holder's then current address, at which time all undelivered Distributions
shall be made to such holder without interest. If any Claimant holding an
Allowed Claim in Class 7 advises the Trustee in writing that it is prohibited by
applicable law from holding NEWCO Common Stock, then in such event the Trustee
shall hold the stock otherwise distributable to such Claimant, sell the stock in
an commercially reasonable transaction as determined by the Trustee, in his sole
discretion, and then remit the net proceeds to such Claimant.
<PAGE>
16.5 Reserves for Disputed Claims:
(a) Amount of Reserves: Except to the extent that the Bankruptcy Court
shall determine that a lesser amount is adequate, the Trustee shall deposit in
segregated interest bearing (in the case of deposits of Cash) escrow accounts
for each Class or category of Claims in which there are Disputed Claims (the
"Disputed Claims Reserve Accounts") Cash or shares of NEWCO Common Stock equal
to the Distributions that would have been made to the holders of Disputed Claims
in such Class or category if such Claims were allowed in the Adjusted Amount;
(b) Held in Trust: All earnings on funds deposited in the Disputed
Claims Reserve Account, and all dividends or distributions on account of shares
of NEWCO Common Stock or proceeds from liquidation of Assets held in the
Disputed Claims Reserve Account, shall be held in trust in the Disputed Claims
Reserve Account and shall be distributed only in the manner provided in this
Plan; and
(c) Release of Reserves from Disputed Claims Reserve Accounts: At such
time as all or any portion of a Disputed Claim becomes an Allowed Claim, the
Distributions reserved for such Disputed Claim or portion (including any
interest thereon or dividends received with respect thereto) shall be released
from the appropriate Disputed Claims Reserve Account and paid or distributed by
the Trustee to the holder of such Allowed Claim, net of any taxes or other
applicable charges required to be paid by the Trustee in respect thereof. At
such time as all or any portion of a Disputed Claim is determined not to be an
Allowed Claim, the Distributions reserved for such Disputed Claim or portion
(including any interest thereon or dividends received with respect thereto)
shall be (i) in the case of Cash, released from the appropriate Disputed Claims
Reserve Account and paid to holders of Allowed Claims in Class 7, (ii) in the
case of NEWCO Common Stock, released from the appropriate Disputed Claims
Reserve Account and distributed to holders of Allowed Claims in Class 7.
<PAGE>
16.6 Unclaimed Distributions:
(a) Safeguarding of Unclaimed Distributions: For a period of six (6)
months following the Effective Date, Distributions, including any interest as
may have been earned thereon and dividends as may have been received with
respect thereto, as have not been claimed shall be held by the Trustee in the
Disputed Claims Reserve Accounts, solely for the benefit of the holders of
Allowed Claims and Allowed Administrative Claims that have failed to claim such
Distributions and shall be released from the Disputed Claims Reserve Accounts
and delivered to such holder, net of any taxes or other applicable charges
required to be paid by the Trustee in respect thereof, upon presentation of
proper proof by such holder of its entitlement thereto; and
(b) Release of Unclaimed Distributions:On the date on which all or any
portion of any Distribution becomes an Unclaimed Distribution (including
interest thereon and dividends with respect thereto), such Unclaimed
Distribution shall be released by the Trustee from the appropriate Disputed
Claims Reserve Account and paid or reallocated to holders of Allowed Claims in
Class 7, which shall thereupon cancel all NEWCO Common Stock contained in any
such Unclaimed Distribution, provided, however, that 120 days following the
Effective Date, the Trustee shall file with the Court and serve on all parties
entitled to distribution under the Plan a notice listing all unclaimed
distributions.
16.7 Form of Distributions: Any Cash payment to be made pursuant to the
Plan may be made by a check or wire transfer or as otherwise required by an
order of the Bankruptcy Court.
16.8 Rounding: Whenever a payment of a fraction of a cent would
otherwise be called for, the actual payment shall reflect a rounding of such
fraction down to the nearest whole cent.
16.9 Fractional Shares: Fractional shares of NEWCO Common Stock shall
not be issued or distributed. Whenever the issuance or distribution of a
fractional share of NEWCO Common Stock would otherwise be called for, the actual
Distribution of shares of NEWCO Common Stock shall reflect a rounding down to
the nearest whole share.
<PAGE>
16.10 Disputed Payment: In the event that any dispute arises as to the
right of a holder of an Allowed Claim to receive any Distribution to be made
under this Plan, the Trustee may, in lieu of making such Distribution to such
holder, make such Distribution into an escrow account or hold such Distribution
until the disposition thereof shall be determined by the Bankruptcy Court or by
written agreement among the interested parties to such dispute.
16.11 Conditions to Distributions: As a condition to receiving
distributions provided for in the Plan in respect of Allowed Equity Interests,
the holder thereof must surrender such security to NEWCO (in the case of Equity
interests, submit an affidavit of loss together with an indemnity reasonably
acceptable to NEWCO). Whether or not actually surrendered or delivered to NEWCO,
on the Effective Date all outstanding certificates, notes, debentures, stock,
warrants and other instruments shall be canceled on the books of NEWCO and
become settled and compromised solely as provided in this Plan.
16.12 De Minimus Distributions: No Distribution of less than five
dollars ($5) shall be made to any holder of an Allowed Class 7 Claim. Such
undistributed amount shall be retained the Trustee.
