SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered as of this 24th
day of November, 1998, between VDC Communications, Inc. (successor to VDC
Corporation, Ltd.) ("VDC"), PortaCom Wireless, Inc. ("PortaCom") and Xxxxxxx
Xxxxxxxx (the "Disbursing Agent"). VDC and PortaCom may sometimes be
collectively referred to herein as the "Settling Parties."
BACKGROUND
A. On March 23, 1998 (the "Filing Date"), PortaCom filed a voluntary
petition for reorganization pursuant to Chapter 11 of Title 11 of the United
States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"), Case No. 98-661(PJW) (the
"Bankruptcy Case").
B. Prior to the commencement of the Bankruptcy Case, on September 30,
1997, VDC entered into an agreement with PortaCom to acquire PortaCom's interest
in Metromedia China Corporation ("MCC"), consisting of 2,000,000 shares of MCC
common stock ("MCC Shares") and warrants to purchase 4,000,000 shares of MCC
common stock with a strike price of $4.00 per share ("MCC Warrants"), in
consideration of VDC's issuance of 5.3 million shares of VDC common stock (the
"VDC Shares") and up to $700,000 in cash ("1997 Sale Agreement"). The 1997 Sale
Agreement was superseded by the Asset Purchase Agreement dated March 23, 1998
("Asset Purchase Agreement").
C. The Asset Purchase Agreement was subsequently amended by two
Stipulations and Orders in Lieu of Objection, dated as of April 3, 1998 and
April 23, 1998, respectively and by an Escrow Agreement ("Escrow Agreement"),
which provided for an escrow account in the amount of
$2,682,000 funded by VDC (the "Escrowed Funds"), subject to adjustment, for the
holders of priority and general unsecured claims against PortaCom.
D. Pursuant to the Bankruptcy Court's Order entered April 23, 1998, the
sale of the MCC Shares and MCC Warrants to VDC was approved pursuant to
Bankruptcy Code ss. 363.
E. On or about June 8, 1998, the sale of the MCC Shares and MCC
Warrants to VDC was consummated (the "Asset Sale").
F. On or about July 24, 1998, PortaCom filed an Amended Plan of
Reorganization as Modified ("Plan") and accompanying Disclosure Statement.
Attached to the Plan was a June 8, 1998 Memorandum of Understanding (the "MOU")
which further amended the Asset Purchase Agreement.
G. By Order dated September 17, 1998, this Court confirmed the Plan
("Confirmation Order"). The Plan was confirmed pursuant to Bankruptcy Code ss.
1129(a) and without objection.
H. Following the entry of the Confirmation Order, but prior to the time
that the Confirmation Order became final, VDC raised allegations that a fraud
may have been committed against it in connection with the execution of the 1997
Sale Agreement, the Asset Purchase Agreement and the Asset Sale. In connection
with such allegations, VDC filed a motion for reconsideration and for a stay of
the Confirmation Order (the "Reconsideration Motion").
I. On October 20, 1998, VDC, PortaCom and the Official Committee of
Unsecured Creditors of PortaCom Wireless, Inc. (the "Committee") entered into a
stipulation dated October 20, 1998 (the "October 20 Stipulation") pursuant to
which PortaCom agreed to defer distribution of a portion of the VDC Shares under
the Plan and VDC agreed to withdraw the Reconsideration Motion. The October 20
Stipulation was approved by the Bankruptcy Court on October 20, 1998. By
operation of the October 20 Stipulation, the Confirmation Order became final and
unappealable.
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J. Following the execution and approval of the October 20 Stipulation,
VDC restated its intention to pursue its allegations of fraud and to rescind, in
whole or in part, the Asset Sale.
K. In order to avoid the expenses and risks associated with litigating
the disputes which have arisen between VDC and PortaCom, the Settling Parties
wish to settle the disputes between them in full.
COVENANTS
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Settling Parties, intending to
be bound legally hereby, covenant and agree as follows:
1. Escrow Shares. (a) As soon as practicable after the execution of
this Agreement, the Disbursing Agent shall segregate and hold separately
certificates representing shares of VDC common stock (the "Escrow Shares"),
consisting of a portion of the "First Series" and "Second Series" shares (as
defined in the MOU) not disbursed pursuant to the Plan to creditors of PortaCom
holding Allowed Claims in Classes 1, 2 or 5 (as defined in the Plan) ("Allowed
Claimants"), for release by the Disbursing Agent in accordance with the terms
hereof. The "Third Series" shares (as defined in the MOU) are pledged to MCC
under the Pledge Agreement dated June 8, 1998 (the "Pledge Agreement"). At such
time as the Third Series shares are returned to the Escrow Agent (as defined in
the Plan) in accordance with the Pledge Agreement, the Settling Parties shall
direct the Escrow Agent to deliver the Third Series shares to the Disbursing
Agent and the Disbursing Agent shall substitute 2,000,000 of the Third Series
shares for the First Series and Second Series shares deposited hereunder.
