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Exhibit 10a
FIRST AMENDED AND RESTATED SETTLEMENT AND RELEASE AGREEMENT
This First Amended and Restated Settlement and Release Agreement
("Amended Agreement") is entered into by and among (1) PowerTel USA, Inc.
("PowerTel") a Delaware Corporation whose principal place of business is
situated in East Lansing, Michigan and formerly known as Munson Geothermal, Inc.
and also formerly known as Nevada Energy Company, Inc. ("NEC") (collectively
"Company"), (2) Nevada Energy Partners I, a Nevada Limited Partnership ("NEP"),
by Nevada Electric Power Company, its general partner, (3) Nevada Electric Power
Company, a Nevada corporation with its principal place of business situated in
Reno, Nevada ("NEPC"), and (4) the following sixteen (16) Corporations: Wilton
Ashfield, Ltd., Greyshire House, Ltd., August Lake Holdings, Ltd., Whitestone
Brooke Holdings, Ltd., Porterman Williams, Ltd., North Oldenfield, Ltd.,
Shepherd Market, Ltd., Parklane Mayfair, Ltd., Clermont & Annabel, Ltd.,
Berkeley Square Investments, Ltd., Blackstone Sterling Holdings, Ltd., Burke
Douglas Holdings, Ltd., Clarendon Atlantic Holdings, Ltd., Macaulay Island
Investments, Ltd., Young Bayshore Investments, Ltd., and Maitland Investments,
Ltd., (collectively referred to as "the Corporations"). "The Parties" referred
to in this Agreement refer to PowerTel, NEP, NEPC and the Corporations. This
Agreement is executed as of the day and year set forth below but is deemed to be
effective retroactive as of December 1, 1997 (the "Settlement Date").
RECITALS:
WHEREAS, the Parties to this Agreement have negotiated and executed an
Agreement (the "Initial Contract") addressing the subject of this Amended
Agreement but subsequent to the execution of the Initial Contract the Parties
have concluded that the Initial Contract did not reflect the intent of the
Parties;
WHEREAS, the Parties intend to amend and modify the Initial Contract by
this Amended Agreement and, therefore, declare the Initial Contract to be null
and void ab initio and further declare that this Amended Agreement to be the
only binding, enforceable contract between the parties with respect to the
subject matters set forth herein;
WHEREAS, prior to August 16, 1996, NEP owned 100.0% of the issued Class
B Common Stock of NEC; which Class B Common Stock was convertible into shares of
Class A Common Stock of NEC in an amount equal to 50.0% of the issued and
outstanding Class A Common Stock; and
WHEREAS, NEC and NEP entered into an Agreement dated August 16, 1996
(the "1996 Agreement") a copy of which is attached hereto as Exhibit 1; and
WHEREAS, pursuant to the terms of the 1996 Agreement various
transactions occurred between NEP and the Company, between NEP and NEPC and
thereafter between NEPC and/or NEP and the Corporations; and
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WHEREAS, in reliance upon the 1996 Agreement, NEP agreed to sell and did
in fact sell to the Corporations all of the Class A Common Stock of NEC which
was owned beneficially by NEP: and
WHEREAS, NEC allegedly refused to honor the terms of the 1996 Agreement
thereby precluding NEP from delivering the Class A Common Stock to the
Corporations; and
WHEREAS, on or about November 19, 1996 NEP beneficially on behalf of the
Corporations commenced litigation as Plaintiff against Company seeking specific
performance of the 1996 Agreement and alleging damages in excess of Six Million
Dollars ($6,000,000), such litigation being identified as Nevada Energy Partners
I vs. PowerTel USA, Inc. and being Case No. CV 96-07487, Second Judicial
District Court of the State of Nevada in and for the County of Washoe (the "NEP
Litigation"); and
WHEREAS, Company denies all liability in the NEP Litigation and intends
to vigorously contest NEP's claims if and when said litigation proceeds; and
WHEREAS, on or about February 13, 1997 multiple creditors of PowerTel
filed an involuntary petition for reorganization pursuant to Chapter 11 of the
United States Bankruptcy Code (the "Code") such application being filed pursuant
to Section 303 of the Code, and such case being styled In Re. PowerTel USA,
Inc.; United States Bankruptcy Court, District of Nevada, Case No. 97-30265-BMG;
and
WHEREAS, the filing of Case No. 97-30265-BMG automatically stayed
further prosecution of the NEP Litigation; and
WHEREAS, NEP filed a Proof of Claim in the Chapter 11 case; and
WHEREAS, the Corporations are the beneficiaries of the NEP Proof of
Claim and, therefore, are deemed to be creditors of PowerTel; and
WHEREAS, PowerTel has removed the NEP Litigation to the United States
Bankruptcy Court; and
WHEREAS, subsequent to the execution of the 1996 Agreement, NEC conveyed
to NEP 100.0% of the issued and outstanding Common Stock of Combustion Energy
Company ("CEC"), a Nevada corporation with its principal place of business
situated in Reno, Nevada together with title to a parcel of real property also
situated in Reno, Nevada (collectively the "1996 Assets"). Thereafter, NEP
transferred the 1996 Assets to NEPC in two separate transactions; and
WHEREAS, PowerTel has given notice to NEP, NEPC and the Corporations of
its intent to commence a proceeding pursuant to Sections 547 and 548 of the Code
for the purpose of voiding the 1996 Agreement and all transactions arising
therefrom between NEP, NEPC and the Corporations; and
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WHEREAS, NEPC and NEP have denied that Company has the right to rescind
the 1996 Agreement under any terms or conditions including, but not limited to,
alleged violations of Sections 547 and 548 of the Code; and
WHEREAS, the Parties to this Amended Agreement stipulate and acknowledge
that the prosecution of the multiple civil and administrative proceedings
recited above will be expensive, time consuming and difficult to resolve and
there is no assurance or guarantee that any party will prevail at trial and, in
the event of a favorable judgment, there is no assurance or guarantee that the
judgment will be sustained on appeal; and
WHEREAS, the Parties to this Amended Agreement desire to achieve a
final, complete resolution of all of their disputes and controversies by and
among them.
NOW THEREFORE, in consideration with the mutual covenants and conditions
set forth in this Agreement and other good and valuable consideration, the
receipt and sufficiency which is hereby acknowledged, the Parties to this
Amended Agreement, intending to be legally bound, do hereby agree as follows:
1. The Recitals set forth above are true and correct and are incorporated
herein as if fully rewritten.
2. This Amended Agreement is subject to ratification by the United States
Bankruptcy Court for the District of Nevada by virtue of the pending
Chapter 11 Reorganization involving PowerTel in Case Number
97-30265-BMG. All Parties to this Amended Agreement hereby consent to
the authority and subject matter jurisdiction of the United States
Bankruptcy Court for all purposes, including ratification of this
Amended Agreement.
3. This Amended Agreement, when ratified by the United States Bankruptcy
Court, shall constitute a full, final and complete resolution of any and
all disputes by or among any one or more or all of the Parties hereto of
whatever cause or nature, including but not limited to any waiver for
damages of any kind, nature or amount, contingent or liquidated and each
party does hereby forever release, discharge, and waive each and every
cause of action which it has or may have against any other party as of
the Settlement date of this Agreement, except that Company retains and
does not waive or release any claim or cause of action, if any, which it
has or may have against NEPC arising out of actions performed by NEPC in
its capacity as the General Partners of NEP. NEPC represents and
warrants that the Corporations are the only entities who have any
equitable or beneficial rights in or to the Class A or Class B Common
Stock of NEC owned or received by NEP as of the Settlement Date.
4. PowerTel, NEP and NEPC acknowledge that the Corporations are domiciled
outside the United States and, in recognition of this, PowerTel, NEP and
NEPC, stipulate that this Amended Agreement will be executed by Mr.
Jeffrey Antisdel on their behalf. Mr. Antisdel represents and warrants
to Company that (i) he has
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the legal power and authority to execute this Amended Agreement on
behalf of each of the Corporations, and (ii) each of the Corporations
will ratify this Agreement by executing the Memorandum described in
Section 5.d of this Amended Agreement on or before July 15, 1998 (the
"Final Execution Date"). In the event that each and every one of the
Corporations have not ratified this Agreement by the Final Execution
Date, Company has the option of either (a) declaring this Amended
Agreement to be null and void, or (b) enforcing this Amended Agreement
as to all signatories. In order to expedite execution of this Amended
Agreement, PowerTel, NEP and NEPC stipulate that (i) this Amended
Agreement may be executed in multiple counterparts, and (ii) the receipt
of a facsimile signature page executed by any one of the Corporations
shall be deemed to be an original signature.
NEPC agrees to indemnify and hold Company harmless from any and all
damages and expenses (including legal fees) incurred by PowerTel in the
event that any of the Corporations refuse to execute this Agreement.
5. In consideration of the mutual releases as set forth herein and the
consideration as set forth in the Recitals, the Parties to this Amended
Agreement do hereby agree as follows:
a. The 1996 Agreement attached hereto as Exhibit 1 is hereby deemed to be
amended and restated in its entirety, except as set forth in this
Amended Agreement and, therefore, remains legally binding upon all
parties thereto. Notwithstanding the foregoing, NEPC and NEP shall
reconvey to PowerTel (i) 100% of the issued and outstanding Common Stock
of Combustion Energy Company, a Nevada corporation, and (ii) title to a
parcel of real property situated at 403 Fourth Street, Reno, NV.
b. The Company and NEPC do hereby modify, amend and revise the Agreement of
Limited Partnership of Nevada Energy Partners I, a Nevada limited
partnership, retroactively to January 1, 1995 to provide that for the
period January 1, 1995 through August 15, 1996 (i) any and all
distributions of cash and property are to be allocated 60.0% to the
limited partner and 40.0% to the general partner, and (ii) the
allocations of profits and loses to capital accounts shall be 99.0% of
all profits and loses accredited and charged to the capital account of
the limited partner and 1.0% of all profits and loses are charged and
credited to the capital account of the general partner. The Parties
stipulate that, commencing January 1, 1995 through August 15, 1996, NEPC
is and shall be the sole general partner of NEP and the Company shall be
the sole and exclusive limited partner of NEP. As of August 16, 1996,
the Company specifically relinquishes, waives and forever abandons any
claim or interest which it has or may have in or to any partnership
interest of NEP. NEPC and the Company stipulate and acknowledge that,
subsequent to January 1, 1995, cash distributions were made to NEPC and
the Company pursuant to the 60/40 allocation set forth above. In
addition, NEPC and the Company stipulate that on or about August 16,
1996 (after withdrawal of NEC from NEP), NEP distributed to NEPC, as its
general partner, Class B Common
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Stock of the Company totaling 4,437,473 shares which, thereafter NEPC
sold to the corporations on a prorata basis. NEPC and the Company also
stipulate that, as of August 16, 1996, NEP relinquished any and all
rights which it had pursuant to the Plan of Reorganization involving
Munson Geothermal, Inc. to receive additional Class A Common Stock and,
thereby, waived and forever relinquished its right to receive additional
Class B Common Stock in the amount of 8,808,485 shares.
c. The Company does specifically that on or about August 16, 1996 NEPC
converted the Class B Common to Class A Common and, further recognizes
that NEPC sold to the Corporations the Class A Common Stock owned by
NEPC as set forth above. The Company does hereby agree that NEPC shall
retain any and all consideration paid or to be paid by the Corporations.
