PROMISSORY NOTE
June 9, 1998
FOR VALUE RECEIVED, VDC CORPORATION LTD., a Bermuda corporation (the
"Maker"), promises to pay to the order of PORTACOM WIRELESS, a Delaware
corporation (the "Payee") the amount set forth below in accordance with the
terms hereof.
This Note is the Deferred Purchase Price Note referred to in the Asset
Purchase Agreement, dated March 23, 1998, between Maker and Payee, as amended
(the "Purchase Agreement") and the Memorandum of Understanding, dated as of June
9, 1998, among Maker, Payee and the Official Committee of Unsecured Creditors of
PortaCom Wireless, Inc. (the "MOU"). Capitalized terms not defined herein shall
have the meaning ascribed thereto in the Purchase Agreement. The original
principal amount due hereunder shall be that amount calculated in accordance
with the following formula (the "Formula"), as set forth in Section 3.5 of the
Purchase Agreement:
MAC Market Price - VDC Market Price x $5,000,000
---------------- ----------------
MAC Base Price VDC Base Price
The entire principal amount outstanding under this Note shall be payable in
either lawful money of the United States or, at Maker's sole option, shares of
common stock of Maker as set forth in Section 3.5(b) of the Purchase Agreement,
at Payee's principal offices at 00000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000 or at such other place or places as Payee shall
designate, on September 4, 1999, provided, however, that Maker shall not be
obligated to pay any amount due hereunder and this Note shall be deemed null and
void in the event that either (1) on Xxxx 0, 0000, Xxxxxxxxxx Xxxxx Corporation
is not a publicly traded company whose shares are registered with the Securities
and Exchange Commission under the Securities Exchange Act of 1934 or (2) the
amount calculated in accordance with the Formula is a negative number.
Maker is obligated to make the payments on the above specified due date in
accordance with the terms of this Note and the Purchase Agreement without
defalcation or setoff and without notice or demand, and the failure to receive
any notice or demand from Payee shall not be a defense to, or excuse for, the
failure to make such payment on the due date.
Maker shall be in default hereunder upon the occurrence of any of the
following events (an "Event of Default"): (i) the failure to make payment when
due; or (ii) the failure of Maker to observe or perform or cause to be observed
or performed any agreement, condition or obligation on Maker's part to be
performed hereunder.
Upon the occurrence of any Event of Default, the entire amount outstanding
under this Note shall, at the option of Payee, become immediately due and
payable without presentment,
demand or further action of any kind, and one or more executions may forthwith
issue on any judgment or judgments obtained by virtue of any provision of this
Note or otherwise obtained.
The rights and remedies provided herein shall be cumulative and concurrent
and shall not be exclusive of any right or remedy provided by law, in equity or
otherwise. Said rights and remedies may, at the sole discretion of Payee, be
pursued singly, successively or together as often as occasion therefor shall
arise, against Maker. No failure on the part of Payee to exercise any of such
rights or remedies shall be deemed a waiver of any such rights or remedies or of
any Event of Default hereunder.
The granting, with or without notice, of any extension or extensions of
time for payment of any sum or sums due hereunder, or for the performance of any
covenant, provision, condition or agreement contained herein or therein, or the
granting of any other indulgence, or the taking or releasing or subordinating of
any security for the indebtedness evidenced hereby, or any other modification or
amendment of this Note will in no way release or discharge the liability of
Maker whether or not granted or done with the knowledge or consent of Maker.
Payee shall not be deemed, by any act of omission or commission, to have
waived any of its rights or remedies hereunder, at law or in equity, unless such
waiver is in writing and signed by Payee, and then only to the extent
specifically set forth in the writing. A waiver as to one event shall not be
construed as continuing or as a bar to or waiver of any right or remedy as to a
subsequent event.
In the event any portion of this Note shall be declared by any court of
competent jurisdiction to be invalid or unenforceable, such portion shall be
deemed severable from this Note, and the remaining parts hereof shall remain in
full force and effect, as fully as though such invalid or unenforceable portion
was never part of this Note.
The obligations of Maker hereunder shall be binding on the heirs,
representatives, successors and assigns of Maker and the benefits of this Note
shall inure to Payee, and its heirs, representatives, successors and assigns and
to any holder of this Note.
The outstanding balance due under this Note may be prepaid, in the
aggregate during the term of this Note, in whole or in part, without penalty or
premium. No partial prepayment shall postpone or interrupt payment of the
remaining balance, which shall continue to be due and payable at the time and in
the manner set forth above.
All notices and other communications required or given under this Note
shall be in writing and shall be sent by U.S. certified mail, return receipt
requested, or by a nationally recognized overnight courier service, addressed to
Payee or to Maker at their respective addresses as set forth in the Purchase
Agreement.
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This Note, and all issues arising hereunder, shall be governed by and
construed according to the laws of the State of Delaware.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused
this Promissory Note to be duly executed as of the 9th day of June, 1998.
VDC CORPORATION LTD.
By: /s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx,
Chief Executive Officer
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