ARTICLE 17
EXECUTORY CONTRACTS AND
UNEXPIRED LEASES UNDER THE PLAN
17.1 Rejection of Executory Contracts and Unexpired Leases: All
contracts and leases constituting executory contracts or unexpired leases under
the provisions of Section 365 of the Bankruptcy Code which have not already been
assumed or rejected, not made the subject of a pending motion to assume or
reject, shall be deemed to have been rejected by the Debtor as of the
Confirmation Date in accordance with Section 365 of the Bankruptcy Code.
17.2 Filing of Claims for Rejection Damages: All Claims arising from
the rejection of executory contracts and unexpired leases under Section 365 of
the Bankruptcy Code must be evidenced by properly filed proofs of claims. Such
proofs of claims must be filed with the Clerk's Office of the Bankruptcy Court
within any applicable deadlines previously established by the Bankruptcy Court
or, if no previously established deadline is applicable, within forty-five (45)
days from the entry of the order confirming the Plan. Such proofs of claims must
also be served on counsel for the Debtor. Failure to file a proof of claim on or
before the deadline established in this Article shall result in disallowance in
full of the Claim. Objections to Claims filed pursuant to this provision shall
be governed by the procedures set forth in Article 23 of the Plan. Unsecured
Claims resulting from the rejection of executory contracts shall be treated as
Class 5 or Class 7 Claims hereunder as appropriate.
<PAGE>
ARTICLE 18
PROVISIONS FOR NEWCO
18.1 Corporate Governance: On the Effective Date, N-Vision shall be
deemed merged with and into the Debtor. The Ponder Certificate of Incorporation
and the N-Vision By-Laws shall be effective on the Effective Date, and on or
prior to the Effective Date, NEWCO shall file the appropriate documents to
reflect such merger with the Secretary of State of the State of Delaware
pursuant to the applicable provisions of Delaware Law.
18.2 NEWCO Common Stock: The provisions of NEWCO Common Stock to be
issued pursuant to the Plan are as follows:
(a) Authorization: The Ponder Certificate of Incorporation shall
authorize the issuance of NEWCO Common Stock. Of such authorized shares, up to
10,784,253 shares shall be issued on the Effective Date to make the
distributions contemplated by this Plan. Except as provided by this Plan, no
additional shares of NEWCO Common Stock may be issued other than as directed by
the board of directors of NEWCO after the Effective Date; and
(b) Listing: NEWCO shall use its best efforts to cause the NEWCO Common
Stock to be listed on a national securities exchange or, failing that, to be
listed for quotation on the NASDAQ National Market System.
18.3 Directors: The directors of NEWCO on the Effective Date shall be
such Directors as named in the Disclosure Statement.
ARTICLE 19
CONDITIONS PRECEDENT
19.1 Conditions to Confirmation: The Plan may only be confirmed if:
(a) The Merger Agreement shall be in full force and effect and shall
not have been terminated in accordance with its terms.
19.2 Conditions to Effective Date: The following shall be conditions
precedent to the effectiveness of the Plan:
<PAGE>
(a) The Bankruptcy Court shall have made findings of fact and
conclusions of law as to confirmation of the Plan and entered a Confirmation
Order, in each case satisfactory to the Debtor; and
(b) The Merger Agreement shall be in full force and effect and shall
not have been terminated in accordance with its terms.
19.3 Waiver of Conditions: The conditions set forth in this Article
19 may only be waived jointly by both the Debtor and N-Vision.
ARTICLE 20
CREATION OF THE TRUST
20.1 Creation of the Trust: A trust shall be created for the purpose of
liquidating the assets assigned pursuant to Article 24.3 and satisfying Allowed
Claims (herein referred herein as the "Liquidating Trust").
20.2 Conveyances by Ponder to the Trust: On the Effective Date, Ponder
shall execute and deliver the Ponder Conveyance Documents to the Liquidating
Trust. On the Effective Date, the Debtor shall assign, transfer, convey and
deliver to the Trustee on behalf of the Liquidating Trust all assets of the
bankruptcy estate including, but not limited to, all cash, causes of action
under 11 U.S.C. ss.ss. 544, 545, 547, 548 and 549 and any and all other federal
or state law claims or causes of action owned by the bankruptcy estate. For
purposes of the Plan, the Confirmation Order shall be deemed to constitute a
bill of sale of all assets of the Debtor, of whatever description, including,
but not limited to, all causes of action as set forth in this paragraph, from
the Debtor to the Trustee on behalf of the Liquidating Trust. The Debtor and the
Trustee shall execute such other and further documents as are necessary to
accomplish this transfer or to implement the intent of the Plan. Upon
confirmation of the Plan, any claims and causes of action that could have been
brought by the Debtor against insiders of Debtor (as defined in 11 U.S.C. ss.
101(31)), and affiliates (as defined in 11 U.S.C. ss. 101(2)), shall vest in the
Liquidating Trust. In addition, upon confirmation of the Plan, any claims or
causes of action belonging to the holders of Claims and Equity Interests against
insiders (as defined in 11 U.S.C. ss. 101(31)) and affiliates (as defined in 11
U.S.C. ss. 101(2)) of the Debtor that either relate to the Debtor (including,
but not limited to, claims based upon breach of fiduciary duty) or arise as a
consequence of their relationship to the Debtor shall be deemed transferred to
and vest in the Liquidating Trust. The Liquidating Trust shall have standing and
authority to prosecute any and all claims and causes of action of the Debtor,
Claim holders and Equity Interest holders against insiders and affiliates of
Debtor that either relate to the Debtor (including, but not limited to, claims
based upon breach of fiduciary duty, piercing the corporate veil and the alter
ego doctrine) or arise as a consequence of their relationship to the Debtor.