In order to effect a permanent, common final and complete resolution of
any and all disputes among the parties to this Agreement, the Company
stipulates that the Class B Common Stock distributed to NEPC as of
August 16, 1996 was convertible into Class A Common Stock at a ratio
equal to 50.0% of the issued and outstanding Class A Common Stock as of
August 16, 1996. Accordingly, the Company stipulates that the
Corporations, by virtue of their purchase of the Class A Common Stock,
are entitled to own Class A Common Stock. The Company further stipulates
that, ten days after the Effective Date of the Plan of Reorganization,
the Company shall adjust (i.e., increase or decrease) the number of
shares of Class A Common Stock to be distributed to the Corporations
such that the Corporations shall own 50.0% of the issued and outstanding
Class A Common Stock as of the close of business ten days after the
Effective Date of the Plan of Reorganization.
d. NEPC, as the General Partner of NEP shall wind up the affairs of the
partnership with all deliberate speed including but not limited to the
preparation and filing of all requisite tax returns. The General Partner
shall not charge the Limited Partner for the expenses of winding up the
Partnership and the Limited Partner waives any right of reimbursement
for any distribution to the General Partner prior to the date of this
Agreement.
6. In the event that the United States Bankruptcy Court fails to ratify
this Agreement, this Agreement shall be voidable by any Party upon
prompt notice to Company and NEPC. If the Agreement is voided, then any
Property conveyed pursuant to this Agreement shall be returned to the
grantor from whom or which it was received.
7. Company shall have seventy-five (75) days from the Confirmation Date of
the Plan of Reorganization to conduct any "due diligence,"
investigation, inquiry and/or review ("Review") which it deems to be
necessary of appropriate concerning any statement of fact, warranty,
representation, consent and/or condition ("Represented Fact") made or
given to Company by any other party to this Amended Agreement and upon
which PowerTel has relied upon in the execution of this Amended
Agreement. If on the basis of the Review, PowerTel
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in its sole and absolute discretion concludes that any Represented Fact
is inaccurate, false, misleading or deceptive, PowerTel has the right to
revoke this Amended Agreement upon providing all other written notice of
such termination and the basis therefor.
8. The Parties to this Amended Agreement stipulate and acknowledge that a
variety of supplemental documents may be necessary in order to
effectuate the objectives anticipated by this Amended Agreement or to
obtain ratification hereof by the United States Bankruptcy Court, and
every party to this Amended Agreement does irrevocably commit to act in
good faith to implement this Amended Agreement and to execute any
additional documents necessary or appropriate to achieve the objective
of this Amended Agreement and/or ratification hereof.
9. This Amended Agreement shall be governed by the laws of the State of
Nevada, without regard to its conflict of laws provision. Every party to
this Amended Agreement consents to the exclusive jurisdiction of the
United States Bankruptcy Court for the District of Nevada with regard to
the enforcement, interpretation, or any other issue or claim arising as
a result of this Amended Agreement.
10. It is the intention to the Parties to this Amended Agreement that the
1996 Agreement shall be amended and restated. Accordingly, to the extent
that any party to this Amended Agreement has any contractual rights,
causes of action, claims or other legal or equitable rights or remedies
(collectively "Rights") which existed prior to the 1996 Agreement and
were extinguished, waived, released or modified thereby, such Rights
shall be deemed to be fully and completely restored and each party to
this Amended Agreement does hereby agree that the Statute of
Limitations, if any, which would otherwise operate as a bar to the
prosecution of any cause of action or claim of any nature to enforce
such Rights is hereby tolled and each party does irrevocably waive and
agrees not to assert for a twelve (12) month term from the Settlement
Date of this Amended Agreement the Statute of Limitations as a defense
to the prosecution of any cause of action or claim of any nature to
enforce such Rights which is restored by virtue of this Agreement.
11. Each and every section of this Agreement shall survive execution,
delivery and performance of this Amended Agreement.
12. The "1996 Agreement," the form of the Memorandum attached hereto and the
Memorandums as executed by each of the Corporations are incorporated by
reference and are deemed to constitute material components of this
Amended Agreement:
13. Exhibits 1 and 2 are hereby incorporated herein by reference.
14. Unless otherwise directly set forth in this Amended Agreement, any
contract, agreement, memorandum of understanding or other legally
binding and enforceable agreement by or among the Parties to this
Amended Agreement shall
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remain in full force and effect and is not amended, modified,
superseded or otherwise affected by this Amended Agreement.
IN WITNESS WHEREOF, this The Parties have executed this Amended
Agreement as of the day and year set forth with their signatures.
NEVADA ENERGY PARTNERS I,
a Nevada Limited Partnership
By: Nevada Electric Power Company
Its: General Partner
Date : 6-25-98 By: /s/ Jeffrey Antisdel
------- -------------------------------------
Jeffrey Antisdel, Its President
NEVADA ELECTRIC POWER COMPANY
Date : 6-25-98 By: /s/ Jeffrey Antisdel
------- -------------------------------------
Jeffrey Antisdel, Its President
POWERTEL USA, INC.
Date : 6-25-98 By: /s/ Richard A. Cascarilla
------- -------------------------------------
Richard Cascarilla, Its President
"THE CORPORATIONS"
Date : 6-25-98 By: /s/ Jeffrey Antisdel
------- -------------------------------------
Jeffrey Antisdel
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EXHIBIT 1
AGREEMENT
THIS AGREEMENT, ("Agreement"), is entered into between Nevada Energy
Company, Inc., a Delaware corporation, ("NEC"), and Nevada Energy Partners I,
Limited Partnership, a Nevada Limited Partnership, ("NEP"), both having offices
at 401 East 4th Street, Reno, Nevada, USA, 89512.
RECITALS:
A. Nevada Energy Partners I, Limited Partnership, ("NEP"), is a Nevada
partnership with one corporate limited partner and a corporate general partner.
B. Nevada Energy Company, Inc., ("NEC"), is the sole limited partner of
NEP, and owns 60% of the partnership interest in NEP.
C. Nevada Electric Power Company, Inc., ("NEPC"), is the general partner
of NEP, and owns the remaining 40% of the partnership interest of NEP.
D. As of July 25, 1996, the partnership NEP, currently owns 4,437,473
shares of Class B Common Stock of NEC, ("Class B Stock"), which represents all
the issued and outstanding shares of Class B Common Stock of NEC.
E. The owners of the Class B Stock of NEC have voting rights and
liquidation rights in the assets of NEC without the right to participate in
earnings or cash dividends, except on sale, liquidation or merger. In addition,
such owners have the right to pro rata issuance of one share of Class B Common
Stock for each share of Class A Common Stock, ("Class A Stock"), issued and
outstanding. The consideration for the issuance may be subject to a
determination by the board of directors of NEC.
F. As of July 25, 1996, there are 12,203,247 shares of Class A Common
Stock of NEC issued and outstanding.
G. Based upon the number of NEC's issued Class A Common shares, NEP has
the right to acquire an additional 8,865,774 shares of Class B Common Stock.
H. NEC desires to redeem the Class B Stock in exchange for Class A
Stock.
I. NEC currently owns 6,000 shares of common stock of Combustion Energy
Company, which represents all of the issued and outstanding common shares of
Combustion Energy Company, a Nevada Corporation, ("CEC").
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J. NEP is a plaintiff and a counter-defendant in litigation in the
Second District Court in Washoe County, State of Nevada, in case CV92-04609,
Dept. No. 1, ("Litigation").
K. For the past four years, NEC and NEPC have shared in the costs and
expenses of NEP, including without limitation, the costs and expenses of the
Litigation on a 60/40 basis respectively.
L. NEC does not wish to participate any further in the Litigation or
further business with NEP.
M. NEC wishes to withdraw from NEP.
N. NEP wishes to acquire the stock CEC.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, NEP and NEC, agree as follows:
1. Definitions. For purposes of this Agreement, the terms set forth below
shall have the following meanings:
a. Agreement shall mean this agreement.
b. Class A Stock shall mean the Class A common shares of NEC.
c. Class B Stock shall mean the Class B common shares of NEC, all
of which are owned by NEP.
d. Herth Printing shall refer to the business known as Herth
Printing and Business Supplies, Inc., which was merged into
Combustion Energy Company, a Nevada Corporation, a wholly owned
subsidiary of NEC, in December 1994.
e. Knowledge means actual knowledge after reasonable investigation.
f. Law shall mean any statute, regulation, rule, judgment,
ordinance, order, decree, stipulation, injunction, charge, or
other restrictions of any federal, state or local government,
governmental agency, or court.
g. Liability means any liability (whether known or unknown, whether
absolute or contingent, whether liquidated or unliquidated, and
whether due or to become due), including any liability for
taxes.
h. Litigation shall refer to the lawsuit filed in the Second
Judicial District Court of the State of Nevada, County of
Washoe, Case No. CV92-04609, Dept. No. 1, between NEP, as
plaintiff, and Hot Springs Power Company, a Nevada corporation,
Randy S. Goldenhersh and George W. Holbrook, Jr., as defendants
and counter-plaintiff, and NEP as counter-defendant.
i. Material Adverse Effect means an adverse effect of fifty
thousand dollars or more upon the business, operations,
properties, assets or condition of NEP.
j. NEC shall refer to Nevada Energy Company, Inc., a Delaware
corporation.
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k. NEP shall refer to Nevada Energy Partners I, Limited
Partnership, a Nevada Limited Partnership.
l. NEPC shall refer to Nevada Electric Power Company, a Nevada
corporation, and General Partner of NEP.
m. Securities Act means the Securities Act of 1933, as amended.
n. Securities Exchange Act means the Securities Exchange Act of
1934.
o. Security Interest means any mortgage, pledge, security interest,
encumbrance, charge or other lien, other than
i. construction, mechanic's materialmen's, and similar liens,
ii. liens for taxes not yet due and payable,
iii. liens arising under worker's compensation, unemployment
insurance, social security, retirement, and similar legislation,
iv. liens arising in connection with sales of foreign
receivables,
v. purchase money liens and liens securing rental payments under
capital lease arrangements, and,
vi. other liens arising in the ordinary course of business and
not incurred in connection with the borrowing of money.