Thereafter, such Third Series shares shall constitute the Escrow Shares. If
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there are less than 2,000,000 Third Series shares available for delivery to the
Disbursing Agent, Second Series shares equal to the shortfall shall be retained
by the Disbursing Agent. All First Series and Second Series shares originally
deposited hereunder and exchanged for Third Series shares shall be retained by
the Disbursing Agent for disposition pursuant to the Plan.
(b) Notwithstanding the foregoing subsection (a), the Settling Parties
agree that the Disbursing Agent may remove from the Escrow Shares such First
Series or Second Series shares as may be required to permit PortaCom to (i) fund
administrative expenses payable to Allowed Claimants under the Plan, (ii)
satisfy or reserve for post-confirmation operating expenses of PortaCom, and
(iii) fund the reserve for post-confirmation professional fees as provided in
Section 5.10 of the Plan.
2. Deliveries of Escrow Shares to PortaCom. The Disbursing Agent shall
deliver all or a portion of the Escrow Shares (as described below) to PortaCom
at any time during the eighteen (18) months commencing November 1, 1998 (the
"Escrow Period") upon the satisfaction of any of the conditions set forth below.
Where less than all Escrow Shares are delivered, Escrow Shares of the Second
Series, if any, shall be delivered before Escrow Shares of the Third Series.
(a) All Escrow Shares shall be delivered if any of the following occurs
during the Escrow Period:
(i) MCC completes an initial public offering of shares of
its common stock (the "MCC Stock") at a public
offering price per share of $5.00 or more (adjusted
for stock splits, reverse splits or recapitalizations
occurring after the date hereof) and VDC's MCC
Warrants, to the extent not exercised, remain valid
and exercisable or have been canceled or otherwise
terminated with VDC's consent.
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(ii) Following a merger, share exchange or other
transaction in which VDC obtains securities of
another entity (the "Successor") in exchange for
shares of MCC Stock, (A) either (i) any class of
securities of the Successor received by VDC in such
transaction, or into which securities received by VDC
in such transaction are convertible (the "Successor
Securities") are registered under the Securities
Exchange Act of 1934 (the "1934 Act") and have an
average market price per share for the five (5)
trading days commencing with the trading date
following the closing date of such transaction such
that the Successor Securities received by VDC, or
issuable upon conversion of such Successor Securities
as were received by VDC, in exchange for a single
share of MCC Stock (the "MCC Share Equivalent")
(after adjustment for stock splits, reverse splits or
recapitalizations occurring after the date hereof)
provides VDC with $5.00 or more of market value for
each of its MCC shares, or (ii) the Successor
completes a public offering of any class of Successor
Securities at a price of $5.00 or more for each MCC
Share Equivalent (after adjustment for stock splits,
reverse splits or recapitalizations occurring after
the date hereof), (B) VDC's MCC Warrants remain valid
and exercisable by VDC or have been exchanged for
rights to acquire securities or property of the
Successor (the "Warrant Equivalents") and (C) VDC's
MCC Warrants or such rights, to the extent not
exercised, remain valid and exercisable or
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have been canceled or otherwise terminated with VDC's
consent. For purposes of this clause (ii), "market
price" shall be the closing price at which a share of
MCC Stock or an MCC Share Equivalent, as the case may
be, traded on the date in question, as quoted on the
NASDAQ National Market or Small Cap Market or on a
national securities exchange.
(iii) (A) If VDC's MCC Warrants have expired, the MCC Stock
is registered under the 1934 Act and the market price
of one share of MCC Stock is $15.00 or more on at
least 30 trading days during any 120 consecutive
trading day period following the date of registration
thereof; or (B) the Successor Securities are
registered under the 1934 Act and the market price of
an MCC Share Equivalent is $15.00 or more for at
least 30 trading days during any 120 consecutive
trading day period following the date of registration
thereof. For purposes of this clause (iii), "market
price" shall be the closing price at which a share of
MCC Stock or an MCC Share Equivalent, as the case may
be, traded on the date in question, as quoted on the
NASDAQ National Market or Small Cap Market or on a
national securities exchange.
