IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
<Table>
-----------------------------------------------------
In re: ) Chapter 11
)
AXISTEL COMMUNICATIONS, INC., ) Case No. 01-10005 (RJN)
NOVO NETWORKS GLOBAL SERVICES, INC., )
NOVO NETWORKS INTERNATIONAL SERVICES, INC., ) Jointly Administered
E.VOLVE TECHNOLOGY GROUP, INC., )
NOVO NETWORKS OPERATING CORP., )
NOVO NETWORKS METRO SERVICES, INC. )
)
Debtors. )
)
-----------------------------------------------------
</Table>
JOINT PLAN OF REORGANIZATION
BY AXISTEL COMMUNICATIONS, INC.,
ITS AFFILIATED DEBTORS AND NOVO NETWORKS, INC.
<Table>
THE BAYARD FIRM CONNOLLY BOVE LODGE & HUTZ LLP
222 Delaware Ave., Suite 900 1220 Market Street
Wilmington, Delaware 19801 Wilmington, DE 19801
(302) 655-5000 (302) 658-9141
ATTORNEYS FOR THE DEBTORS AND
DEBTORS IN POSSESSION -and-
WHITE & CASE LLP
200 South Biscayne Boulevard, Suite 4900
Miami, Florida 33131
(305) 371-2700
ATTORNEYS FOR NOVO NETWORKS, INC.
</Table>
Dated: October 4, 2001
TABLE OF CONTENTS
<Table>
<Caption>
Page
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ARTICLE I. DEFINITIONS AND INTERPRETATION........................................................................1
1.1. Definitions........................................................................................1
1.2. Interpretation....................................................................................10
1.3. Application of Definitions and Rules of Construction Contained in the Bankruptcy Code.............11
1.4. Other Terms.......................................................................................11
1.5. Appendices and Plan Documents.....................................................................11
ARTICLE II. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS.......................................................11
2.1. Claims and Equity Interests Classified............................................................11
2.2. Administrative Claims and Tax Claims..............................................................11
2.3. Claims and Equity Interests.......................................................................12
2.4. Separate Plans....................................................................................12
2.5. Separate Classification of Secured Claims.........................................................12
ARTICLE III. IDENTIFICATION OF IMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS..................................12
3.1. Unimpaired Classes of Claims and Equity Interests.................................................12
3.2. Impaired Classes of Claims and Equity Interests...................................................12
3.3. Impairment Controversies..........................................................................13
ARTICLE IV. PROVISIONS FOR TREATMENT OF CLAIMS AND EQUITY INTERESTS UNDER THE PLAN..............................13
4.1. Treatment of Claims and Equity Interests..........................................................13
ARTICLE V. PROVISIONS FOR TREATMENT OF UNCLASSIFIED CLAIMS UNDER THE PLAN.......................................14
5.1. Treatment of Administrative Claims................................................................14
5.2. Treatment of Tax Claims...........................................................................15
ARTICLE VI. ACCEPTANCE OR REJECTION OF THE PLAN; EFFECT OF
REJECTION BY ONE OR MORE CLASSES OF CLAIMS OR
EQUITY INTERESTS........................................................................................15
6.1. Classes Entitled to Vote..........................................................................15
6.2. Class Acceptance Requirement......................................................................16
6.3. Confirmation Without Acceptance by All Impaired Classes...........................................16
ARTICLE VII. MEANS FOR IMPLEMENTATION OF THE PLAN...............................................................16
7.1. The Qwest Agreements..............................................................................16
</Table>
<Table>
<Caption>
Page
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7.2. The Non-Operating Asset Auction...................................................................16
7.3. The e.Volve Transaction...........................................................................16
7.4. New Charter and By-Laws...........................................................................17
7.5. Continued Corporate Existence of the Debtors......................................................17
7.6. Vesting of Assets.................................................................................17
7.7. Management........................................................................................18
7.8. Initial Boards of Directors.......................................................................18
7.9. Officers..........................................................................................18
7.10. The New Charters and the New By-Laws.............................................................18
7.11. Causes of Action.................................................................................18
7.12. Settlement.......................................................................................19
7.13. Appointment of the Disbursing Agent..............................................................19
7.14. Sources of Cash for Plan Distributions...........................................................19
7.15. Investment of Funds Held by the Disbursing Agent; Tax Reporting by the Disbursing Agent..........19
7.16. Distributions under the Plan.....................................................................20
7.17. Timing of Distributions under the Plan...........................................................20
7.18. Address for Delivery of Distributions under the Plan.............................................20
7.19. Distributions under Twenty-Five Dollars..........................................................20
7.20. Time Bar to Cash Payments and Plan Securities....................................................21
7.21. Manner of Payment under the Plan.................................................................21
7.22. Expenses Incurred on or after the Effective Date and Claims of the Disbursing Agent..............21
7.23. Fractional Distributions.........................................................................21
7.24. Corporate Action.................................................................................21
7.25. Effectuating Documents and Further Transactions..................................................22
ARTICLE VIII. PROCEDURES FOR RESOLVING AND TREATING CONTESTED CLAIMS............................................22
8.1. Objection Deadline................................................................................22
8.2. Prosecution of Contested Claims...................................................................22
8.3. Claims Settlement Guidelines......................................................................22
8.4. No Distributions Pending Allowance................................................................23
8.5. Distributions After Allowance.....................................................................23
8.6. Estimation of Claims..............................................................................23
ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION OF THE PLAN AND THE OCCURRENCE OF THE EFFECTIVE DATE...........24
9.1. Conditions Precedent to Confirmation..............................................................24
9.2. Conditions Precedent to the Occurrence of the Effective Date......................................24
9.3. Waiver of Conditions..............................................................................24
9.4. Effect of Non-Occurrence of the Effective Date....................................................24
ARTICLE X. THE DISBURSING AGENT.................................................................................25
10.1. Powers and Duties................................................................................25
</Table>
ii
<Table>
<Caption>
Page
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10.2. Distributions....................................................................................25
10.3. Exculpation......................................................................................25
ARTICLE XI. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES...............................................26
11.1. Assumption of Executory Contracts and Unexpired Leases...........................................26
11.2. Rejection of Executory Contracts and Unexpired Leases............................................26
11.3. Claims Arising from Rejection or Termination.....................................................26
ARTICLE XII. RETENTION OF JURISDICTION..........................................................................27
ARTICLE XIII. MISCELLANEOUS PROVISIONS..........................................................................29
13.1. Payment of Statutory Fees........................................................................29
13.2. Discharge of the Debtors.........................................................................29
13.3. Third Party Agreements; Subordination............................................................29
13.4. Exculpation......................................................................................30
13.5. Title to Assets; Discharge of Liabilities........................................................30
13.6. Surrender and Cancellation of Instruments........................................................30
13.7. Notices..........................................................................................31
13.8. Headings.........................................................................................31
13.9. Governing Law....................................................................................32
13.10. Expedited Determination.........................................................................32
13.11. Exemption from Transfer Taxes...................................................................32
13.12. Retiree Benefits................................................................................32
13.13. Notice of Entry of Confirmation Order and Relevant Dates........................................32
13.14. No Interest or Attorneys' Fees..................................................................32
13.15. Modification of the Plan........................................................................33
13.16. Revocation of Plan..............................................................................33
13.17. Setoff Rights...................................................................................33
13.18. Subordination/Avoidance Rights Against the Debtors..............................................33
13.19. Compliance with Tax Requirements................................................................33
13.20. Recognition of Guaranty Rights..................................................................34
13.21. Compliance with All Applicable Laws.............................................................34
13.22. Injunctions.....................................................................................34
13.23. Binding Effect..................................................................................35
13.24. Severability....................................................................................35
</Table>
iii
<Table>
SCHEDULES
Schedule 1.1(k) . . . . . . . . AxisTel Operating Assets
Schedule 1.1(rr) . . . . . . .. e.Volve Operating Assets
Schedule 1.1(yyy) . . . . . . . Residual Assets
EXHIBITS
Exhibit 1 . . . . . . . . . . . Non-Operating Asset Auction Procedures
Exhibit 2 . . . . . . . . . . . Executory Contracts and Leases to be Assumed and Assigned
Exhibit 3 . . . . . . . . . . . List of Executory Contracts and Unexpired Leases
</Table>
iv
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
<Table>
---------------------------------------------------
In re: ) Chapter 11
)
AXISTEL COMMUNICATIONS, INC., ) Case No. 01-10005 (RJN)
NOVO NETWORKS GLOBAL SERVICES, INC., )
NOVO NETWORKS INTERNATIONAL SERVICES, INC., ) Jointly Administered
E.VOLVE TECHNOLOGY GROUP, INC., )
NOVO NETWORKS OPERATING CORP., )
NOVO NETWORKS METRO SERVICES, INC. )
)
Debtors. )
)
---------------------------------------------------
</Table>
JOINT PLAN OF REORGANIZATION
BY AXISTEL COMMUNICATIONS, INC.,
ITS AFFILIATED DEBTORS AND NOVO NETWORKS, INC.
AxisTel Communications, Inc. ("AxisTel"), Novo Networks Global
Services, Inc. ("NNGSI"), Novo Networks International Services, Inc. ("NNISI"),
e.Volve Technology Group, Inc. ("e.Volve"), Novo Networks Operating Corp.
("NNOC"), Novo Networks Metro Services, Inc. ("NNMSI," and collectively with
AxisTel, NNSGI, NNISI, e.Volve and NNOC, the "Debtors"), as debtors and debtors
in possession, and Novo Networks, Inc. ("NNI" and collectively with the Debtors,
the "Proponents") hereby collectively and jointly propose the following
consolidated plan of reorganization:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS.
The capitalized terms used herein shall have the respective meanings
set forth below:
(a) "Administrative Claim" means a Claim incurred by a Debtor
(or its Estate) on or after the Petition Date and before the Effective
Date for a cost or expense of administration in the Chapter 11 Cases
entitled to priority under sections 503(b)
and 507(a)(1) of the Bankruptcy Code, including, without limitation,
Fee Claims and the DIP Claims.
(b) "Affiliate" means, with respect to any Person, all Persons
that would fall within the definition assigned to such term in section
101(2) of the Bankruptcy Code, if such Person was a debtor in a case
under the Bankruptcy Code.
(c) "Allowed," when used
(i) with respect to any Claim, except for a Claim
that is an Administrative Claim, means such Claim (A) to the
extent it is listed in the Schedules as undisputed, liquidated
and not contingent and is not a Contested Claim as of the
Effective Date; (B) to the extent it is set forth pursuant to
any stipulation or agreement that has been approved by Final
Order; (C) to the extent it is a Contested Claim as of the
Effective Date, proof of which was filed timely with the
Bankruptcy Court, and (I) as to which no objection was filed
by the Objection Deadline, unless the Bankruptcy Court
determines that such Claim is to be determined in a forum
other than the Bankruptcy Court, in which case such Claim
shall not become Allowed until determined by Final Order of
such other forum and allowed by Final Order of the Bankruptcy
Court; or (II) as to which an objection was filed by the
Objection Deadline, to the extent allowed by a Final Order; or
(D) which otherwise becomes an Allowed Claim as provided in
the Plan; and
(ii) with respect to an Administrative Claim, means
an Administrative Claim that has become "Allowed" pursuant to
the procedures set forth in Section 5.1 of the Plan.
(d) "Assets" means all of the Debtors' right, title and
interest of any nature in property, wherever located, as specified in
section 541 of the Bankruptcy Code.
