UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 28, 1999
WIRELESS ONE, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 0-26836 72-1300837
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
2506 Lakeland Drive, Jackson, Mississippi 39208
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(601) 936-1515
1080 River Oaks Drive, Suite A150, Jackson, Mississippi
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
INFORMATION TO BE INCLUDED IN THE REPORT
ITEM 3. BANKRUPTCY OR RECEIVERSHIP.
On August 5, 1999, Wireless One, Inc. (the "Company") filed a First
Amended Plan of Reorganization with the United States Bankruptcy Court for the
district of Delaware (the "Bankruptcy Court"). The First Amended Plan of
Reorganization amended the initial Plan of Reorganization (the "Original Plan")
filed with the Bankruptcy Court on or about March 15, 1999.
On October 28, 1999, the Bankruptcy Court entered an order confirming the
Amended Plan of Reorganization, as Modified (the "Amended Plan of
Reorganization"). The Amended Plan of Reorganization is attached as Exhibit
99.1 hereto and is incorporated herein by reference. Effectiveness of the
Amended Plan of Reorganization is subject to the satisfaction or waiver of
conditions set forth in the Amended Plan of Reorganization.
The following summary of the material features of the Amended Plan of
Reorganization is qualified in its entirety by reference to the Amended Plan of
Reorganization. Capitalized terms used but not defined in the following
summary have the meanings provided in the Amended Plan of Reorganization.
SUMMARY OF CLASSIFICATION AND TREATMENT
OF CLAIMS AND EQUITY INTERESTS UNDER
THE AMENDED PLAN OF REORGANIZATION
<TABLE>
<CAPTION>
Type of Claim or Estimated
Class Equity Interest Treatment Recovery
------- ------------------- ------------------ ------------
<S> <C> <C> <C>
-- Administrative Expense Allowed Administrative Expense 100%
Claims Claims are to be paid in full, in
Cash, or in accordance with the
terms and conditions of
transactions or agreements
relating to obligations incurred
in the ordinary course of
business during the pendency of
the Chapter 11 Case or assumed by
the Debtor in Possession.
-- Priority Tax Claims Reorganized Wireless shall either 100%
(i) pay to each holder of an
Allowed Priority Tax Claim that
is due and payable on or before
the Effective Date Cash in an
amount equal to such Allowed
Priority Tax Claim or (ii)
provide such Claims other
treatment as may be permitted
under section 1129(a)(9) of the
Bankruptcy Code. All Allowed
Priority Tax Claims which are not
due and payable on or before the
Effective Date shall be paid in
the ordinary course of business
in accordance with the terms
thereof or accorded such other
treatment as may be permitted
under section 1129(a)(9) of the
Bankruptcy Code.
<PAGE>
1 Priority Non-Tax Claims Unimpaired; each Allowed Priority 100%
(to be paid in the ordinary Non-Tax Claim shall be unimpaired
course of business) in accordance with section 1124
of the Bankruptcy Code. All
Allowed Priority Non-Tax Claims
which are not due and payable on
or before the Effective Date
shall be paid in the ordinary
course of business in accordance
with the terms thereof.
2 Secured Claims Unimpaired; each Allowed Secured 100%
Claim shall be unimpaired in
accordance with section 1124 of
the Bankruptcy Code.
3 BTA Installment Note Claims Unimpaired; the BTA Installment 100%
Note Claims shall be unimpaired
in accordance with section 1124
of the Bankruptcy Code.
4 Unsecured Claims Unimpaired; each Allowed 100%
Unsecured Claim shall be
unimpaired in accordance with
section 1124 of the Bankruptcy
Code. All Allowed Unsecured
Claims which are not due and
payable on or before the
Effective Date shall be paid in
the ordinary course of business
in accordance with the terms
thereof.
5 Other Old Senior Note Claims Impaired; the Old Senior Notes 100%
shall be cancelled and holders on
the Record Date of Allowed Other
Old Senior Note Claims shall be
paid in full, in Cash the amount
of outstanding principal and
unpaid interest owed in respect
thereof on the Effective Date, or
accreted value as of the
Effective Date, as applicable.
6 MCI WorldCom Claims and Impaired; MCI WorldCom shall 92% (1)
Interests receive the New Common Stock
7 Indemnity Claims Impaired; holders of Allowed n/a
Indemnity Claims will be entitled
to assert such Claims against the
Debtor, but only to the extent of
the coverage available under any
applicable directors' and
officers' insurance.
8 Old Common Stock Interests Impaired; Old Common Stock $1.32 per share
Interests shall be cancelled and (less the
holders on the Record Date of exercise price in
Allowed Old Common Stock the case of
Interests shall receive a pro certain
rata share of $22,611,100 (less exercisable
the exercise price in the case of options and
certain options and warrants). warrants)
9 Other Equity Interests Impaired; Other Equity Interests 0%
shall be cancelled and the
holders of such Other Equity
Interests shall receive no
distribution in respect thereof.
</TABLE>
- ------------------------
(1) Based upon an assumed total enterprise value of $420 million.
<PAGE>
On the Effective Date, the Company will have 1000 shares of common stock
issued and outstanding, all of which will be owned by MCI WorldCom. No shares
of common stock will be reserved for future issuance in respect of any claims
or interests filed and allowed under the Amended Plan of Reorganization, as all
such allowed claims and interests will receive cash payments.
The following Unaudited Condensed Consolidated Balance Sheet of Wireless
One, Inc. is as of July 31, 1999, as filed with the Bankruptcy Court:
<TABLE>
<CAPTION>
UNAUDITED
7/31/99
-------------
<S> <C>
Current assets:
Cash and cash equivalents 14,529,937
Subscriber receivables, net 1,178,449
Accrued interest and other receivables 751,334
Prepaid expenses 483,949
-------------
Total current assets 16,943,669
Property and equipment, net 71,549,199
Intangibles, net 115,467,277
Other assets 15,125,705
-------------
Total assets 219,085,850
=============
Liabilities not subject to compromise:
Current maturities of long-term debt 3,145,038
Accounts payable 1,799,225
Deferred Revenue 2,727,079
Accrued expenses 6,003,687
Accrued interest 1,855,258
-------------
Total current liabilities 15,530,287
Long-term debt, less current portion 54,506,375
Liabilities Subject to Compromise 323,510,784
-------------
Total liabilities 393,547,446
-------------
Stockholders' equity:
Preferred stock -
Common stock 169,585
Additional paid-in capital 119,783,607
Accumulated deficit (294,414,788)
-------------
Total stockholders' equity (174,461,596)
-------------
Total liabilities and stockholders' equity 219,085,850
=============
</TABLE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
99.1 First Amended Plan of Reorganization, as Modified, dated
October 22, 1999.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
WIRELESS ONE, INC.,
a Delaware corporation
Date: November 8, 1999 By: /S/ THOMAS G. NOULLES
Thomas G. Noulles
Senior VP and General Counsel
<PAGE>
EXHIBIT INDEX
EXHIBITS
(c) Exhibits.
99.1 First Amended Plan of Reorganization, as Modified, dated October 22,
1999.
EXHIBIT 99.1
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
_____________________________________________
:
In re: :
: CHAPTER 11
WIRELESS ONE, INC., :
: Case No. 99-295 (PJW)
Debtor. :
:
_____________________________________________
DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE, AS MODIFIED
LATHAM & WATKINS MORRIS, NICHOLS, ARSHT & TUNNELL
Co-Counsel for Wireless One, Inc. Co-Counsel for Wireless One, Inc.