(b) All or a portion of the Escrow Shares shall be delivered
in the event that, during the Escrow Period, VDC sells or otherwise disposes of
the MCC Shares, MCC Share Equivalents, MCC Warrants or MCC Warrant Equivalents
in one or more transactions and/or VDC
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receives distributions of cash or property from MCC with respect to the MCC
Shares (all amounts received by VDC are referred to collectively herein as
"Proceeds") as follows:
(i) 666,667 Escrow Shares if aggregate Proceeds are
$21,000,000 or more;
(ii) 1,333,333 Escrow Shares if aggregate Proceeds are
$25,000,000 or more; and
(iii) 2,000,000 Escrow Shares if aggregate Proceeds are
$30,000,000 or more.
For purposes of calculating Proceeds, cash and cash equivalents shall be valued
at face, marketable securities shall be valued at the average closing price for
the five (5) trading days commencing with the date in question as quoted on the
NASDAQ National Market, the NASDAQ Small Cap Market or a national securities
exchange, and all other Proceeds shall be valued at fair market value as
determined by an independent qualified investment banker or appraiser acceptable
to both parties, whose determination shall be binding on the parties absent
manifest error.
(c) All or a portion of the Escrow Shares shall be delivered based on
the private equity valuation of MCC's businesses as of the end of the Escrow
Period, as follows:
(i) 666,667 Escrow Shares if VDC's portion of MCC's
private equity valuation is $38,000,000 or more;
(ii) 1,333,333 Escrow Shares if VDC's portion of MCC's
private equity valuation is $65,000,000 or more; and
(iii) 2,000,000 Escrow Shares if VDC's portion of MCC's
private equity valuation is $83,000,000 or more.
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"Private equity valuation" shall be determined by an independent qualified
investment banker or appraiser acceptable to both parties, whose determination
shall take into account a number of relevant factors including without
limitation MCC's indebtedness and whose determination shall be binding on the
parties absent manifest error.
(d) All Escrow Shares shall be delivered immediately in the event that:
(i) the market price (the closing price at which a share
of VDC common stock trades on the date in question,
as quoted on the NASDAQ National Market or Small Cap
Market or on a national securities exchange) of a
share of VDC's common stock (the "VDC Stock") is less
than $5.00 on any 40 trading days during the 120
consecutive trading days subsequent to August 31,
1999;
(ii) the VDC Stock is no longer traded or quoted on a
national exchange or the NASDAQ National Market or
Small Cap Market (unless as the result of VDC's
acquisition by a successor and receipt by its
shareholders of securities which are and remain
traded on a national exchange or the NASDAQ National
Market or Small Cap Market or VDC is acquired for
consideration per share of $5.00 or more in cash or
property); or
(iii) VDC receives more than $2,500,000 in gross proceeds
from one or more public or private offerings of VDC
Stock or securities convertible into shares of VDC
Stock at an aggregate average price per share of VDC
Stock (or such amount of other securities as is
convertible into a share of VDC Stock) of $2.625 or
less, or VDC
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issues shares of VDC Stock or securities convertible
into shares of VDC Stock having a fair market value
(determined in the same manner as Proceeds are valued
in subsection (b) above) in excess of $2,500,000 and
at an average fair market value per share of VDC
Stock (or such amount of other securities as are
convertible into shares of VDC Stock) of $2.625 or
less.
3. Delivery of Escrow Shares to VDC. All Escrow Shares not delivered or
deliverable to PortaCom as of the end of the Escrow Period under Section 2 above
shall be delivered by the Disbursing Agent to VDC for cancellation.
4. The Release by VDC of PortaCom. For and in consideration of the
agreements and other mutual covenants set forth in this Agreement, VDC and all
of its parent corporations, subsidiaries, affiliates, officers, directors,
shareholders, agents, attorneys, representatives, predecessors, successors and
assigns, do hereby fully and forever remise, release, acquit and forever
discharge PortaCom and its parent corporations, subsidiaries, affiliates,
predecessors, successors, assigns, and all of its present and former officers,
directors, shareholders, employees, agents, representatives, attorneys,
insurers, and all of the foregoing's present and former officers, directors,
partners, principals, employees, shareholders, trustees, attorneys, insurers,
and their respective spouses, successors, heirs, executors, estates,
administrators, representatives, attorneys and agents, from and against all
claims, causes of action, demands, or suits of any kind, known or unknown,
arising out of or related in any way to the Asset Sale, the 1997 Sale Agreement,
the Asset Purchase Agreement, the Plan, the disclosure statement relating to the
Plan, the MCC Shares and MCC Warrants, the VDC Shares or the Escrowed Funds that
were or could have been asserted by VDC from the beginning of time through the
date of execution of this Agreement. Nothing contained in
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the foregoing release shall operate to discharge any party of its obligations
under this Agreement, the Plan, the Asset Purchase Agreement, the MOU, the
Escrow Agreement or the October 20 Stipulation.