<PAGE>
20.3 Conveyance by Fishing Tools, Inc. to the Trust: On the Effective
Date, Fishing Tools, Inc. shall execute and deliver the Fishing Tools
Conveyance Documents to the Liquidating Trust.
20.4 Conveyance by Ponder Energy Services, Inc. to the Trust: On the
Effective Date, Ponder Energy Services, Inc. shall execute and deliver the
Ponder Energy Services, Inc. - Texas Conveyance Document to the Liquidating
Trust.
20.5 Vesting of Title: The Confirmation Order shall vest title in the
Liquidating Trust to all of the Assets and all property described in the Ponder
Conveyance Documents, Fishing Tools. Conveyance Documents and Ponder Energy
Services, Inc. - Texas Conveyance Documents. Confirmation of this Plan shall
constitute sufficient evidence of the Trustee's authority to convey, transfer,
or otherwise dispose of, Assets and all property described in the Ponder
Conveyance Documents, Fishing Tools. Conveyance Documents and Ponder Energy
Services, Inc. - Texas Conveyance Documents without further order of the Court.
20.6 The Trustee: The Initial Trustee shall be selected by the Plan
Administration Committee for the purpose of implementing and administering the
Plan. The Trustee shall manage the Liquidating Trust until all of the
Liquidating Trust assets are sold, distributed, returned to the Trustee or
otherwise utilized pursuant to the provisions of the Plan. The Trustee shall
administer the Liquidating Trust assets and the Liquidating Trust for the
benefit of the Creditors in accordance with the Plan and the Trust Agreement
until all Claims are resolved, and all Liquidating Trust assets are distributed
to Creditors or returned to the Trustee, at which time the Trustee shall submit
a final report to the Court, which shall enter a Final Decree closing the
Reorganization Case. The Trustee shall serve under bond in an amount determined
by the Court, which amount may, upon proper motion, be increased or decreased by
the Court depending upon the amount of property and/or funds accumulated.
20.7 Duties and Powers of Trustee: The Trustee shall have all of the
duties and powers of a Trustee appointed under Section 1104 of the Bankruptcy
Code. In connection with the administration of the Liquidating Trust assets, the
disposition of Claims, and the disbursement of payments to Creditors, the
Trustee shall:
(A) Do and perform any acts authorized by the Code, any applicable
statutory or common law, or by the Court to realize (by sale, use
, transfer, assignment, conveyance, lease or otherwise), to the
greatest extent possible, the fair value of the Liquidating Trust
assets, to cause the funds to be distributed as herein provided,
and to conserve and protect the Liquidating Trust assets;
(B) Perform any and all necessary and proper acts to realize or
implement the provisions of the Plan;
<PAGE>
(C) (i) Review the Claims scheduled by the Debtor or filed in this
Reorganization Case which are payable out of the proceeds from
liquidation of Assets and which have not already been allowed or
approved by Final Order of the Court to determine the extent, if
any, to which such Claim shall be an Administrative Claim or an
Allowed Claim as the case may be, (ii) Contest or seek estimation
or subordination of all or any part of any Claim payable out of
the proceeds from liquidation of the Liquidating Trust assets,
and (iii) Compromise or abandon any such contest when it
reasonably appears that to do so would be in the interest of
Creditors;
(D) Collect and reduce to money by use, sale or lease, all the
Liquidating Trust assets that are not abandoned;
(E) Pay any and all costs, expenses and obligations that are
reasonable, necessary and proper for the efficient and prompt
realization of the provisions of the Plan or in any manner
connected, incidental or related thereto, including, but not
limited to:
(i) The expenses of any sale, including the reasonable and
necessary costs and expenses of preserving or disposing of
Assets that are the subject of any sale;
(ii) Any income or other tax imposed by the United States, or by
any state or political subdivision thereof; and
(iii)Any fees incurred by professional persons employed by the
Trustee, which costs, expenses and obligations shall be
charged against the proceeds from liquidation of the Assets.
(F) Deposit all funds awaiting distribution pursuant to the Plan in
interest-bearing accounts, which may be invested and reinvested
by the Trustee consistent with Section 345 of the Bankruptcy Code
and Section 3.09 of Revenue Procedure 94-45;
(G) Keep or cause to be kept records containing a description of all
Assets, and any accounting of all receipts and disbursements of
funds, which records and accounting shall be open to inspection
at reasonable times upon written notice;
<PAGE>
(H) Prepare and file with the Bankruptcy Court semi-annual reports of
the status of distributions to Creditors under the Plan, which
reports shall summarize the funds received and disbursed, as well
as the status of any pending litigation;
(I) Pursue any and all Causes of Action that are reasonably likely to
yield funds to the Creditors;
(J) Maintain a contingency reserve fund to discharge actual costs and
anticipated costs incurred in implementing the Plan, liquidating
the Liquidating Trust assets and pursuing Causes of Action;
(K) Retain such professionals as may be necessary to effectuate the
provisions of this Plan;
(L) Reserve from distribution to creditors such sums as may be
necessary to cover claims of creditors which are disputed,
contingent or unliquidated; and
(M) Be entitled to vote or exercise any other right of ownership with
respect to any shares of NEWCO Common Stock held in the Disputed
Claims Reserve Accounts.