885 Third Avenue, Suite 1000 1201 North Market Street
New York, New York 10022 P.O. Box 1347
(212) 906-1200 Wilmington, Delaware 19899-1347
(302) 658-9200
Dated: October 22, 1999
<PAGE>
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS AND INTERPRETATION....................................1
1.1. Definitions.............................................................1
1.2. Interpretation; Application of Definitions and Rules of Construction...11
SECTION 2. PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSE
CLAIMS AND PRIORITY TAX CLAIMS..............................11
2.1. Administrative Expense Claims..........................................11
2.2. Priority Tax Claims....................................................11
SECTION 3. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS....................12
SECTION 4. PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY INTERESTS..........12
4.1. Priority Non-Tax Claims (Class 1)......................................12
4.2. Secured Claims (Class 2)...............................................12
4.3. BTA Installment Note Claims (Class 3)..................................12
4.4. Unsecured Claims (Class 4).............................................13
4.5. Other Old Senior Note Claims (Class 5).................................13
4.6. MCI WorldCom Claims and Interests (Class 6)............................13
4.7. Indemnity Claims (Class 7).............................................13
4.8. Old Common Stock Interests (Class 8)...................................14
4.9. Other Equity Interests (Class 9).......................................14
4.10. Alternative Treatment for Holders of Allowed Claims...................14
SECTION 5. IDENTIFICATION OF CLASSES OF CLAIMS AND INTERESTS
IMPAIRED; ACCEPTANCE OR REJECTION OF THE PLAN...............14
5.1. Holders of Claims and Equity Interests Entitled to Vote................14
5.2. Holders of Claims and Equity Interests Not Entitled to Vote............14
SECTION 6. MEANS OF IMPLEMENTATION..........................................15
6.1. Distributions..........................................................15
6.2. Issuance of New Securities.............................................15
6.3. Cash Payments by MCI WorldCom..........................................15
6.4. Exit Financing.........................................................15
6.5. Bankruptcy Incentive Compensation......................................15
6.6. Cancellation of Existing Securities and Agreements.....................15
6.7. Corporate Action.......................................................16
6.8. Restated Certificate of Incorporation..................................16
SECTION 7. PROVISIONS GOVERNING DISTRIBUTIONS...............................16
7.1. Date of Distributions..................................................16
7.2. Disbursing Agent.......................................................16
<PAGE>
7.3. Surrender of Instruments...............................................17
7.4. Compensation of Professionals..........................................17
7.5. Delivery of Distributions..............................................17
7.6. Manner of Payment Under the Plan.......................................18
7.7. Setoffs and Recoupment.................................................18
7.8. Distributions After Effective Date.....................................18
7.9. Rights and Powers of Disbursing Agent..................................18
7.10. Exculpation...........................................................18
SECTION 8. PROCEDURES FOR TREATING DISPUTED CLAIMS UNDER THE PLAN...........19
8.1. Disputed Claims Process................................................19
8.2. No Distributions Pending Allowance.....................................19
8.3. Distributions After Allowance..........................................19
8.4. Voting Rights of Holders of Disputed Claims............................19
SECTION 9. PROVISIONS GOVERNING EXECUTORY CONTRACTS AND UNEXPIRED LEASES....20
9.1. Assumption or Rejection of Contracts and Leases........................20
9.2. Amendments to Schedule; Effect of Amendments...........................20
9.3. Bar to Rejection Damage Claims.........................................20
9.4. Indemnification Obligations............................................21
SECTION 10. CONDITIONS PRECEDENT TO EFFECTIVE DATE..........................21
10.1. Conditions Precedent to Effective Date of the Plan....................21
10.2. Waiver of Conditions Precedent........................................22
SECTION 11. EFFECT OF CONFIRMATION..........................................22
11.1. Vesting of Assets.....................................................22
11.2. Binding Effect........................................................22
11.3. Discharge of Debtor...................................................22
11.4. Term of Injunctions or Stays..........................................22
11.5. Indemnification Obligations...........................................23
11.6. Releases..............................................................23
SECTION 12. WAIVER OF AVOIDANCE ACTION CLAIMS...............................23
SECTION 13. RETENTION OF JURISDICTION.......................................23
SECTION 14. MISCELLANEOUS PROVISIONS........................................25
14.1. Payment of Statutory Fees.............................................25
14.2. Retiree Benefits......................................................25
14.3. Administrative Expenses Incurred After the Confirmation Date..........25
14.4. Section 1125(e) of the Bankruptcy Code................................25
14.5. Compliance with Tax Requirements......................................25
14.6. Severability of Plan Provisions.......................................25
<PAGE>
14.7. Notices...............................................................26
14.8. Governing Law.........................................................27
14.9. Binding Effect........................................................28
<PAGE>
DEBTOR'S PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Wireless One, Inc. proposes the following chapter 11 Plan of
Reorganization, dated as of October 22, 1999, pursuant to section 1121(a)
of the Bankruptcy Code:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1. Definitions.
The following terms used herein shall have the respective meanings defined
below:
<TABLE>
<CAPTION>
<S> <C>
1995 Senior Notes means the 13% Senior Notes Due 2003 issued by the
Debtor having an aggregate principal amount of
$150 million.
1996 Senior Discount Notes means the 13 1/2 % Senior Discount Notes Due 2006
issued by the Debtor having an aggregate principal
amount at maturity of $239,252,000 and an accreted
value on the Petition Date of $172.4 million.
Administrative Expense Claim means any right to payment constituting a cost or
expense of administration of the Chapter 11 Case
allowed under sections 503(b) and 507(a)(l) of the
Bankruptcy Code, including, without limitation,
(a) any actual and necessary costs and expenses of
preserving the Debtor's estate, (b) any actual and
necessary costs and expenses of operating the
Debtor's business in the ordinary course of
business, (c) any indebtedness or obligations
incurred or assumed by the Debtor in Possession
during the Chapter 11 Case in the ordinary course
of business, (d) any allowances of compensation
and reimbursement of expenses to the extent
allowed by Final Order under section 330 or 503 of
the Bankruptcy Code, and (e) any fees or charges
assessed against the Debtor's estate under section
1930, title 28, United States Code.
Aggregate Exercise Proceeds means the aggregate exercise price payable if all
of the Old Unexercised Options and Warrants were
to be exercised.
<PAGE>
Aggregate Option and Warrant Shares means the number of shares of common stock of the
Debtor which the holders of Old Unexercised
Options and Warrants would be entitled to purchase
upon exercise of such options and warrants.
Alex. Brown means BT Alex. Brown, Inc. or any successor or
assign thereof.
Alex. Brown Stipulation means that certain stipulation among BT Alex.
Brown, the Debtor and the unofficial committee of
certain holders of Old Senior Notes dated as of
March 31, 1999.
Allowed means, with reference to any Claim or Equity
Interest, (a) any Claim or Equity Interest as to
which no objection to allowance has been
interposed on or before the Confirmation Date or
such other applicable period of limitation set
forth herein, fixed by the Bankruptcy Code, the
Bankruptcy Rules, or the Bankruptcy Court, or as
to which any objection has been determined by a
Final Order to the extent such objection is
determined in favor of the respective holder, (b)
any Claim or Equity Interest as to which the
liability of the Debtor and the amount thereof are
determined by final order of a court of competent
jurisdiction other than the Bankruptcy Court or
(c) any Claim or Equity Interest expressly allowed
hereunder. Unless otherwise specified in the Plan
or in a Final Order of the Bankruptcy Court
allowing such claim, "Allowed" in reference to a
Claim shall not include (a) interest on the amount
of such Claim accruing from and after the Petition
Date, (b) punitive or exemplary damages or (c) any
fine, penalty or forfeiture.
BTA Installment Notes means approximately $21.1 million aggregate
principal amount of obligations of the Debtor's
wholly-owned direct and indirect subsidiaries to
the United States Government in connection with
the purchase of certain licenses to transmit
signals in certain basic trading areas which are
regularly paid by the Debtor.
<PAGE>
BTA Installment Note Claims means Claims, if any, arising under or in
connection with the BTA Installment Notes or in
connection with the purchase of certain licenses
to transmit signals in certain basic trading areas
which relate to the BTA Installment Notes.
Bankruptcy Code means title 11, United States Code, as amended
from time to time, as applicable to the Chapter 11
Case.
Bankruptcy Court means the United States District Court for the
District of Delaware having jurisdiction over the
Chapter 11 Case and, to the extent of any
reference made under section 157, title 28, United
States Code, the unit of such District Court
having jurisdiction over the Chapter 11 Case under
section 151, title 28, United States Code.
Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as
promulgated by the United States Supreme Court
under section 2075, title 28, United States Code,
as amended from time to time, applicable to the
Chapter 11 Case, and any Local Rules of the
Bankruptcy Court.
Bondholder Litigation Claim means a Claim (a) arising from rescission of a
purchase or sale of a debt security of the Debtor,
(b) for damages arising from the purchase or sale
of such a debt security or (c) for reimbursement
or contribution allowed under section 502 of the
Bankruptcy Code on account of a Claim for damages
or rescission arising out of a purchase or sale of
a debt security of the Debtor.
Business Day means any day other than a Saturday, a Sunday or
any other day on which banking institutions in New
York, New York are required or authorized to close
by law or executive order.
Cash means legal tender of the United States of
America.
<PAGE>
Chapter 11 Case means the Debtor's voluntary case filed with the
Bankruptcy Court under Chapter 11 of the
Bankruptcy Code.
Charter means the Restated Certificate of Incorporation of
Reorganized Wireless, which shall be in
substantially the form annexed as Exhibit 1 to the
Plan.
Claim means (a) any right to payment from the Debtor,
whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured, known or
unknown, or (b) any right to an equitable remedy
for breach of performance if such breach gives
rise to a right of payment from the Debtor,
whether or not such right to an equitable remedy
is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured,
or unsecured, known or unknown.
Class means any group of substantially similar Claims or
Equity Interests classified by the Plan pursuant
to section 1129(a)(l) of the Bankruptcy Code.