5. The Release by PortaCom of VDC. For and in consideration of the
agreements and other mutual covenants set forth in this Agreement, PortaCom and
all of its parent corporations, subsidiaries, affiliates, officers, directors,
shareholders, agents, attorneys, representatives, predecessors, successors and
assigns, do hereby fully and forever remise, release, acquit and forever
discharge VDC and its parent corporations, subsidiaries, affiliates,
predecessors, successors, assigns, and all of its present and former officers,
directors, shareholders, employees, agents, representatives, attorneys,
insurers, and all of the foregoing's present and former officers, directors,
partners, principals, employees, shareholders, trustees, attorneys, insurers,
and their respective spouses, successors, heirs, executors, estates,
administrators, representatives, attorneys and agents, from and against all
claims, causes of action, demands, or suits of any kind, known or unknown,
arising out of or related in any way to the Asset Sale, the 1997 Sale Agreement,
the Asset Purchase Agreement, the Plan, the disclosure statement relating to the
Plan, the MCC Shares and MCC Warrants, the VDC Shares or the Escrowed Funds that
were or could have been asserted by PortaCom from the beginning of time through
the date of execution of this Agreement. Nothing contained in the foregoing
release shall operate to discharge any party of its obligations under this
Agreement, the Plan, the Asset Purchase Agreement, the MOU, the Escrow Agreement
or the October 20 Stipulation.
6. Scope of the Releases. The foregoing releases are made based upon
the Settling Parties' full and complete investigation of their respective rights
and potential claims against the other party to this Agreement. The Settling
Parties assume responsibility for any injury, damages
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or loss which may hereafter arise with respect to the matters covered by such
releases, except as specifically set forth above, although unknown or
unanticipated at the time of the execution of this Agreement. The foregoing
releases shall not impair or affect the Settling Parties' respective,
prospective rights and/or performance obligations under the Plan, Asset Purchase
Agreement, the MOU, the Escrow Agreement, the October 20 Stipulation or this
Agreement.
7. Escrowed Funds. VDC shall not seek to compel PortaCom to disgorge or
otherwise seek to recover from PortaCom, the Escrow Agent, the Disbursing Agent
or Allowed Claimants any portion of the Escrowed Funds that have been paid or
are payable to Allowed Claimants.
8. Parties to Bear Own Expenses. The Settling Parties agree to bear
their own expenses, including attorney fees, in connection with the negotiation
and settlement of the disputes between them, including the execution of this
Agreement and all related matters, except as otherwise agreed in writing.
9. Future Challenge to this Agreement.If either VDC or PortaCom (the
"Filing Party") commences a legal action, proceeding, adversary proceeding
against the other party hereto (the "Responding Party"), either challenging the
enforceability of this Agreement or claiming a breach of the terms of this
Agreement, the party which prevails in such a legal action, proceeding or
adversary proceeding shall be entitled to be reimbursed by the other party
hereto for all of its expenses and costs incurred in connection with such legal
action, proceeding or adversary proceeding, including, but not limited to,
attorneys' fees, accounting fees, investment banker fees, other professional
fees, disbursements, costs, and/or costs of suit. The Settling Parties covenant
and agree not to challenge the enforceability of this Agreement or claim a
breach hereof unless there exists a reasonable basis in law and fact to do so.
In the event that the claims raised by the Filing
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Party are determined by a court of competent jurisdiction to be without
reasonable basis in law or fact, the covenant in the preceding sentence shall be
breached and the Filing Party shall pay to the Responding Party liquidated
damages in an amount determined by the following formula: the value of the
shares of VDC common stock (including treasury stock) held by the Responding
Party on the date that the Filing Party commences a legal action against the
Responding Party subtracted by the value of the shares of VDC common stock held
by the Responding Party on the date that the court determines that the legal
action has no reasonable basis in law or fact. The Settling Parties acknowledge
that calculating the damages caused by a breach of the covenants in this Section
would be difficult to estimate accurately and that the foregoing formula is a
reasonable approximation thereof and is intended as a fair allocation and
liquidation of damages and not as a penalty against the Filing Party. The
liquidated damages provided for in this Section shall be the exclusive remedy
available to the Responding Party to compensate it for the harm caused by the
Filing Party for breaching the covenants contained in this Section.