2. Basic Transaction
a. NEC shall exchange all of NEP's Class B Common Stock for an
equal number of NEC Class A Common Stock. The effective date of
the exchange shall be September 1, 1996.
b. NEC shall withdraw as a limited partner from NEP.
c. In general, NEPC, as general partner, will release NEC, as
limited partner, from NEP, the partnership. NEC will waive all
rights to any assets, litigation rights or other attributes of
the partnership.
d. In general, NEPC, as general partner, will agree to indemnify
NEC for any present and future litigation expenses, obligations
or damages arising out of the Litigation.
e. NEP will release any claims that NEP may have for additional
shares of Class B Stock pursuant to Amended Certificate of
incorporation under the Order of the Bankruptcy Court dated
November 20, 1990.
f. NEC shall transfer to NEP all of the shares of CEC.
g. This Agreement and other related documents shall be held in
escrow, ("Release Escrow"), pending the completion of the post
closing events.
3. Exchange of Class B Shares for Class A Shares. NEC desires to retire all
of the Class B shares as follows:
a. NEP as the owners of the Class B Stock of NEC have voting rights
and liquidation rights in the assets of NEC without the right to
participate in earnings or cash dividends, except on sale,
liquidation or merger. In addition, NEP has the right to pro
rata issuance of one share of Class B Common Stock for each
share of Class A Common Stock issued and outstanding. The
consideration for the issuance may be subject to a determination
by the board of directors of NEC.
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b. NEP has the right to an additional 8,808,485 shares of Class B
Common Stock of NEC.
c. NEP herewith exchanges 4,437,473 shares of Class B Common Stock
of NEC, which represents all the issued and outstanding shares
of Class B Common Stock of NEC for 4,437,473 shares of Class A
Common Stock of NEC which shall be free trading without
restrictions.
d. NEP herewith forbears forever from any and all claims for an
additional 8,808,485 shares of Class B Common Stock of NEC.
4. Withdrawal of NEC from NEP. NEC no longer desires to participate in the
partnership NEP and withdraws as follows:
a. NEC has participated in the Litigation since its inception. The
counter-plaintiffs claim damages in excess of one million
($1,000,000.00) dollars and further damages to be proved against
NEC.
b. NEC has contributed from time to time its pro rata share of
attorney fees, legal costs and expenses.
c. There appears to be no possibility of settlement or resolution
of the Litigation in the near future.
d. NEP was a partner with Hot Springs Power Company, a Nevada
corporation in Nevada Geothermal Power Partners, a Nevada
Limited Partnership. The Litigation arises out of the
partnership relationship. The plaintiff and counter-defendant is
NEP. The defendant and counter-plaintiff is Hot Springs Power
Company.
e. Nevada Geothermal Power Partners has ceased doing business and
has wound up its affairs. The only remaining relationship
between the partners is the Litigation.
f. NEC hereby withdraws as a limited partner in NEP and waives
further accounting except as necessary to prepare its federal
tax returns. The effective date of the withdrawal shall be
September 1, 1996.
5. Release of NEC from the Litigation and further obligations of NEP. NEPC,
as general partner of NEP, hereby releases NEC from all further partnership
obligations and duties.
a. Pursuant to the partnership agreement, NEC was obligated to
contribute to the attorneys' fees, legal costs and expenses of
any litigation arising out of the partnership relationship.
b. Concurrent with the withdrawal of NEC as a limited partner, NEP
releases NEC from any further contributions for attorneys' fees,
legal costs or expenses with respect to the Litigation. NEP
agrees to indemnify NEC for any damages arising out of the
Litigation. NEC shall have the right to have its own co-counsel
at its own expense.
c. NEPC, as general partner of NEP, will hereby guaranty the
payment of attorneys' fees, legal costs and expenses by NEC for
counsel under NEP's guidance and employ who will defend NEC's
interests.
d. NEC agrees to cooperate in the prosecution and defense of the
Litigation and to the extent possible, NEC waives its attorney
client privilege in favor of NEP.
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6. NEP releases all claims under the Order of the Bankruptcy Court. As the
sole recipient of Class B shares under order from the Bankruptcy Court, NEP
waives any claims it may have for additional shares of Class B Stock without
consideration as follows:
a. Rights and Restrictions. The rights and restrictions of the
Class B Stock are as follows:
i. Federal Bankruptcy Court's Plan of Reorganization. On
November 20, 1990, the Bankruptcy Court of Nevada, by Order,
required the amendment of the Certificate of Incorporation. The
Order provided at page 25, "Class B Common Stock will have full
voting rights but will have no participation in dividends. The
terms of the Class B Common shares will also provide that, upon
the issuance of any share, or fraction thereof, of Class A
Common Stock, the owners of Class B Common Stock will
contemporaneously have issued to them, on a pro rata basis, a
number of shares of Class B Common Stock which is the same as
the number of Class A Common shares then being issued.
ii. Amendment of the Certificate of Incorporation. NEC (then
Munson Geothermal, Inc.) amended its Certificate of
Incorporation on November 20, 1990 (filed on December 3, 1990)
and submitted a new paragraph defining NEC's capital, paragraph
4-A. The new paragraph governed the description of all capital
stock. The new paragraph authorized Class A Common Stock and
Class B Common Stock. All Common Stock has a par value of $.001
per share. All common stockholders (either Class A or Class B)
received one vote for each whole share of stock. The Certificate
authorized that Class A and Class B Common Stock would not
participate in the earnings of the corporation through
dividends. A Class B Common Stockholder would only receive funds
from NEC by statute upon the sale, merger, or liquidation in the
form of a liquidating distribution.
iii. Voting Rights of the Class B Stock. Class B Stock shares do
not receive dividends but would participate in distribution of
proceeds if the NEC sells, merges or liquidates. Class B Stock
shares are entitled to vote. Because the Class B Stock shares
are entitled to fifty percent (50%) of the Common Stock, the
Class B Stock shares are entitled to 50% of the votes.
iv. Class B Stock and NEP. The Plan of Reorganization provided
that immediately after the reorganization that NEP would own
100% of the Class B Stock. According to the Plan of
Reorganization, any holder of Class B Stock through NEP at the
time of the reorganization was entitled to an additional share
of Class B Stock for each share of Class A Stock issued.
v. Conflict between the Plan of Reorganization and the
Certificate regarding Issuance of Class B Stock. The Certificate
provided that upon the issuance of any share of Class A Common
Stock, NEC shall issue a pro rata amount of Class B Common Stock
to Class B Stock holders. Only present shareholders of Class B
Stock shares would be eligible to receive additional Class B
Stock shares. Further, paragraph 4-D states, "such shares of
Class B Common Stock shall be issued for such consideration as
may be determined from time to time by the Board of Directors".
(Emphasis added.) The Plan of Reorganization does not provide
for payment of "consideration" in exchange for newly issued
shares of Class B Stock.
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b. Concurrent with the exchange of shares, NEP forever waives and
gives up any rights for additional Class B Stock without payment
of consideration as provided in the Order of the Bankruptcy
Court dated November 20, 1990.
7. NEP transfers the shares of CEC. NEC herewith transfers to NEP all of
NEC's six thousand (6,000) shares of CEC as follows:
a. NEC merged its wholly owned subsidiary, CEC, with a business
known as Herth Printing and Business Supplies in 1994.
b. The business of CEC is not compatible with the general business
plan of NEC.
c. The shares of CEC are not registered as described in section
8.d.
d. In consideration of the obligations assumed by NEP under this
agreement, NEC herewith transfers and assigns all rights, title
and interest to the shares and assets of CEC to NEP. The
effective date of the transfer shall be September 1, 1996.
8. Representations and Warranties of NEP. NEP represents and warrants to
NEC that the statements contained in this Section 8.d. are correct and complete
as of the date of this Agreement.
a. Organization of NEP. NEP is a limited partnership duly
organized, validly existing and in good standing under the Laws
of the State of Nevada and is in good standing and qualified to
do business under the laws of each jurisdiction in which the
nature of the business or the ownership or leasing of its
properties requires such qualification. NEP has full power and
authority to carry on the business in which it is engaged and to
own and use the properties owned, leased and used by it.
b. Authorization of Transaction. NEP has full power under its
partnership agreement and authority to execute and deliver this
agreement and to perform its obligations hereunder. Without
limiting the generality of the foregoing, the General Partner of
NEP has fully authorized the execution, delivery and performance
of this Agreement by NEP. This Agreement constitutes the valid
and legally binding obligations of NEP, enforceable in
accordance with its terms and conditions, subject to the effect
of
i. bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights and remedies of creditors
generally, and
ii. general principles of equity.
c. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby will (i) violate or (ii) conflict with, result in a
breach of, constitute a default under, result in the require any
notice of any contract, lease, sublease, license, sublicense,
franchise, permit, indenture, agreement or mortgage for borrowed
money, instrument or indebtedness, Security Interest, or other
arrangement to which NEP is a party of by which it is bound or
to which any of its assets is subject, or result in the
imposition of any Security Interest upon any of its assets. NEP
need not give any notice
14
to, make any filing with, or obtain any authorization, consent
or approval of any government or governmental agency to
consummate the transactions contemplated by this Agreement.
d. Acknowledgment of Unregistered Stock. In connection with this
Agreement, NEP represents and warrants, which representations
and warranties shall survive the transfer of CEC's shares to NEP
pursuant to this Agreement, as follows:
i. NEP is aware that no market may exist for the resale of the
CEC stock received under this Agreement.
ii. NEP is obtaining the shares for investment and not for the
further distribution of CEC stock.
iii. NEP is aware of any and all restrictions imposed on the
further distribution of the CEC stock, including, but not
limited to, any restrictive legends appearing on the
certificate(s).
e. Disclosure. The representations and warranties contained in this
Section 8.e. do not contain any untrue statements of a material
fact or omit to state any material fact necessary in order to
make the statements and information contained in this Section
8.d. not misleading.