(e) "Available Proceeds" means, with respect to any Debtor,
the amount of Net Consideration such Debtor receives from (A) the
e.Volve Transaction, (B) the Non-Operating Asset Auction with respect
to such Debtor's Assets, and (C) the liquidation of such Debtor's
Residual Assets, less an amount sufficient to pay in Cash in full all
Allowed Secured Claims, Allowed Administrative Claims (including costs
and expenses associated with the consummation of the e.Volve
Transaction and cure payments and related costs for executory contracts
and unexpired leases of the Debtors to be assumed under the Plan),
Allowed Tax Claims and Allowed Priority Claims.
(f) "Avoidance Actions" means all claims, rights, and Causes
of Action in favor of the Estates that arise under the Bankruptcy Code,
including, but not limited to, all preference, fraudulent transfer, and
other avoidance claims, rights, and Causes of Action arising under
chapter 5 of the Bankruptcy Code.
(g) "AxisTel" means AxisTel Communications, Inc., a Delaware
corporation, as Debtor and Debtor in Possession in Jointly Administered
Case No. 01- 10005 (RJN).
-2-
(h) "AxisTel Debtors" means collectively, AxisTel, NNGSI,
NNISI and NNMSI.
(i) "AxisTel Non-Operating Assets" means the Assets of the
AxisTel Debtors (excluding the AxisTel Operating Assets) to be disposed
of pursuant to the Non-Operating Asset Auction.
(j) "AxisTel Operating Assets" means the Assets of the AxisTel
Debtors identified on Schedule 1.1(j) hereto, including, without
limitation, the IRU and the Siemens Switch, which Assets shall be
transferred, conveyed and assigned to e.Volve pursuant to the e.Volve
Transaction.
(k) "Bankruptcy Code" means the Bankruptcy Reform Act of 1978,
as amended and codified at title 11 of the United States Code and as
applicable to the Chapter 11 Cases.
(l) "Bankruptcy Court" means the Bankruptcy Court unit of the
United States District Court for the District of Delaware, or such
other court having jurisdiction over the Chapter 11 Cases.
(m) "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as prescribed by the United States Supreme Court pursuant to
section 2075 of title 28 of the United States Code and as applicable to
the Chapter 11 Cases.
(n) "Bar Date Notice" means the Notice of Bar Dates for Filing
Proofs of Claim Against the Debtors, as approved by Final Order dated
August 15, 2001.
(o) "Business Day" means any day on which commercial banks are
open for business in New York, New York.
(p) "Cash" means legal tender of the United States of America
or readily marketable direct obligations of, or obligations guaranteed
by, the United States of America, commercial paper of domestic
corporations carrying a Moody's Rating of "A" or better, or equivalent
rating of any other nationally recognized rating service, or
interest-bearing certificates of deposit or other similar obligations
of domestic banks or other financial institutions having a
shareholders' equity or equivalent capital of not less than Two Hundred
Million Dollars ($200,000,000), having maturities of not more than one
(1) year, at the then best generally available rates of interest for
like amounts and like periods.
(q) "Causes of Action" means all claims, rights, actions,
causes of action, liabilities, obligations, suits, debts, remedies,
dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages or judgments, whether known or unknown and whether
asserted or unasserted.
(r) "Chapter 11 Cases" means the cases under chapter 11 of the
Bankruptcy Code pending before the Bankruptcy Court with respect to
each of the Debtors.
-3-
(s) "Claim" means (i) any right to payment from a Debtor,
whether or not such right is known or unknown, reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured; (ii) any
right to an equitable remedy for breach of performance if such breach
gives rise to a right of payment from a Debtor, whether or not such
right to an equitable remedy is known or unknown, reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed, secured,
or unsecured or (iii) any right under section 502(h) of the Bankruptcy
Code.
(t) "Confirmation Date" means the date on which the Clerk of
the Bankruptcy Court enters the Confirmation Order.
(u) "Confirmation Hearing" means the hearing held by the
Bankruptcy Court, as it may be continued from time to time, on
confirmation of the Plan.
(v) "Confirmation Order" means the order of the Bankruptcy
Court confirming the Plan.
(w) "Contested Claim" means a Claim (A) to the extent it is
listed in the Schedules as disputed, contingent, or unliquidated, in
whole or in part; (B) that is listed in the Schedules as undisputed,
liquidated, and not contingent and as to which a proof of claim has
been filed with the Bankruptcy Court, to the extent the proof of claim
amount exceeds the scheduled amount; (C) that is not listed in the
Schedules, but as to which a proof of claim has been filed with the
Bankruptcy Court; or (D) as to which an objection has been filed on or
before the Effective Date; provided, that a Claim that is Allowed by
Final Order or pursuant to the Plan on or before the Effective Date
shall not be a Contested Claim.
(x) "Debtors" means collectively, AxisTel, e.Volve, NNGSI,
NNISI, NNMSI and NNOC.
(y) "Debtors in Possession" means the Debtors, each in its
respective capacity as a debtor in possession pursuant to sections
1107(a) and 1108 of the Bankruptcy Code.
(z) "DIP Claims" means the Claims of the DIP Lender under the
DIP Facility and the DIP Order, including, without limitation,
principal, interest and the fees and costs of counsel to the DIP Lender
in connection with the Chapter 11 Cases.
(aa) "DIP Credit Agreement" means the Credit & Guaranty
Agreement between the Debtors and the DIP Lender, dated as of July 30,
2001, as approved by the DIP Order, together with all documents,
instruments, agreements and amendments executed or entered into in
connection therewith, and any amendments thereto.
(bb) "DIP Facility" means the debtor-in-possession secured
financing facility provided to the Debtors by the DIP Lender pursuant
to the DIP Credit Agreement, as approved by the DIP Order.
(cc) "DIP Lender" means NNI, in its capacity as lender under
the DIP Facility.
-4-
(dd) "DIP Order" means the Final Order of the Bankruptcy Court
approving the DIP Facility, and any subsequent Final Order of the
Bankruptcy Court relating to the DIP Facility.
(ee) "Disallowed," when used with respect to a Claim, means a
Claim, or such portion of a Claim, that has been disallowed by a Final
Order.
(ff) "Disbursing Agent" means NNOC, in which capacity, it
shall (i) make the Distributions contemplated under the Plan, the
Confirmation Order, or any other relevant Final Order, and (ii) perform
any other act or task that is or may be delegated to the Disbursing
Agent under the Plan.
(gg) "Disclosure Statement" means the disclosure statement
respecting the Plan, as approved by the Bankruptcy Court as containing
adequate information in accordance with section 1125 of the Bankruptcy
Code, all exhibits and annexes thereto and any amendments or
modifications thereof.
(hh) "Distribution" means the payment or distribution under
the Plan of property or interests in property to the holders of Allowed
Claims or Equity Interests. Unless otherwise agreed by the holder of an
Allowed Claim any payment in Cash to be made by the Disbursing Agent
shall be made, at the election of the Disbursing Agent, by check drawn
on a domestic bank or by wire transfer from a domestic bank.
(ii) "Distribution Date" means, with respect to any Claim, the
Effective Date, if such Claim is then an Allowed Claim, or the 30th day
after such Claim becomes Allowed, if not Allowed on the Effective Date.
(jj) "Effective Date" means the date selected by the
Proponents after all of the conditions specified in Section 9.2 of the
Plan have been satisfied or waived.
(kk) "Equity Interest" means any ownership or equity interest
in any of the Debtors, including without limitation, interests
evidenced by common or preferred stock, warrants, options, or other
rights to purchase any ownership or equity interest in any of the
Debtors.
(ll) "Estate" means the estate of any Debtor created by
section 541 of the Bankruptcy Code upon the commencement of the Chapter
11 Cases.
(mm) "Estimated Claims Order" means any order of the
Bankruptcy Court estimating any Claim or the aggregate amount of all
Claims in any class created under the Plan to aid in the confirmation
of the Plan, or the calculation of distributions under the Plan.
(nn) "e.Volve" means e.Volve Technology Group, Inc., a Nevada
corporation, as Debtor and Debtor in Possession in Jointly Administered
Case No. 01-10005 (RJN).
(oo) "e.Volve Agreement" means the asset purchase agreement
between and among the AxisTel Debtors and e.Volve, pursuant to which
e.Volve shall acquire the
-5-
AxisTel Operating Assets in exchange for a portion of the Plan
Securities, as provided in Section 7.3 of the Plan. The e.Volve
Agreement shall be filed with the Bankruptcy Court as a Plan Document.
(pp) "e.Volve Claim" means the Unsecured Claim of e.Volve
against AxisTel in the approximate amount of $1,500,000.
(qq) "e.Volve Non-Operating Assets" means the Assets of
e.Volve to be disposed of pursuant to the Non-Operating Asset Auction.
(rr) "e.Volve Note" means the Note to be issued by e.Volve
under the Plan and filed as a Plan Document in the aggregate principal
amount of $4 million, which Note, as more particularly described in the
e.Volve Note Term Sheet, (A) shall provide for fixed interest from and
after the Effective Date at the rate of 7% per annum payable quarterly
in arrears, (B) shall mature on the third anniversary of the Effective
Date, (C) shall be unsecured, (D) shall be subordinated in right of
payment to obligations of e.Volve under senior financing for working
capital and capital expenditure purposes, (E) shall be redeemable at
any time by e.Volve, and (F) shall have such other customary terms and
conditions as shall be set forth in the Note.
(ss) "e.Volve Note Term Sheet" means the term sheet attached
as Exhibit "1" of the Plan.
(tt) "e.Volve Preferred Stock" means the Preferred Stock to be
issued by e.Volve under the Plan and filed as a Plan Document in the
aggregate stated value of $4.5 million, which Preferred Stock, as more
fully described in the e.Volve Preferred Stock Term Sheet, (A) shall
provide for a liquidation preference in the amount of the stated value
of the Preferred Stock plus all accrued and unpaid dividends, (B) shall
provide for a dividend rate with respect to the outstanding shares of
Preferred Stock equal to 8% of the liquidation value of each share per
annum; provided, that e.Volve will have the option of making the annual
dividend payments in kind by issuing additional e.Volve Preferred
Stock), (C) shall provide for separate voting rights as a class, (D)
shall be redeemable by e.Volve at any time upon payment of the
liquidation value, and (E) shall have such other customary terms and
conditions as shall be set forth in the designation of Preferred Stock.
(uu) "e.Volve Preferred Stock Term Sheet" means the term sheet
attached as Exhibit "2" to the Plan.
(vv) "e.Volve Residual Consideration" means (A) the Available
Proceeds received by e.Volve, and (B) the Remaining Plan Securities;
but only to the extent such consideration exceeds the aggregate amount
of all Allowed Unsecured Claims against e.Volve.
(ww) "e.Volve Transaction" means the transaction pursuant to
which e.Volve shall acquire the AxisTel Operating Assets in exchange
for a portion of the Plan Securities pursuant to the Plan and the
e.Volve Transaction Documents.
-6-
(xx) "e.Volve Transaction Documents" means the agreements,
instruments and documents that shall evidence and implement the e.Volve
Transaction.
(yy) "Fee Application" means an application of a Professional
Person under section 330 or 503 of the Bankruptcy Code for final
allowance of compensation and reimbursement of expenses incurred in the
Chapter 11 Cases from the Petition Date to the Effective Date.
(zz) "Fee Claim" means a Claim that is the subject of a Fee
Application filed in the Chapter 11 Cases.
