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Exhibit 4
STEPHEN R. HARRIS, ESQ.
BELDING, HARRIS & PETRONI, LTD.
Nevada Bar No. 001463
417 West Plumb Lane
Reno, Nevada 89509
Telephone: (702) 786-7600
Facsimile: (702) 786-7764
Attorney for Debtor
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
IN RE:
POWERTEL USA, INC. formerly known Case No. 97-30265-BMG
as NEVADA ENERGY, INC., also formerly (Chapter 11)
known as MUNSON GEOTHERMAL, INC.,
Hrg. DATE- August 25, 1998
Debtor. and TIME: 10:00 a.m.
E.I.N. 84-0897771
ORDER APPROVING AND CONFIRMING DEBTOR'S FIRST AMENDED
PLAN OF REORGANIZATION, AS REVISED AND AMENDED
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POWERTEL USA, INC., a Delaware corporation, formerly known as NEVADA
ENERGY, INC., also formerly known as MUNSON GEOTHERMAL, INC., the Debtor and
Debtor-in-Possession in this Chapter 11 bankruptcy reorganization case
("Debtor"), by and through its attorney, STEPHEN R. HARRIS, ESQ., of Belding,
Harris & Petroni, Ltd., having filed its DEBTOR'S FIRST AMENDED PLAN OF
REORGANIZATION (dated July 24, 1998), and commonly referred to herein as the
Plan; with the Plan being attached hereto as Exhibit "A" and
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incorporated herein by that reference, and the Plan having been duly filed,
served and noticed for an 11 U.S.C. sec. 1129 Confirmation Hearing, together
with (1) the DEBTOR'S SECOND AMENDED DISCLOSURE STATEMENT (dated July 24, 1998),
and (2) the ORDER APPROVING DEBTOR'S FIRST AMENDED DISCLOSURE STATEMENT, AS
AMENDED, AS CONTAINING ADEQUATE INFORMATION (11 U.S.C. sec. 1125), AND FIXING
TIME FOR FILING ACCEPTANCES OR REJECTIONS OF PLAN, on July 27, 1998, to all
creditors and parties requesting notice thereof; and having filed its ERRATA TO
BALLOT AND TO DEBTOR'S SECOND AMENDED DISCLOSURE STATEMENT PURSUANT TO 11 U.S.C.
sec. 1125, on August 17,1998, and its AMENDED ERRATA TO BALLOT AND TO DEBTOR'S
SECOND AMENDED DISCLOSURE STATEMENT PURSUANT TO 11 U.S.C. sec. 1125, on August
17, 1998, and served on August 18, 1998, with the duly noticed hearing to
consider confirmation of the Debtor's Plan, conducted on August 25, 1998, at
10:00 a.m.; with STEPHEN R. HARRIS, ESQ., of BELDING, HARRIS & PETRONI, LTD.,
appearing on behalf of the Debtor, POWERTEL USA, INC., a Delaware corporation;
and Richard Cascarilla, President of the Debtor, also present; NICHOLAS STROZZA,
Assistant U.S. Trustee, appearing on behalf of the Office of the United States
Trustee; and the Court also noting the appearances of other attorneys for
creditors, creditors and interested parties; and the Court having considered all
papers and pleadings on file; and no opposition having been filed;
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It having been determined after hearing on notice that:
1. The Plan has been accepted in writing by the creditors whose acceptance
is required by law:
2. The provisions of Chapter 11 of the Code have been complied with; that
the Plan has been proposed in good faith and not by any means forbidden by law;
and that the proponent of the Plan complies with the applicable provisions of
the Bankruptcy Code;
3. Each holder of a claim has accepted the Plan or will receive or retain
under the Plan property of a value, on account of such claim, as of the
Effective Date of the Plan, that is not less than the amount that such holder
would receive or retain if the Debtor POWERTEL USA, INC., a Delaware
corporation, was liquidated under Chapter 7 of the Code on such date, and
further, the Plan does not discriminate unfairly, and is fair and equitable,
with respect to each class of claims that is impaired under, and had not
accepted the Plan;
4. All payments made or promised by the Debtor POWERTEL USA, INC., a
Delaware corporation, or by a person(s) issuing securities or acquiring property
under the Plan or by any other person for services or for costs and expenses in,
or in connection with, the Plan and incident to this case, have been fully
disclosed to the Court and are reasonable or, if to be fixed after confirmation
of the Plan, will be subject to the approval of the Court:
5. The identity, qualifications, and affiliations of the persons who are to
be directors or officers of the successor to the Debtor POWERTEL USA, INC., a
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Delaware corporation, under the Plan, have been disclosed, if any;
6. The identity of any insider that will be employed or retained by the
Debtor and their compensation has been fully disclosed, if any;
7. Confirmation of the Plan is not likely to be followed by the need for
further financial reorganization of the Debtor or any successor to it under the
Plan, and the Plan is feasible;
8. At least one impaired class of claims has accepted the Plan, determined
without including any acceptances of the Plan by an insider holder of a claim of
such class; and
9. That all creditors, by virtue of acceptance of the Plan by the requisite
number and amount of members in each class, those accepting classes being the
following Class 6 General Unsecured Allowed Creditors' Claims of $1,200.00 or