Collateral means any property or interest in property of the
Debtor's estate subject to a Lien to secure the
payment or performance of a Claim, which Lien is
not subject to avoidance under the Bankruptcy
Code.
Confirmation Date means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on
its docket.
Confirmation Hearing means the hearing to be held by the Bankruptcy
Court regarding confirmation of the Plan, as such
hearing may be adjourned or continued from time to
time.
Confirmation Order means the order of the Bankruptcy Court confirming
the Plan, which shall be in a form reasonably
acceptable to the Debtor and MCI WorldCom.
<PAGE>
Debtor means Wireless One, Inc., a Delaware corporation,
the debtor in the Chapter 11 Case.
Debtor in Possession means the Debtor in its capacity as a debtor in
possession in the Chapter 11 Case under sections
1107(a) and 1108 of the Bankruptcy Code.
DGCL means the General Corporation Law of the State of
Delaware, as amended from time to time.
Disallowed means, when used with respect to a Claim or Equity
Interest, a Claim or Equity Interest that has been
disallowed by Final Order.
Disbursing Agent means any entity in its capacity as a disbursing
agent under Sections 7.2 and 7.10 of the Plan.
Disclosure Statement means the disclosure document relating to the
Plan, including, without limitation, all exhibits
and schedules thereto as approved by the
Bankruptcy Court pursuant to section 1125 of the
Bankruptcy Code.
Disputed Claim means, with respect to a Claim or Equity Interest,
any such Claim or Equity Interest proof of which
was filed with the Bankruptcy Court and (a) which
has been or hereafter is listed on the Schedules
as unliquidated, disputed or contingent, and which
has not been resolved by written agreement of the
parties or an order of the Bankruptcy Court, or
(b) as to which the Debtor or any other party in
interest has interposed a timely objection in
accordance with the Bankruptcy Code and the
Bankruptcy Rules, which objection has not been
withdrawn or determined by a Final Order. Prior
to (i) the time an objection has been filed and
(ii) the expiration of the time within which to
object to such Claim or Equity Interest set forth
herein or otherwise established by order of the
Bankruptcy Court, a Claim or Equity Interest shall
be considered a Disputed Claim or Disputed Equity
Interest to the extent that the amount of the
Claim or Equity Interest specified in a proof of
Claim or Equity Interest exceeds the amount of the
<PAGE>
Claim or Equity Interest scheduled by the Debtor
as not disputed, contingent or unliquidated.
Effective Date means the first Business Day on which all the
conditions precedent to the Effective Date
specified in Section 10.1 of the Plan shall have
been satisfied or waived as provided in Section
10.2 of the Plan; provided, however, that if a
stay of the Confirmation Order is in effect, the
Effective Date shall be the first Business Day
after such stay is no longer in effect.
Equity Interest means the interest of any holder of equity
securities of the Debtor represented by any issued
and outstanding shares of common or preferred
stock or other instrument evidencing a present
ownership interest in the Debtor, whether or not
transferable, or any option, warrant or right,
contractual or otherwise, to acquire, in
connection with or related to any such interest,
including, without limitation, any rights with
respect to the Debtor under any registration
rights agreement or stockholders agreement to
which the Debtor is a party.
Final Order means an order or judgment of the Bankruptcy Court
entered by the Clerk of the Bankruptcy Court on
the docket in the Chapter 11 Case, which has not
been reversed, vacated or stayed and as to which
(a) the time to appeal, petition for certiorari or
move for a new trial, reargument or rehearing has
expired and as to which no appeal, petition for
certiorari or other proceedings for a new trial,
reargument or rehearing shall then be pending or
(b) if an appeal, writ of certiorari, new trial,
reargument or rehearing thereof has been sought,
such order or judgment of the Bankruptcy Court
shall have been affirmed by the highest court to
which such order was appealed, or certiorari shall
have been denied or a new trial, reargument or
rehearing shall have been denied or resulted in no
modification of such order, and the time to take
any further appeal, petition for certiorari or
move for a new trial, reargument or rehearing
shall have expired; provided, however, that the
<PAGE>
possibility that a motion under Rule 60 of the
Federal Rules of Civil Procedure, or any analogous
rule under the Bankruptcy Rules, may be filed
relating to such order, shall not cause such order
not to be a Final Order.
Indemnity Claim means a Claim of a director or officer of the
Debtor that was not a director or officer,
respectively, at any time on or after August 1,
1998 for any obligations of the Debtor to
indemnify directors or officers against any
obligations pursuant to the Debtor's certificate
of incorporation, by-laws, contract, applicable
state law, any combination of the foregoing, or
otherwise.
Lien means any charge against, encumbrance upon or
other interest in property, the purpose of which
is to secure payment of a debt or performance of
an obligation.
MCI WorldCom means MCI WORLDCOM, Inc. and any subsidiaries or
affiliates thereof.
MCI WorldCom Claims and Interests means the Claims and Equity Interests held
directly or indirectly by MCI WorldCom, other than
a Claim of MCI WorldCom associated with the
Postpetition Financing.
MCI WorldCom Old Senior Notes means Old Senior Notes held directly or indirectly
by MCI WorldCom.
New Common Stock means the shares of common stock of Reorganized
Wireless to be issued and outstanding as of the
Effective Date.
Old Common Stock means the issued and outstanding common stock of
the Debtor other than such common stock as is
included among MCI WorldCom Claims and Interests.
Old Common Stock Interest means an Equity Interest represented by shares of
Old Common Stock and the Old Unexercised Options
and Warrants.
<PAGE>
Old Common Stock Share Amount means an amount equal to (x) $22,611,110 plus the
Aggregate Exercise Proceeds divided by (y) the
number of shares of Old Common Stock plus the
Aggregate Option and Warrant Shares.
Old Indentures means (i) that certain indenture with respect to
the 1995 Senior Notes dated as of October 24, 1995
between the Debtor and United States Trust Company
of New York, as trustee, as amended by a
supplemental indenture dated July 26, 1996, and as
further amended by a second supplemental indenture
dated August 24, 1998, and (ii) that certain
indenture with respect to the 1996 Senior Discount
Notes dated as of August 12, 1996 between the
Debtor and United States Trust Company of New
York, as trustee, as amended by a supplemental
indenture dated August 24, 1998.
Old Senior Notes means, collectively, the 1995 Senior Notes and the
1996 Senior Discount Notes or the Old Indentures.
Old Unexercised Options and Warrants means the options and warrants to purchase shares
of the common stock of the Debtor (other than such
options and warrants as are included among MCI
WorldCom Claims and Interests) which (i) are
exercisable as of the Effective Date and (ii) have
an exercise price that is less than the amount
derived by dividing (x) $22,611,110 by (y) the
total number of issued and outstanding shares of
common stock of the Debtor (other than such stock
as is included among MCI WorldCom Claims and
Interests) assuming that all such options and
warrants have been exercised.
Other Equity Interest means an Equity Interest in the Debtor, including
warrants and options, other than an Old Common
Stock Interest.
Other Old Senior Notes means Old Senior Notes other than MCI WorldCom Old
Senior Notes.
Other Old Senior Note Claim means a Claim arising under or in connection with
the Other Old Senior Notes or the Old Indentures
in respect thereof.
<PAGE>
Petition Date means February 11, 1999, the date on which the
Debtor commenced the Chapter 11 Case.
Plan means this Plan of Reorganization Under Chapter 11
of the Bankruptcy Code dated as of August 5, 1999,
including, without limitation, the exhibits and
schedules hereto, as the same may be amended or
modified from time to time in accordance with the
provisions of the Bankruptcy Code and the terms
hereof.
Postpetition Financing means that certain postpetition financing facility
between the Debtor and MCI WorldCom approved by
the Bankruptcy Court on July 20, 1999.
Priority Non-Tax Claim means any Claim other than an Administrative
Expense Claim or a Priority Tax Claim, entitled to
priority in payment under section 507(a) of the
Bankruptcy Code.
Priority Tax Claim means any Claim of a governmental unit of the kind
entitled to priority in payment as specified in
sections 502(i) and 507(a)(8) of the Bankruptcy
Code.
Rejection Claim means any Claim against the Debtor arising from
the rejection of any executory contract or
unexpired lease, including any Claim of (a) a
lessor for damages resulting from the rejection of
a lease of real property as any such claim shall
be calculated in accordance with section 502(b)(6)
of the Bankruptcy Code or (b) an employee for
damages resulting from the rejection of an
employment agreement as any such Claim shall be
calculated in accordance with section 502(b)(7) of
the Bankruptcy Code.
Reorganized Wireless means the Debtor, as it will be reorganized as of
the Effective Date in accordance with the Plan.
