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Exhibit 2c
STEPHEN R. HARRIS, ESQ.
BELDING, HARRIS & PETRONI, LTD.
NEVADA BAR NO. 001463
417 West Plumb Lane
Reno, Nevada 89509
Telephone: (702) 786-7600
Facsimile: (702) 786-7764
Attorney for Debtor
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
* * * * *
IN RE:
POWERTEL USA, INC. formerly known Case No. 97-30265-BMG
as NEVADA ENERGY, INC., also formerly (Chapter 11)
known as MUNSON GEOTHERMAL, INC.,
Debtor. Hrg. DATE: August 25, 1998
and TIME: 10:00 a.m.
E.I.N. 84-089777l /
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ORDER APPROVING AND CONFIRMING DEBTOR'S FIRST AMENDED
PLAN OF REORGANIZATION, AS REVISED AND AMENDED
POWERTEL USA, INC., a Delaware corporation, formerly known as NEVADA
ENERGY, INC., also formerly known as MUNSON GEOTHERMAL, INC., the Debtor and
Debtor-in- Possession in this Chapter 11 bankruptcy reorganization case
("Debtor"), by and through its attorney, STEPHEN R. HARRIS, ESQ., of Belding,
Harris & Petroni, Ltd., having filed its DEBTOR'S FIRST AMENDED PLAN OF
REORGANIZATION (dated July 24, 1998), and commonly referred to herein as the
Plan; with the Plan being attached hereto as Exhibit "A" and incorporated herein
by that reference, and the Plan having been duly filed, served and noticed for
an 11 U.S.C. Section l129
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Confirmation Hearing, together with (1) the DEBTOR'S SECOND AMENDED DISCLOSURE
STATEMENT (dated July 24, 1998), and (2) the ORDER APPROVING DEBTOR'S FIRST
AMENDED DISCLOSURE STATEMENT, AS AMENDED, AS CONTAINING ADEQUATE INFORMATION (11
U.S.C. Section 1125), AND FIXING TIME FOR FILING ACCEPTANCES OR REJECTIONS OF
PLAN, on July 27, 1998, to all creditors and parties requesting notice thereof;
and having filed its ERRATA TO BALLOT AND TO DEBTOR'S SECOND AMENDED DISCLOSURE
STATEMENT PURSUANT TO 11 U.S.C. Section 1125, on August 17,1998, and its AMENDED
ERRATA TO BALLOT AND TO DEBTOR'S SECOND AMENDED DISCLOSURE STATEMENT PURSUANT TO
11 U.S.C. Section 1125, on August 17,1998, and served on August 18, 1998, with
the duly noticed hearing to consider confirmation of the Debtor's Plan,
conducted on August 25, 1998, at 10:00 a.m.; with STEPHEN R. HARRIS, ESQ., of
BELDING, HARRIS & PETRONI, LTD., appearing on behalf of the Debtor, POWERTEL
USA, INC., a Delaware corporation; and Richard Cascarilla, President of the
Debtor, also present; NICHOLAS STROZZA, Assistant U.S. Trustee, appearing on
behalf of the Office of the United States Trustee; and the Court also noting the
appearances of other attorneys for creditors, creditors and interested parties;
and the Court having considered all papers and pleadings on file; and no
opposition having been filed;
It having been determined after hearing on notice that:
1. The Plan has been accepted in writing by the creditors whose
acceptance is required by law;
2. The provisions of Chapter 11 of the Code have been complied with;
that the Plan has been proposed in good faith and not by any means forbidden by
law; and that the proponent of the Plan complies with the applicable provisions
of the Bankruptcy Code;
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3. Each holder of a claim has accepted the Plan or will receive or
retain under the Plan property of a value, on account of such claim, as of the
Effective Date of the Plan, that is not less than the amount that such holder
would receive or retain if the Debtor POWERTEL USA, INC., a Delaware
corporation, was liquidated under Chapter 7 of the Code on such date, and
further, the Plan does not discriminate unfairly, and is fair and equitable,
with respect to each class of claims that is impaired under, and had not
accepted the Plan;
4. All payments made or promised by the Debtor POWERTEL USA, INC., a
Delaware corporation, or by a person(s) issuing securities or acquiring property
under the Plan or by any other person for services or for costs and expenses in,
or in connection with, the Plan and incident to this case, have been fully
disclosed to the Court and are reasonable or, if to be fixed after confirmation
of the Plan, will be subject to the approval of the Court;
5. The identity, qualifications, and affiliations of the persons who
are to be directors or officers of the successor to the Debtor POWERTEL USA,
INC., a Delaware corporation, under the Plan, have been disclosed, if any;
6. The identity of any insider that will be employed or retained by the
Debtor and their compensation has been fully disclosed, if any;
7. Confirmation of the Plan is not likely to be followed by the need
for further financial reorganization of the Debtor or any successor to it under
the Plan, and the Plan is feasible;
8. At least one impaired class of claims has accepted the Plan,
determined without including any acceptances of the Plan by an insider holder of
a claim of such class; and
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9. That all creditors, by virtue of acceptance of the Plan by the
requisite number and amount of members in each class, those accepting classes
being the following: Class 6 General Unsecured Allowed Creditors' Claims of
$1,200.00 or Less (deemed to have accepted the Plan by their affirmative class
vote), Class 7 General Unsecured Allowed Creditors' Claims of More than
$1,200.00 (deemed to have accepted the Plan by their affirmative class vote),
Class 8 Claims of Nevada Energy Partners, Ltd. (affirmative class vote) and