(aaa) "Final Order" means (i) an order or judgment of the
Bankruptcy Court or any other court or adjudicative body as to which
the time to appeal, petition for certiorari, or move for reargument or
rehearing has expired and as to which no appeal, petition for
certiorari, or other proceedings for reargument or rehearing shall then
be pending, or (ii) in the event that an appeal, writ of certiorari,
reargument, or rehearing thereof has been sought, such order of the
Bankruptcy Court or any other court or adjudicative body shall have
been affirmed by the highest court to which such order was appealed, or
certiorari has been denied, or from which reargument or rehearing was
sought, and the time to take any further appeal, petition for
certiorari or move for reargument or rehearing shall have expired;
provided, that no order shall fail to be a Final Order solely because
of the possibility that a motion pursuant to Rule 60 of the Federal
Rules of Civil Procedure or Bankruptcy Rule 9024 may be filed with
respect to such order.
(bbb) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, and any applicable rulings, regulations (including
temporary and proposed regulations) promulgated thereunder, judicial
decisions, and notices, announcements, and other releases of the United
States Treasury Department or the IRS.
(ccc) "IRS" means the United States Internal Revenue Service.
(ddd) "IRU" means that certain IRU Agreement effective as of
September 30, 1999, as amended from time to time, by and between Qwest
and AxisTel which constitutes an AxisTel Operating Asset to be
transferred, conveyed and assigned to e.Volve pursuant to the e.Volve
Transaction.
(eee) "Net Consideration" means the total consideration
(excluding assumed obligations) received from the sale or disposition
of any Asset pursuant to the Plan, less the reasonable costs and
expenses incurred in connection therewith.
(fff) "New By-Laws" means the by-laws of the Debtors, as
amended and restated in accordance with Section 7.3 of the Plan. The
New By-Laws will be filed with the Bankruptcy Court as Plan Documents.
(ggg) "New Charters" means the certificate of incorporation of
the Debtors, as amended and restated in accordance with Section 7.3 of
the Plan. The New Charters will be filed with the Bankruptcy Court as
Plan Documents.
-7-
(hhh) "NNGSI" means Novo Networks Global Services, Inc., a
Delaware corporation, as Debtor and Debtor in Possession in Jointly
Administered Case No. 01-10005 (RJN).
(iii) "NNI" means Novo Networks, Inc., a Delaware corporation,
which is the owner of 100% of the Equity Interests in NNOC.
(jjj) "NNISI" means Novo Networks International Services,
Inc., a Delaware corporation, as Debtor and Debtor in Possession in
Jointly Administered Case No. 01-10005 (RJN).
(kkk) "NNMSI" means Novo Networks Metro Services, Inc., a
Delaware corporation, as Debtor and Debtor in Possession in Jointly
Administered Case No. 01-10005 (RJN).
(lll) "NNOC" means Novo Networks Operating Corp., a Delaware
corporation, as Debtor and Debtor in Possession in Jointly Administered
Case No. 01-10005 (RJN).
(mmm) "Non-Operating Asset Auction" means the auction process
pursuant to which the AxisTel Non-Operating Assets shall be offered for
sale and sold.
(nnn) "Objection Deadline" means the deadline for filing
objections to Claims as set forth in Section 8.1 of the Plan.
(ooo) "Person" means an individual, corporation, partnership,
joint venture, trust, estate, unincorporated association,
unincorporated organization, governmental entity, or political
subdivision thereof, or any other entity.
(ppp) "Petition Date" means the date on which the Chapter 11
Cases were commenced; which in the case of the AxisTel Debtors, e.Volve
and NNOC was July 30, 2001 and, in the case of NNMSI, was September 14,
2001.
(qqq) "Plan" means this plan of reorganization, either in its
present form or as it may be amended, supplemented, or otherwise
modified from time to time, and the exhibits and schedules to the
foregoing, as the same may be in effect at the time such reference
becomes operative.
(rrr) "Plan Documents" means the documents that aid in
effectuating the Plan as specifically identified as such herein and
filed with the Bankruptcy Court as specified in Section 1.5 of the
Plan.
(sss) "Plan Securities" means collectively, the e.Volve Note
and the e.Volve Preferred Stock.
(ttt) "Post-Confirmation Interest" means simple interest at
the rate of 6.00% per annum or such other rate as the Bankruptcy Court
may determine at the Confirmation Hearing is appropriate, such interest
to accrue from the Effective Date, or, in the case of a
-8-
Contested Claim, the date of entry of a Final Order allowing such
Contested Claim.
(uuu) "Priority Claim" means any Claim to the extent such
Claim is entitled to priority in right of payment under section 507(a)
of the Bankruptcy Code, other than the Bank Claims, Secured Claims,
Administrative Claims, and Tax Claims.
(vvv) "Professional Person" means a Person retained or to be
compensated for services rendered or costs incurred on or after the
Petition Date and on or prior to the Effective Date pursuant to
sections 327, 328, 330, 503(b), or 1103 of the Bankruptcy Code in these
Chapter 11 Cases.
(www) "Pro Rata Share" means the proportion that the amount an
Allowed Claim bears to the aggregate amount of all Claims in a
particular class, including Contested Claims, but not including
Disallowed Claims, (i) as calculated by the Disbursing Agent on or
before any Distribution Date; or (ii) as determined by the Bankruptcy
Court in an Estimated Claims Order, if such an order is sought and
obtained.
(xxx) "Projections" means the pro forma projections in support
of the Plan attached as an Exhibit to the Disclosure Statement.
(yyy) "Qwest" means Qwest Communications Corporation, a
Delaware corporation.
(zzz) "Remaining Plan Securities" means the remaining Plan
Securities after consummation of the e.Volve Transaction, consisting of
$3 million principal amount of the e.Volve Note and $3 million of
e.Volve Preferred Stock as of the Effective Date.
(aaaa) "Residual Assets" means the Assets of the Debtors as
identified on Schedule 1.1(aaaa) hereto, including, without limitation,
Cash, outstanding accounts receivable and Causes of Action, which
Assets shall be retained by the Debtors and liquidated to Cash and the
Net Consideration to be distributed pursuant to the Plan.
(bbbb) "Schedules" means the schedules of assets and
liabilities and the statements of financial affairs filed by the
Debtors with the Bankruptcy Court, as required by section 521 of the
Bankruptcy Code and the Official Bankruptcy Forms of the Bankruptcy
Rules, as such schedules and statements may be amended by the Debtors
in Possession from time to time in accordance with Bankruptcy Rule
1009.
(cccc) "Secured Claim" means (i) a Claim (other than the DIP
Claims) secured by a Lien on any Assets, 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 Cases, but only to the
extent of the value of the holder's interest in the collateral that
secures payment of the Claim; (ii) a Claim against the Debtors that is
subject to a valid right of recoupment or setoff under section 553 of
the Bankruptcy Code, but only to the extent of the Allowed amount
subject to recoupment or setoff as provided in section 506(a) of the
Bankruptcy Code; and (iii) a Claim allowed under the Plan as a Secured
Claim.
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(dddd) "Siemens Switch" means that certain EWSD switch leased
by AxisTel from Telecommunications Finance Group of Siemens Carriers
Networks LLC, which constitutes an AxisTel Operating Asset to be
transferred, conveyed and assigned to e.Volve pursuant to the e.Volve
Transaction.
(eeee) "Settlement" means the compromise and settlement under
the Plan, pursuant to section 1123(b)(3) of the Bankruptcy Code and
Bankruptcy Rule 9019, of all Claims and Causes of Action as between
each of the respective Proponents as of the Effective Date of the Plan,
whereby (A) the e.Volve Claim against AxisTel shall be released, waived
and forever discharged; (B) except as otherwise set forth in the Plan,
the Proponents shall exchange mutual releases of any and all Claims and
Causes of Action against each other and each of their respective
subsidiaries, officers, directors, employees, agents, representatives,
advisors, attorneys, successors and assigns based in whole or in part
on any act, omission, event, circumstance, condition or thing that
occurred or existed prior to the Effective Date, provided, however,
Claims and Causes of Action of the Debtors against the directors,
officers and employees of the Debtors who did not serve in such
capacities on the last Business Day prior to the Effective Date shall
be preserved in accordance with Section 7.11 of the Plan; (C) NNOC
shall retain its 100% ownership interest in AxisTel, and (D) on the
Effective Date, all Persons who have been, are, or may be holders of
Claims against or Equity Interests in the Debtors shall be enjoined
from taking any action against or affecting the Proponents, the
Estates, or the Assets with respect to such Claims or Equity Interests
(other than to enforce provisions of the Plan).
(ffff) "Settlement Proceeds" means the NNOC Residual
Consideration.
(gggg) "Tax Claim" means a Claim against any of the Debtors
that is of a kind specified in section 507(a)(8) of the Bankruptcy
Code.
(hhhh) "Transaction Documents" means the agreements,
instruments and documents that shall evidence and implement the e.Volve
Transaction.
(iiii) "Unsecured Claim" means any Claim other than DIP
Claims, Secured Claims (up to the Allowed amount subject to recoupment
or setoff as provided in section 506(a) of the Bankruptcy Code),
Administrative Claims, Priority Claims and Tax Claims.
(jjjj) "Voting Procedures Order" means the Final Order of the
Bankruptcy Court approving procedures relating to the solicitation and
tabulation of votes with respect to the Plan.
1.2. INTERPRETATION.
Unless otherwise specified, all section, article, and exhibit
references in the Plan are to the respective section in, article of, or exhibit
to, the Plan, as the same may be amended, waived, or modified from time to time.
Words denoting the singular number shall include the plural number and vice
versa, and words denoting one gender shall include the other gender. The
Disclosure Statement may be referred to for purposes of interpretation to the
extent any term or provision of the Plan is determined by the Bankruptcy Court
to be ambiguous.
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1.3. APPLICATION OF DEFINITIONS AND RULES OF CONSTRUCTION CONTAINED IN THE
BANKRUPTCY CODE.
Words and terms defined in section 101 of the Bankruptcy Code shall
have the same meaning when used in the Plan, unless a different definition is
given in the Plan. The rules of construction contained in section 102 of the
Bankruptcy Code shall apply to the construction of the Plan.
1.4. OTHER TERMS.
The words "herein," "hereof," "hereto," "hereunder," and others 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 ascribed to that term, if any, in the
Bankruptcy Code.
1.5. APPENDICES AND PLAN DOCUMENTS.
All appendices to the Plan and the Plan Documents are incorporated into
the Plan by this reference and are a part of the Plan as if set forth in full
herein. All Plan Documents shall be filed with the Clerk of the Bankruptcy Court
not less than ten (10) days prior to the commencement of the Confirmation
Hearing. Holders of Claims and Equity Interests may obtain a copy of the Plan
Documents, once filed, by a written request sent to the following address:
THE BAYARD FIRM
222 Delaware Avenue
Suite 900
Wilmington, DE 19801
Attention: Mr. Walter Cavers
ARTICLE II.
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
2.1. CLAIMS AND EQUITY INTERESTS CLASSIFIED.
For purposes of organization, voting and all confirmation matters,
except as otherwise provided herein, all Claims (except for Administrative
Claims and Tax Claims) and all Equity Interests shall be classified as set forth
in this Article II of the Plan.
2.2. ADMINISTRATIVE CLAIMS AND TAX CLAIMS.
As provided in section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims and Tax Claims shall not be classified for purposes of
voting or receiving distributions under the Plan. Rather, all such Claims shall
be treated separately as unclassified Claims on the terms set forth in Article V
of the Plan.
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2.3. CLAIMS AND EQUITY INTERESTS.
The Plan classifies the Claims against and Equity Interests in each
Debtor as follows: EXCEPT FOR THE AXISTEL DEBTORS, THE CLAIMS AGAINST AND EQUITY
INTERESTS IN EACH DEBTOR SHALL BE TREATED SEPARATELY, FOR ALL PURPOSES UNDER THE
PLAN. THE AXISTEL DEBTORS SHALL BE SUBSTANTIVELY CONSOLIDATED FOR VOTING AND
DISTRIBUTION PURPOSES UNDER THE PLAN.