Less (deemed to have accepted the Plan by their affirmative class vote), Class 7
General Unsecured Allowed Creditors' Claims of More than $1,200.00 (deemed to
have accepted the Plan by their affirmative class vote), Class 8 Claims of
Nevada Energy Partners, Ltd. (affirmative class vote) and Class 10 Equity
Security Holders (deemed to have accepted the Plan by their affirmative class
vote); and those creditors in Class 6 and 7 (General Allowed Unsecured
Creditors) that have not voted to accept or reject the plan are deemed to have
accepted by reason of the class acceptance resulting from the majority voting in
number with two-thirds (2/3) the claims amount of the Class 6 and Class 7
General Unsecured Creditors having voted for acceptance; and good cause
appearing,
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IT IS HEREBY ORDERED that the DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION
(dated July 24,1998), filed with the Court on July 24, 1998, and attached hereto
as Exhibit "A" and incorporated herein by that reference, be and the same hereby
is approved and confirmed, and its terms and conditions set forth therein are
binding on all Equity Interest Holders, Creditors and parties-in-interest in the
above-captioned bankruptcy case; and
IT IS FURTHER ORDERED that the interests of the Class 10 Equity Interest
Holders will be modified pursuant to the Plan, and further, Class 10 Equity
Interest Holders shall not receive any dividends or monetary distributions until
all allowed creditors' claims are paid in full and/or sufficient monies are on
deposit with the Disbursing Agent to pay disputed claims in the event of
allowance of same; and
IT IS FURTHER ORDERED that the Effective Date of the Plan shall be the
first business day occurring one-hundred and twenty (120) days after the date on
which the Order Confirming the Plan is entered by the Clerk's Office; and
IT IS FURTHER ORDERED that Debtor POWERTEL USA, INC., a Delaware
corporation, shall withhold payment to any Class of creditors until the
Effective Date, and thereafter paid as stated in the Plan, as amended and
revised herein, except Administrative Claims, which Administrative Claims shall
be paid by the Effective Date, unless otherwise agreed to in writing; and
IT IS FURTHER ORDERED that this Court shall retain jurisdiction to
adjudicate all matters (except to the extent contrary to the terms of the Plan)
pertinent to the administration of the Debtor and the Reorganized Debtor, and
enforcement of
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the Plan, including, but not limited to, the discharge of any and all claim(s)
of Creditors and interest(s) of Equity Interest Holders, to the extent provided
by law and under the terms of the Plan; and
IT IS FURTHER ORDERED that the Reorganized and Revested Debtor is
authorized to take all actions necessary to effectuate the DEBTOR'S FIRST
AMENDED PLAN OF REORGANIZATION (dated July 24,1998), as revised and amended
herein; and
IT IS FURTHER ORDERED that the assets of the bankrupt estate shall vest in
the Reorganized Debtor, as well as any remaining assets being liquidated and/or
distributed to the allowed secured and unsecured creditors' claims; and
IT IS FURTHER ORDERED that in accordance with 11 U.S.C. sec. 1123 (b)(2),
the Debtor rejects those executory contracts of indemnification identified to be
rejected in Article VIII, Section G(3) of the DEBTOR'S SECOND AMENDED DISCLOSURE
STATEMENT, and accepts those identified to be accepted, and further, as to the
Independent Contractor Agreement with Stone Brothers Welding and Equipment
Sales, the Debtor shall have sixty (60) days from the Confirmation Date within
which to place that contract at issue with the Bankruptcy Court, and
IT IS FURTHER ORDERED that in accordance with 11 U.S.C. sec. 1123(b)(3)(A),
a plan of reorganization may provide for the settlement of any claim(s)
belonging to the estate, and in that regard, the Plan contemplates the approval
of four (4) settlement agreements detailed as follows: (1) the Agreement between
and among PowerTel, Nevada Electric Power Company and Nevada Energy
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Partners, Ltd. ("the NEP Settlement"), specifically, the NEP Settlement is
described in detail at Section 11.1 of the Plan, which Plan was sent to all
creditors and to which no creditor had objected, and further, the NEP Settlement
resolves litigation and a $6 million claim against the Debtor without any
monetary obligation, and the Debtor receives 100% of the stock ownership in
Combustion Energy Company and the benefit of said corporation's assets, and
further, taking into consideration all of the factors of In re A & C Properties,
784 F.2d 1377 (9th Cir. 1986), the Court finds and concludes that the NEP
Settlement is hereby ratified and approved, and is reasonable, fair and
equitable and in the best interest of creditors; (2) the Agreement with John
Vogel and Dean Chamberlain (the "VivaTel Settlement Agreement and Mutual
Release"), which VivaTel Settlement Agreement and Mutual Release previously has
been approved by the Court, in that certain Stipulated Judgment and Order, filed