9. Representations and Warranties of NEC. NEC represents and warrants to
NEP that the statements contained in this Section 9 are correct and
complete as of the date of this Agreement.
a. Organization of NEC. NEC is a Company Incorporated in Delaware
duly organized, validly existing and in good standing under the
Laws of Delaware, and is in good standing and qualified to do
business under the laws of each jurisdiction in which the nature
of its business or the ownership or leasing of its properties
requires such qualification. NEC has full power and authority to
carry on the business in which it is engaged and to own and use
the properties owned, leased and used by it.
b. Authorization of Transaction. NEC has full power under its
organization agreement and authority to execute and deliver this
Agreement and to perform its obligations hereunder. Without
limiting the generality of the foregoing, the Directors of NEC
have fully authorized the execution, delivery and performances
of this Agreement by NEC. This Agreement constitutes the valid
and legally binding obligation of NEC, enforceable in accordance
with its terms and conditions, subject to the effect of;
i. bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights and remedies of creditors
generally, and
ii. general principles of equity.
c. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby will (i) violate or (ii) conflict with, result in a
breach of, constitute a default under, result in the require any
notice of any contract, lease, sublease, license, sublicense,
franchise, permit, indenture, agreement or mortgage for borrowed
money, instrument or indebtedness, Security Interest, or other
arrangement to which NEC is a party of by which it is
15
bound or to which any of its assets is subject, or result in the
imposition of any Security Interest upon any of its assets. NEC
need not give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or
governmental agency to consummate the transactions contemplated
by this Agreement.
d. Disclosure of Unregistered Securities. NEC hereby discloses the
following information to NEP in connection with the offer and
sale of CEC stock by NEP,
i. The CEC stock have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and were
acquired by NEC pursuant to a registration exemption contained
in Section 4(2) of the Securities Act and/or Securities and
Exchange Commission Rule 506, promulgated thereunder.
ii. The CEC stock have the status of securities acquired under
Section 4(2) of the Securities Act and cannot be resold without
registration under the Securities Act or the availability of an
exemption from registration.
iii. A legend has been, or will be, placed on each certificate
or other document evidencing the CEC stock in substantially the
following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE RESOLD UNLESS REGISTERED
UNDER THE ACT OR UNLESS AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
iv. Prior to this transaction, stop transfer instructions to the
appropriate officers of NEC had been placed in NECs records with
respect to the CEC stock so as to restrict the resale, pledge,
hypothecation, or other transfer thereof.
v. The CEC stock have not been registered under the Nevada
Securities Act, set forth in the Nevada Revised Statutes, as
amended (the "Nevada Act"), and were acquired by NEC pursuant to
a exemption.
vi. NEC reasonably believes that NEP is obtaining the shares for
investment and has no information to the contrary.
e. Disclosure. The representations and warranties contained in this
Section 9.e do not contain any untrue statements of a material
fact or omit to state any material fact necessary in order to
make the statements and information contained in this Section 9
not misleading.
10. Conditions to Release of the Escrow. This Agreement and all of the
documents related to this Agreement shall be held in escrow referred to as the
Release Escrow which shall be released upon the satisfaction of following
conditions.
a. NEP and NEC shall have executed and delivered an escrow
agreement to and for the Release Escrow agent.
b. All actions to be taken by NEC in connection with consummation
of the transactions contemplated hereby and all certifications,
opinions, instruments, and other documents required to effect
the transactions contemplated hereby will be reasonably
satisfactory in form and substance
16
to the General Partner of NEP who shall not unreasonably
withhold approval of the transactions contemplated by this
Agreement.
c. NEC shall have received from counsel to NEP an opinion addressed
to NEC stating the legal organization of NEP and that NEP has
the authority to enter into this Agreement.
d. All actions to be taken by NEP in connection with consummation
of the transactions contemplated hereby and all certifications,
opinions, instruments, and other documents required to effect
the transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Directors of NEC who
shall not unreasonably withhold approval of the transactions
contemplated by this Agreement.
e. NEP shall have received from counsel to NEC an opinion addressed
to NEP stating the legal organization of NEC and that NEC has
the authority to enter in this Agreement.
f. NEC shall have executed and delivered any additional agreement
or agreements necessary to withdrawing or liquidating its
interests in NEP in favor of NEP.
g. NEPC shall have executed and delivered a guaranty of all payment
of liability, including attorneys' fees, costs and expenses, in
favor of NEC regarding the Litigation.
h. NEP shall have executed and transferred all of the Class B Stock
to NEC.
i. NEC shall have issued free trading Class A Stock with
restrictions of any kind to NEP or its assigns.
j. NEC shall have executed and transferred all the common shares of
CEC to NEP.
k. In general, the obligation of NEP to consummate the transactions
to be performed by it after this agreement is executed is
subject to satisfaction that the representations and warranties
set forth in Section 9 above shall be true and correct in all
material respects at and as of the date of execution of this
Agreement and:
i. NEC shall have preformed and complied with all of its
covenants hereunder in all material respects at and as of the
date of execution of this Agreement;
ii. The Board of Directors of NEC shall have approved the
transactions contemplated by this Agreement;
iii. All actions to be taken by NEC in connection with
consummation of the transactions contemplated hereby and all
instruments and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory
in form and substance to NEP.
11. Miscellaneous.
a. Notices. All notices or other communications required or
permitted hereunder, including notice of intent to arbitrate,
shall be in writing and shall be deemed to have been duly given
if delivered in person or sent by overnight delivery, confirmed
telecopy or prepaid first class registered or certified mail,
return receipt requested, to the following addresses:
17
If to NEP, to: with courtesy copies to:
Nevada Energy Partners I, L.L.P. David L. Wallace, Esq.
401 East Fourth Street 2055 Wood Street, Suite 220
Reno, Nevada 89512 Sarasota, Florida, USA 34237-7929
Telephone: (702) 786-7979 Telephone: (941) 364-9598
Facsimile: (702) 786-7989 Facsimile: (941) 364-9599
If to NEC, to: with courtesy copies to:
Roderick H. McCloy, Esq.
Roderick H. McCloy Law Corporation
Jones McCloy Peterson
1700 Three Bentail Centre
P.O. Box 49117
595 Burrard Street
Vancouver, B.C. V7X 1G4
Telephone: (604) 882-1851
Facsimile: (604) 682-7329
Any such notices shall be effective when delivered in person or sent by
telecopy, one business day after being sent by overnight deliver or three
business days after being be registered or certified mail. Any of the foregoing
addressed may be changed by giving notice of such change in the foregoing
manner, except that notices for changes of address shall be effective only upon
receipt.
b. Further Assurances. At any time, and from time to time, each
party will execute additional instruments and take such action
as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise
to carry out the intent and purposes of this Agreement.
c. Costs and Expenses. Each party hereto agrees to pay its own
costs and expenses, including legal, accounting, consultant, and
advisor fees, incurred in negotiation this Agreement and
consummating the transactions described herein.
d. Time. Time is of the essence.
e. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject
matter hereof.
f. Amendment. This Agreement may not be amended, supplemented or
modified in whole or in part except by an instrument in writing
signed by the party against whom enforcement of any such
amendment, supplement or modification is sought.
g. Assignment. NEC may not assign this Agreement to any affiliated
entity or nominee or to any party hereto without the prior
written consent of the NEP
18
h. Choice of Law. This Agreement will be interpreted, construed and
enforced in accordance with the laws of the State of Nevada,
without regard to conflicts of law.
i. Dispute Arbitration. NEC and NEP intend to provide a speedy and
informal method for resolving all disputes and other matters in
question arising out of, or relating to, this Agreement, which
involves interstate commerce and is subject to the Federal
Arbitration Code. All disputes and other matters in question, of
any kind, between NEC and NEP arising out of, or relating to
this Agreement, shall be decided by binding arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect. The decision of the
arbitrator shall be binding. The arbitrator is specifically
granted authority and directed to award reasonable attorneys'
fees, expenses and costs to the successful party. A court of
competent jurisdiction may be used to enforce, but not to appeal
or challenge, the arbitrators' decision including the award of
attorneys' fees, expenses and costs. If it becomes necessary to
enforce the arbitrators' decision at either the trial or
appellate level, a reasonable attorney fee for the enforcement
of the arbitrators' decision shall become an additional item of
damages. Any suit between NEC and NEP must be brought in Washoe
County, Nevada. NEC consents to personal jurisdiction in Nevada.
j. Construction. NEC and NEP and their respective legal counsel
participated in the preparation of this Agreement, therefore,
this Agreement shall be construed neither against nor in favor
of any of the parties hereto, but rather in accordance with the
fair meaning thereof.
k. Effect of Waiver. The failure of any party at any time or times
to require performance of any provision of this Agreement will
in no manner affect the right to enforce the same. The waiver by
any party or any breach of any provision of this Agreement will
not be construed to be a waiver, by any such party of any
succeeding breach of that provision or a waiver by such party or
any breach of any other provision.
l. Severability. The invalidity, illegality or unenforceability of
any provision of this Agreement, which will remain in full force
and effect, nor will the invalidity, illegality or
unenforceability of a portion of any provision of this Agreement
affect the balance of such provision. In the event that any one
or more of the provisions contained in this Agreement or any
portion thereof shall for any reasons be held to be invalid,
illegal or unenforceable in any respect, this Agreement shall be
reformed, construed and enforced as if such invalid, illegal or
unenforceable provision had never been contained herein.
m. Binding Nature. This Agreement, including the requirement to
arbitrate, will be binding upon and will enure to the benefit of
any successors of the parties hereto.
n. Counterparts. This Agreement is intended to be executed in more
than one counterpart, including facsimile counterparts. Each
counterpart shall be
19
deemed an original on all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF, NEP and NEC have executed this Agreement.
Nevada Energy Company, Inc., a
Delaware corporation
August 16, 1996 By: /s/ Charles A. Cain
- ----------------------------------- -----------------------------------
Date Charles A. Cain
Its: Director
--------------
August 16, 1996 By: /s/ Peter J. Cannell
- ----------------------------------- -----------------------------------
Date Peter J. Cannell
Its: Director
--------------
Nevada Energy Partners, I, a Nevada
Limited Partnership, by Nevada Electric
Power Company, General Partner
August 16, 1996 By: /s/ David L. Wallace
- ----------------------------------- -----------------------------------
Date David L. Wallace
Its: Attorney in Fact
-------------------------------
Power of Attorney attached.
20
EXHIBIT 2
M E M O R A N D U M
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: XXXXXXXXX, XXX., a Company Limited by Shares under the International
Business Companies Act of 1989, Commonwealth of the Bahamas (Referred to
as "XXXXXXX"), with mailing address at XXXXXXXXXXXXX.
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and XXXXXXX have entered into a First
Amended and Restated Settlement and Release Agreement effective as of December
1, 1997 (the "Agreement"), which Agreement was subsequently incorporated into
and made a part of a Plan of Reorganization (the "Plan") filed by PowerTel with
the United States Bankruptcy Court for the District of Nevada in a Chapter 11
proceeding identified as Case No 97-30265-BMG.
Pursuant to the Plan, XXXXXXX is to receive Class A Common Shares (the
"Shares") to be issued by PowerTel pursuant to Section 1145 of the United States
Bankruptcy Code. In consideration of the issuance of the Shares, XXXXXXX
represents and warrants to PowerTel and to the Court that XXXXXXX is not an
"underwriter" as that term is defined in Section 1145(b) of the Bankruptcy Code.