Class 10 Equity Security Holders (deemed to have accepted the Plan by their
affirmative class vote); and those creditors in Class 6 and 7 (General Allowed
Unsecured Creditors) that have not voted to accept or reject the plan are deemed
to have accepted by reason of the class acceptance resulting from the majority
voting in number with two-thirds (2/3) the claims amount of the Class 6 and
Class 7 General Unsecured Creditors having voted for acceptance; and good cause
appearing,
IT IS HEREBY ORDERED that the DEBTOR'S FIRST AMENDED PLAN OF
REORGANIZATION (dated July 24, 1998), filed with the Court on July 24, 1998, and
attached hereto as EXHIBIT "A" and incorporated herein by that reference, be and
the same hereby is approved and confirmed, and its terms and conditions set
forth therein are binding on all Equity Interest Holders, Creditors and
parties-in-interest in the above-captioned bankruptcy case; and
IT IS FURTHER ORDERED that the interests of the Class 10 Equity
Interest Holders will be modified pursuant to the Plan, and further, Class 10
Equity Interest Holders shall not receive any dividends or monetary
distributions until all allowed creditors' claims are paid in full and/or
sufficient monies are on deposit with the Disbursing Agent to pay disputed
claims in the event of allowance of same; and
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IT IS FURTHER ORDERED that the Effective Date of the Plan shall be the
first business day occurring one-hundred and twenty (120) days after the date on
which the Order Confirming the Plan is entered by the Clerk's Office; and
IT IS FURTHER ORDERED that Debtor POWERTEL USA, INC., a Delaware
corporation, shall withhold payment to any Class of creditors until the
Effective Date, and thereafter paid as stated in the Plan, as amended and
revised herein, except Administrative Claims, which Administrative Claims shall
be paid by the Effective Date, unless otherwise agreed to in writing; and
IT IS FURTHER ORDERED that this Court shall retain jurisdiction to
adjudicate all matters (except to the extent contrary to the terms of the Plan)
pertinent to the administration of the Debtor and the Reorganized Debtor, and
enforcement of the Plan, including, but not limited to the discharge of any and
all claim(s) of Creditors and interest(s) of Equity Interest Holders, to the
extent provided by law and under the terms of the Plan; and
IT IS FURTHER ORDERED that the Reorganized and Revested Debtor is
authorized to take all actions necessary to effectuate the DEBTOR'S FIRST
AMENDED PLAN OF REORGANIZATION (dated July 24, 1998), as revised and amended
herein; and
IT IS FURTHER ORDERED that the assets of the bankrupt estate shall vest
in the Reorganized Debtor, as well as any remaining assets being liquidated
and/or distributed to the allowed secured and unsecured creditors' claims; and
IT IS FURTHER ORDERED that in accordance with 11 U.S.C. Section 1123
(b)(2), the Debtor rejects those executory contracts of indemnification
identified to be rejected in Article VIII, Section G(3) of the DEBTOR'S SECOND
AMENDED DISCLOSURE STATEMENT, and accepts those identified to be accepted, and
further, as to the Independent Contractor Agreement with Stone
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Brothers Welding and Equipment Sales, the Debtor shall have sixty (60) days from
the Confirmation Date within which to place that contract at issue with the
Bankruptcy Court; and
IT IS FURTHER ORDERED that in accordance with 11 U.S.C.
Section 1123(b)(3)(A), a plan of reorganization may provide for the settlement
of any claim(s) belonging to the estate, and in that regard, the Plan
contemplates the approval of four (4) settlement agreements detailed as follows:
(1) the Agreement between and among PowerTel, Nevada Electric Power Company and
Nevada Energy Partners, Ltd. ("the NEP Settlement"), specifically, the NEP
Settlement is described in detail at Section 11.1 of the Plan, which Plan was
sent to all creditors and to which no creditor had objected, and further, the
NEP Settlement resolves litigation and a $6 million claim against the Debtor
without any monetary obligation, and the Debtor receives 100% of the stock
ownership in Combustion Energy Company and the benefit of said corporation's
assets, and further, taking into consideration all of the factors of In re
A & C Properties, 784 F.2d 1377 (9th Cir. 1986), the Court finds and concludes
that the NEP Settlement is hereby ratified and approved, and is reasonable, fair
and equitable and in the best interest of creditors; (2) the Agreement with John
Vogel and Dean Chamberlain (the "VivaTel Settlement Agreement and Mutual
Release"), which VivaTel Settlement Agreement and Mutual Release previously has
been approved by the Court, in that certain Stipulated Judgment and Order, filed
in adversary proceeding 97-3151BMG, and entered on the docket on March 16, 1998,
which VivaTel Settlement Agreement and Mutual Release is hereby ratified and
approved; (3) the First Amended Agreement for the Exchange of Stock, dated April
22, 1998, between David Wallace and PowerTel USA, Inc., regarding DiegoTel,
Inc., is hereby ratified and approved; and (4) the First Amended Agreement for
the Exchange of Stock, dated February 19,
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1998, between David Wallace and PowerTel USA, Inc., regarding VivaTel, Inc., is
hereby ratified and approved; and
IT IS FURTHER ORDERED that in accordance with 11 U.S.C.