20.7.5 Duration of Trust: The trust shall terminate when all Claims are
resolved and all Liquidating Trust Assets are distributed to Creditors,
provided, however, the trust will terminate no later than five years from the
date of its creation. If warranted by the facts and circumstances, provided for
in the Plan and Trust instrument, and subject to the approval of the Bankruptcy
Court with jurisdiction over the case upon a finding that an extension is
necessary to the liquidation purpose of the trust, the term of the trust may be
extended for a finite term so long as each extension is approved by the court
within six months of the beginning of the extended term.
20.08 Trustee's Compensation: The Trustee shall be compensated in
accordance with the Trust Agreement. In addition to compensation for his
services, the Trustee shall be entitled to reimburse for all out of the pocket
expenses incurred in the performance of his duties and shall be authorized to
pay such expenses out of the Liquidating Trust assets.
20.09 Successor Trustee: In the event of the death, resignation or removal
of the Trustee, a successor Trustee shall be appointed by the Court and such
successor Trustee shall be Debtor's Second Amended Plan of Reorganization Under
Chapter 11 of the United States Bankruptcy Code Page 1 vested with all the
rights, privileges, powers and duties of his predecessor. The Trustee may resign
at any time by giving written notice to the Court of his intention to do so, and
such resignation shall be effective upon the date provided in an order
authorizing his resignation entered by the Court, whereupon such resigning
Trustee shall be deemed divested of all of his powers hereunder. The successor
Trustee shall thereupon be vested with all of the rights, privileges, powers and
duties of the predecessor Trustee.
<PAGE>
20.10 Limitation of Trustee's Liability: The Trustee shall not be
liable for any act he may do or omit to do as Trustee hereunder or acting in
good faith in the exercise of his best judgment, nor shall the Trustee be liable
in any event except for his own gross negligence or willful default or
misconduct. The Trustee shall not be liable for non-receipt of notice and
correspondence by Creditors due to a change in address from the most recent
listing of Creditors' addresses.
20.11 Retention of Professional Persons: The Trustee may consult with
attorneys, accountants and agents, and the opinions of the same shall be full
protection and justification to the Trustee for any actions taken in accordance
with said opinions, and the Trustee shall be entitled to be reimbursed from the
proceeds of the liquidation of Assets in the amount of all reasonable fees and
expenses of all such attorneys, accountants, and agents without further order of
the Court. All professional fees incurred by the Trustee in connection with his
appointment and thereafter in the performance of his duties after appointment
shall be reimbursed and paid pursuant to the provisions of this Section. The
Trustee, without further order of the Court, is also authorized to retain
attorneys, accountants, consultants, agents and other professionals to assist
the Trustee in the performance of his duties, and to defend the Trustee against
any claim brought by any party against the Trustee in connection with his
service under the Plan. The Trustee is authorized to compensate any such party
out of the proceeds from liquidation of the Assets in the amount of all
reasonable fees and expenses incurred in connection with the performance of any
such services without further order of the Court. The Trustee is expressly
authorized to engage any firm or professional with which he may be associated to
provide any such services, other than any firm or professional which is an
insider of the Debtor as said term is defined in the Code.
20.12 Tax Aspects: The Liquidating Trust shall have the following tax
aspects:
20.12.1 The transfer of the assets of the Debtor to the
Liquidating Trust shall be treated for all purposes of the Internal
Revenue Code as a deemed transfer to the beneficiaries (i.e. Creditors)
followed by a deemed transfer by the beneficiaries to the Liquidating
Trust. The deemed transfers to creditors will generally constitute a
taxable transaction to Creditors. Creditors will determine the gain or
loss on the transfer by comparing the value of the Liquidating Trust
interest received in the exchange to the tax basis, if any, in their
claim. The value of the Liquidating Trust interest received in the
exchange will be determined by reference to each Creditor's Pro Rata
Share of the Debtor's assets provided in Article VI of the Plan.
Creditor's Pro Rata Share of the Debtor's assets is determined by
dividing the amount of their claim by the total amount of claims
against the Debtor. The valuations as set forth in Article VI of the
Disclosure Statement shall be used for all federal income tax purposes.
<PAGE>
20.12.2 The beneficiaries shall be treated for tax purposes as
the grantors and deemed owners of the Liquidating Trust. Consistent
with the provisions of Revenue Procedures 94-45, 1994-28 I.R.B. 124,
the Liquidating Trust shall be treated as a grantor trust owned by the
beneficiaries. Accordingly, any items of income, deduction, credit or
loss of the Liquidating Trust shall be allocated for federal income tax
purposes on a Pro Rata basis among the beneficiaries. Allocated income
from the Liquidating Trust is subject to current taxation to the
beneficiaries. The Liquidating Trust will prepare annual income tax
returns pursuant to Treas. Reg. Sec. 1.671-4(a) and report to
beneficiaries their Pro Rata Share of the income of the Liquidating
Trust.
20.12.3 Creditors who receive cash distributions from the
Liquidating Trust in excess of their tax basis in the trust unit will
recognize taxable income. The amount of taxable income is determined by
comparing the amount of cash received from the Liquidating Trust to the
Creditor's tax basis in their interest in the Liquidating Trust. Each
Creditor's interest in the Liquidating Trust is determined according to
the provisions of Section 20.15.1.