XXXXXXX also acknowledges that the Shares which it will receive have not been
registered with the United States Securities and Exchange Commission pursuant to
Section 5 of the Securities Act of 1933 in reliance upon the exemption from
registration provided in Section 1145(a) of the Bankruptcy Code. XXXXXXX also
confirms that it has been advised that PowerTel has consented to the issuance of
the Shares based upon PowerTel's understanding that XXXXXXX is experienced in
financial matters, has access to advisors who are experienced in evaluating
investments and is ready, willing and able to assume the risk of acquiring a
speculative, high risk investment, such as the Shares.
XXXXXXX also confirms that it has received and reviewed the FIRST
AMENDED DISCLOSURE STATEMENT PURSUANT TO 11 U.S.C. Section 1125 filed by
PowerTel and has been afforded an opportunity to make inquiry into the affairs
of PowerTel, including an opportunity to confer with the Directors and Officers
of PowerTel. XXXXXXX has been advised that, for the preceding three calendar
years, PowerTel has made various filings with the Securities and Exchange
Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on
Form S-8). XXXXXXX acknowledges that a copy of these filings is available upon
request or may be procured from the United States Securities and Exchange
Commission, Washington, D.C.
XXXXXXX acknowledges that PowerTel has not made any representation or
warranty that (i) its Plan will be implemented successfully, (ii) there will be
a market for the Shares or (if there is a market) that the per Share price will
be maintained within any specific bid/ask range, or (iii) PowerTel will be
financially solvent or that its pro forma financial projections will materialize
as anticipated.
XXXXXXX is aware that there are various Federal and State statutes,
rules and regulations in the United States governing the offer and sale of
securities. XXXXXXX is also aware that the Securities Exchange Act of 1934
imposes duties and responsibilities upon certain shareholders, officers and
directors. XXXXXXX represents that it shall comply with all applicable statutes,
rules and regulations.
Except as set forth in the Agreement and the Plan, XXXXXXX acknowledges
that there is no agreement, contract or understanding (either oral or written)
by and between XXXXXXX and PowerTel. XXXXXXXXX further acknowledges the
authority and ratifies the signature of Jeffrey Antisdel on the First Amended
and Restated Settlement and Release Agreement on behalf of XXXXXXXXXXXXXXX.
XXXXXXX acknowledges that both PowerTel and the United States Bankruptcy
Court will rely upon this Memorandum in issuing the Shares.
In Witness Whereof, XXXXXXXXX, XXX., has given its Common Seal this
date.
GIVEN UNDER THE COMMON SEAL XXXXXXXXX, XXX., a Company Limited by Shares
of XXXXXXXXX, XXX. under the International Business Companies
Act of 1989, Commonwealth of the Bahamas
Date: _________________________
Per:________________________________
Managing Director
21
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation
(Referred to as "PowerTel")
FROM: Maitland Investments, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Maitland")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Maitland have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, Maitland is to receive Class A Common Shares (the
"Shares") to be issued by PowerTel pursuant to Section 1145 of the United States
Bankruptcy Code. In consideration of the issuance of the Shares, Maitland,
acting through its duly authorized representative, represents and warrants to
PowerTel and to the Court that Maitland is not an "underwriter" as that term is
defined in Section 1145(b) of the Bankruptcy Code. Maitland also acknowledges
that the Shares which it will receive have not been registered with the United
States Securities and Exchange Commission pursuant to Section 5 of the
Securities Act of 1933 in reliance upon the exemption from registration provided
in Section 1145(a) of the Bankruptcy Code. Maitland also confirms that it has
been advised that PowerTel has consented to the issuance of the Shares based
upon PowerTel's understanding that Maitland is experienced in financial matters,
has access to advisors who are experienced in evaluating investments and is
ready, willing and able to assume the risk of acquiring a speculative, high risk
investment, such as the Shares.
Maitland also confirms that it has received and reviewed the Disclosure
Statement filed by PowerTel, approved by the Court and distributed to its
Creditors and has been afforded an opportunity to make inquiry into the affairs
of PowerTel, including an opportunity to confer with the Directors and Officers
of PowerTel. Maitland has been advised that, for the preceding three calendar
years, PowerTel has made various filings, with the Securities and Exchange
Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Maitland, a
copy will be made available upon request or may be procured from the United
States Securities and Exchange Commission, Washington, D.C.
22
Maitland acknowledges that PowerTel has not made any representation or
warranty that (i) its Plan will be Implemented successfully, (ii) there will be
a market for the Shares or (if there is a market) that the per Share price will
be maintained within any specific bid/ask range, or (iii) PowerTel will be
financially solvent or that its pro forma financial projections will materialize
as anticipated.
Maitland is aware that there are various Federal and State statutes,
rules and regulations in the United States governing the offer and sale of
securities. Maitland is also aware that the Securities Exchange Act of 1934
imposes duties and responsibilities upon certain shareholders, officers and
directors. Maitland represents that it shall comply with all applicable
statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Maitland
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Maitland and PowerTel.
Maitland acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Maitland hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Maitland and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by Maitland.
In Witness Whereof, Maitland Investments, Ltd., has given its Common
Seal this date.
GIVEN UNDER THE COMMON SEAL Maitland Investments, Ltd., a Company
of Maitland Investments, Ltd. Limited by Shares under the International
Business Companies Act of 1989,
Date: March 16, 1998 Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-------------------------------------
Managing Director
23
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Shepherd Market, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Shepherd Market")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Shepherd Market have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, Shepherd Market is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
Shepherd Market, acting through its duly authorized representative, represents
and warrants to PowerTel and to the Court that Shepherd Market is not an
"underwriter" as that term is defined in Section 1145(b) of the Bankruptcy Code.
Shepherd Market also acknowledges that the Shares which it will receive have not
been registered with the United States Securities and Exchange Commission
pursuant to Section 5 of the Securities Act of 1933 in reliance upon the
exemption from registration provided in Section 1145(a) of the Bankruptcy Code.
Shepherd Market also confirms that it has been advised that PowerTel has
consented to the issuance of the Shares based upon PowerTel's understanding that
Shepherd Market is experienced in financial matters, has access to advisors who
are experienced in evaluating investments and is ready, willing and able to
assume the risk of acquiring a speculative, high risk investment, such as the
Shares.
Shepherd Market also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Shepherd Market has been advised that, for the preceding
three calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Shepherd
Market, a copy will be made available upon request or may be procured from the
United States Securities and Exchange Commission, Washington, D.C.
24
Shepherd Market acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Shepherd Market is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Shepherd Market is also aware that the Securities Exchange
Act of 1934 imposes duties and responsibilities upon certain shareholders,
officers and directors. Shepherd Market represents that it shall comply with all
applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Shepherd Market
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Shepherd Market and PowerTel.
Shepherd Market acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Shepherd Market hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Shepherd Market and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by Shepherd
Market.
In Witness Whereof, Shepherd Market, Ltd., has given its Common Seal
this date.
GIVEN UNDER THE COMMON SEAL Shepherd Market, Ltd., a Company Limited
of Shepherd Market, Ltd. by Shares under the International Business
Companies Act of 1989, Commonwealth of
Date: March 16, 1998 the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
----------------------------------
Managing Director
25
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation
(Referred to as "PowerTel")
FROM: Berkeley Square Investments, Ltd., a Company Limited by Shares under
the International Business Companies Act of 1989, Commonwealth of the
Bahamas
(Referred to as "Berkeley Square")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Berkeley Square have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan, of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, Berkeley Square is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
Berkeley Square, acting through its duly authorized representative, represents
and warrants to PowerTel and to the Court that Berkeley Square is not an
"underwriter" as that term is defined in Section 1145(b) of the Bankruptcy Code.
Berkeley Square also acknowledges that the Shares which it will receive have not
been registered with the United States Securities and Exchange Commission
pursuant to Section 5 of the Securities Act of 1933 in reliance upon the
exemption from registration provided in Section 1145(a) of the Bankruptcy Code.
Berkeley Square also confirms that it has been advised that PowerTel has
consented to the issuance of the Shares based upon PowerTel's understanding that
Berkeley Square is experienced in financial matters, has access to advisors who
are experienced in evaluating investments and is ready, willing and able to
assume the risk of acquiring a speculative, high risk investment, such as the
Shares.
Berkeley Square also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Berkeley Square has been advised that, for the preceding
three calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Berkeley
Square, a copy will be made available upon request or may be procured from the
United States Securities and Exchange Commission, Washington, D.C.
26
Berkeley Square acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Berkeley Square is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Berkeley Square is also aware that the Securities Exchange
Act of 1934 imposes duties and responsibilities upon certain shareholders,
officers and directors. Berkeley Square represents that it shall comply with all
applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Berkeley Square
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Berkeley Square and PowerTel.
Berkeley Square acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional documents) are required in order to
issue the Shares, Berkeley Square hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Berkeley Square and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by Berkeley
Square.
In Witness Whereof, Berkeley Square Investments, Ltd., has given its
Common Seal this date.
GIVEN UNDER THE COMMON SEAL Berkeley Square Investments, Ltd., a
of Berkeley Square Investments, Ltd. Company Limited by Shares under the
International Business Companies Act
of 1989, Commonwealth of the Bahamas
Date: March 16, 1998 By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
----------------------------------
Managing Director
27
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation
(Referred to as "PowerTel")
FROM: Clermont & Annabel, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas
(Referred to as "Clermont Annabel")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Clermont Annabel have entered into
a Settlement and Release Agreement dated as of December 1, 1997 (the
"Agreement"), which Agreement was subsequently incorporated into and made a part
of a Plan of Reorganization (the "Plan") filed by PowerTel with the United
States Bankruptcy Court for the District of Nevada in a Chapter 11 proceeding
identified as Case No 97-30265-BMG, which Plan was subsequently confirmed by the
Court.
Pursuant to the Plan, Clermont Annabel is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
Clermont Annabel, acting through its duly authorized representative, represents
and warrants to PowerTel and to the Court that Clermont Annabel is not an
"underwriter" as that term is defined in Section 1145(b) of the Bankruptcy Code.
Clermont Annabel also acknowledges that the Shares which it will receive have
not been registered with the United States Securities and Exchange Commission
pursuant to Section 5 of the Securities Act of 1933 in reliance upon the
exemption from registration provided in Section 1145(a) of the Bankruptcy Code.
Clermont Annabel also confirms that it has been advised that PowerTel has
consented to the issuance of the Shares based upon PowerTel's understanding that
Clermont Annabel is experienced in financial matters, has access to advisors who
are experienced in evaluating investments and is ready, willing and able to
assume the risk of acquiring a speculative, high risk investment, such as the
Shares.
Clermont Annabel also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Clermont Annabel has been advised that, for the preceding
three calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Clermont
Annabel, a copy will be made available upon request or may be procured from the
United States Securities and Exchange Commission, Washington, D.C.