Section 1123(b)(3)(B), a plan may provide for the appointment of the debtor for
the retention and enforcement of any claim belonging to the estate. In
accordance with such provision, the Court hereby appoints PowerTel, the
Reorganized Debtor, as the entity to pursue all claims belonging to the estate,
as identified in Article V, Section E of the DEBTOR'S SECOND AMENDED DISCLOSURE
STATEMENT, including but not limited to Patttinson Hayton, his alter egos,
employees, affiliates, agents and attorneys-in-fact, first for the benefit of
the Reorganized Debtor's administrative and unsecured creditors and then for the
benefit of the Reorganized Debtor; and
IT IS FURTHER ORDERED that pursuant to 11 U.S.C. Section 1146(c) of
Title 11, the revesting, transfer and sale of any real or personal property of
the Debtor in accordance with the DEBTOR'S FIRST AMENDED PLAN OF REORGANIZATION,
as amended and revised herein, shall become vested of public record in any
purchaser/transferee, free from the imposition of any state or local tax, fee or
imposition, including transfer taxes pursuant to N.R.S. Section 357.090, and
IT IS FURTHER ORDERED that the confirmation of this DEBTOR'S FIRST
AMENDED PLAN OF REORGANIZATION, as revised and amended herein, constitutes a
discharge set forth in 11 U.S.C. Section 1141(d) of the Bankruptcy Code, except
as noted herein; and
IT IS FURTHER ORDERED that pursuant to 11 U.S.C. Section 1106(a)(7),
the Debtor shall file with the Clerk, not later than 180 days after the entry
of this order, a report of the action taken by the Reorganized Debtor and the
progress made toward consummation of its confirmed Plan, as
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amended and revised herein and further, said report shall include, as a minimum,
the following information:
(1) A schedule of any real property, and its cost, acquired
since confirmation of the plan, and a schedule of each item of personal
property acquired at a cost of more than $20,000.00 since confirmation
of the plan.
(2) A schedule of each debt and each class, listing the total
amount of the plan required to be paid, the amount required to be paid
to date, the amount actually paid to date, and the amount unpaid.
(3) A schedule of executory contracts entered into or assumed
after plan confirmation.
(4) A statement indicating that post-petition taxes of every
kind have been paid current, identifying each type of tax which has
been paid and is current (i.e., income, payroll, property, sales,
etc.), or a detailed explanation of any and all delinquencies, by type
of tax, and dollar amount.
(5) An estimate of the time for plan consummation and
application for final decree.
(6) Any other pertinent information needed to explain the
progress toward completion of the confirmed plan; and
IT IS FURTHER ORDERED that effective August 25, 1998, for professional
services rendered from that date forward, the Debtor's duly appointed
professionals do not need court approval, after notice and hearing, for payment
of professional fees and costs, and that the Reorganized Debtor may pay said
professionals for the times spent and costs incurred in the ordinary course of
its business; and
IT IS FURTHER ORDERED that the Debtor has sixty (60) days after the
Confirmation Date within which to file objection(s) to any disputed claims of
creditors; and
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IT IS FURTHER ORDERED that Debtor POWERTEL USA, INC., a Delaware
corporation, shall pay such fees to the Office of the United States Trustee as
are required by 28 U.S.C. Section 1930(a)(6) until such time a final decree is
entered closing its case; and
IT IS FURTHER ORDERED that the Debtor's stock transfer agent may rely
on this Order as a basis to establish shareholders of record ("Equity Interest
Holders"), and may compute a reconfigured shareholder ledger.
DATED: September 15, 1998
/s/ Bert M. Goldwater
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BERT M. GOLDWATER
UNITED STATES BANKRUPTCY JUDGE
Prepared by:
STEPHEN R. HARRIS, ESQ.
BELDING, HARRIS & PETRONI, LTD.
417 West Plumb Lane
Reno, NV 89509
(702) 786-7600
Attorneys for Debtor
Approved and accepted Approved as to form this ___ day of
this 9th day of September, 1998 September, 1998
/s/ Richard Cascarilla /s/ Nicholas Strozza, Esq.
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RICHARD CASCARILLA, President NICHOLAS STROZZA, ESQ.
POWERTEL USA, INC., Debtor Assistant U.S. Trustee
Office of the United States Trustee