in adversary proceeding 97-31518MG, and entered on the docket on March 16, 1998,
which VivaTel Settlement Agreement and Mutual Release is hereby ratified and
approved; (3) the First Amended Agreement for the Exchange of Stock, dated April
22, 1998, between David Wallace and PowerTel USA, Inc., regarding DiegoTel,
Inc., is hereby ratified and approved; and (4) the First Amended Agreement for
the Exchange of Stock, dated February 19, 1998, between David Wallace and
PowerTel USA, Inc., regarding VivaTel, Inc., is hereby ratified and approved;
and
IT IS FURTHER ORDERED that in accordance with 11 U.S.C. sec. 1123(b)(3)(B),
a plan may provide for the appointment of the debtor for the retention and
enforcement of any claim belonging to the estate. In accordance with
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such provision, the Court hereby appoints PowerTel, the Reorganized Debtor, as
the entity to pursue all claims belonging to the estate, as identified in
Article V, Section E of the DEBTOR'S SECOND AMENDED DISCLOSURE STATEMENT,
including but not limited to, Pattinson Heyton, his alter egos, employees,
affiliates, agents and attorneys-in-fact, first for the benefit of the
Reorganized Debtor's administrative and unsecured creditors and then for the
benefit of the Reorganized Debtor; and
IT IS FURTHER ORDERED that pursuant to 11 U.S.C. sec. 1146(c) of Title
11, the revesting, transfer and sale of any real or personal property of the
Debtor in accordance with the DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION, as
amended and revised herein, shall become vested of public record in any
purchaser/transferee, free from the imposition of any state or local tax, fee or
imposition, including transfer taxes pursuant to N.R.S. sec. 357.090; and
IT IS FURTHER ORDERED that the confirmation of this DEBTOR'S FIRST AMENDED
PLAN OF REORGANIZATION, as revised and amended herein, constitutes a discharge
set forth in 11 U.S.C. sec. 1141 (d) of the Bankruptcy Code, except as noted
herein; and
IT IS FURTHER ORDERED that pursuant to 11 U.S.C. sec. 1106(a)(7), the
Debtor shall file with the Clerk, not later than 180 days after the entry of
this order, a report of the action taken by the Reorganized Debtor and the
progress made toward consummation of its confirmed Plan, as amended and revised
herein and further, said report shall include, as a minimum, the following
information:
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(1) A schedule of any real property, and its cost, acquired
since confirmation of the plan, and a schedule of each item of personal
property acquired at a cost of more than $20,000.00 since confirmation
of the plan.
(2) A schedule of each debt and each class, listing the total
amount of the plan required to be paid, the amount required to be paid
to date, the amount actually paid to date, and the amount unpaid.
(3) A schedule of executory contracts entered into or assumed
after plan confirmation.
(4) A statement indicating that post-petition taxes of every
kind have been paid current, identifying each type of tax which has
been paid and is current (i.e., income, payroll, property sales, etc.),
or a detailed explanation of any and all delinquencies, by type of tax,
and dollar amount.
(5) An estimate of the time for plan consummation and
application for final decree.
(6) Any other pertinent information needed to explain the
progress toward completion of the confirmed plan; and
IT IS FURTHER ORDERED that effective August 25, 1998, for professional
services rendered from that date forward, the Debtor's duly appointed
professionals do not need court approval, after notice and hearing, for payment
of professional fees and costs, and that the Reorganized Debtor may pay said
professionals for the times spent and costs incurred in the ordinary course of
its business; and
IT IS FURTHER ORDERED that the Debtor has sixty (60) days after the
Confirmation Date within which to file objection(s) to any disputed claims of
creditors; and
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IT IS FURTHER ORDERED that Debtor POWERTEL USA, INC., a Delaware
corporation, shall pay such fees to the Office of the United States Trustee as
are required by 28 U.S.C. sec. 1930(a)(6) until such time a final decree is
entered closing its case; and
IT IS FURTHER ORDERED that the Debtor's stock transfer agent may rely
on this Order as a basis to establish shareholders of record ("Equity Interest
Holders"), and may compute a reconfigured shareholder ledger.
DATED: September 15, 1998.
/s/
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BERT M. GOLDWATER
UNITED STATES BANKRUPTCY
JUDGE
Prepared by:
STEPHEN R. HARRIS, ESQ.
BELDING, HARRIS & PETRONI, LTD.
417 West Plumb Lane Reno, NV 89509
(702) 786-7600
Attorneys for Debtor
Approved and accepted Approved as to form this _____ day of
this __9__ day of September, 1998 September, 1998
_____________/s/_____________ _________________/s/_________________
RICHARD CASCARILLA, President NICHOLAS STROZZA, ESQ.
POWERTEL USA, INC., Debtor Assistant U.S. Trustee
Office of the United States Trustee