28
Clermont Annabel acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Clermont Annabel is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Clermont Annabel is also aware that the Securities Exchange
Act of 1934 imposes duties and responsibilities upon certain shareholders,
officers and directors. Clermont Annabel represents that it shall comply with
all applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Clermont Annabel
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Clermont Annabel and PowerTel.
Clermont Annabel acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Clermont Annabel hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Clermont Annabel and agrees that, in such event, all documents executed by
Mr. Wallace may be relied upon by the recipient as if fully executed by Clermont
Annabel.
In Witness Whereof, Clermont & Annabel, Ltd., has given its Common Seal
this date.
GIVEN UNDER THE COMMON SEAL Clermont & Annabel, Ltd., a Company
of Clermont & Annabel, Ltd. Limited by Shares under the International
Business Companies Act of 1989,
Date: March 16, 1998 Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-------------------------------------
Managing Director
29
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Burke Douglas Holdings, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Burke Douglas")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Burke Douglas have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, Burke Douglas is to receive Class A Common Shares
(the "Shares") to be issued by PowerTel pursuant to Section 1145 of the United
States Bankruptcy Code. In consideration of the issuance of the Shares, Burke
Douglas, acting through its duly authorized representative, represents and
warrants to PowerTel and to the Court that Burke Douglas is not an "underwriter"
as that term is defined in Section 1145(b) of the Bankruptcy Code. Burke Douglas
also acknowledges that the Shares which it will receive have not been registered
with the United States Securities and Exchange Commission pursuant to Section 5
of the Securities Act of 1933 in reliance upon the exemption from registration
provided in Section 1145(a) of the Bankruptcy Code. Burke Douglas also confirms
that it has been advised that PowerTel has consented to the issuance of the
Shares based upon PowerTel's understanding that Burke Douglas is experienced in
financial matters, has access to advisors who are experienced in evaluating
investments and is ready, willing and able to assume the risk of acquiring a
speculative, high risk investment, such as the Shares.
Burke Douglas also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Burke Douglas has been advised that, for the preceding
three calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Burke Douglas,
a copy will be made available upon request or may be procured from the United
States Securities and Exchange Commission, Washington, D.C.
30
Burke Douglas acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Burke Douglas is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Burke Douglas is also aware that the Securities Exchange Act
of 1934 imposes duties and responsibilities upon certain shareholders, officers
and directors. Burke Douglas represents that it shall comply with all applicable
statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Burke Douglas
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Burke Douglas and PowerTel.
Burke Douglas acknowledges that both PowerTel -and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Burke Douglas hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Burke Douglas and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by Burke
Douglas.
In Witness Whereof, Burke Douglas Holdings, Ltd., has given its Common
Seal this date.
GIVEN UNDER THE COMMON SEAL Burke Douglas Holdings, Ltd., a Company
of Burke Douglas Holdings, Ltd. Limited by Shares under the International
Business Companies Act of 1989,
Date: March 16, 1998 Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-------------------------------------
Managing Director
31
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Parklane Mayfair, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Parklane Mayfair")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Parklane Mayfair have entered into
a Settlement and Release Agreement dated as of December 1, 1997 (the
"Agreement"), which Agreement was subsequently incorporated into and made a part
of a Plan, of Reorganization (the "Plan") filed by PowerTel with the United
States Bankruptcy Court for the District of Nevada in a Chapter 11 proceeding
identified as Case No 97-30265-BMG, which Plan was subsequently confirmed by the
Court.
Pursuant to the Plan, Parklane Mayfair is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
Parklane Mayfair, acting through its duly authorized representative, represents
and warrants to PowerTel and to the Court that Parklane Mayfair is not an
"underwriter" as that term is defined in Section 1145(b) of the Bankruptcy Code.
Parklane Mayfair also acknowledges that the Shares which it will receive have
not been registered with the United States Securities and Exchange Commission
pursuant to Section 5 of the Securities Act of 1933 in reliance upon the
exemption from registration provided in Section 1145(a) of the Bankruptcy Code.
Parklane Mayfair also confirms that it has been advised that PowerTel has
consented to the issuance of the Shares based upon PowerTel's understanding that
Parklane Mayfair is experienced in financial matters, has access to advisors who
are experienced in evaluating investments and is ready, willing and able to
assume the risk of acquiring a speculative, high risk investment, such as the
Shares.
Parklane Mayfair also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Parklane Mayfair has been advised that, for the preceding
three calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Parklane
Mayfair, a copy will be made available upon request or may be procured from the
United States Securities and Exchange Commission, Washington, D.C.
32
Parklane Mayfair acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Parklane Mayfair is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Parklane Mayfair is also aware that the Securities Exchange
Act of 1934 imposes duties and responsibilities upon certain shareholders,
officers and directors. Parklane Mayfair represents that it shall comply with
all applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Parklane Mayfair
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Parklane Mayfair and PowerTel.
Parklane Mayfair acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Parklane Mayfair hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Parklane Mayfair and agrees that, in such event, all documents executed by
Mr. Wallace may be relied upon by the recipient as if fully executed by Parklane
Mayfair.
In Witness Whereof, Parklane Mayfair, Ltd., has given its Common Seal
this date.
GIVEN UNDER THE COMMON SEAL Parklane Mayfair, Ltd., a Company Limited
of Parklane Mayfair, Ltd. by Shares under the International Business
Companies Act of 1989, Commonwealth of
Date: March 16, 1998 the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-----------------------------------------
Managing Director
33
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Clarendon Atlantic Holdings, Ltd., a Company Limited by Shares under
the International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Clarendon Atlantic")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Clarendon Atlantic have entered
into a Settlement and Release Agreement dated as of December 1, 1997 (the
"Agreement"), which Agreement was subsequently incorporated into and made a part
of a Plan of Reorganization (the "Plan") filed by PowerTel with the United
States Bankruptcy Court for the District of Nevada in a Chapter 11 proceeding
identified as Case No 97-30265-BMG, which Plan was subsequently confirmed by the
Court.
Pursuant to the Plan, Clarendon Atlantic is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
Clarendon Atlantic, acting through its duly authorized representative,
represents and warrants to PowerTel and to the Court that Clarendon Atlantic is
not an "underwriter" as that term is defined in Section 1145(b) of the
Bankruptcy Code. Clarendon Atlantic also acknowledges that the Shares which it
will receive have not been registered with the United States Securities and
Exchange Commission pursuant to Section 5 of the Securities Act of 1933 in
reliance upon the exemption from registration provided in Section 1145(a) of the
Bankruptcy Code. Clarendon Atlantic also confirms that it has been advised that
PowerTel has consented to the issuance of the Shares based upon PowerTel's
understanding that Clarendon Atlantic is experienced in financial matters, has
access to advisors who are experienced in evaluating investments and is ready,
willing and able to assume the risk of acquiring a speculative, high risk
investment, such as the Shares.
Clarendon Atlantic also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Clarendon Atlantic has been advised that, for the
preceding three calendar years, PowerTel has made various filings with the
Securities and Exchange Commission (including but not limited to annual reports
on Form 10-KSB, quarterly reports on Form 10-QSB and at least one registration
statement on Form S-8). While PowerTel has not provided a copy of these filings
to Clarendon Atlantic, a copy will be made available upon request or may be
procured from the United States Securities and Exchange Commission, Washington,
D.C.
34
Clarendon Atlantic acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be Implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Clarendon Atlantic is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Clarendon Atlantic is also aware that the Securities
Exchange Act of 1934 imposes duties and responsibilities upon certain
shareholders, officers and directors. Clarendon Atlantic represents that it
shall comply with all applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Clarendon Atlantic
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Clarendon Atlantic and PowerTel.
Clarendon Atlantic acknowledges that both PowerTel and the United
States Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional documents) are required in order to
issue the Shares, Clarendon Atlantic hereby designates Mr. David Wallace, Esq.
of Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Clarendon Atlantic and agrees that, in such event, all documents executed by
Mr. Wallace may be relied upon by the recipient as if fully executed by
Clarendon Atlantic.
In Witness Whereof, Clarendon Atlantic Holdings, Ltd., has given its
Common Seal this date.
GIVEN UNDER THE COMMON SEAL Clarendon Atlantic Holdings, Ltd., a
of Clarendon Atlantic Holdings, Ltd. Company Limited by Shares under the
International Business Companies Act of
Date: March 16, 1998 1989, Commonwealth of the Bahamas
----------------
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-----------------------------------
Managing Director
35
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Macaulay Island Investments, Ltd., a Company Limited by Shares under
the International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Macaulay")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Macaulay have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, Macaulay is to receive Class A Common Shares (the
"Shares") to be issued by PowerTel pursuant to Section 1145 of the United States
Bankruptcy Code. In consideration of the issuance of the Shares, Macaulay,
acting through its duly authorized representative, represents and warrants to
PowerTel and to the Court that Macaulay is not an "underwriter" as that term is
defined in Section 1145(b) of the Bankruptcy Code. Macaulay also acknowledges
that the Shares which it will receive have not been registered with the United
States Securities and Exchange Commission pursuant to Section 5 of the
Securities Act of 1933 in reliance upon the exemption from registration provided
in Section 1145(a) of the Bankruptcy Code. Macaulay also confirms that it has
been advised that PowerTel has consented to the issuance of the Shares based
upon PowerTel's understanding that Macaulay is experienced in financial matters,
has access to advisors who are experienced in evaluating investments and is
ready, willing and able to assume the risk of acquiring a speculative, high risk
investment, such as the Shares.
Macaulay also confirms that it has received and reviewed the Disclosure
Statement filed by PowerTel, approved by the Court and distributed to its
Creditors and has been afforded an opportunity to make inquiry into the affairs
of PowerTel, including an opportunity to confer with the Directors and Officers
of PowerTel. Macaulay has been advised that, for the preceding three calendar
years, PowerTel has made various filings with the Securities and Exchange
Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Macaulay, a
copy will be made available upon request or may be procured from the United
States Securities and Exchange Commission, Washington, D.C.
Macaulay acknowledges that PowerTel has not made any representation or
warranty
36
that (i) its Plan will be Implemented successfully, (ii) there will be a market
for the Shares or (if there is a market) that the per Share price will be
maintained within any specific bid/ask range, or (iii) PowerTel will be
financially solvent or that its pro forma financial projections will materialize
as anticipated.
Macaulay is aware that there are various Federal and State statutes,
rules and regulations in the United States governing the offer and sale of
securities. Macaulay is also aware that the Securities Exchange Act of 1934
imposes duties and responsibilities upon certain shareholders, officers and
directors. Macaulay represents that it shall comply with all applicable
statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Macaulay
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Macaulay and PowerTel.
Macaulay acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Macaulay hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Macaulay and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by Macaulay.