(a) Class 1: Priority Claims
(b) Class 2: Secured Claims
(c) Class 3: Unsecured Claims
(d) Class 4: Equity Interests
2.4. SEPARATE PLANS.
Although the Plan has been filed as a joint plan for all of the Debtors
for purposes of administrative convenience and efficiency, the Plan constitutes
a separate plan of reorganization for each of the Debtors, except with respect
to the AxisTel Debtors, which shall be substantively consolidated for voting and
distribution purposes under the Plan. Voting on the Plan, confirmation of the
Plan, and Distributions under the Plan will be considered and accomplished on a
debtor-by-debtor basis, except that such matters shall be considered and
accomplished on a consolidated basis with respect to the AxisTel Debtors.
2.5. SEPARATE CLASSIFICATION OF SECURED CLAIMS.
Although Secured Claims against each Debtor have been placed in one
class for purposes of convenience, each Secured Claim shall be treated as though
in a separate class for purposes of voting and receiving distributions under the
Plan.
ARTICLE III.
IDENTIFICATION OF IMPAIRED
CLASSES OF CLAIMS AND EQUITY INTERESTS
3.1. UNIMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS.
Class 1 - Priority Claims and Class 2 - Secured Claims against each of
the Debtors are not impaired under the Plan.
3.2. IMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS.
With the exception of Class 1 - Priority Claims and Class 2 - Secured
Claims, all classes of Claims against and Equity Interests in each of the
Debtors are impaired under the Plan.
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3.3. IMPAIRMENT CONTROVERSIES.
If a controversy arises as to whether any Claim or Equity Interest, or
any class of Claims or Equity Interests, is impaired under the Plan, the
Bankruptcy Court shall, after notice and a hearing, determine such controversy.
ARTICLE IV.
PROVISIONS FOR TREATMENT OF CLAIMS
AND EQUITY INTERESTS UNDER THE PLAN
4.1. TREATMENT OF CLAIMS AND EQUITY INTERESTS.
The classes of Claims against and Equity Interests in each of the
Debtors shall be treated under the Plan as follows:
(a) Class 1 - Priority Claims. As to each of the Debtors, each
holder of an Allowed Priority Claim shall be unimpaired under the Plan
and, pursuant to section 1124 of the Bankruptcy Code, all of the legal,
equitable and contractual rights of each holder of an Allowed Priority
Claim in respect of such Claim shall be fully reinstated and retained
as though the Chapter 11 Cases had not been filed, except as provided
in section 1124(2)(A)-(C) of the Bankruptcy Code, and the holders of
such Allowed Priority Claims shall be paid in full.
(b) Class 2 - Secured Claims. As to each of the Debtors, each
holder of an Allowed Secured Claim shall be unimpaired under the Plan
and, pursuant to section 1124 of the Bankruptcy Code, all of the legal,
equitable and contractual rights of each holder of an Allowed Secured
Claim in respect of such Claim shall be fully reinstated and retained
as though the Chapter 11 Cases had not been filed, except as provided
in section 1124(2)(A)-(C) of the Bankruptcy Code, and the holder of
such Allowed Secured Claims shall be paid in full.
(c) Class 3 - Unsecured Claims. Unsecured Claims shall be
treated as follows:
(i) e.Volve Unsecured Claims, Each holder of an
Allowed Unsecured Claim against e.Volve shall receive on the
Distribution Date, a Pro Rata Share of e.Volve's Available
Proceeds, until such Allowed Claim has been paid in full.
(ii) NNOC Unsecured Claims. Each holder of an Allowed
Unsecured Claim against NNOC shall receive on the Distribution
Date, a Pro Rata Share of (A) NNOC's Available Proceeds, and
(B) the e.Volve Residual Consideration, until such Allowed
Claim has been paid in full.
(iii) AxisTel Debtors Unsecured Claims. Each holder
of an Allowed Unsecured Claim against the AxisTel Debtors
shall receive on the Distribution Date, a Pro Rata share of
(A) the AxisTel Debtors' Available Proceeds and (B) the
Settlement Proceeds, until such Allowed Claim has been paid in
full.
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(d) Class 4 - Equity Interests. Equity Interests in each of
the Debtors shall be treated as follows:
(i) e.Volve Equity Interests. NNOC, as the holder of
100% of the Allowed Equity Interests in e.Volve, will receive
the e.Volve Residual Consideration on the Distribution Date on
account of such Equity Interests and shall retain its
ownership interests under the Plan.
(ii) NNGSI, NNISI and NNMSI Equity Interests.
AxisTel, as the holder of 100% of the Allowed Equity interests
in NNGSI, NNISI and NNMSI, shall retain its ownership
interests under the Plan.
(iii) AxisTel Equity Interests. NNOC, as the holder
of 100% of the Allowed Equity Interests in AxisTel, shall
retain its ownership interests under the Plan.
(iv) NNOC Equity Interests. NNI, as the holder of
100% of the Allowed Equity Interests in NNOC, shall retain its
ownership interests under the Plan.
ARTICLE V.
PROVISIONS FOR TREATMENT
OF UNCLASSIFIED CLAIMS UNDER THE PLAN
5.1. TREATMENT OF ADMINISTRATIVE CLAIMS.
All Administrative Claims shall be treated as follows:
(a) Time for Filing Administrative Claims. The holder
of an Administrative Claim, other than (i) the DIP Claims,
(ii) a Fee Claim, (iii) a liability incurred and payable in
the ordinary course of business by a Debtor (and not past
due), or (iv) an Administrative Claim that has been Allowed on
or before the Effective Date, must file with the Bankruptcy
Court and serve on the Debtors and the Office of the United
States Trustee, notice of such Administrative Claim within
twenty (20) days after service of notice of entry of the
Confirmation Order. Such notice must include at a minimum (A)
the name of the holder of the Claim, (B) the amount of the
Claim, and (C) the basis of the Claim. FAILURE TO FILE AND
SERVE SUCH NOTICE TIMELY AND PROPERLY SHALL RESULT IN THE
ADMINISTRATIVE CLAIM BEING FOREVER BARRED AND DISCHARGED.
(b) Time for Filing Fee Claims. Each Professional
Person shall be required to file with the Bankruptcy Court,
and serve on all parties required to receive notice, a Fee
Application within forty-five (45) days after the Effective
Date. THE FAILURE TO FILE TIMELY AND SERVE SUCH FEE
APPLICATION SHALL RESULT IN THE FEE CLAIM BEING FOREVER BARRED
AND DISCHARGED.
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(c) Allowance of Administrative Claims. The DIP
Claims shall be allowed in the full amount contemplated by the
DIP Credit Agreement and the DIP Order as of the Effective
Date. An Administrative Claim with respect to which notice has
been properly filed and served pursuant to Section 5.1(a) of
the Plan shall become an Allowed Administrative Claim if no
objection is filed within 180 days after the Effective Date,
or such later date as may be approved by the Bankruptcy Court
on motion of a party in interest, without notice or a hearing.
If an objection is filed within such sixty-day period (or any
extension thereof), the Administrative Claim shall become an
Allowed Administrative Claim only to the extent allowed by
Final Order. An Administrative Claim with respect to which a
Fee Application has been properly filed pursuant to Section
5.1(b) of the Plan shall become an Allowed Administrative
Claim only to the extent allowed by Final Order.
(d) Payment of Allowed Administrative Claims. On the
Distribution Date, each holder of an Allowed Administrative
Claim shall receive (i) the amount of such holder's Allowed
Claim in one Cash payment, or (ii) such other treatment as may
be agreed upon in writing by the Debtors and such holder;
provided, that an Administrative Claim representing a
liability incurred in the ordinary course of business of the
Debtors may be paid at the Debtors' election in the ordinary
course of business.
5.2. TREATMENT OF TAX CLAIMS.
At the election of the Debtors, each holder of an Allowed Tax Claim
shall receive in full satisfaction of such holder's Allowed Tax Claim, (a) the
amount of such holder's Allowed Tax Claim, with Post-Confirmation Interest
thereon, in equal annual Cash payments on each anniversary of the Effective
Date, until the sixth anniversary of the date of assessment of such Tax Claim
(provided that the Disbursing Agent may prepay the balance of any such Allowed
Tax Claim at any time without penalty); (b) a lesser amount in one Cash payment
as may be agreed upon in writing by such holder; or (c) such other treatment as
may be agreed upon in writing by such holder. The Confirmation Order shall
constitute and provide for an injunction by the Bankruptcy Court as of the
Effective Date against any holder of a Tax Claim from commencing or continuing
any action or proceeding against any responsible person or officer or director
of the Debtors that otherwise would be liable to such holder for payment of a
Tax Claim so long as no default has occurred with respect to such Tax Claim
under this Section 5.2 of the Plan.
ARTICLE VI.
ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE
CLASSES OF CLAIMS OR EQUITY INTERESTS
6.1. CLASSES ENTITLED TO VOTE.
The holders of Unsecured Claims in Class 3 of the Plan and Equity
Interests in Class 4 of the Plan, in each case, with respect to each of the
Debtors, shall be entitled to vote to
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accept or reject the Plan. Claims in Classes 1 and 2 against each of the Debtors
are unimpaired and are deemed to have accepted the Plan.
6.2. CLASS ACCEPTANCE REQUIREMENT.
Only holders of Claims that are of record and as to which an objection
is not pending as set forth in the Voting Procedures Order shall be entitled to
accept or reject the Plan. A class of Claims shall have accepted the Plan if it
is accepted by at least two-thirds (2/3) in amount and more than one-half (1/2)
in number of the Allowed Claims in such class that have voted on the Plan.
6.3. CONFIRMATION WITHOUT ACCEPTANCE BY ALL IMPAIRED CLASSES.
The Plan shall constitute a request that the Bankruptcy Court confirm
the Plan over the rejection of any Class entitled to vote thereon in accordance
with section 1129(b) of the Bankruptcy Code.
ARTICLE VII.
MEANS FOR IMPLEMENTATION OF THE PLAN
7.1. THE QWEST AGREEMENTS.
Implementation of the Plan is dependent upon certain commitments and/or
definitive agreements with Qwest concerning, among other things, the provision
of packet-based international telecommunications services by e.Volve. Such
definitive agreements shall be reflected in the Projections (as amended) and
filed with the Court as Plan Documents.
7.2. THE NON-OPERATING ASSET AUCTION.
In connection with the plan confirmation process, the Debtors shall
seek an order from the Bankruptcy Court, which may be the Confirmation Order,
approving and authorizing the sale pursuant to sections 105, 363(f) and 1123(a)
of the Bankruptcy Code of the AxisTel Non-Operating Assets to the bidder(s) who
submit the highest and best bids, as determined by the Debtors in the exercise
of their sound business judgment. The sales of the AxisTel Non-Operating Assets
and the e.Volve Non-Operating Assets shall be consummated on or before the
Effective Date and the Net Consideration therefrom will be distributed pursuant
to the Plan.