20.12.4 Whether or not a reserve is established for disputed
claims, all of the Liquidating Trust's income shall be treated as
subject to tax on a current basis.
ARTICLE 21
MEANS FOR IMPLEMENTATION OF PLAN
21.1 Merger Agreement: The Merger Agreement shall be executed on
or before the conclusion of the hearing on the confirmation of the Plan.
21.2 Merger with N-Vision: On the Effective Date, Ponder and N-Vision
will engage in a reverse merger pursuant to the terms of a Merger Agreement
substantially in the form as that attached hereto as Exhibit "1."
21.3 Cancellation of Securities and Issuance of NEWCO Common Stock: On
the Effective Date, all existing Common Stock and Preferred Stock of Ponder, and
all options, warrants, or other rights to acquire such stock, shall be canceled,
annulled and extinguished, and new certificates representing shares of NEWCO
Common Stock shall be issued.
21.4 Execution of New Instruments: On or before the Effective Date,
NEWCO shall execute and deliver such instruments, trust agreements, and other
documents as are necessary to evidence its obligations to all Classes of
Creditors under the Plan.
<PAGE>
ARTICLE 22
CREDITORS' COMMITTEE ANDPLAN ADMINISTRATION COMMITTEE
22.1 Dissolution ofCreditors'Committee: The Creditors' Committee shall
continue in existence until the Consummation Date, to exercise those powers and
perform those duties specified in section 1103 of the Bankruptcy Code, and shall
perform such other duties as it may have been assigned by the Bankruptcy Court
prior to the Consummation Date. The Creditors' Committee shall be dissolved as
of the Effective Date and the duties of the Committee and its professionals and
its members shall be deemed released (i) of all their duties, responsibilities
and obligations in connection with the Chapter 11 Case or the Plan and its
implementation, and (ii) from all claims and causes of action relating to or
arising directly or indirectly from services performed. On the Effective Date,
retention or employment of the Creditors' Committee's Professionals and other
agents shall terminate.
22.2 Creation of Plan Administration Committee:
22.2.1 On the Effective Date, the Plan Administration Committee shall
be formed and constituted and shall consist of:
1. IRI International Corp.;
2. Smith International;
3. Black Max Downhole Tools, Inc.; and
4. Weatherford, Inc.
22.2.2 In the event that a Plan Administration Committee member sells,
transfers or assigns any right to or interest in its Allowed Class 7 Claim, said
member shall be immediately removed. The remaining Plan Administration Committee
members will elect a replacement member.
22.3 Procedures: The Plan Administration Committee shall adopt bylaws
which shall provide for the governance of the Plan Administration Committee.
22.4 Function: The Plan Administration Committee shall have the
following powers and responsibilities:
22.4.1 The Plan Administration Committee shall monitor the performance
of the Liquidating Trust of its obligations under the Plan.
22.4.2 The Plan Administration Committee shall be responsible for the
termination, selection and replacement of the Trustee.
<PAGE>
22.4.3 The Plan Administration Committee shall review and either
approve or reject in its discretion the:
(a) proposals by the Trustee to borrow money or grant liens;
(b) proposals by the Trustee to sell assets with a value in
excess of $25,000;
(c) proposals to modify the Plan;
(d) proposals by the Trustee to postpone the scheduled date
of a distribution to holders of Allowed Class 7 Claims;
(e) proposals by the Trustee with respect to initiation and
prosecution of litigation, including but not limited to, claim objections; and
(f) proposals by the Trustee with respect to disposition and
settlement of any claim or litigation.
22.4.4 The Plan Administration Committee shall have such other powers
and responsibilities as set forth in this Plan and the Trust Agreement.
22.4.5 A Plan Administration Committee member shall recuse itself from
participation in decision making by the Plan Administration Committee on matters
in which there is a conflict of interest.
22.5 Duration: The Plan Administration Committee shall remain in
existence until such time as the final distributions to Allowed Class 7 Claims
under the Plan have been made by the Trust.
22.6 Compensation and Expenses: The members of the Plan Administration
Committee shall serve without compensation for their performance of services as
members of the Plan Administration Committee, except that they shall be entitled
to reimbursement of reasonable expenses by the Trust.
22.7 Retention of Professionals: The Plan Administration Committee
shall have the right to retain the services of attorneys, accountants, and other
agents which, in the discretion of the Plan Administration Committee, are
necessary to assist the Plan Administration Committee in the performance of its
duties. The fees and expenses of such Professionals shall be paid by the Trust
upon the monthly submission of bills to the Trust and the Plan Administration
Committee. The payment of the fees and expenses of the Plan Administration
Committee's retained Professionals shall be made in the ordinary course of
business and shall not be subject to the approval of the Bankruptcy Court.