10. Covenants of VDC. VDC hereby covenants and agrees that it shall:
(a) In order to permit PortaCom to fund administration expenses payable
to Class 1 Allowed Claimants under the Plan: (x) cause its counsel to deliver
legal opinions acceptable to such counsel as may be reasonably requested by
PortaCom in connection with the resale of shares of VDC common stock by PortaCom
and (y) to the extent permitted under applicable federal and state securities
laws, provide to PortaCom upon reasonable request copies of reports filed by VDC
with the Securities and Exchange Commission and other publicly available
information concerning VDC. It is expressly understood by the parties hereto
that this paragraph shall not impose any obligation on VDC to act as a purchaser
or broker in relation to the resale of the shares of VDC common stock.
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(b) Use reasonable efforts (exclusive of initiating litigation) to
assist PortaCom in obtaining the return of the Third Series shares pledged to
MCC under the Pledge Agreement to secure PortaCom's contingent contractual
indemnification obligations under the Termination Agreement dated September 11,
1996 by and among PortaCom, MCC, and Xxx X. Xxxxxx (the "Termination Agreement")
upon the earliest occurrence of several Release Conditions (as defined in the
Pledge Agreement).
(c) On or shortly after March 17, 1999, issue to the transfer agent for
VDC's common stock instructions to remove from certificates evidencing shares of
the "Second Series" all restrictive legends.
11. General Representations and Warranties. Each party represents and
warrants to the others as follows:
(a) Power and Authorization. It has all requisite power and authority
(corporate and otherwise) to enter into this Agreement, and has duly authorized
by all necessary action (including without limitation by its board of directors)
the execution and delivery hereof by the officer or individual whose name is
signed on its behalf below.
(b) No Conflict. Its execution and delivery of this Agreement and the
performance of its obligations hereunder, do not and will not conflict with or
result in a breach of or a default under its organizational instruments or any
other agreement, instrument, order, law or regulation applicable to it or by
which it may be bound.
(c) Enforceability. This Agreement has been duly and validly executed
and delivered by it and constitutes its valid and legally binding obligation,
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency or other laws of
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general application relating to or affecting the enforcement of creditors'
rights and except as enforcement is subject to general equitable principles.
12. Further Actions. The parties agree to execute such additional
documents and to perform all such other and further acts as may be reasonably
necessary or desirable to carry out the purposes and intents of this Agreement,
at the cost of the requesting party.
13. Notices. All notices, requests, instructions, consents and other
communications to be given pursuant to this Agreement shall be in writing and
shall be deemed received (i) on the same day if delivered in person, by same-day
courier or by telegraph, telex or facsimile transmission (provided that
telegraph, telex or facsimile notice shall be deemed received on the next
business day if received after 5:00 p.m. local time), (ii) on the next day if
delivered by overnight mail or courier, or (iii) on the date indicated on the
return receipt, or if there is no such receipt, on the third calendar day
(excluding Sundays) if delivered by certified or registered mail, postage
prepaid, to the party for whom intended to the following addresses:
If to PortaCom:
Xxxxxxx Xxxxxxx
PortaCom Wireless, Inc.
00000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxx, XX 00000
Fax: 000-000-0000
and
Xx. Xxxxxx Xxxxxx
c/o SLD Capital Corporation
Xxx Xxxxxxx Xxxxxx,
Xxx. 000
Xxxx Xxxxxx, XX 00000
Fax: 000-000-0000
With a copy to:
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Xxxxxxx X. Xxxxxx, Esquire
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
If to VDC:
Xxxxxxxxx X. Xxxxx, CEO
VDC Communications, Inc.
00 Xxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
With copies to:
Xxxxxx Xxxxx, Esquire
Buchanan, Ingersoll, P.C.
Eleven Penn Center
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
Xxxxx Xxxxx, Esquire
VDC Communications, Inc.
00 Xxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Each party may by written notice given to the other in accordance with
this Agreement change the address to which notices to such party are to be
delivered.
14. Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, whether written or oral, between them with
respect to the subject matter hereof. Each party has executed this Agreement
without reliance upon any promise, representation or warranty other than those
expressly set forth herein and neither party shall be bound by or liable for any
alleged
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representation, promise, inducement or statement of intention not so set forth.