<PAGE>
Schedules means the schedules of assets and liabilities and
the statement of financial affairs filed by the
Debtor under section 521 of the Bankruptcy Code,
Bankruptcy Rule 1007 and the Official Bankruptcy
Forms of the Bankruptcy Rules as such schedules
and statements have been or may be supplemented or
amended through the Confirmation Date.
Secured Claim means a Claim secured by a Lien on Collateral to
the extent of the value of such Collateral (i) as
set forth in the Plan, (ii) as agreed to by the
holder of such Claim and the Debtor or (iii) as
determined by a Final Order in accordance with
section 506(a) of the Bankruptcy Code or, in the
event that such Claim is subject to setoff under
section 553 of the Bankruptcy Code, to the extent
of such setoff.
Stockholder Litigation Claim means a Claim (a) arising from rescission of a
purchase or sale of an equity security of the
Debtor, (b) for damages arising from the purchase
or sale of such equity security or (c) for
reimbursement or contribution allowed under
section 502 of the Bankruptcy Code on account of a
Claim for damages or rescission arising out of a
purchase or sale of an equity security of the
Debtor.
Trade Claim means an Unsecured Claim for goods, materials or
services provided to the Debtor or rendered to the
Debtor in the ordinary course of business prior to
the Petition Date. A Trade Claim shall not
include an Old Senior Note Claim or MCI WorldCom
Claims and Interests.
Unsecured Claim means any Claim against the Debtor that is not an
Administrative Expense Claim, a Priority Non-Tax
Claim, a Priority Tax Claim, an Old Senior Note
Claim, a BTA Installment Note Claim, MCI Claims
and Interests or a Secured Claim.
</TABLE>
<PAGE>
1.2. Interpretation; Application of Definitions and Rules of
Construction.
Unless otherwise specified, all section, schedule or exhibit
references in the Plan are to the respective section in or schedule or
exhibit to, the Plan, as the same may be amended, waived or modified from
time to time. The words "herein," "hereof," "hereto," "hereunder" and
other words of similar import refer to the Plan as a whole and not to any
particular section, subsection or clause contained in the Plan. A term used
herein that is not defined herein shall have the meaning assigned to
that term in the Bankruptcy Code. The rules of construction contained in
section 102 of the Bankruptcy Code shall apply to the construction of the
Plan. The headings in the Plan are for convenience of reference only and
shall not limit or otherwise affect the provisions hereof.
SECTION 2. PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSE CLAIMS
AND PRIORITY TAX CLAIMS
2.1. Administrative Expense Claims.
On the Effective Date, except to the extent that a holder of an
Allowed Administrative Expense Claim agrees to a different treatment of
such Administrative Expense Claim, Reorganized Wireless shall pay to each
holder of an Allowed Administrative Expense Claim Cash in an amount equal
to such Allowed Administrative Expense Claim; provided, however, that
Allowed Administrative Expense Claims representing liabilities incurred in
the ordinary course of business by the Debtor in Possession or liabilities
arising under loans or advances to or other obligations incurred by the
Debtor in Possession, whether or not incurred in the ordinary course of
business, shall be assumed and paid by Reorganized Wireless in the ordinary
course of business, consistent with past practice and in accordance with
the terms and subject to the conditions of any agreements governing,
instruments evidencing or other documents relating to such transactions.
The Postpetition Financing shall be treated in accordance with
its terms pursuant to section 6.4 hereof.
2.2. Priority Tax Claims.
Except to the extent that a holder of an Allowed Priority Tax Claim
agrees to a different treatment of such Allowed Priority Tax Claim,
Reorganized Wireless shall either (i) on the Effective Date pay to each
holder of an Allowed Priority Tax Claim that is due and payable on or
before the Effective Date Cash in an amount equal to such Allowed Priority
Tax Claim, or (ii) provide such other treatment as may be permitted under
Section 1129(a)(9) of the Bankruptcy Code to holders of Allowed Priority
Tax Claims. All Allowed Priority Tax Claims that are not due and payable
on or before the Effective Date shall be paid in the ordinary course of
business in accordance with the terms thereof or accorded such other
treatment as may be permitted under Section 1129(a)(9) of the Bankruptcy
Code.
<PAGE>
SECTION 3. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
Claims against and Equity Interests in the Debtor are divided into
the following Classes:
Class 1 -- Priority Non-Tax Claims
Class 2 -- Secured Claims
Class 3 -- BTA Installment Note Claims
Class 4 -- Unsecured Claims
Class 5 -- Other Old Senior Note Claims
Class 6 -- MCI WorldCom Claims and Interests
Class 7 -- Indemnity Claims
Class 8 -- Old Common Stock Interests
Class 9 -- Other Equity Interests
SECTION 4. PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY INTERESTS
4.1. Priority Non-Tax Claims (Class 1).
On the Effective Date, except to the extent that a holder of an
Allowed Priority Non-Tax Claim agrees to a different treatment of such
Allowed Priority Non-Tax Claim, each Allowed Priority Non-Tax Claim shall
be unimpaired in accordance with section 1124 of the Bankruptcy Code. All
Allowed Priority Non-Tax Claims which are not due and payable on or before
the Effective Date shall be paid in the ordinary course of business in
accordance with the terms thereof.
4.2. Secured Claims (Class 2).
On the Effective Date, except to the extent that a holder of an
Allowed Secured Claim agrees to a different treatment of such Allowed
Secured Claim, each Allowed Secured Claim shall be reinstated or rendered
unimpaired in accordance with section 1124 of the Bankruptcy Code. All
Allowed Secured Claims which are not due and payable on or before the
Effective Date shall be paid in the ordinary course of business in
accordance with the terms thereof.
4.3. BTA Installment Note Claims (Class 3).
Each BTA Installment Note Claim shall be Allowed as of the Petition
Date in the amount of outstanding principal plus accrued and unpaid
interest owed in respect thereof on the Petition Date. On the Effective
Date, each holder of an Allowed BTA Installment Note Claim shall be
<PAGE>
reinstated or rendered unimpaired in accordance with section 1124 of the
Bankruptcy Code. All Allowed BTA Installment Note Claims which are not due
and payable on or before the Effective Date shall be paid in the ordinary
course of business in accordance with the terms thereof.
4.4. Unsecured Claims (Class 4).
Each Allowed Unsecured Claim shall be rendered unimpaired in
accordance with section 1124 of the Bankruptcy Code. All Allowed
Unsecured Claims which are not due and payable on or before the Effective
Date shall be paid in the ordinary course of business in accordance with
the terms thereof.
In any event, all Allowed Claims in Class 4 thathave become
due and payable on or before the Effective Date (unless previously paid)
will be paid in full, in Cash (with interest to the extent permitted by
the Bankruptcy Court), on, or as soon as practicable after the Effective
Date, or at such other time as is mutually agreed upon by the Debtors and
the holder of such Claim, or if not due and payable on the Effective Date,
such Claims will be reinstated and paid in full in accordance with their
respective terms or otherwise rendered impaired.
4.5. Other Old Senior Note Claims (Class 5).
On the Effective Date, each Other Old Senior Note Claim shall be
Allowed in the amount of outstanding principal plus accrued and unpaid
interest owed in respect thereof on the Effective Date, or accreted value
as of the Effective Date, as applicable. On the Effective Date, each
holder of an Allowed Other Old Senior Note Claim will be paid in full, in
Cash the amount of its Allowed Other Old Senior Note Claims. The Old Senior
Notes and any Equity Interests issued in connection therewith shall be
cancelled on the Effective Date.
4.6. MCI WorldCom Claims and Interests (Class 6)
Notwithstanding anything herein to the contrary, on the Effective
Date, in respect of the MCI WorldCom Claims and Interests and the Cash
payments required under section 6.3 hereof, MCI WorldCom shall receive only
the New Common Stock. MCI WorldCom Claims and Interests, including
the MCI WorldCom Old Senior Notes, shall be cancelled on the Effective
Date.
4.7. Indemnity Claims (Class 7).
On the Effective Date, holders of Allowed Indemnity Claims shall be
entitled to assert such Claims against the Debtor but only to the extent of
any available coverage under any applicable directors' and officers'
insurance.
For purposes of voting on the Plan only, the amount of each
Allowed Indemnity Claim shall be deemed to be $1.
<PAGE>
4.8. Old Common Stock Interests (Class 8).
On the Effective Date, each holder of an Allowed Old Common Stock
Interest will receive, in full satisfaction of such Allowed Old Common
Stock Interest, Cash in an amount equal to (i) in the case of a holder of
Old Common Stock, the number of shares of Old Common Stock multiplied by
the Old Common Stock Share Amount or (ii) in the case of a holder of an
Old Unexercised Option and Warrant, (x) the number of shares of common
stock of the Debtor which such Old Unexercised Option and Warrant
entitled such holder to purchase multiplied by the Old Common Stock Share
Amount minus (y) the aggregate exercise price payable under such Old
Unexercised Option and Warrant to purchase such number of shares of common
stock. On the Effective Date, the Old Common Stock and the Old
Unexercised Options and Warrants shall be cancelled.