In Witness Whereof, Macaulay Island Investments, Ltd., has given its
Common Seal this date.
GIVEN UNDER THE COMMON SEAL Macaulay Island Investments, Ltd., a
of Macaulay Island Investments, Ltd. Company Limited by Shares under the
International Business Companies Act of
Date: March 16, 1998 1989, Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-------------------------------------
Managing Director
37
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Young Bayshore Investments, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Young Bayshore")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc, ("PowerTel") and Young Bayshore have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, Young Bayshore is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
Young Bayshore, acting through its duly authorized representative, represents
and warrants to PowerTel and to the Court that Young Bayshore is not an
"underwriter" as that term is defined in Section 1145(b) of the Bankruptcy Code.
Young Bayshore also acknowledges that the Shares which it will receive have not
been registered with the United States Securities and Exchange Commission
pursuant to Section 5 of the Securities Act of 1933 in reliance upon the
exemption from registration provided in Section 1145(a) of the Bankruptcy Code.
Young Bayshore also confirms that it has been advised that PowerTel has
consented to the issuance of the Shares based upon PowerTel's understanding that
Young Bayshore is experienced in financial matters, has access to advisors who
are experienced in evaluating investments and is ready, willing and able to
assume the risk of acquiring a speculative, high risk investment, such as the
Shares.
Young Bayshore also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Young Bayshore has been advised that, for the preceding
three calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Young Bayshore,
a copy will be made available upon request or may be procured from the United
States Securities and Exchange Commission, Washington, D.C.
38
Young Bayshore acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Young Bayshore is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Young Bayshore is also aware that the Securities Exchange
Act of 1934 imposes duties and responsibilities upon certain shareholders,
officers and directors. Young Bayshore represents that it shall comply with all
applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Young Bayshore
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Young Bayshore and PowerTel.
Young Bayshore acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Young Bayshore hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Young Bayshore and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by Young
Bayshore.
In Witness Whereof, Young Bayshore Investments, Ltd., has given its
Common Seal this date.
GIVEN UNDER THE COMMON SEAL Young Bayshore Investments, Ltd., a
of Young Bayshore Investments, Ltd. Company Limited by Shares under the
International Business Companies Act of
Date: March 16, 1998 1989, Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-------------------------------------
Managing Director
39
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Wilton Ashfield, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Wilton Ashfield")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Wilton Ashfield have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, Wilton Ashfield is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
Wilton Ashfield, acting through its duly authorized representative, represents
and warrants to PowerTel and to the Court that Wilton Ashfield is not an
"underwriter" as that term is defined in Section 1145(b) of the Bankruptcy Code.
Wilton Ashfield also acknowledges that the Shares which it will receive have not
been registered with the United States Securities and Exchange Commission
pursuant to Section 5 of the Securities Act of 1933 in reliance upon the
exemption from registration provided in Section 1145(a) of the Bankruptcy Code.
Wilton Ashfield also confirms that it has been advised that PowerTel has
consented to the issuance of the Shares based upon PowerTel's understanding that
Wilton Ashfield is experienced in financial matters, has access to advisors who
are experienced in evaluating investments and is ready, willing and able to
assume the risk of acquiring a speculative, high risk investment, such as the
Shares.
Wilton Ashfield also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Wilton Ashfield has been advised that, for the preceding
three calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Wilton
Ashfield, a copy will be made available upon request or may be procured from the
United States Securities and Exchange Commission, Washington, D.C.
40
Wilton Ashfield acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Wilton Ashfield is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Wilton Ashfield is also aware that the Securities Exchange
Act of 1934 imposes duties and responsibilities upon certain shareholders,
officers and directors. Wilton Ashfield represents that it shall comply with all
applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Wilton Ashfield
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Wilton Ashfield and PowerTel.
Wilton Ashfield acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Wilton Ashfield hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Wilton Ashfield and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by Wilton
Ashfield.
In Witness Whereof, Wilton Ashfield, Ltd., has given its Common Seal
this date.
GIVEN UNDER THE COMMON SEAL Wilton Ashfield, Ltd., a Company Limited
of Wilton Ashfield, Ltd. by Shares under the International Business
Companies Act of 1989, Commonwealth of
Date: March 16, 1998 the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
----------------------------------------
Managing Director
41
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Greyshire House, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Greyshire")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Greyshire have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, Greyshire is to receive Class A Common Shares
(the "Shares") to be issued by PowerTel pursuant to Section 1145 of the United
States Bankruptcy Code. In consideration of the issuance of the Shares,
Greyshire, acting through its duly authorized representative, represents and
warrants to PowerTel and to the Court that Greyshire is not an "underwriter" as
that term is defined in Section 1145(b) of the Bankruptcy Code. Greyshire also
acknowledges that the Shares which it will receive have not been registered with
the United States Securities and Exchange Commission pursuant to Section 5 of
the Securities Act of 1933 in reliance upon the exemption from registration
provided in Section 1145(a) of the Bankruptcy Code. Greyshire also confirms that
it has been advised that PowerTel has consented to the issuance of the Shares
based upon PowerTel's understanding that Greyshire is experienced in financial
matters, has access to advisors who are experienced in evaluating investments
and is ready, willing and able to assume the risk of acquiring a speculative,
high risk investment, such as the Shares.
Greyshire also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Greyshire has been advised that, for the preceding three
calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Greyshire, a
copy will be made available upon request or may be procured from the United
States Securities and Exchange Commission, Washington, D.C.
42
Greyshire acknowledges that PowerTel has not made any representation or
warranty that (i) its Plan will be Implemented successfully, (ii) there will be
a market for the Shares or (if there is a market) that the per Share price will
be maintained within any specific bid/ask range, or (iii) PowerTel will be
financially solvent or that its pro forma financial projections will materialize
as anticipated.
Greyshire is aware that there are various Federal and State statutes,
rules and regulations in the United States governing the offer and sale of
securities. Greyshire is also aware that the Securities Exchange Act of 1934
imposes duties and responsibilities upon certain shareholders, officers and
directors. Greyshire represents that it shall comply with all applicable
statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Greyshire
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Greyshire and PowerTel.
Greyshire acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Greyshire hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Greyshire and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by Greyshire.
In Witness Whereof, Greyshire House, Ltd., has given its Common Seal
this date.
GIVEN UNDER THE COMMON SEAL Greyshire House, Ltd., a Company Limited
of Greyshire House, Ltd. by Shares under the International Business
Companies Act of 1989, Commonwealth of
Date: March 16, 1998 the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
--------------------------------------
Managing Director
43
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: August Lake Holdings, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "August Lake")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and August Lake have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, August Lake is to receive Class A Common Shares
(the "Shares") to be issued by PowerTel pursuant to Section 1145 of the United
States Bankruptcy Code. In consideration of the issuance of the Shares, August
Lake, acting through its duly authorized representative, represents and warrants
to PowerTel and to the Court that August Lake is not an "underwriter" as that
term is defined in Section 1145(b) of the Bankruptcy Code. August Lake also
acknowledges that the Shares which it will receive have not been registered with
the United States Securities and Exchange Commission pursuant to Section 5 of
the Securities Act of 1933 in reliance upon the exemption from registration
provided in Section 1145(a) of the Bankruptcy Code. August Lake also confirms
that it has been advised that PowerTel has consented to the issuance of the
Shares based upon PowerTel's understanding that August Lake is experienced in
financial matters, has access to advisors who are experienced in evaluating
investments and is ready, willing and able to assume the risk of acquiring a
speculative, high risk investment, such as the Shares.
August Lake also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. August Lake has been advised that, for the preceding three
calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to August Lake, a
copy will be made available upon request or may be procured from the United
States Securities and Exchange Commission, Washington, D.C.
44
August Lake acknowledges that PowerTel has not made any representation
or warranty that (i) its Plan will be implemented successfully, (ii) there will
be a market for the Shares or (if there is a market) that the per Share price
will be maintained within any specific bid/ask range, or (iii) PowerTel will be
financially solvent or that its pro forma financial projections will materialize
as anticipated.
August Lake is aware that there are various Federal and State statutes,
rules and regulations in the United States governing the offer and sale of
securities. August Lake is also aware that the Securities Exchange Act of 1934
imposes duties and responsibilities upon certain shareholders, officers and
directors. August Lake represents that it shall comply with all applicable
statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, August Lake
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between August Lake and PowerTel.
August Lake acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, August Lake hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of August Lake and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by August Lake.
In Witness Whereof, August Lake Holdings, Ltd., has given its Common
Seal this date.
GIVEN UNDER THE COMMON SEAL August Lake Holdings, Ltd., a Company
of August Lake Holdings, Ltd. Limited by Shares under the International
Business Companies Act of 1989,
Date: March 16, 1998 Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-------------------------------------
Managing Director
45
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Whitestone Brooke Holdings, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Whitestone Brooke")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Whitestone Brooke have entered into
a Settlement and Release Agreement dated as of December 1, 1997 (the
"Agreement"), which Agreement was subsequently incorporated into and made a part
of a Plan of Reorganization (the "Plan") filed by PowerTel with the United
States Bankruptcy Court for the District of Nevada in a Chapter 11 proceeding
identified as Case No 97-30265-BMG, which Plan was subsequently confirmed by the
Court.
Pursuant to the Plan, Whitestone Brooke is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
Whitestone Brooke, acting through its duly authorized representative, represents
and warrants to PowerTel and to the Court that Whitestone Brooke is not an
"underwriter" as that term is defined in Section 1145(b) of the Bankruptcy Code.
Whitestone Brooke also acknowledges that the Shares which it will receive have
not been registered with the United States Securities and Exchange Commission
pursuant to Section 5 of the Securities Act of 1933 in reliance upon the
exemption from registration provided in Section 1145(a) of the Bankruptcy Code.
Whitestone Brooke also confirms that it has been advised that PowerTel has
consented to the issuance of the Shares based upon PowerTel's understanding that
Whitestone Brooke is experienced in financial matters, has access to advisors
who are experienced in evaluating investments and is ready, willing and able to
assume the risk of acquiring a speculative, high risk investment, such as the
Shares.
Whitestone Brooke also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Whitestone Brooke has been advised that, for the preceding
three calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Whitestone
Brooke, a copy will be made available upon request or may be procured from the
United States Securities and Exchange Commission, Washington, D.C.
46
Whitestone Brooke acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Whitestone Brooke is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Whitestone Brooke is also aware that the Securities Exchange
Act of 1934 imposes duties and responsibilities upon certain shareholders,
officers and directors. Whitestone Brooke represents that it shall comply with
all applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Whitestone Brooke
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Whitestone Brooke and PowerTel.