7.3. THE E.VOLVE TRANSACTION.
Pursuant to the terms of the e.Volve Transaction Documents, on the
Effective Date, e.Volve shall acquire the AxisTel Operating Assets from AxisTel
in exchange for a portion of the Plan Securities, as provided herein. As a
result of the e.Volve Transaction: $2.5 million of the Plan Securities
(consisting of $1 million principal amount of the e.Volve Note and $1.5 million
of e.Volve Preferred Stock, as of the Effective Date) will be paid to AxisTel as
consideration for the purchase by e.Volve of the AxisTel Operating Assets under
the Plan. The e.Volve Residual Consideration (consisting of e.Volve's Available
Proceeds and Remaining Plan Securities after payment in full of Allowed Claims
against e.Volve) will be distributed to NNOC
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under the Plan. The NNOC Residual Consideration (consisting of NNOC's Available
Proceeds after payment in full of Allowed Claims against NNOC) will be
distributed to AxisTel as Settlement Proceeds in accordance with the Settlement
set forth in Section 7.12 of the Plan. The Confirmation Order shall provide that
(a) the e.Volve Transaction Documents are approved by the Bankruptcy Court, (b)
pursuant to section 363(f) of the Bankruptcy Code, all right, title and interest
in and to the AxisTel Operating Assets shall be transferred, conveyed and
assigned to e.Volve free and clear of all liens, Claims, interests, security
interests, and all other encumbrances of whatever kind and nature, whether known
or unknown, and (c) the Debtors are authorized to take all actions as may be
reasonably necessary or appropriate to consummate and implement the e.Volve
Transaction.
7.4. NEW CHARTER AND BY-LAWS.
On of before the Effective Date, the following actions shall be taken
with respect to the Debtors:
(a) the New Charters and the New By-Laws shall be duly
adopted;
(b) the issuance of the Plan Securities pursuant to the Plan
shall be authorized;
(c) the officers of the Debtors and the initial board of
directors of the Debtors from and after the Effective Date shall be
duly appointed and qualified to serve in such capacities; and
(d) the officers of the Debtors shall be authorized to take
all actions that are necessary or appropriate to implement and
consummate the e.Volve Transaction.
7.5. CONTINUED CORPORATE EXISTENCE OF THE DEBTORS.
Each of the Debtors shall continue to exist after the Effective Date as
separate corporate entities, with all corporate powers, in accordance with the
laws of Delaware and pursuant to the New Charters and the New By-Laws, which
shall become effective upon the occurrence of the Effective Date. All of the
Debtors' Assets shall be transferred, conveyed and assigned in accordance with
the terms of the Non-Operating Asset Auction, the e.Volve Transaction Documents
and the Plan, as applicable, on the Effective Date. Except as otherwise provided
in the Plan, the Residual Assets will be retained by the Debtors and liquidated,
with the Net Consideration therefrom to be distributed pursuant to the Plan.
7.6. VESTING OF ASSETS.
Upon the occurrence of the Effective Date, title to all of the Assets
of the Debtors shall vest in the Debtors, e.Volve or any other bidder whose bid
is accepted pursuant to the Non-Operating Asset Auction, as applicable, free and
clear of all liens, Claims, interests, security interests and other
encumbrances, except as expressly provided in the Plan. Except as otherwise
provided in the Plan, the Debtors may operate their business and may use,
acquire and dispose of their Assets free of any restrictions of the Bankruptcy
Code on and after the occurrence of the Effective Date.
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7.7. MANAGEMENT.
Upon the occurrence of the Effective Date, the respective management,
control, and operation of the Debtors shall be the general responsibility of the
management of the Debtors. Entry of the Confirmation Order shall ratify and
approve all actions taken by the boards of directors of the Debtors from the
Petition Date through and until the Effective Date.
7.8. INITIAL BOARDS OF DIRECTORS.
The initial boards of directors of the Debtors shall be composed of the
individuals identified to serve in such capacities at or prior to the
Confirmation Hearing. From and after the Effective Date, the members of the
board of directors of the Debtors shall be selected and determined in accordance
with the provisions of the New Charters and the New By-Laws.
7.9. OFFICERS.
The Persons identified prior to the commencement of the Confirmation
Hearing to serve as the initial officers of the Debtors shall commence service
in such capacities on the Effective Date in accordance with their respective
employment agreements, if any, and applicable nonbankruptcy law. Subject to any
applicable employment agreements and applicable nonbankruptcy law, from and
after the Effective Date, the officers of the Debtors shall be selected and
appointed by the respective boards of directors of the Debtors, in accordance
with, and pursuant to, the provisions of applicable law and the New Charters and
the New By-Laws.
7.10. THE NEW CHARTERS AND THE NEW BY-LAWS.
Upon the occurrence of the Effective Date, the charters and bylaws of
each of the Debtors shall be amended and restated in substantially the form of
the New Charters and the New By-Laws, to, among other things, (a) prohibit the
issuance of nonvoting equity securities as required by section 1123(a)(6) of the
Bankruptcy Code, subject to further amendment of such New Charters as permitted
by applicable law, and (b) otherwise effectuate the provisions of the Plan.
7.11. CAUSES OF ACTION.
Except as otherwise provided in the Plan, all Causes of Action
assertable by any of the Debtors, including but not limited to Avoidance
Actions, shall be retained by the Debtors, shall be vested in the Debtors in
accordance with Section 4.1(d)(i) of the Plan, upon the occurrence of the
Effective Date. Except as otherwise provided in the Plan, the Debtors' rights to
commence such Causes of Action (including Avoidance Actions) shall be preserved
notwithstanding consummation of the Plan. Any net recovery realized by the
Debtors on account of such Causes of Action shall be the property of the
recovering Debtor, as applicable. Upon the occurrence of the Effective Date, all
Claims and Causes of Action of the Debtors against the directors, officers and
employees of the Debtors who served in such capacities on the last Business Day
prior to the occurrence of the Effective Date (which may be asserted by the
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Debtors directly for their own benefit or derivatively for the benefit of any
Person), shall be waived, released and forever discharged.(1)
7.12. SETTLEMENT.
In accordance with section 1123(b)(3) of the Bankruptcy Code and
Bankruptcy Rule 9019, in consideration of, among other things (a) the payment of
the Settlement Proceeds to the AxisTel Debtors, (b) the release of the e.Volve
Claim against AxisTel in the approximate amount of $1.5 million, (c) the
retention of the AxisTel Equity Interests by NNOC pursuant to section
4.1(d)(iii), and (d) other good and valuable consideration, without which this
Plan could not be confirmed and consummated, on the Effective Date, each
Proponent shall be conclusively and irrevocably deemed to have released any and
all Claims and Causes of Action of such Proponent, on the one hand, against each
other Proponent and each of their respective subsidiaries, officers, directors,
employees, agents, representatives, advisors, attorneys, successors and assigns,
on the other hand, based in whole or in part on any act, omission, event,
circumstance, condition or thing that occurred or existed prior to the Effective
Date; provided however, Claims and Causes of Action of the Debtors against the
directors, officers and employees of the Debtors who did not serve in such
capacities on the last Business Day prior to the Effective Date shall be
preserved in accordance with Section 7.11 of the Plan. As set forth in Section
13.21 of the Plan, on the Effective Date, all Persons who have been, are, or may
be holders of Claims against or Equity Interests in the Debtors shall be
enjoined from taking any action against or affecting the Proponents, the
Estates, or the Assets with respect to such Claims or Equity Interests (other
than to enforce provisions of the Plan). Entry of the Confirmation Order shall
constitute approval of the Settlement and authorize the parties to take all
actions that are necessary or appropriate to implement and give effect to the
Settlement.
7.13. APPOINTMENT OF THE DISBURSING AGENT.
Upon the occurrence of the Effective Date, NNOC shall be appointed to
serve as the Disbursing Agent.
7.14. SOURCES OF CASH FOR PLAN DISTRIBUTIONS.
All Cash necessary for the Disbursing Agent to make payments and
Distributions pursuant to the Plan shall be obtained from existing Cash
balances, and the Net Consideration from the disposition of the Assets pursuant
to the Plan.
7.15. INVESTMENT OF FUNDS HELD BY THE DISBURSING AGENT; TAX REPORTING BY THE
DISBURSING AGENT.
The Disbursing Agent may, but shall not be required to, invest any
funds held by the Disbursing Agent pending the distribution of such funds
pursuant to the Plan in investments
----------
(1) The Debtors reserve the right to modify the Plan to facilitate
prosecution of the Claims and Causes of Action.
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that are exempt from federal, state, and local taxes. Subject to definitive
guidance from the IRS or a court of competent jurisdiction to the contrary
(including the receipt by the Disbursing Agent of a private letter ruling if the
Disbursing Agent so requests one, or the receipt of an adverse determination by
the IRS upon audit if not contested by the Disbursing Agent), the Disbursing
Agent shall (a) treat the funds and other property held by it as held in a
single trust for federal income tax purposes in accordance with the trust
provisions of the Internal Revenue Code (Sections 641 et seq.), and (b) to the
extent permitted by applicable law, report consistently with the foregoing for
state and local income tax purposes.
7.16. DISTRIBUTIONS UNDER THE PLAN.
The Disbursing Agent shall make all Distributions required under the
Plan. Whenever any Distribution to be made under this Plan shall be due on a day
other than a Business Day, such Distribution shall instead be made, without
interest, on the immediately succeeding Business Day, but shall be deemed to
have been made on the date due. For federal income tax purposes, a Distribution
will be allocated to the principal amount of a Claim first and then, to the
extent the Distribution exceeds the principal amount of the Claim, to the
portion of the Claim representing accrued but unpaid interest.
7.17. TIMING OF DISTRIBUTIONS UNDER THE PLAN.
Except for Distributions to holders of Allowed DIP Claims on the
Effective Date pursuant to Section 5.1(d) of the Plan, any Distribution to be
made pursuant to the Plan shall be deemed to have been timely made if made
within ten (10) days after the time therefor specified in the Plan.
7.18. ADDRESS FOR DELIVERY OF DISTRIBUTIONS UNDER THE PLAN.
Subject to Bankruptcy Rule 9010, any Distribution or delivery to a
holder of an Allowed Claim or Equity Interest shall be made at the address of
such holder as set forth on the proof of Claim filed by such holder (or at the
last known address of such holder if no proof of claim is filed or if the
Disbursing Agent or the Debtors, as the case may be, have been notified of a
change of address). If any holder's Distribution or payment is returned to the
Disbursing Agent as undeliverable, no Distributions or payments to such holder
shall be made to such holder unless the Disbursing Agent is notified of such
holder's then current address within three months after such Distribution or
payment was returned. After such date, if such notice was not provided, a holder
shall have forfeited its right to such Distribution or payment, and the
undeliverable Distributions or payment shall be distributed to other holders
pursuant to their respective Pro Rate Share pursuant to the Plan.
7.19. DISTRIBUTIONS UNDER TWENTY-FIVE DOLLARS.
No Distribution of less than twenty-five dollars ($25.00) shall be made
by the Disbursing Agent to the holder of any Claim unless a request therefor is
made in writing to the Disbursing Agent. If no request is made as provided in
the preceding sentence, all such Distributions shall revert to the Debtors.
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7.20. TIME BAR TO CASH PAYMENTS AND PLAN SECURITIES.
Checks issued in respect of Allowed Claims shall be null and void if
not negotiated within one hundred and eighty (180) days after the date of
issuance thereof. Requests for reissuance of any check shall be made directly to
the Disbursing Agent by the holder of the Allowed Claim with respect to which
such check originally was issued. Any claim in respect of such a voided check
shall be made on or before the later of (a) the first anniversary of the date on
which such Distribution or payment was made and (b) one hundred and eighty (180)
days after the date of the issuance of such check. If no claim is made as
provided in the preceding sentence, all Claims in respect of void checks shall
be discharged and forever barred and such unclaimed Distributions or payments
shall revert to the Debtors.
7.21. MANNER OF PAYMENT UNDER THE PLAN.
Unless the Person receiving a Distribution agrees otherwise, any
Distribution to be made in Cash under the Plan shall be made, at the election of
the Disbursing Agent, by check drawn on a domestic bank or by wire transfer from
a domestic bank.