4.9. Other Equity Interests (Class 9).
On the Effective Date, all Other Equity Interests will be cancelled
and the holders of such Equity Interests shall not receive any
distribution in respect thereof.
4.10. Alternative Treatment for Holders of Allowed Claims.
Notwithstanding the treatment provided for holders of Allowed
Claims in this Section 4, Reorganized Wireless and the holder of an Allowed
Claim may agree to other treatment of such Claim, including payment in
Cash, provided that such treatment shall not provide a return having a
present value in excess of the present value of the distribution that
otherwise would be made to such holder under Section 4 hereof.
Pursuant to the Alex. Brown Stipulation, Alex Brown has agreed to
treatment of its Claim in the manner set forth therein; provided, however,
in lieu of the 50,000 shares of New Common Stock prescribed thereby,
Alex. Brown will receive $1,478,500 in Cash on the Effective Date.
SECTION 5. IDENTIFICATION OF CLASSES OF CLAIMS AND INTERESTS IMPAIRED;
ACCEPTANCE OR REJECTION OF THE PLAN
5.1. Holders of Claims and Equity Interests Entitled to Vote.
Each of Class 5 (Other Old Senior Note Claims), Class 6 (MCI
WorldCom Claims and Interests), Class 7 (Indemnity Claims), and Class 8
(Old Common Stock Interests) is impaired by the Plan and the holders of
Claims or Equity Interests in each of such Classes are entitled to vote to
accept or reject the Plan.
5.2. Holders of Claims and Equity Interests Not Entitled to Vote.
Each of Class 1 (Priority Non-Tax Claims), Class 2 (Secured
Claims), Class 3 (BTA Installment Note Claims) and Class 4 (Unsecured
Claims) is unimpaired by the Plan and the holders of Claims in each of
such Classes are conclusively presumed to have accepted the Plan and are
not entitled to vote to accept or reject the Plan.
<PAGE>
Class 9 (Other Equity Interests) is impaired and will not receive
or retain any property on account of its Equity Interests. Therefore, it
is deemed to have rejected the Plan by operation of section 1126(g) of the
Bankruptcy Code and it is not entitled to vote to accept or reject the
Plan.
SECTION 6. MEANS OF IMPLEMENTATION
6.1. Distributions.
On the Effective Date, Reorganized Wireless shall make or cause to
be made to the holders of Allowed Claims and Allowed Equity Interests the
distributions of New Common Stock and Cash as provided in Section 4 hereof.
Disputed Claims shall be resolved in accordance with Section 8 hereof and,
if a Disputed Claim becomes an Allowed Claim by Final Order, distributions
shall be made on account of such Claims in accordance with Section 8.3
hereof.
6.2. Issuance of New Securities.
The issuance of the 1000 shares of New Common Stock by Reorganized
Wireless is hereby authorized without further act or action under
applicable law, regulation, order or rule.
6.3. Cash Payments by MCI WorldCom.
On the Effective Date, MCI WorldCom shall pay to the Debtor such
Cash as is necessary to make the Cash distributions and any other Cash
payments required hereunder. Following the Effective Date, Reorganized
Wireless and MCI WorldCom shall determine the terms and conditions for any
repayment of Cash paid by MCI WorldCom pursuant to this section 6.3.
6.4. Exit Financing.
The Postpetition Financing shall continue in effect in accordance
with its terms.
6.5. Bankruptcy Incentive Compensation.
On the Effective Date, Reorganized Wireless shall, subject to the
immediately following sentence, make Cash payments to the management of the
Debtor totaling $8,129,640 with the allocation of such amount to be
determined by the Debtor's existing Board of Directors. The Debtor's
existing Board of Directors in consultation with MCI WorldCom and with the
consent of the affected recipient may determine that a portion of the
payments to be made will be deferred.
6.6. Cancellation of Existing Securities and Agreements.
On the Effective Date, the 1995 Senior Notes, the 1996 Senior
Discount Notes and the Equity Interests shall (a) be cancelled and (b) have
no effect other than the right to participate in the distributions, if any,
provided under the Plan in respect of Claims and Equity Interests. Except
for purposes of effectuating the distributions under the Plan on the
Effective Date, the Old Indentures shall be cancelled.
<PAGE>
6.7. Corporate Action.
(a) Board of Directors of Reorganized Wireless. On the Effective
Date, the operation of Reorganized Wireless shall become the general
responsibility of its Board of Directors, subject to, and in accordance
with, the Charter and by-laws. The initial Board of Directors of
Reorganized Wireless shall consist of three members selected by MCI
WorldCom. The initial members of the Board of Directors of Reorganized
Wireless shall be disclosed in such other filing as may be made with the
Bankruptcy Court. The directors of the Debtor immediately prior to the
Effective Date shall resign as of the Effective Date and shall be
replaced by the Board of Directors of Reorganized Wireless.
(b) Officers of Reorganized Wireless. The initial officers of
Reorganized Wireless are or shall be disclosed in the Disclosure Statement
or such other filing as may be made with the Bankruptcy Court. The
selection of officers of Reorganized Wireless after the Effective Date
shall be as provided in its Charter and by-laws. On the Effective Date,
Reorganized Wireless shall enter into management contracts with the
officers of the Debtor on terms consistent with those set forth in the
Disclosure Statement.
6.8. Restated Certificate of Incorporation.
On the Effective Date, or as soon thereafter as is practicable,
Reorganized Wireless shall file with the Secretary of State of the State of
Delaware in accordance with section 303 of the DGCL, the Charter which
shall, among other things, prohibit Reorganized Wireless from creating,
designating, authorizing or causing to be issued any class or series
of non-voting stock. On the Effective Date, the Charter shall
automatically become effective, and all other matters provided unde this
Plan involving the corporate structure of Reorganized Wireless, or
corporate action by it, shall be deemed to have occurred and shall be in
effect from and after the Effective Date pursuant to section 303 of the
DGCL without any requirement of further action by the stockholders, the
directors of Reorganized Wireless or Reorganized Wireless.
SECTION 7. PROVISIONS GOVERNING DISTRIBUTIONS
7.1. Date of Distributions.
Unless otherwise provided herein, any distributions and
deliveries to be made hereunder shall be made on the Effective Date
or as soon as practicable thereafter and deemed made on the Effective
Date. In the event that any payment or act under the Plan is required to be
made or performed on a date that is not a Business Day, then the making of
such payment or the performance of such act may be completed on the
next succeeding Business Day, and if so completed shall be deemed to have
been completed as of the required date.
7.2. Disbursing Agent.
All distributions under the Plan shall be made by Reorganized
Wireless as Disbursing Agent or such other entity designated by Reorganized
Wireless as a Disbursing Agent on the Effective Date. A Disbursing Agent
shall not be required to give any bond or surety or other security for the
<PAGE>
performance of its duties unless otherwise ordered by the Bankruptcy Court,
and, in the event that a Disbursing Agent is so otherwise ordered, all
costs and expenses of procuring any such bond or surety shall be borne by
Reorganized Wireless.
7.3. Surrender of Instruments.
As a condition to receiving any distribution under the Plan each
holder of a 1995 Senior Note, 1996 Senior Discount Note or Old Common
Stock Interest must surrender such 1995 Senior Note, 1996 Senior
Discount Note or Old Common Stock Interest to Reorganized Wireless or its
designee. Any holder of a 1995 Senior Note, 1996 Senior Discount Note or
Old Common Stock Interest that fails to (a) surrender such instrument
or (b) execute and deliver an affidavit of loss and/or indemnity
reasonably satisfactory to Reorganized Wireless and, if so requested,
furnish a bond in form, substance, and amount reasonably satisfactory
to Reorganized Wireless before the first anniversary of the Effective Date
shall be deemed to have forfeited all rights and claims and may not
participate in any distribution under the Plan.
7.4. Compensation of Professionals.
Each person retained or requesting compensation in the Chapter 11
Case pursuant to section 330 or 503(b) of the Bankruptcy Code shall be
required to file an application for allowance of final compensation and
reimbursement of expenses in the Chapter 11 Case on or before a date to be
determined by the Bankruptcy Court in the Confirmation Order or any other
order of the Bankruptcy Court. Objections to any application made under
this section 7.4 shall be filed on or before a date to be fixed and
determined by the Bankruptcy Court in the Confirmation Order or other order
of the Bankruptcy Court.