Whitestone Brooke acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional documents) are required in order to
issue the Shares, Whitestone Brooke hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Whitestone Brooke and agrees that, in such event, all documents executed by
Mr. Wallace may be relied upon by the recipient as if fully executed by
Whitestone Brooke.
In Witness Whereof, Whitestone Brooke Holdings, Ltd., has given its
Common Seal this date.
GIVEN UNDER THE COMMON SEAL Whitestone Brooke Holdings, Ltd., a
of Whitestone Brooke Holdings, Ltd. Company Limited by Shares under the
International Business Companies Act of
Date: March 16, 1998 1989, Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-----------------------------------
Managing Director
47
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation (Referred to as
"PowerTel")
FROM: Porterman Williams, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas (Referred to as "Porterman Williams")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Porterman Williams have entered
into a Settlement and Release Agreement dated as of December 1, 1997 (the
"Agreement"), which Agreement was subsequently incorporated into and made a part
of a Plan of Reorganization (the "Plan") filed by PowerTel with the United
States Bankruptcy Court for the District of Nevada in a Chapter 11 proceeding
identified as Case No 97-30265-BMG, which Plan was subsequently confirmed by the
Court.
Pursuant to the Plan, Porterman Williams is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
Porterman Williams, acting through its duly authorized representative,
represents and warrants to PowerTel and to the Court that Porterman Williams is
not an "underwriter" as that term is defined in Section 1145(b) of the
Bankruptcy Code. Porterman Williams also acknowledges that the Shares which it
will receive have not been registered with the United States Securities and
Exchange Commission pursuant to Section 5 of the Securities Act of 1933 in
reliance upon the exemption from registration provided in Section 1145(a) of the
Bankruptcy Code. Porterman Williams also confirms that it has been advised that
PowerTel has consented to the issuance of the Shares based upon PowerTel's
understanding that Porterman Williams is experienced in financial matters, has
access to advisors who are experienced in evaluating investments and is ready,
willing and able to assume the risk of acquiring a speculative, high risk
investment, such as the Shares.
Porterman Williams also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Porterman Williams has been advised that, for the
preceding three calendar years, PowerTel has made various filings with the
Securities and Exchange Commission (including but not limited to annual reports
on Form 10-KSB, quarterly reports on Form 10-QSB and at least one registration
statement on Form S-8). While PowerTel has not provided a copy of these filings
to Porterman Williams, a copy will be made available upon request or may be
procured from the United States Securities and Exchange Commission, Washington,
D.C.
48
Porterman Williams acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
Porterman Williams is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. Porterman Williams is also aware that the Securities
Exchange Act of 1934 imposes duties and responsibilities upon certain
shareholders, officers and directors. Porterman Williams represents that it
shall comply with all applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Porterman Williams
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Porterman Williams and PowerTel.
Porterman Williams acknowledges that both PowerTel and the United
States Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, Porterman Williams hereby designates Mr. David Wallace, Esq.
of Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Porterman Williams and agrees that, in such event, all documents executed by
Mr. Wallace may be relied upon by the recipient as if fully executed by
Porterman Williams.
In Witness Whereof, Porterman Williams, Ltd., has given its Common Seal
this date.
GIVEN UNDER THE COMMON SEAL Porterman Williams, Ltd., a Company
of Porterman Williams, Ltd. Limited by Shares under the International
Business Companies Act of 1989,
Date: March 16, 1998 Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
-------------------------------------
Managing Director
49
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation
(Referred to as "PowerTel")
FROM: North Oldenfield, Ltd., a Company Limited by Shares under the
International Business Companies Act of 1989, Commonwealth of the
Bahamas
(Referred to as "North Oldenfield")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and North Oldenfield have entered into
a Settlement and Release Agreement dated as of December 1, 1997 (the
"Agreement"), which Agreement was subsequently incorporated into and made a part
of a Plan of Reorganization (the "Plan") filed by PowerTel with the United
States Bankruptcy Court for the District of Nevada in a Chapter 11 proceeding
identified as Case No 97-30265-BMG, which Plan was subsequently confirmed by the
Court.
Pursuant to the Plan, North Oldenfield is to receive Class A Common
Shares (the "Shares") to be issued by PowerTel pursuant to Section 1145 of the
United States Bankruptcy Code. In consideration of the issuance of the Shares,
North Oldenfield, acting through its duly authorized representative, represents
and warrants to PowerTel and to the Court that North Oldenfield is not an
"underwriter" as that term is defined in Section 1145(b) of the Bankruptcy Code.
North Oldenfield also acknowledges that the Shares which it will receive have
not been registered with the United States Securities and Exchange Commission
pursuant to Section 5 of the Securities Act of 1933 in reliance upon the
exemption from registration provided in Section 1145(a) of the Bankruptcy Code.
North Oldenfield also confirms that it has been advised that PowerTel has
consented to the issuance of the Shares based upon PowerTel's understanding that
North Oldenfield is experienced in financial matters, has access to advisors who
are experienced in evaluating investments and is ready, willing and able to
assume the risk of acquiring a speculative, high risk investment, such as the
Shares.
North Oldenfield also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. North Oldenfield has been advised that, for the preceding
three calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to North
Oldenfield, a copy will be made available upon request or may be procured from
the United States Securities and Exchange Commission, Washington, D.C.
50
North Oldenfield acknowledges that PowerTel has not made any
representation or warranty that (i) its Plan will be implemented successfully,
(ii) there will be a market for the Shares or (if there is a market) that the
per Share price will be maintained within any specific bid/ask range, or (iii)
PowerTel will be financially solvent or that its pro forma financial projections
will materialize as anticipated.
North Oldenfield is aware that there are various Federal and State
statutes, rules and regulations in the United States governing the offer and
sale of securities. North Oldenfield is also aware that the Securities Exchange
Act of 1934 imposes duties and responsibilities upon certain shareholders,
officers and directors. North Oldenfield represents that it shall comply with
all applicable statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, North Oldenfield
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between North Oldenfield and PowerTel.
North Oldenfield acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional document(s) are required in order to
issue the Shares, North Oldenfield hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of North Oldenfield and agrees that, in such event, all documents executed by
Mr. Wallace may be relied upon by the recipient as if fully executed by North
Oldenfield.
In Witness Whereof, North Oldenfield, Ltd., has given its Common Seal
this date.
GIVEN UNDER THE COMMON SEAL North Oldenfield, Ltd., a Company
of North Oldenfield, Ltd. Limited by Shares under the International
Business Companies Act of 1989,
Date: March 16, 1998 Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
------------------------------------
Managing Director
51
MEMORANDUM
TO: PowerTel USA, Inc., A Delaware, USA, corporation
(Referred to as "PowerTel")
FROM: Blackstone Sterling Holdings, Ltd., a Company Limited by Shares under
the International Business Companies Act of 1989, Commonwealth of the
Bahamas
(Referred to as "Blackstone")
RE: Receipt of Class A Common Stock Pursuant to the Plan of Reorganization
of PowerTel
PowerTel USA, Inc. ("PowerTel") and Blackstone have entered into a
Settlement and Release Agreement dated as of December 1, 1997 (the "Agreement"),
which Agreement was subsequently incorporated into and made a part of a Plan of
Reorganization (the "Plan") filed by PowerTel with the United States Bankruptcy
Court for the District of Nevada in a Chapter 11 proceeding identified as Case
No 97-30265-BMG, which Plan was subsequently confirmed by the Court.
Pursuant to the Plan, Blackstone is to receive Class A Common Shares
(the "Shares") to be issued by PowerTel pursuant to Section 1145 of the United
States Bankruptcy Code. In consideration of the issuance of the Shares,
Blackstone, acting through its duly authorized representative, represents and
warrants to PowerTel and to the Court that Blackstone is not an "underwriter" as
that term is defined in Section 1145(b) of the Bankruptcy Code. Blackstone also
acknowledges that the Shares which it will receive have not been registered with
the United States Securities and Exchange Commission pursuant to Section 5 of
the Securities Act of 1933 in reliance upon the exemption from registration
provided in Section 1145(a) of the Bankruptcy Code. Blackstone also confirms
that it has been advised that PowerTel has consented to the issuance of the
Shares based upon PowerTel's understanding that Blackstone is experienced in
financial matters, has access to advisors who are experienced in evaluating
investments and is ready, willing and able to assume the risk of acquiring a
speculative, high risk investment, such as the Shares.
Blackstone also confirms that it has received and reviewed the
Disclosure Statement filed by PowerTel, approved by the Court and distributed to
its Creditors and has been afforded an opportunity to make inquiry into the
affairs of PowerTel, including an opportunity to confer with the Directors and
Officers of PowerTel. Blackstone has been advised that, for the preceding three
calendar years, PowerTel has made various filings with the Securities and
Exchange Commission (including but not limited to annual reports on Form 10-KSB,
quarterly reports on Form 10-QSB and at least one registration statement on Form
S-8). While PowerTel has not provided a copy of these filings to Blackstone, a
copy will be made available upon request or may be procured from the United
States Securities and Exchange Commission, Washington, D.C.
52
Blackstone acknowledges that PowerTel has not made any representation
or warranty that (i) its Plan will be implemented successfully, (ii) there will
be a market for the Shares or (if there is a market) that the per Share price
will be maintained within any specific bid/ask range, or (iii) PowerTel will be
financially solvent or that its pro forma financial projections will materialize
as anticipated.
Blackstone is aware that there are various Federal and State statutes,
rules and regulations in the United States governing the offer and sale of
securities. Blackstone is also aware that the Securities Exchange Act of 1934
imposes duties and responsibilities upon certain shareholders, officers and
directors. Blackstone represents that it shall comply with all applicable
statutes, rules and regulations.
Except as set forth in the Agreement and the Plan, Blackstone
acknowledges that there is no agreement, contract or understanding (either oral
or written) by and between Blackstone and PowerTel.
Blackstone acknowledges that both PowerTel and the United States
Bankruptcy Court will rely upon this Memorandum in issuing the Shares.
In the event that any additional documents) are required in order to
issue the Shares, Blackstone hereby designates Mr. David Wallace, Esq. of
Sarasota, Florida as its Agent and hereby grants to Mr. Wallace its Power of
Attorney coupled with an interest in order to execute documents by or on behalf
of Blackstone and agrees that, in such event, all documents executed by Mr.
Wallace may be relied upon by the recipient as if fully executed by Blackstone.
In Witness Whereof, Blackstone Sterling Holdings, Ltd., has given its
Common Seal this date.
GIVEN UNDER THE COMMON SEAL Blackstone Sterling Holdings, Ltd., a
of Blackstone Sterling Holdings, Ltd. Company Limited by Shares under the
International Business Companies Act of
Date: March 16, 1998 1989, Commonwealth of the Bahamas
By: Rupert N. Folkard
Per: /s/ Rupert N. Folkard
----------------------------------
Managing Director