7.22. EXPENSES INCURRED ON OR AFTER THE EFFECTIVE DATE AND CLAIMS OF THE
DISBURSING AGENT.
Except as otherwise ordered by the Bankruptcy Court or as provided
herein, the amount of any reasonable fees and expenses incurred (or to be
incurred) by the Disbursing Agent on or after the Effective Date (including, but
not limited to, taxes) may be withheld from the amounts to be distributed by the
Disbursing Agent until such expenses are satisfied in full. Consequently,
amounts actually received by holders of Allowed Claims may be less than the
gross distributions provided for under the Plan by the amount withheld for the
payment of the Disbursing Agent's reasonable fees and expenses incurred by the
Disbursing Agent, or its agents. Professional fees and expenses incurred by the
Disbursing Agent from and after the Effective Date in connection with the
effectuation of the Plan shall be paid in the ordinary course of business. Any
dispute regarding compensation shall be resolved by agreement of the parties or
if the parties are unable to agree, as determined by the Bankruptcy Court.
7.23. FRACTIONAL DISTRIBUTIONS.
Notwithstanding anything to the contrary contained herein, no Cash
payments of fractions of cents and no fractional distributions of shares of
e.Volve Preferred Stock will be made. Fractional cents shall be rounded to the
nearest whole cent. Fractional shares shall be rounded down to the next-lower
whole number of shares.
7.24. CORPORATE ACTION.
On the Effective Date, the adoption of the New Charters, the filing by
the Debtors of the New Charters and the adoption of the New By-Laws, as
contemplated by Section 7.9 hereof, shall be authorized and approved in all
respects, in each case without further action under applicable law, regulation,
order, or rule, including, without express or implied limitation, any action by
the stockholders or directors of the Debtors. On the Effective Date or as soon
thereafter as is practicable, the Debtors shall file with the Secretary of State
of the State of
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Delaware their New Charters. On the Effective Date, any other matters provided
under the Plan involving the corporate structure of the Debtors or corporate
action by the Debtors shall be deemed to have occurred, be authorized, and shall
be in effect from and after the Effective Date without requiring further action
under applicable law, regulation, order, or rule, including, without express or
implied limitation, any action by the stockholders or directors of the Debtors.
7.25. EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS
Each of the officers of the Debtors is authorized, in accordance with
his or her authority under the resolutions of the boards of directors, to
execute, deliver, file, or record such contracts, instruments, releases,
indentures, and other agreements or documents and take such actions as may be
necessary or appropriate to effectuate and further evidence the terms and
conditions of the Plan and any notes or securities issued pursuant to the Plan.
ARTICLE VIII.
PROCEDURES FOR RESOLVING
AND TREATING CONTESTED CLAIMS
8.1. OBJECTION DEADLINE.
As soon as practicable, but in no event later than one hundred and
eighty (180) days after the Effective Date (subject to being extended by the
Bankruptcy Court upon motion of the Disbursing Agent without notice or a
hearing), objections to Claims shall be filed with the Bankruptcy Court and
served upon the holders of each of the Claims to which objections are made.
8.2. PROSECUTION OF CONTESTED CLAIMS.
The Disbursing Agent may object to the allowance of Claims filed with
the Bankruptcy Court with respect to which liability is disputed in whole or in
part. All objections that are filed and prosecuted as provided herein shall be
litigated to Final Order or compromised and settled in accordance with Section
8.3 of the Plan.
8.3. CLAIMS SETTLEMENT GUIDELINES.
Notwithstanding any requirements that may be imposed pursuant to
Bankruptcy Rule 9019, from and after the Effective Date all Claims and all
claims that any of the Debtors have asserted against other parties may be
compromised and settled according to the following procedures:
(a) Subject to subsection 8.3(b) hereof, the following
settlements or compromises do not require the review or approval of the
Bankruptcy Court or any other party in interest:
(i) The settlement or compromise of a Claim pursuant
to which such Claim is Allowed in an amount of $100,000 or
less; and
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(ii) The settlement or compromise of a Claim where
the difference between the amount of the Claim listed on the
Debtors' Schedules and the amount of the Claim proposed to be
Allowed under the settlement is $100,000 or less; and
(b) The following settlements or compromises shall be
submitted to the Bankruptcy Court for approval:
(i) Any settlement or compromise not described in
subsection 8.3(a) hereof; and
(ii) Any settlement or compromise of a Claim or a
claim asserted by one or more of the Debtors that involves an
"insider," as defined in section 101(31) of the Bankruptcy
Code.
8.4. NO DISTRIBUTIONS PENDING ALLOWANCE.
Notwithstanding any other provision of the Plan, no payment or
Distribution shall be made with respect to any Claim to the extent it is a
Contested Claim, unless and until such Contested Claim becomes an Allowed Claim,
subject to the Debtors' setoff rights as provided in Section 13.16 of the Plan.
8.5. DISTRIBUTIONS AFTER ALLOWANCE.
Payments and Distributions to each holder of a Contested Claim, to the
extent that such Claim ultimately becomes Allowed, shall be made in accordance
with the provision of the Plan governing the class of Claims to which the
respective holder belongs.
8.6. ESTIMATION OF CLAIMS.
The Disbursing Agent may, at any time, request that the Bankruptcy
Court estimate any Contested Claim pursuant to section 502(c) of the Bankruptcy
Code regardless of whether the Disbursing Agent has previously objected to such
Claim or whether the Bankruptcy Court has ruled on any such objection, and the
Bankruptcy Court will retain jurisdiction to estimate any Claim at any time
during litigation concerning any objection to any Claim, including during the
pendency of any appeal relating to any such objection. In the event that the
Bankruptcy Court estimates any Contested Claim, that estimated amount will
constitute either the allowed amount of such Claim or a maximum limitation on
such Claim, as determined by the Bankruptcy Court. If the estimated amount
constitutes a maximum limitation on such Claim, the Disbursing Agent may elect
to pursue any supplemental proceedings to object to any ultimate payment on such
Claim. All of the objection, estimation, settlement, and resolution procedures
set forth in the Plan are cumulative and not necessarily exclusive of one
another. Claims may be estimated and subsequently compromised, settled,
withdrawn or resolved by any mechanism approved by the Bankruptcy Court.
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ARTICLE IX.
CONDITIONS PRECEDENT TO
CONFIRMATION OF THE PLAN AND
THE OCCURRENCE OF THE EFFECTIVE DATE
9.1. CONDITIONS PRECEDENT TO CONFIRMATION.
The following are conditions precedent to confirmation of the Plan:
(a) The Clerk of the Bankruptcy Court shall have entered an
order or orders, which may be the Confirmation Order, approving the
Plan Documents, authorizing the Debtors to execute, enter into, and
deliver the Plan Documents and to execute, implement, and to take all
actions otherwise necessary or appropriate to give effect to, the
transactions contemplated by the Plan and the Plan Documents,
including, without limitation, consummating the sales and transactions
contemplated by the Non-Operating Asset Auction and the e.Volve
Transaction Documents.
(b) The Confirmation Order, the Plan Documents and the e.Volve
Transaction Documents shall be, in form and substance, acceptable to
the Proponents.
9.2. CONDITIONS PRECEDENT TO THE OCCURRENCE OF THE EFFECTIVE DATE.
The following are conditions precedent to the occurrence of the
Effective Date:
(a) The Confirmation Order shall have been entered by the
Clerk of the Bankruptcy Court, be in full force and effect and not be
subject to any stay or injunction.
(b) All necessary consents, authorizations and approvals shall
have been given for the transfers of property and the payments provided
for or contemplated by the Plan, including, without limitation,
satisfaction or waiver of all conditions to the obligations of the
Proponents under the Plan and the Plan Documents.
9.3. WAIVER OF CONDITIONS.
The Proponents may waive any of the conditions set forth in Sections
9.1 and 9.2 of the Plan in a writing executed by each of them.
9.4. EFFECT OF NON-OCCURRENCE OF THE EFFECTIVE DATE.
If the Effective Date shall not occur notwithstanding Section 9.3 of
the Plan, the Plan shall be null and void and nothing contained in the Plan or
the Disclosure Statement shall: (a) constitute a waiver or release of any Claims
or Equity Interests; (b) prejudice in any manner the rights of the Proponents;
or (c) constitute an admission, acknowledgement, offer or undertaking by the
Proponents.
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ARTICLE X.
THE DISBURSING AGENT
10.1. POWERS AND DUTIES.
Pursuant to the terms and provisions of the Plan, the Disbursing Agent
shall be empowered and directed to (a) take all steps and execute all
instruments and documents necessary to make Distributions to holders of Allowed
Claims; (b) make distributions contemplated by the Plan; (c) comply with the
Plan and the obligations thereunder; (d) employ, retain, or replace
professionals to represent it with respect to its responsibilities; (e) object
to Claims as specified in Article VIII hereof, and prosecute such objections;
(f) compromise and settle any issue or dispute regarding the amount, validity,
priority, treatment, or Allowance of any Claim as provided in Article VIII
hereof; (g) make annual and other periodic reports regarding the status of
distributions under the Plan to the holders of Allowed Claims that are
outstanding at such time; such reports to be made available upon request to the
holders of any Contested Claim; and (h) exercise such other powers as may be
vested in the Disbursing Agent pursuant to the Disbursement Agreement, order of
the Bankruptcy Court, or the Plan.
10.2. DISTRIBUTIONS.
Pursuant to the terms and provisions of the Plan, the Disbursing Agent
shall on the Distribution Date, make the required Distributions specified under
the Plan. To the extent all or a portion of a Contested Claim becomes an Allowed
Claim subsequent to the Effective Date, the Disbursing Agent shall distribute to
the holder of such Contested Claim the applicable Distribution within thirty
(30) days of such Contested Claim becoming an Allowed Claim.
10.3. EXCULPATION.
Except as otherwise provided in this Section 10.3, the Disbursing
Agent, together with its officers, directors, employees, agents, and
representatives, are hereby exculpated by all Persons, holders of Claims and
Equity Interests, and all other parties in interest, from any and all Causes of
Action, and other assertions of liability (including breach of fiduciary duty)
arising out of the discharge of the powers and duties conferred upon the
Disbursing Agent by the Plan, any Final Order of the Bankruptcy Court entered
pursuant to or in the furtherance of the Plan, or applicable law, except solely
for actions or omissions arising out of the Disbursing Agent's willful
misconduct or gross negligence. No holder of a Claim or an Equity Interest, or
representative thereof, shall have or pursue any claim or cause of action (a)
against the Disbursing Agent or its officers, directors, employees, agents, and
representatives for making payments or Distributions in accordance with the
Plan, or for liquidating the Remaining Estate Assets to make Distributions under
the Plan, or (b) against any holder of a Claim for receiving or retaining
payments or transfers of assets as provided for by the Plan. Nothing contained
in this Section 10.3 shall preclude or impair any holder of an Allowed Claim
from bringing an action in the Bankruptcy Court against the Debtor to compel the
making of Distributions contemplated by the Plan on account of such Claim.