7.5. Delivery of Distributions.
Subject to Bankruptcy Rule 9010, all distributions to any holder
of an Allowed Claim or an Allowed Equity Interest shall be made at the
address of such holder as set forth on the Schedules filed with the
Bankruptcy Court or on the books and records of the Debtor or its agents,
unless the Debtor or Reorganized Wireless, as applicable, have been
notified in writing of a change of address, including, without limitation,
by the filing of a proof of claim or interest by such holder that contains
an address for such holder different from the address reflected on
such Schedules for such holder. In the event that any distribution to any
holder is returned as undeliverable, the Disbursing Agent shall use
reasonable efforts to determine the current address of such holder, but no
distribution to such holder shall be made unless and until the Disbursing
Agent has determined the then current address of such holder, at which time
such distribution shall be made to such holder without interest; provided
that such distributions shall be deemed unclaimed property under section
347(b) of the Bankruptcy Code at the expiration of one year from the
Effective Date. After such date, all unclaimed property or interest in
property shall revert to Reorganized Wireless, and the claim of any other
holder to such property or interest in property shall be discharged and
forever barred.
<PAGE>
7.6. Manner of Payment Under the Plan.
At the option of the Disbursing Agent, any Cash payment to be made
hereunder may be made by a check or wire transfer or as otherwise required
or provided in applicable agreements.
7.7. Setoffs and Recoupment.
The Debtor may, but shall not be required to, setoff against, or
recoup from, any Claim and the payments to be made pursuant to the Plan in
respect of such Claim (other than Old Senior Note Claims), any claims of
any nature whatsoever that the Debtor may have against the claimant, but
neither the failure to do so nor the allowance of any Claim hereunder shall
constitute a waiver or release by the Debtor of any such claim it may
have against such claimant.
7.8. Distributions After Effective Date.
Distributions made after the Effective Date to holders of Disputed
Claims that are not Allowed Claims as of the Effective Date but which later
become Allowed Claims shall be deemed to have been made on the Effective
Date.
7.9. Rights and Powers of Disbursing Agent.
(a) Powers of the Disbursing Agent. The Disbursing Agent shall be
empowered to (i) effect all actions and execute all agreements, instruments
and other documents necessary to perform its duties under the Plan, (ii)
make all distributions contemplated hereby, (iii) employ professionals to
represent it with respect to its responsibilities and (iv) exercise such
other powers as may be vested in the Disbursing Agent by order of the
Bankruptcy Court, pursuant to the Plan, or as deemed by the Disbursing
Agent to be necessary and proper to implement the provisions hereof.
(b) Expenses Incurred on or After the Effective Date. Except as
otherwise ordered by the Bankruptcy Court, the amount of any reasonable
fees and expenses incurred by the Disbursing Agent on or after the
Effective Date (including, without limitation, taxes) and any reasonable
compensation and expense reimbursement claims (including, without
limitation, reasonable attorney fees and expenses) made by the Disbursing
Agent shall be paid in Cash by Reorganized Wireless.
7.10. Exculpation.
The Debtor, Reorganized Wireless, MCI WorldCom and the Disbursing
Agent, and their respective members, partners, officers, directors,
employees and agents (including any attorneys, financial advisors,
investment bankers and other professionals retained by such persons) shall
have no liability to any holder of any Claim or Equity Interest for
any act or omission in connection with, or arising out of, the Disclosure
Statement, the Plan, the solicitation of votes for and the pursuit of
confirmation of the Plan, the consummation of the Plan, the plan of
reorganization and disclosure statement filed on March 15, 1999, the
administration of the Plan or the property to be distributed under the
Plan or the Chapter 11 Case, except for willful misconduct or gross
<PAGE>
negligence as determined by a Final Order of the Bankruptcy Court and, in
all respects, shall be entitled to rely upon the advice of counsel
with respect to their duties and responsibilities under the Plan and
the Chapter 11 Case.
SECTION 8. PROCEDURES FOR TREATING DISPUTED CLAIMS UNDER THE PLAN
8.1. Disputed Claims Process.
Except as to applications for allowances of compensation and
reimbursement of expenses under sections 330 and 503 of the Bankruptcy
Code, the Debtor or Reorganized Wireless shall have the exclusive right to
make and file objections to Administrative Expense Claims, Claims and
Equity Interests subsequent to the Confirmation Date. All objections shall
be litigated to Final Order; provided, however, that Reorganized Wireless
shall have the authority to compromise, settle, otherwise resolve or
withdraw any objections, without approval of the Bankruptcy Court.
Unless otherwise ordered by the Bankruptcy Court, the Debtor or
Reorganized Wireless shall file all objections to Administrative Expense
Claims that are the subject of proofs of claim or requests for payment
filed with the Bankruptcy Court (other than applications for allowances
of compensation and reimbursement of expenses), Claims and Equity
Interests and serve such objections upon the holder of the Administrative
Expense Claim, Claim or Equity Interest as to which the objection is made
as soon as is practicable, but in no event later than (a) ninety (90) days
after the Effective Date or the date on which a proof of claim or
request for payment is filed with the Bankruptcy Court or (b) such later
date as may be approved by the Bankruptcy Court.
8.2. No Distributions Pending Allowance.
Notwithstanding any other provision hereof, if any portion of a
Claim is a Disputed Claim, no payment or distribution provided hereunder
shall be made on account of such Claim unless and until such Disputed
Claim becomes an Allowed Claim.
8.3. Distributions After Allowance.
To the extent that a Disputed Claim or Disputed Equity Interest
ultimately becomes an Allowed Claim or Allowed Equity Interest, a
distribution shall be made to the holder of such Allowed Claim or Allowed
Equity Interest in accordance with the provisions of the Plan. As soon as
practicable after the date that the order or judgment of the Bankruptcy
Court allowing any Disputed Claim or Disputed Equity Interest becomes a
Final Order, the Disbursing Agent shall provide to the holder of
such Claim or Equity Interest the distribution to which such holder is
entitled under the Plan.
8.4. Voting Rights of Holders of Disputed Claims.
Pursuant to Bankruptcy Rule 3018(a), a Disputed Claim will not be
counted for purposes of voting on the Plan to the extent it is disputed,
unless an order of the Bankruptcy Court is entered after notice and a
hearing temporarily allowing the Disputed Claim for voting purposes under
<PAGE>
Bankruptcy Rule 3018(a). Such disallowance for voting purposes is without
prejudice to the claimant's right to seek to have its Disputed Claim
allowed for purposes of distribution under the Plan.
SECTION 9. PROVISIONS GOVERNING EXECUTORY CONTRACTS AND UNEXPIRED LEASES
9.1. Assumption or Rejection of Contracts and Leases.
This Plan constitutes a motion by the Debtor to assume, as of the
Effective Date, all executory contracts and unexpired leases to which the
Debtor is a party, except for an executory contract or unexpired lease
that (a) has been assumed or rejected pursuant to Final Order of the
Bankruptcy Court, (b) is specifically rejected on Schedule 9.1 hereto filed
by the Debtor on or before 10 Business Days prior to the commencement of
the hearing on approval of the Plan or such later date as may be fixed
by the Bankruptcy Court, (c) is the subject of a separate motion filed
under section 365 of the Bankruptcy Code by the Debtor prior to the
filing of the schedule described in section 9.1(b) hereof or (d) is
otherwise assumed hereunder. For purposes hereof, each executory contract
and unexpired lease listed on Schedule 9.1 hereto that relates to the use
or occupancy of real property shall include (i) modifications, amendments,
supplements, restatements, or other agreements made directly or indirectly
by any agreement, instrument, or other document that in any manner affects
such executory contract or unexpired lease, without regard to whether
such agreement, instrument or other document is listed on Schedule 9.1
hereto and (ii) executory contracts or unexpired leases appurtenant
to the premises listed on Schedule 9.1 hereto including all easements,
licenses, permits, rights, privileges, immunities, options, rights of first
refusal, powers, uses, usufructs, reciprocal easement agreements, vault,
tunnel or bridge agreements or franchises, and any other interests in real
estate or rights in rem relating to such premises to the extent any of the
foregoing are executory contracts or unexpired leases, unless any of
the foregoing agreements are assumed.
9.2. Amendments to Schedule; Effect of Amendments.
The Debtor shall assume each of the executory contracts and
unexpired leases not listed on Schedule 9.1 hereto; provided, that the
Debtor may at any time on or before the first Business Day before the
date of the commencement of the Confirmation Hearing amend Schedule
9.1 hereto to delete or add any executory contract or unexpired lease
thereto, in which event such executory contract or unexpired lease
shall be deemed to be, respectively, assumed and, if applicable, assigned
as provided therein, or rejected. The Debtor shall provide notice of any
amendments to Schedule 9.1 hereto to the parties to the executory
contracts or unexpired leases affected thereby. The fact that any
contract or lease is scheduled on Schedule 9.1 hereto shall not
constitute or be construed to constitute an admission by the Debtor that
the Debtor has any liability thereunder.