<PAGE>
22.8 Liability; Indemnification: Neither the Plan Administration
Committee, nor any of its members, designees, or Professionals, nor any duly
designated agent or representative of the Plan Administration Committee, or
their respective employees, shall be liable for the act or omission of any other
member, designee, agent, or representative of the Plan Administration Committee,
nor shall any member be liable for any act or omission taken or omitted to be
taken in its capacity as a member of the Plan Administration Committee, other
than acts or omissions resulting from such member's willful misconduct or gross
negligence. The Plan Administration Committee may, in connection with the
performance of its functions, and in its sole and absolute discretion, consult
with counsel, accountants and its agents, and shall not be liable for any act
taken, omitted to be taken, or suffered to be done in accordance with advice or
opinions rendered by such Professionals. Notwithstanding such authority, the
Plan Administration Committee shall be under no obligation to consult with
counsel, accountants or its agents, and its determination to not do so shall not
result in the imposition of liability on the Plan Administration Committee, or
its members and/or designees, unless such determination is based on willful
misconduct or gross negligence. The Trust shall indemnify and hold harmless the
Plan Administration Committee and its members, designees, and Professionals, and
any duly designated agent or representative thereof (in their capacity as such),
from and against and in respect to any and all liabilities, losses, damages,
claims, costs and expenses, including, but not limited to attorneys' fees
arising out of or due to their actions or omissions, or consequences of such
actions or omissions, other than as a result of their willful misconduct or
gross negligence, with respect to the Trust or the implementation or
administration of the Plan.
ARTICLE 23
PROCEDURES FOR RESOLVING
DISPUTED CLAIMS UNDER THE PLAN
23.1 Bar Date for Objections to Claims: Except as otherwise set forth
in the Plan, objections to Claims shall be made and filed by the Trustee and/or
any other party in interest and shall be served upon the holders of such Claims,
if any, to which objections are made and filed with the Bankruptcy Court as soon
as practicable. Objections shall be filed on or prior to the Claims Objection
Deadline.
23.2 Prosecution of Objections to Claims: The Trustee shall use its
best efforts to object to, compromise and/or settle all Claims at amounts
accurately reflecting the amount of each respective Creditor's allowable Claim,
subject to reasonable litigation expense limits. The Trustee shall litigate to
judgment, settlement or withdrawal all objections that it may file. Any other
party filing an objection shall be responsible for prosecuting to judgment,
settlement or withdrawal its objections. The Trustee shall be permitted to
settle any Disputed Claims as to which objections are not timely filed by
parties in interest other than the Trustee without further notice or Court
approval. Any stipulations regarding a Claim filed by a Claimant and the Trustee
shall be deemed an amendment to any previously filed proof of claim and shall be
deemed an amendment by the Debtor to its Schedules, and any modifications or
supplements thereto. Any proposed settlement of an objection filed by a party in
interest other than the Trustee shall be consented to by the Trustee in writing
or shall be approved by the Court before becoming effective.
<PAGE>
ARTICLE 24
DISCHARGE OF DEBTOR; INJUNCTION; VESTING OF ASSETS
24.1 Discharge of Debtor: Except as otherwise provided in this Plan or
in the Confirmation Order, entry of the Confirmation Order acts as a Discharge
effective as of the Effective Date of any and all Claims against and Equity
Interests in the Debtor or any of its Assets or properties. In addition,
pursuant to the Confirmation Order the substantial consummation of the Plan on
the Effective Date acts as a Discharge effective as of the Effective Date of all
Claims and Equity Interests of any holder of a Claim against or Equity Interest
in the Debtor that is classified under this Plan and any direct or indirect
right or Claim such Person had or may have had against the Debtor. The discharge
of the Debtor shall be effective as to each Claim or Interest except as
otherwise expressly provided for in the Confirmation Order, regardless of
whether a proof of Claim or Equity Interest therefore was filed, whether the
Claim or Equity Interest is a Disputed Claim or Equity Interest or an Allowed
Claim, Allowed Interest or Allowed Administrative Claim, or whether the holder
thereof votes to accept or reject the Plan.
24.2 Injunction: Except as provided in the Plan or Confirmation Order,
on and as of the Effective Date all entities that have transferred by sale or
otherwise, currently hold or may come to hold a Claim or other debt or liability
that is Discharged or an Equity Interest or other right of an equity security
holder that is canceled pursuant to the terms of the Plan are permanently
enjoined from taking any of the following actions on account of any such
Discharged Claims, debts or liabilities or terminated Equity Interests: (a)
asserting commencing or continuing in any manner any action or other proceeding
against NEWCO or its property; (b) enforcing, attaching, collecting or
recovering in any manner any judgment, award, decree or order against NEWCO or
its property; (c) creating, perfecting or enforcing any lien or encumbrance
against NEWCO or its property; (d) asserting a setoff, right of subrogation or
recoupment right of any kind against any debt, liability or obligation due to
NEWCO or in connection with its property; and (e) commencing or continuing any
action, in any manner, in any place that does not comply with or is inconsistent
with the provisions of the Plan.
24.3 Vesting of Assets: Except as otherwise provided by the Plan, on
the Effective Date of the Plan, all of the Assets and property described in the
Conveyance Documents, including all Causes of Action, shall vest in the Trustee
in accordance with ss. 1141 of the Bankruptcy Code, subject to all liens, claims
and encumbrances of any kind or nature. Provided however that all rights of
NEWCO and property to be retained by NEWCO pursuant to the terms of the Merger
agreement remain with NEWCO and that no assets existing in N-Vision prior to the
Effective Date shall be transferred to the Trustee on account of this Plan. The
Confirmation Order shall constitute a judicial determination of Discharge of the
Debtor's liabilities, except as provided in the Plan.