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ARTICLE XI.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
11.1. ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
Pursuant to section 365 of the Bankruptcy Code, Exhibit "3" to the Plan
sets forth a list of executory contracts and unexpired leases, together with the
amount, if any, required to cure any defaults, to be assumed under the Plan and,
if applicable, assigned to e.Volve. Any executory contracts or unexpired leases
listed on Exhibit "3" to the Plan, as such may be amended prior to the
Confirmation Hearing, shall be deemed to have been assumed by the Debtors on the
Effective Date and, if applicable, assigned to e.Volve. The Plan shall
constitute a motion to assume and assign such executory contracts and unexpired
leases. Subject to the occurrence of the Effective Date, the Confirmation Order
shall constitute approval of such assumptions and assignments pursuant to
section 365 of the Bankruptcy Code and findings by the Bankruptcy Court that the
amounts listed on Exhibit "3" are sufficient to cure any defaults that may
exist, that each assumption is in the best interest of the Debtors, their
estates, and all parties in interest in the Chapter 11 Cases and that the
requirements for assumption and assignment of any executory contract or
unexpired lease to be assumed and assigned under section 365 of the Bankruptcy
Code have been satisfied, unless the non-debtor party to such contract or lease
timely disputes such findings. Except as otherwise provided in the following
sentence, all cure payments which may be required by section 365(b)(1) of the
Bankruptcy Code under any executory contract or unexpired lease which is assumed
under the Plan shall be made by the Debtors on the Effective Date or as soon as
practicable thereafter. In the event of a dispute, cure payments required by
section 365(b)(1) of the Bankruptcy Code shall be paid upon entry of a Final
Order resolving such dispute.
11.2. REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
Any executory contracts or unexpired leases of any of the Debtors that
(a) are not listed on Exhibit "3" to the Plan, (b) have not been approved by the
Bankruptcy Court prior to the Confirmation Date for assumption and assignment by
any of the Debtors, and (c) are not the subject of pending motions to assume on
the Confirmation Date shall be deemed to have been rejected by the Debtors. The
Plan shall constitute a motion to reject such executory contracts and unexpired
leases, and the Debtors shall have no liability thereunder except as is
specifically provided in the Plan. The Confirmation Order shall constitute
approval of such rejections pursuant to section 365(a) of the Bankruptcy Code
and a finding by the Bankruptcy Court that each such rejected executory contract
or unexpired lease is burdensome and that the rejection thereof is in the best
interest of the Debtors, their estates, and all parties in interest in the
Chapter 11 Cases.
11.3. CLAIMS ARISING FROM REJECTION OR TERMINATION.
Claims created by the rejection of executory contracts or unexpired
leases or the expiration or termination of any executory contract or unexpired
lease prior to the Confirmation Date must be filed with the Bankruptcy Court and
served on the Debtors (a) in the case of an executory contract or unexpired
lease rejected by the Debtors prior to the Confirmation Date, in
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accordance with the Bar Date Notice, or (b) in the case of an executory contract
or unexpired lease that (i) was terminated or expired by its terms prior to the
Confirmation Date, or (ii) is deemed rejected pursuant to Section 11.2 of the
Plan, no later than thirty (30) days after the Confirmation Date, or (c) in the
case of an executory contract or unexpired lease that is rejected by the Debtors
after the Confirmation Date, within thirty (30) days after the entry of an order
of the Bankruptcy Court authorizing and approving such rejection. Any Claims for
which a proof of claim is not filed and served within such time will be forever
barred from assertion and shall not be enforceable against the Debtors, their
estates, assets, properties, or interests in property. Unless otherwise ordered
by the Bankruptcy Court, all such Claims that are timely filed as provided
herein shall be treated as Unsecured Claims under the Plan subject to objection
by the Debtors.
ARTICLE XII.
RETENTION OF JURISDICTION
12.1. Pursuant to sections 105(a) and 1142 of the Bankruptcy Code, the
Bankruptcy Court shall retain and shall have exclusive jurisdiction over any
matter (a) arising under the Bankruptcy Code, (b) arising in or related to the
Chapter 11 Cases or the Plan, or (c) that relates to the following:
(i) To hear and determine any and all motions or
applications pending on the Confirmation Date or thereafter
brought in accordance with Article XII hereof for the
assumption and/or assignment or rejection of executory
contracts or unexpired leases to which any of the Debtors is a
party or with respect to which any of the Debtors may be
liable, and to hear and determine any and all Claims resulting
therefrom or from the expiration or termination of any
executory contract or unexpired lease;
(ii) To determine any and all adversary proceedings,
applications, motions, and contested or litigated matters that
may be pending on the Effective Date or that, pursuant to the
Plan, may be instituted by the Disbursing Agent after the
Effective Date, including, without express or implied
limitation, any application to the Bankruptcy Court relating
to any claims to avoid any preferences, fraudulent transfers,
or other voidable transfers, or otherwise to recover assets
for the benefit of the Debtors;
(iii) To hear and determine any objections to the
allowance of Claims, whether filed, asserted, or made before
or after the Effective Date, including, without express or
implied limitation, to hear and determine any objections to
the classification of any Claim and to allow, disallow or
estimate any Contested Claim in whole or in part;
(iv) To issue such orders in aid of execution of the
Plan to the extent authorized or contemplated by section 1142
of the Bankruptcy Code;
(v) To consider any modifications of the Plan, remedy
any defect or
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omission, or reconcile any inconsistency in any order of the
Bankruptcy Court, including, without limitation, the
Confirmation Order;
(vi) To hear and determine all applications for
allowances of compensation and reimbursement of expenses of
professionals under sections 330 and 331 of the Bankruptcy
Code and any other fees and expenses authorized to be paid or
reimbursed under the Plan or the Bankruptcy Code;
(vii) To hear and determine all controversies, suits,
and disputes that may relate to, impact upon, or arise in
connection with the Plan, the Settlement or the e.Volve
Transaction Documents or their interpretation, implementation,
enforcement, or consummation;
(viii) To hear and determine all controversies,
suits, and disputes that may relate to, impact upon, or arise
in connection with the Confirmation Order (and all exhibits to
the Plan) or its interpretation, implementation, enforcement,
or consummation;
(ix) To the extent that Bankruptcy Court approval is
required, to consider and act on the compromise and settlement
of any Claim or cause of action by or against the Debtors'
estates;
(x) To determine such other matters that may be set
forth in the Plan, or the Confirmation Order, or that may
arise in connection with the Plan, or the Confirmation Order;
(xi) To hear and determine matters concerning state,
local, and federal taxes, fines, penalties, or additions to
taxes for which the Debtors, the Debtors in Possession, or the
Disbursing Agent may be liable, directly or indirectly, in
accordance with sections 346, 505, and 1146 of the Bankruptcy
Code;
(xii) To hear and determine all controversies, suits,
and disputes that may relate to, impact upon, or arise in
connection with any setoff and/or recoupment rights of the
Debtors or any Person;
(xiii) To hear and determine all controversies,
suits, and disputes that may relate to, impact upon, or arise
in connection with Causes of Action of the Debtors (including
Avoidance Actions) commenced by the Disbursing Agent or the
Debtors, as applicable, before or after the Effective Date;
(xiv) To enter an order or final decree closing the
Chapter 11 Cases;
(xv) To determine such other matters and for such
other purposes as may be provided in the Confirmation Order;
(xvi) To issue injunctions, enter and implement other
orders or take such other actions as may be necessary or
appropriate to restrain interference by any Person with
consummation, implementation or enforcement of the Plan or the
Confirmation Order; and
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(xvii) To hear and determine any other matters
related hereto and not inconsistent with chapter 11 of the
Bankruptcy Code.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
13.1. PAYMENT OF STATUTORY FEES.
All fees payable pursuant to section 1930 of title 28 of the United
States Code, as determined by the Bankruptcy Court at the Confirmation Hearing,
shall be paid by the Debtors on or before the Effective Date.
13.2. DISCHARGE OF THE DEBTORS.
The rights afforded in the Plan and the treatment of all Claims and
Equity Interests herein shall be in exchange for and in complete satisfaction,
discharge, and release of all Claims and Equity Interests of any nature
whatsoever, including any interest accrued thereon from and after the Petition
Date, against the Debtors and the Debtors in Possession, or any of their
Estates, Assets, properties, or interests in property. Except as otherwise
provided herein, on the Effective Date, all Claims against and Equity Interests
in the Debtors and the Debtors in Possession shall be satisfied, discharged, and
released in full. The Debtors shall not be responsible for any pre-Effective
Date obligations of the Debtors or the Debtors in Possession, except those
expressly assumed by any of the Debtors in the Plan. Except as otherwise
provided herein, all Persons shall be precluded and forever barred from
asserting against the Debtors, their respective successors or assigns, or their
Assets, properties, or interests in property any other or further Claims based
upon any act or omission, transaction, or other activity of any kind or nature
that occurred prior to the Effective Date, whether or not the facts of or legal
bases therefor were known or existed prior to the Effective Date.
13.3. THIRD PARTY AGREEMENTS; SUBORDINATION.
The Distributions to the various classes of Claims hereunder shall not
affect the right of any Person to levy, garnish, attach, or employ any other
legal process with respect to such Distributions by reason of any claimed
subordination rights or otherwise. All of such rights and any agreements
relating thereto shall remain in full force and effect. Distributions under the
Plan shall be subject to and modified by any Final Order directing distributions
other than as provided in the Plan. In accordance with section 510(b) of the
Bankruptcy Code, a Claim arising from rescission of a purchase or sale of a
security of the Debtors or of an Affiliate of the Debtors, for damages arising
from the purchase or sale of such a security, or for reimbursement or
contribution allowed under section 502 of the Bankruptcy Code on account of such
Claim, shall be subordinated to all Claims that are senior to or equal the Claim
or Equity Interest represented by such security, except that if such security is
common stock, such Claim has the same priority and treatment as Class 4 Equity
Interests.
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13.4. EXCULPATION.
None of the Proponents, or the Disbursing Agent, or any of their
respective officers, directors, employees, agents, representatives, advisors,
attorneys, successors and assigns for any act or omission in connection with or
arising out of the pursuit of confirmation of the Plan, the consummation of the
Plan, or the administration of the Plan or the property to be distributed under
the Plan, except for gross negligence or willful misconduct as determined by
Final Order of the Bankruptcy Court, and in all respects shall be entitled to
rely upon the advice of counsel and all information provided by other exculpated
persons herein without any duty to investigate the veracity or accuracy of such
information with respect to their duties and responsibilities under the Plan.
13.5. TITLE TO ASSETS; DISCHARGE OF LIABILITIES.
Except as otherwise provided in the Plan, on the Effective Date, title
to all Assets shall vest in the Debtors, e.Volve, or any other purchaser of such
Assets pursuant to the Non-Operating Asset Auction, as applicable, free and
clear of all Claims, Equity Interests, liens, security interests, encumbrances,
and other interests, and the Confirmation Order shall be a judicial
determination of discharge of the liabilities of the Debtors, except as provided
in the Plan. Except as otherwise provided in the Plan, all holders of Claims and
Equity Interests shall be precluded from asserting against the Debtors, the
Assets, or any property dealt with under the Plan, any or other further Claim
based upon any act or omission, transaction, or other activity of any kind or
nature that occurred prior to the Confirmation Date.
13.6. SURRENDER AND CANCELLATION OF INSTRUMENTS.
Upon the occurrence of the Effective Date, except as otherwise provided
herein, all promissory notes, share certificates, instruments, indentures, or
agreements evidencing, giving rise to, or governing any Claim or Equity Interest
shall be deemed canceled and annulled without further act or action under any
applicable agreement, law, regulation, order, or rule, and the obligations of
the Debtors under such promissory notes, share certificates, instruments,
indentures, or agreements shall be discharged. At the option of the Disbursing
Agent, no Distribution hereunder shall be made to or on behalf of any holder of
any such Claim or Equity Interest, unless and until such promissory note,
instrument, security or agreement is surrendered or the unavailability thereof
is reasonably established to the satisfaction of the Disbursing Agent and such
holder of a Claim or Equity Interest executes and delivers any documents
necessary to release all encumbrances arising under any applicable security
agreement or nonbankruptcy law and such other documents as the Disbursing Agent
may reasonably request. In accordance with section 1143 of the Bankruptcy Code,
any such holder of a Claim or Equity Interest that fails to surrender or cause
to be surrendered such promissory note, instrument, security or agreement or to
execute and deliver an affidavit of loss and indemnity reasonably satisfactory
to the Disbursing Agent, and, in the event that the Disbursing Agent requests,
furnish a bond in form and substance reasonably satisfactory to the Disbursing
Agent (including, without limitation, amount), shall be deemed to have forfeited
all rights, claims, and interests and shall not participate in any Distribution
hereunder (to the extent otherwise entitled).