9.3. Bar to Rejection Damage Claims.
In the event that the rejection of an executory contract or
unexpired lease by the Debtor results in damages to the other party or
parties to such contract or lease, a Claim for such damages, if not
<PAGE>
heretofore evidenced by a filed proof of claim, shall be forever
barred and shall not be enforceable against the Debtor, or its
properties or interests in property as agents, successors, or assigns,
unless a proof of claim is filed with the Bankruptcy Court and served
upon counsel for the Debtor on or before 30 days after the earlier to occur
of (a) the giving of notice to such party under section 9.1 or 9.2
hereof and (b) the entry of an order by the Bankruptcy Court authorizing
rejection of a particular executory contract or lease.
9.4. Indemnification Obligations.
The obligations of the Debtor pursuant to, or under its,
certificate or articles of incorporation, by-laws, contract, applicable
state law or otherwise to indemnify its directors and officers who were
not a director or officer, respectively, at any time on or after August 1,
1998 shall be deemed to be, and shall be treated as though they are,
executory contracts that are rejected under the Plan. Any Claims arising
from such rejection shall be treated as Indemnity Claims under Section 4.7
hereof.
SECTION 10. CONDITIONS PRECEDENT TO EFFECTIVE DATE
10.1. Conditions Precedent to Effective Date of the Plan.
The occurrence of the Effective Date of the Plan is subject to
satisfaction of the following conditions precedent:
(a) The Confirmation Order, in form and substance reasonably
acceptable to the Debtor and MCI WorldCom, shall have been entered by the
Clerk of the Bankruptcy Court and there shall not be a stay or injunction
in effect with respect thereto.
(b) An order shall have been entered by the Bankruptcy Court
estimating the Bondholder Litigation Claims and the Stockholder Litigation
Claims at zero.
(c) All Unsecured Claims shall have become Allowed Claims,
Disallowed Claims or estimated for distribution purposes hereunder by
Final Order(s) or by operation of law and the aggregate amount of all
such Allowed Unsecured Claims and estimated Unsecured Claims, if any,
shall not exceed $10 million.
(d) The Debtor shall have received approval from the Federal
Communications Commission ("FCC") of all of the Debtor's transfer of
control applications requesting FCC approval of the transfer of the
basic trading areas authorizations and channel licenses held directly or
indirectly by the Debtor (or its affiliates).
(e) All other actions and all agreements, instruments or other
documents necessary to implement the terms and provisions hereof shall
have been effected, including the payment set forth in section 6.3 hereof.
<PAGE>
10.2. Waiver of Conditions Precedent.
Each of the conditions precedent in section 10.1 hereof may be
waived, in whole or in part, by the Debtor, with the prior written
consent of MCI WorldCom. Any such waivers of a condition precedent in
section 10.1 hereof may be effected at any time, without notice, without
leave or order of the Bankruptcy Court and without any formal action
(other than by the Debtor and MCI WorldCom).
SECTION 11. EFFECT OF CONFIRMATION
11.1. Vesting of Assets.
On the Effective Date, the Debtor, its properties and interests in
property and its operations shall be released from the custody and
jurisdiction of the Bankruptcy Court, and the estate of the Debtor
shall vest in Reorganized Wireless. From and after the Effective
Date, Reorganized Wireless may operate its business and may use, acquire
and dispose of property free of any restrictions of the Bankruptcy Code or
the Bankruptcy Rules, subject to the terms and conditions of the Plan.
11.2. Binding Effect.
Except as otherwise provided in section 1141 (d)(3) of the
Bankruptcy Code and subject to the occurrence of the Effective Date, on
and after the Confirmation Date, the provisions of the Plan shall bind
any holder of a Claim against, or Equity Interest in, the Debtor and
such holder's respective successors and assigns, whether or not the
Claim or Equity Interest of such holder is impaired under the Plan and
whether or not such holder has accepted the Plan.
11.3. Discharge of Debtor.
Except to the extent otherwise provided herein, the treatment of
all Claims against or Equity Interests in the Debtor hereunder shall be in
exchange for and in complete satisfaction, discharge and release of all
Claims against or Equity Interests in the Debtor of any nature whatsoever,
known or unknown, including, without limitation, any interest accrued or
expenses incurred thereon from and after the Petition Date, or against its
estate or properties or interests in property. Except as otherwise
provided herein, upon the Effective Date, all Claims against and Equity
Interests in the Debtor will be satisfied, discharged and released in full
exchange for the consideration provided hereunder. Except as otherwise
provided herein, all entities shall be precluded from asserting against
the Debtor or Reorganized Wireless or their respective properties or
interests in property, any other Claims based upon any act or omission,
transaction or other activity of any kind or nature that occurred prior to
the Effective Date.
11.4. Term of Injunctions or Stays.
Unless otherwise provided, all injunctions or stays arising under
or entered during the Chapter 11 Case under section 105 or 362 of the
Bankruptcy Code, or otherwise, and in existence on the Confirmation Date,
shall remain in full force and effect until the Effective Date.
<PAGE>
11.5. Indemnification Obligations.
Subject to the occurrence of the Effective Date, the obligations
of the Debtor, only to the extent permitted under the laws of the
State of Delaware, to indemnify, defend or reimburse directors or officers
who were or are directors or officers of the Debtor on or after August
1, 1998, respectively, against any claims or causes of action as provided
in the Debtor's certificate of incorporation, by-laws, applicable state
law or contract shall survive confirmation of the Plan, remain unaffected
thereby and not be discharged.
11.6. Releases.
On the Effective Date, the Debtor, on behalf of itself and its
non-debtor subsidiaries, will release the present and former officers and
directors of the Debtor and its subsidiaries from any and all claims,
obligations, suits, judgments, damages, rights, causes of action and
liabilities whatsoever, whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, based in whole
or in part upon any action or omission, transaction, event or other
occurrence taking place on or prior to the Effective Date in any way
relating to such officers and directors, the Debtor, the Chapter 11 Case or
the Plan.
On the Effective Date, MCI WorldCom shall be deemed to release
the present and former officers and directors of the Debtor and its
subsidiaries from any and all claims, obligations, suits, judgments,
damages, rights, causes of action and liabilities whatsoever, whether know
or unknown, foreseen or unforeseen, existing or hereafter arising, in
law, equity or otherwise, based in whole or in part upon any action or
omission, transaction, event or other occurrence taking place on or prior
to the Effective Date in any way relating to such officers and directors,
the Debtor, the Chapter 11 Case or the Plan. Notwithstanding the
foregoing and without limiting its effect, on the Effective Date, MCI
WorldCom shall execute and deliver documents which will memorialize these
releases.
SECTION 12. WAIVER OF AVOIDANCE ACTION CLAIMS
Effective as of the Effective Date, the Debtor waives the
right to prosecute any avoidance or recovery actions under section 547
of the Bankruptcy Code that belong to the Debtor or Debtor in Possession.
SECTION 13. RETENTION OF JURISDICTION
The Bankruptcy Court shall have exclusive jurisdiction of all
matters arising out of, or related to, the Chapter 11 Case and the Plan
pursuant to, and for the purposes of, sections 105(a) and 1142 of the
Bankruptcy Code and for, among other things, the following purposes:
(a) To hear and determine pending applications for the assumption
or rejection of executory contracts or unexpired leases and the allowance
of Claims resulting therefrom.
<PAGE>
(b) To determine any and all adversary proceedings, applications
and contested matters, including, without limitation, under sections 544,
545, 548, 549, 550, 551 and 553 of the Bankruptcy Code.
(c) To ensure that distributions to holders of Allowed Claims and
Allowed Equity Interests are accomplished as provided herein.
(d) To hear and determine any timely objections to Administrative
Expense Claims or to proofs of claim and equity interests, including,
without limitation, any objections to the classification of any Claim or
Equity Interest, and to allow or disallow any Disputed Claim or Disputed
Equity Interest, in whole or in part.
(e) To enter and implement such orders as may be appropriate in
the event the Confirmation Order is for any reason stayed, revoked,
modified or vacated.
(f) To issue such orders in aid of execution of the Plan, to the
extent authorized by section 1142 of the Bankruptcy Code.
(g) To consider any amendments to or modifications of the Plan, or
to cure any defect or omission, or reconcile any inconsistency, in any
order of the Bankruptcy Court, including, without limitation, the
Confirmation Order.
(h) To hear and determine all applications under sections 330,
33l and 503(b) of the Bankruptcy Code for awards of compensation for
services rendered and reimbursement of expenses incurred prior to the
Confirmation Date.
(i) To hear and determine disputes arising in connection with the
interpretation, implementation or enforcement of the Plan, the Confirmation
Order, any transactions or payments contemplated hereby or any agreement,
instrument or other document governing or relating to any of the foregoing.