Each party acknowledges that (i) it has carefully read this Agreement, (ii) it
has had the assistance of legal counsel of its choosing (and such other
professionals and advisors as it has deemed necessary) in the review and
execution hereof, (iii) the meaning and effect of the various terms and
provision hereof have been fully explained to it by such counsel, (iv) it has
conducted such investigation, review and analysis as it has deemed necessary to
understand the provisions of this Agreement and the transactions contemplated
hereby, and (v) it has executed this Agreement of its own free will.
15. Amendment. No amendment of this Agreement shall be effective unless
embodied in a written instrument executed by all of the parties.
16. Waiver of Breach. The failure of any party hereto at any time to
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor in any way to affect the validity of
this Agreement or any provisions hereof or the right of any party hereto to
thereafter enforce each and every provision of this Agreement. No waiver of any
breach of any of the provisions of this Agreement shall be effective unless set
forth in a written instrument executed by the party against whom or which
enforcement of such waiver is sought; and no waiver of any such breach shall be
construed or deemed to be a waiver of any other or subsequent breach.
17. Assignability. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective heirs, representatives,
successors and assigns; provided, however, except as otherwise expressly
permitted hereunder, no party hereto may assign this Agreement or any rights
hereunder to any person or entity without the prior written consent of the other
parties, and any attempted assignment without such consent shall be void.
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18. Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the internal substantive and procedural laws of
the Commonwealth of Pennsylvania without regard to conflict of laws principles.
The parties consent to the personal jurisdiction and venue of the Court of
Common Pleas of Philadelphia County (Pennsylvania) and the United States
District Court for the Eastern District of Pennsylvania and further consent that
any process, notice of motion or other application to either such court or a
judge thereof may be served outside the Commonwealth of Pennsylvania by
registered or certified mail or by personal service in compliance with Section
13 hereof, provided that a reasonable time for appearance and in any event not
less than 72 hours after receipt of service, is allowed.
19. Duties Ministerial. The duties of the Disbursing Agent are entirely
ministerial and not discretionary. The Disbursing Agent may rely upon any order
of court, not only as to its due execution, validity and effectiveness, but also
as to the truth and accuracy of any information contained therein, which the
Disbursing Agent shall in good faith believe to be genuine, to have been entered
of record.
20. Release of, and Covenant not to Xxx, Disbursing Agent. In
consideration for the Disbursing Agent's agreement to perform its duties under
this Agreement, the Settling Parties, and their respective shareholders,
partners, officers, employees, agents, successors and assigns, jointly and
severally, hereby waive any suit, claim, demand or cause of action of any kind
which any of them may have or may assert against the Disbursing Agent arising
out of or relating to the execution or performance by the Disbursing Agent of
its duties under this Agreement, unless such suit, claim or demand or cause of
action arises from the gross negligence or willfulness of the Disbursing Agent.
The Settling Parties, jointly and severally, hereby irrevocably covenant not to
xxx or commence or join in any proceedings, whether legal, equitable or
otherwise against the Disbursing Agent on
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account of any act or omission to act on the part of the Disbursing Agent,
unless such action or omission was willful or grossly negligent. Further, to
induce the Disbursing Agent to act hereunder, the parties hereto agree to
indemnify, defend and hold the Disbursing Agent harmless from any liability
incurred by any action taken or omission by the Disbursing Agent, except for
gross negligence or willful acts, including, but not limited to its reasonable
attorneys' fees and costs in connection therewith.
21. Headings. The headings of sections and subsections have been
included for convenience only and shall not be considered in interpreting this
Agreement.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same Agreement. This Agreement may be
executed and delivered via electronic facsimile transmission with the same force
and effect as if it were executed and delivered by the parties simultaneously in
the presence of one another.
23. Interpretation and Construction. This Agreement has been fully and
freely negotiated by the parties hereto, shall be considered as having been
drafted jointly by the parties hereto, and shall be interpreted and construed as
if so drafted, without construction in favor of or against any party on account
of its participation in the drafting hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date first written above.
PORTACOM WIRELESS, INC.
Attest:/s/ Xxx Xxxxxx By:/s/ Xxxxxxx Xxxxxxx
-------------- ----------------------------
Its: Chief Executive Officer
VDC COMMUNICATIONS, INC.
Attest:/s/ Xxxxxxx X. Xxxxx By:/s/ Xxxxxxxxx X. Xxxxx
-------------------- ----------------------
Its: Chairman and CEO
Witness:
/s/ Xxx Xxxxxx /s/ Xxxxxxx Xxxxxxx
--------------------------- -----------------------------
Xxxxxxx Xxxxxxxx
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