<PAGE>
24.4 Release of Officers and Directors; Indemnification: On the
Effective Date Eugene L. Butler, Chairman, President and Chief Executive
Officer; Barry L. Cromeans, Vice President and Controller; Gerald L. Slaughter,
Senior Vice President and Chief Financial Officer; and Shirley G. Meyers, Vice
President and Corporate Secretary, shall be released of any and all of Debtor's
Causes of Action arising from or relating to their employment by the Debtor,
excluding actions based on gross negligence or willful misconduct. In order to
effectuate such release, NEWCO shall indemnify such current officers and
directors from any and all damages, costs (including reasonable attorneys' fees)
and other liabilities arising from or relating to such Causes of Action,
excluding actions based on gross negligence or willful misconduct. NEWCO shall
continue to maintain D&O policies with respect to such indemnities.
24.5 Releases. On the Effective Date, except as otherwise expressly
contemplated by this Plan, each holder (and trustees and agents on behalf of
each holder) of a Claim or Equity Interest and the Debtor shall be deemed to
have forever waived, released and discharged the Committee, each member of the
Committee, and each of their respective present and former agents, advisors and
professionals from any and all rights, claims and liabilities arising prior to
the Effective Date, on the Effective Date, out of or relating to such Claim or
Equity Interest of any such holder or otherwise relating to the activities of
the Committee, excluding actions based on gross negligence or wilful misconduct.
Persons deemed to have released Claims pursuant to this Section 24.5 shall be
forever precluded from asserting any such Claim against any released Person.
ARTICLE 25
MODIFICATIONS AND INTERPRETATION
OF THE PLAN; GENERAL PROVISIONS
25.1 Modification: This Plan may be altered, amended or modified by the
Debtor in the manner provided for by ss. 1127 of the Bankruptcy Code or as
otherwise permitted by law.
25.2 Headings: The headings used in this Plan are inserted for
convenience only and neither constitute a portion of this Plan nor in any manner
affect the provisions or interpretations of this Plan.
25.3 Severability: Should the Bankruptcy Court determine that any
provision in this Plan be determined to be unenforceable, either on its face or
as applied to any Claim or Equity Interest or transaction, the Debtor may modify
this Plan in accordance with Article 25.1 of this Plan so that such provision
shall not be applicable to the holder of any Claim or Equity interest. Such
determination shall in no way limit or affect the enforceability and operative
effect of any other provision within this Plan.
<PAGE>
25.4 Successors and Assigns; Transferability: The rights and
obligations of any Person named or referred to in this Plan shall inure to the
benefit of, and shall be binding upon, as the case may be, the successors and
assigns of such Person.
25.5 Governing Law: Except to the extent that the Bankruptcy Code or
Bankruptcy Rules are applicable, the rights, obligations and provisions of this
Plan shall be governed by, and construed and enforced in accordance with, the
laws of the State of Texas without giving effect to the conflicts of laws
principles thereof.
25.6 Revocation: The Debtor reserves the right to revoke and withdraw
this Plan prior to the Effective Date. If the Debtor revokes or withdraws this
Plan or if the Effective Date does not occur, then this Plan shall be deemed
null and void and in such event nothing herein shall be deemed to constitute a
waiver or release of any Claims by or against the Debtors or any other Person or
to prejudice in any manner the rights of the Debtor or any Persons in any
further proceeding involving the Debtor.
25.7 Compliance with Tax Requirements: In connection with the Plan, the
Trustee shall comply with all withholding and reporting requirements imposed by
federal, state, local and foreign taxing authorities and all distributions
hereunder shall be subject to such withholding and reporting requirements.
25.8 Compliance with Applicable Laws: If notified by any governmental
authority that it is in violation of any applicable law, rule, regulation or
order of such governmental authority relating to its business, NEWCO shall
comply with such law, rule, regulation or order; provided, however, that nothing
contained herein shall require such compliance by NEWCO where the legality or
applicability of such law, rule, regulation or order is being contested in good
faith in appropriate proceedings by NEWCO and, if appropriate, for which an
adequate reserve has been set aside on the books of NEWCO.
25.9 Business Days: In the event that any payment or distribution to be
made hereunder would otherwise be required to be made on a day that is not a
Business Day, such payment or distribution shall instead be made on the next
succeeding Business Day.
25.10 Payment of Statutory Fees: All fees payable pursuant to 28
U.S.C.ss. 1930, as determined by the Bankruptcy Court at the Confirmation
hearing, shall be paid on or before the Effective Date.
<PAGE>
25.11 Conflict: In the event that there is any conflict or
inconsistency between this plan, the Merger Agreement and/or the Disclosure
Statement, the terms and provisions of this Plan shall govern.
25.12 Notices: Except as otherwise specified in the Plan, all notices
and requests hereunder shall be given by any written means, including, but not
limited to, telex, telecopy, telegram, first class mail, express mail or similar
overnight delivery service and hand-delivered letter; and any such notice or
request shall be deemed to have been given when received. Notices shall be given
as follows:
TO DEBTOR, IN CARE OF:
Sheinfeld, Maley & Kay, P.C.
Attention: Joel P. Kay, Esq.
---------
1001 Fannin Street, Suite 3700
Houston, Texas 77002-6797
TO CREDITORS' COMMITTEE:
Ware, Snow, Fogel & Jackson, L.L.P.
Attention: Phil F. Snow, Esq.