(j) To hear and determine matters concerning state, local and
federal taxes in accordance with sections 346, 505 and 1146 of the
Bankruptcy Code.
(k) To hear any other matter not inconsistent with the Bankruptcy
Code.
(l) To hear and determine all disputes involving the existence,
scope and nature of the discharges granted under section 11.3 hereof.
(m) To issue injunctions and effect any other actions that may be
necessary or desirable to restrain interference by any entity with the
consummation or implementation of the Plan.
(n) To enter a final decree closing the Chapter 11 Case.
<PAGE>
SECTION 14. MISCELLANEOUS PROVISIONS
14.1. Payment of Statutory Fees.
All fees payable under section 1930, chapter 123, title 28, United
States Code, as determined by the Bankruptcy Court at the Confirmation
Hearing, shall be paid on the Effective Date. Any such fees accrued
after the Effective Date will constitute an Allowed Administrative Expense
Claim and be treated in accordance with section 2.1 hereof.
14.2. Retiree Benefits.
The Debtor does not have any obligations for any retiree benefits
implicated by Section 1129(a)(13) of the Bankruptcy Code.
14.3. Administrative Expenses Incurred After the Confirmation
Date.
Administrative expenses incurred by the Debtor or Reorganized
Wireless after the Confirmation Date, including (without limitation)
Claims for professionals' fees and expenses, shall not be subject to
application and may be paid by the Debtor or Reorganized Wireless, as the
case may be, in the ordinary course of business and without further
Bankruptcy Court approval; provided, however, that no Claims for
professional fees and expenses incurred after the Confirmation Date shall
be paid until after the occurrence of the Effective Date.
14.4. Section 1125(e) of the Bankruptcy Code.
As of the Confirmation Date, the Debtor shall be deemed to have
solicited acceptances of the Plan in good faith and in compliance with the
applicable provisions of the Bankruptcy Code. The Debtor and MCI WorldCom
(and each of their respective affiliates, agents, directors, officers,
employees, investment bankers, financial advisors, attorneys and other
professionals) have, and shall be deemed to have, participated in
good faith and in compliance with the applicable provisions of the
Bankruptcy Code in the offer and issuance of the securities under the
Plan, and therefore are not, and on account of such offer, issuance and
solicitation will not be, liable at any time for the violation of any
applicable law, rule or regulation governing the solicitation of
acceptances or rejections of the Plan or the offer and issuance of
securities under the Plan.
14.5. Compliance with Tax Requirements.
In connection with the consummation of the Plan, the Debtor shall
comply with all withholding and reporting requirements imposed by any
taxing authority, and all distributions hereunder shall be subject to
such withholding and reporting requirements.
14.6. Severability of Plan Provisions.
In the event that, prior to the Confirmation Date, any term or
provision of the Plan is held by the Bankruptcy Court to be
invalid, void or unenforceable, the Bankruptcy Court shall have the
<PAGE>
power to alter and interpret such term or provision to make it valid or
enforceable to the maximum extent practicable, consistent with the
original purpose of the term or provision held to be invalid, void or
unenforceable, and such term or provision shall then be applicable
as altered or interpreted. Notwithstanding any such holding,
alteration or interpretation, the remainder of the terms and provisions
hereof shall remain in full force and effect and shall in no way be
affected, impaired or invalidated by such holding, alteration or
interpretation. The Confirmation Order shall constitute a judicial
determination and shall provide that each term and provision hereof, as it
may have been altered or interpreted in accordance with the foregoing, is
valid and enforceable in accordance with its terms. All actions taken under
this section 14.6 shall require the consent of the Debtor and MCI WorldCom.
14.7. Notices.
All notices, requests, and demands to or upon the Debtor to be
effective shall be in writing (including by facsimile transmission) and,
unless otherwise expressly provided herein, shall be deemed to have been
duly given or made when actually delivered or, in the case of notice
by facsimile transmission, when received and telephonically confirmed,
addressed as follows:
Wireless One, Inc.
2506 Lakeland Drive
Jackson, Mississippi 39208
Attn:Thomas G. Noulles, Esq.
Senior Vice President and General Counsel
Telephone: (601) 936-1515
Telecopier: (601) 936-1517
and
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Attn: Martin N. Flics, Esq.
Telephone: (212) 906-1200
Telecopier: (212) 751-4864
and
Morris, Nichols, Arsht & Tunnell
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
Attn: William H. Sudell, Jr., Esq.
Telephone: (302) 658-9200
Telecopier: (302) 658-3989
<PAGE>
and
Bryan Cave LLP
211 North Broadway, Suite 3600
St. Louis, Missouri 63012-2750
Attn: Gregory D. Willard, Esq.
Telephone: (314) 259-2000
Telecopier: (314) 259-2020
14.8. Governing Law.
Except to the extent that the Bankruptcy Code or other federal
law is applicable, or to the extent an Exhibit hereto provides otherwise,
the rights, duties and obligations arising under the Plan shall be governed
by, and construed and enforced in accordance with, the laws of the State
of Delaware without giving effect to the principles of conflict of laws
thereof.
<PAGE>
14.9. Binding Effect.
The Plan shall be binding upon and inure to the benefit of the
Debtor, the holders of Claims and Equity Interests, and their respective
successors and assigns, including, without limitation, Reorganized
Wireless.
Dated: October __, 1999
Respectfully submitted,
Wireless One, Inc.
By:__________________________
Name: Henry G. Schopfer, III
Title: Executive Vice President, Chief
Financial Officer and Secretary
<PAGE>
INDEX OF EXHIBIT
EXHIBIT 1-Restated Certificate of Incorporation of Reorganized Wireless
<PAGE>
EXHIBIT 1
RESTATED
CERTIFICATE OF INCORPORATION
OF
WIRELESS ONE, INC.
Wireless One, Inc., a corporation incorporated and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
A. The name of the Corporation is Wireless One, Inc. The
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on June 14, 1995, and amended
and restated on July 24, 1995.
B. This Restated Certificate of Incorporation has been duly
adopted in accordance with Sections 242, 245 and 303 of the General
Corporation Law of the State of Delaware (the "Delaware General Corporation
Law") and, pursuant to such provisions, this Restated Certificate of
Incorporation is contained in an order, entered _____________, 1999, of the
United States Bankruptcy Court for the District of Delaware, having
jurisdiction over a proceeding for the reorganization of the Corporation
commenced under Chapter 11 of the United States Bankruptcy Code.
C. The Certificate of Incorporation of the Corporation, as
amended and restated hereby, shall, upon the filing hereof with the
Secretary of State of the State of Delaware, read in its entirety as
follows:
ARTICLE I
The name of the Corporation is Wireless One, Inc.
ARTICLE II
The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, Wilmington, Delaware, County of New
Castle. The name of its registered agent at such address is The
Corporation Trust Company. The registered office and/or registered agent
of the Corporation may be changed from time to time by action of the board
of directors.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which Corporations
may be organized under the Delaware General Corporation Law.
<PAGE>
ARTICLE IV
The total number of shares of capital stock that the Corporation
shall have authority to issue is 1,000, par value $.01 per share. No non-
voting equity securities of the Corporation shall be issued by the
Corporation.
ARTICLE V
All corporate powers of the Corporation shall be exercised by or
under the direction of the Board of Directors except as otherwise provided
herein or by applicable law. In furtherance and not in limitation of the
powers conferred by law, the Board of Directors is expressly authorized:
(i) to adopt, amend or repeal By-laws of the Corporation,
subject to the right of the stockholders of the Corporation entitled
to vote with respect thereto to adopt, amend or repeal By-laws made by
the Board of Directors; and
(ii) from time to time to determine whether and to what
extent, at what time and place, and under what conditions and
regulations the accounts and books of the Corporation, or any of them,
shall be open to the inspection of any stockholder; and no stockholder
shall have any right to inspect any account or book or document of the
Corporation except as provided by applicable law or the By-laws of the
Corporation or as authorized by resolution of the stockholders or
Board of Directors of the Corporation.
ARTICLE VI
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such director as a director; provided, however, that the
foregoing shall not be deemed to eliminate or limit the liability of a
director to the extent provided by applicable law (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from
which the director derived an improper personal benefit. This provision is
not intended to eliminate or narrow any defenses to or protection against
liability otherwise available to directors of the Corporation. No
amendment to or repeal of this ARTICLE VI shall apply to or have any effect
on the liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director occurring
prior to such amendment.
<PAGE>
IN WITNESS WHEREOF, the undersigned, for the purpose of amending
and restating the Corporation's Certificate of Incorporation pursuant to
the General Corporation Law of the State of Delaware, does make this
Restated Certificate of Incorporation on ______________, 1999.
WIRELESS ONE, INC.
By: _______________________