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13.7. NOTICES.
Any notices, requests, and demands required or permitted to be provided
under the Plan, in order to be effective, shall be in writing (including,
without express or implied limitation, 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:
AxisTel Communications, Inc., et. al.
Attention: President
-------------------------------------------
-------------------------------------------
Telephone:
-----------------
Telecopier:
-----------------
and
The Bayard Firm
Attention: Jeffrey M. Schlerf, Esq.
222 Delaware Ave., 9th Floor
Wilmington, DE 19899
Telephone: (302) 655-5000
Telecopier: (302) 658-6395
and
Novo Networks, Inc.
Attention: President
300 Crescent Court, Suite 1760
Dallas, TX 75201
Telephone: (214) 777-4109
Telecopier: (214) 777-4185
and
White & Case LLP
Attention: John K. Cunningham, Esq.
200 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 371-2700
Telecopier: (305) 358-5744
13.8. HEADINGS.
The headings used in the Plan are inserted for convenience only, and
neither constitute a portion of the Plan nor in any manner affect the
construction of the provisions of the Plan.
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13.9. GOVERNING LAW.
Unless a rule of law or procedure is supplied by federal law (including
the Bankruptcy Code and the Bankruptcy Rules), the laws of the State of
Delaware, without giving effect to the conflicts of laws principles thereof,
shall govern the construction of the Plan and any agreements, documents, and
instruments executed in connection with the Plan, except as otherwise expressly
provided in such instruments, agreements or documents.
13.10. EXPEDITED DETERMINATION.
The Disbursing Agent is hereby authorized to file a request for
expedited determination under section 502(b) of the Bankruptcy Code for all tax
returns filed with respect to the Debtors.
13.11. EXEMPTION FROM TRANSFER TAXES.
Pursuant to section 1146(c) of the Bankruptcy Code, the issuance,
transfer, or exchange of notes or equity securities under the Plan, the creation
of any mortgage, deed of trust, or other security interest, the making or
assignment of any lease or sublease, or the making or delivery of any deed or
other instrument of transfer under, in furtherance of, or in connection with the
Plan, shall not be subject to any stamp, real estate transfer, mortgage
recording, or other similar tax.
13.12. RETIREE BENEFITS.
The Debtors do not provide "retiree benefits," as that term is defined
under section 1114(a) of the Bankruptcy Code. Therefore, on and after the
Effective Date, the Debtors will not pay retiree benefits.
13.13. NOTICE OF ENTRY OF CONFIRMATION ORDER AND RELEVANT DATES.
Promptly upon entry of the Confirmation Order, the Debtors shall
publish as directed by the Bankruptcy Court and serve on all known parties in
interest and holders of Claims and Equity Interests, notice of the entry of the
Confirmation Order and all relevant deadlines and dates under the Plan,
including, but not limited to, the deadline for filing notice of Administrative
Claims (Section 5.1 hereof), and the deadline for filing rejection damage claims
(Section 11.3 hereof).
13.14. NO INTEREST OR ATTORNEYS' FEES.
Except as expressly stated in the Plan, or as allowed by the Bankruptcy
Court, no interest, penalty or late charge arising after the Petition Date, and
no award or reimbursement of attorneys fees or related expenses or
disbursements, shall be allowed on, or in connection with, any Claim.
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13.15. MODIFICATION OF THE PLAN.
As provided in section 1127 of the Bankruptcy Code, modification of the
Plan may be proposed in writing by the Debtors at any time before confirmation,
provided that the Plan, as modified, meets the requirements of sections 1122 and
1123 of the Bankruptcy Code, and the Debtors shall have complied with section
1125 of the Bankruptcy Code. The Debtors may modify the Plan at any time after
confirmation and before substantial consummation, provided that the Plan, as
modified, meets the requirements of sections 1122 and 1123 of the Bankruptcy
Code and the Bankruptcy Court, after notice and a hearing, confirms the Plan as
modified, under section 1129 of the Bankruptcy Code, and the circumstances
warrant such modifications. A holder of a Claim that has accepted or rejected
the Plan shall be deemed to have accepted or rejected, as the case may be, such
Plan as modified, unless, within the time fixed by the Bankruptcy Court, such
holder changes its previous acceptance or rejection.
13.16. REVOCATION OF PLAN.
The Debtors reserve the right to revoke and withdraw the Plan as to any
Debtor prior to the occurrence of the Effective Date. If the Debtors revoke or
withdraw the Plan as to any Debtor, or if the Effective Date does not occur as
to any Debtor, then, as to such Debtor the Plan and all settlements set forth in
the Plan shall be deemed null and void and nothing contained herein shall be
deemed to constitute a waiver or release of any Claims against or equity
interests in such Debtor or to prejudice in any manner the rights of the Debtors
or any Person in any other further proceedings involving such Debtor.
13.17. SETOFF RIGHTS.
In the event that the Debtors have a claim of any nature whatsoever
against the holder of a Claim, the Debtors may, but are not required to, setoff
against the Claim (and any payments or other Distributions to be made in respect
of such Claim hereunder) the Debtors' claim against the holder, subject to the
provisions of section 553 of the Bankruptcy Code. Neither the failure to setoff
nor the allowance of any Claim under the Plan shall constitute a waiver or
release of any claims that the Debtors have against the holder of a Claim.
13.18. SUBORDINATION/AVOIDANCE RIGHTS AGAINST THE DEBTORS.
All Claims against the Debtors, based upon any claimed subordination
rights against the Debtors or rights to avoid payments or transfers of property
by the Debtors pursuant to any provision of the Bankruptcy Code or other
applicable law, shall be deemed satisfied as to the Debtors by the distributions
under the Plan to holders of Allowed Claims having such subordination rights and
any rights to avoid payments or transfers of property.
13.19. COMPLIANCE WITH TAX REQUIREMENTS.
In connection with the Plan, the Debtors and the Disbursing Agent, as
applicable, 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.
Notwithstanding the above, each holder of an Allowed Claim that is to receive a
Distribution under the Plan shall have the sole and exclusive
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responsibility for the satisfaction and payment of any tax obligations imposed
by any government unit, including income, withholding and other tax obligations,
on account of such Distribution and reorganization. The Disbursing Agent has the
right, but not the obligation, to not make a Distribution until such holder has
made arrangements satisfactory to the Disbursing Agent for payment of any such
tax obligations. Pursuant to section 1146(c) of the Bankruptcy Code, the
issuance, transfer, or exchange of promissory notes, equity securities, or other
instruments under the Plan, the creation of any mortgage, deed of trust, or
other security interest, the making or assignment of any lease or sublease or
the making or delivery of any deed or other instrument of transfer under, in
furtherance of, or in connection with the Plan, including, without limitation,
any merger agreements or agreements of consolidation, deeds, bills of sale, or
assignments executed in connection with any of the transactions contemplated
under the Plan shall not be subject to any stamp, real estate transfer, mortgage
recording, or other similar tax.
13.20. RECOGNITION OF GUARANTY RIGHTS.
The classification and manner of satisfying all Claims under the Plan
take into consideration (a) the existence of guaranties by the Debtors of
obligations of other Persons, and (b) the fact that the Debtors may be joint
obligors with other Persons with respect to an obligation. All Claims against
the Debtors based upon any such guaranties or joint obligations shall be
discharged in the manner provided in the Plan; provided, that no creditor shall
be entitled to receive more than one recovery with respect to any of its Allowed
Claims.
13.21. COMPLIANCE WITH ALL 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 businesses, the Debtors or the Disbursing Agent, as applicable,
shall take whatever action as may be required to comply with such law, rule,
regulation, or order; provided, that nothing contained herein shall require such
compliance if the legality or applicability of any such requirement is being
contested in good faith, and, if appropriate, an adequate reserve for such
requirement has been set aside.
13.22. INJUNCTIONS.
On the Effective Date, all Persons who have been, are, or may be
holders of Claims against or Equity Interests in the Debtors shall be enjoined
from taking any of the following actions against or affecting the Proponents,
the Estates, the Assets, the Disbursing Agent, any purchaser pursuant to the
Non-Operating Asset Auction, or any of their respective subsidiaries, officers,
directors, employees (but only those directors, officers or employees serving in
such capacities on the last Business Day prior to the Effective Date), agents,
representatives, advisors, attorneys, successors and assigns or their respective
assets and property with respect to such Claims or Equity Interests (other than
actions brought to enforce any rights or obligations under the Plan):
(a) commencing, conducting or continuing in any manner,
directly or indirectly, any suit, action or other proceeding of any
kind (including, without limitation, all suits, actions, and
proceedings that are pending as of the Effective Date, which must be
withdrawn or dismissed with prejudice);
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(b) enforcing, levying, attaching, collecting or otherwise
recovering by any manner or means whether directly or indirectly any
judgment, award, decree or order;
(c) creating, perfecting or otherwise enforcing in any manner,
directly or indirectly, any encumbrance; and
(d) asserting any setoff, right of subrogation or recoupment
of any kind; provided, that any defenses, offsets or counterclaims
which the Debtors may have or assert in respect of the above referenced
claims are fully preserved in accordance with Section 13.16 of the
Plan.
13.23. BINDING EFFECT.
The Plan shall be binding upon and inure to the benefit of the Debtors,
the holders of all Claims and Equity Interests, and their respective successors
and assigns. To the extent any provision of the Disclosure Statement may be
inconsistent with the terms of the Plan, the terms of the Plan shall be binding
and conclusive.
13.24. SEVERABILITY.
SHOULD THE BANKRUPTCY COURT DETERMINE THAT ANY PROVISION OF THE PLAN IS
UNENFORCEABLE EITHER ON ITS FACE OR AS APPLIED TO ANY CLAIM OR EQUITY INTEREST
OR TRANSACTION, THE DEBTORS MAY MODIFY THE PLAN IN ACCORDANCE WITH SECTION 13.16
OF THE PLAN SO THAT SUCH PROVISION SHALL NOT BE APPLICABLE TO THE HOLDER OF ANY
CLAIM OR EQUITY INTEREST. SUCH A DETERMINATION OF UNENFORCEABILITY SHALL NOT (A)
LIMIT OR AFFECT THE ENFORCEABILITY AND OPERATIVE EFFECT OF ANY OTHER PROVISION
OF THE PLAN OR (B) REQUIRE THE RESOLICITATION OF ANY ACCEPTANCE OR REJECTION OF
THE PLAN.
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Dated: October 3, 2001
Respectfully submitted,
AxisTel Communications, Inc.
By: Steven Loglisci
Title: President
e.Volve Technology Group, Inc.
By: Steven Loglisci
Title: Chief Executive Officer
Novo Networks Global Services, Inc.
By: Steven Loglisci
Title: President
Novo Networks International Services, Inc.
By: Steven Loglisci
Title: Chief Executive Officer
Novo Networks Media Services, Inc.
By: Steven Loglisci
Title: Chief Executive Officer
Novo Networks Operating Corp.
By: Steven Loglisci
Title: Chief Executive Officer
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Novo Networks, Inc.
By:
-------------------------------------
Name: Barrett Wissman
Title: President
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