---------
1111 Bagby, 49th Floor
Houston, Texas 77002
25.13 Computation of Time: In computing any time prescribed by this Plan,
the day of the act, event or default from which the designated period of time
begins to run shall not be included.The last day of the period so computed shall
be included, unless it is a Saturday, a Sunday, or a "legal holiday" as
defined in Bankruptcy Rule 9006(a), in which event the period runs until the
end of the next day which is not one of the aforementioned days.
25.14 Consent and Ratification: Fishing Tools, Inc. and Ponder Energy
Services, Inc. consent to and agree to be bound by the terms of the Plan.
ARTICLE 26
PROVISIONS FOR RETENTION OF JURISDICTION BY THE
BANKRUPTCY COURT FOR SUPERVISION OF CONSUMMATION
The Bankruptcy Court shall retain jurisdiction over all matters arising
under, or arising in, or relating to the Chapter 11 Case or this Plan to the
fullest extent permitted by 28 U.S.C. ss. 1334 to hear, and by 28 U.S.C. ss. 157
to determine, all proceedings in respect thereof, including, but not limited to,
proceedings for supervision of the Plan. Specifically, but without limitation,
and if applicable law provides, the Bankruptcy Court shall have jurisdiction:
<PAGE>
(a) to hear and determine any and all objections or other matters
relating to the allowance of Claims including,without limitation, Administrative
Claims;
(b) to hear and determine any and all applications for allowance and
payment of fees and expenses made by attorneys and other professionals pursuant
to Sections 330 or 503 of the Bankruptcy Code, or for payment of any other fees
or expenses authorized to be paid or reimbursed by the Debtor pursuant to
provisions within the Bankruptcy Code, and any objections thereto;
(c) to hear and determine any and all pending applications for
rejection, assumption or assumption and assignment, as the case may be, of
unexpired leases and executory contracts to which the Debtor is a party or with
respect to which it may be liable, any and all Claims arising therefrom; and any
other issue that may arise under Section 365 of the Bankruptcy Code;
(d) to hear and determine any and all motions, applications, adversary
proceedings and contested or litigated matters regarding Claims or interest,
accrued prior to the Confirmation Date, as to assets revested pursuant to ss.
1141 of the Bankruptcy Code;
(e) to consider and approve modifications of or amendments to the Plan;
(f) to hear and determine disputes regarding the implementation or
consummation of the Plan;
(g) to hear and determine all controversies, disputes, settlements, and
suits which may arise in connection with the interpretation or enforcement of
this Plan, or in connection with the enforcement of remedies under this Plan;
(h) to hear and determine during the period in which the Chapter 11
Case remains open all controversies, disputes and issues relating to the
Discharge of the Debtor;
<PAGE>
(i) to consider and approve compromises, settlements and
adjudications of any objections to Claims;
(j) to estimate disputed, contingent and unliquidated Claims
for purposes of distribution under the Plan;
(k) to correct any defect, cure any omission or reconcile any
inconsistency in the Plan;
(l) to resolve any issues or disputes relating to the revesting of
title, sale, or liquidation of Assets in accordance with provisions within the
Plan;
(m) to enter a final decree closing the Chapter 11 Case;
(n) to hear and determine matters concerning state, local and
federal taxes in accordance with Sections 346, 505 and 1146 of the Bankruptcy
Code;
(o) to hear and determine any matters arising in connection with or
related to the Plan, the Disclosure Statement, the Confirmation Order or
any contract, instrument, conveyance, release or other agreement or document
created in connection with the Plan, the Disclosure Statement or the
Confirmation Order, including the Plan Documents;
(p) to hear and determine any and all adversary proceedings, motions,
applications and contested or litigated matters, including, but not limited to,
all claims and causes of action pursuant to 11 U.S.C. ss.ss. 510, 542, 543, 544,
545, 546, 547, 548, 549, 550 and 551, as well as any claim, cause of action or
right described elsewhere in the Plan or in the Disclosure Statement;
(q) hear and determine all Causes of Action filed after the Effective
Date by the Trustee;
(r) to enforce all orders, judgments, injunctions, releases,
exceptions,indemnifications and rulings entered in connection with this Chapter
11 case;
(s) to hear and determine all matters related to the property of
Debtor's Chapter 11 estate or the property and rights of the Liquidating Trust
from and after the Effective Date;
<PAGE>
(t) to hear and determine any other matter not inconsistent with the
Bankruptcy Code and title 28 of the United States Code that may arise in
connection with or related to this Plan; and
(u) to hear and determine such other matters as may arise in connection
with the Plan or the Confirmation Order.
DATED: November ____, 2000
PONDER INDUSTRIES, INC.,
Debtor and Debtor in Possession
By:
-------------------------------------
Eugene L. Butler
Chairman of the Board and President
SHEINFELD, MALEY & KAY, P.C.
By:
-------------------------------------
Joel P. Kay, Esq.
Texas Bar No. :11121000
Robert K. Lum, Esq.
Texas Bar No.: 24002503
SHEINFELD, MALEY & KAY, P.C.
1001 Fannin Street, Suite 3700
Houston, Texas 77002-6796
Telephone: (713) 658-8881
Telecopier: (713) 658-9756
ATTORNEYS FOR PONDER INDUSTRIES, INC.
AGREED TO:
FISHING TOOLS, INC.
By:
----------------------------------
Eugene L. Butler, President
PONDER ENERGY SERVICES, INC.
By:
----------------------------------
Eugene L. Butler, President
