Opinion
Adversary No. 09-52854-JKF Adversary No. 10-50744-JKF
12-15-2011
National Rural Utilities Cooperative Finance Corporation; Rural Telephone Finance Cooperative; Steven L. Lilly; John J. List; Sheldon C. Petersen; R. Wayne Stratton; Fulbright & Jaworski LLP; Greenlight Capital, Inc.; Greenlight Capital LP; Greenlight Capital Qualified LP; Greenlight Capital Offshore Ltd. Plaintiffs v. Jeffrey Prosser; Dawn Prosser; Adrian Prosser; John Raynor Defendants Jeffrey Prosser, Dawn Prosser, Adrian Prosser, John Raynor v. National Rural Utilities Cooperative Association, Rural Telephone Finance Cooperative, National Rural Electric Cooperative Association, Sheldon C. Petersen, John J. List, Steven L. Lilly, R. Wayne Stratton, Greenlight Capital, Inc., Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., Greenlight Capita Offshore, LTD., Fulbright & Jaworski LLP , Glenn L. English, Deloitte Touche USA LLP,
Adversary No. 09-52854-JKF
Jeffrey Prosser's bankruptcy case is filed in the Bankruptcy Division of the District Court of the U.S. Virgin Islands at Case No. 06-30009.
Related to Doc. No. 76, Plaintiff's Motion for Preliminary Injunction Related to Doc. No. 34, Motion for Preliminary Injunction
The Greenlight Entities were added as movants in the motion filed at Adv. Doc. No. 76 and were not parties to Adv. Doc. No. 34.
Related to Doc. No. 1, Complaint
Ernst & Young LLP
MEMORANDUM OPINION
This Memorandum Opinion constitutes our findings of fact and conclusions of law.
Before the court are two motions brought by the Plaintiffs in Adversary No. 09-52854 seeking a preliminary injunction to enforce the terms of two general releases (the "Prosser Parties' Release of RTFC" and the "Prosser Parties' Release of Greenlight," see Appendices A and B, respectively) and to enjoin further action against Plaintiffs by the Defendants ("the Prosser Parties") that violates the Releases, including, but not limited to, the action filed at Adversary No. 10-50744 ("the RICO action"). The motions seeking a preliminary injunction filed in Adversary No. 09-52854 stem from a RICO action filed by the Prosser Parties against these Plaintiffs and others in the District Court of the Virgin Islands (St. Croix Division) (hereafter "VI District Court"), Case No. 08-cv-107. The VI District Court granted the Plaintiffs' motion to refer the matter to the undersigned, concluding that the RICO action was a collateral attack on four related bankruptcy cases pending before the undersigned in the Bankruptcy Division of the VI District Court. The VI District Court found "of particular importance and significance" forum selection clauses in the two general releases at issue applicable to the Prosser Parties. The Releases identified the Bankruptcy Court for the District of Delaware as the forum in which "claims related to the releases must be brought." Case No. 08-cv-107, Doc. No. 176, at 2. The VI District Court transferred the RICO action to the U.S. District Court for the District of Delaware (Delaware District Court) where it was assigned Case No. 10-201. The Delaware District Court referred the RICO and preliminary injunction actions to the Bankruptcy Court for the District of Delaware where they were assigned Adversary Nos. 10-50744 and 09-52854, respectively. The disposition of this motion for preliminary injunction resolves the RICO action as well. References herein to "Adv. Doc. No." refer to Adversary No. 09-52854 unless otherwise stated.
All of the Prosser Parties involved in these two Adversary actions are "releasing parties" under both the Prosser Parties' Release of RTFC, Appendix A hereto, and the Prosser Parties' Release of Greenlight, Appendix B hereto.
The Prosser Parties' Release of Greenlight, Appendix B, provides:
1. General Definitions. For purposes of this Agreement, "Affiliate" of a person or entity means any other person or entity . . . With respect to a natural person, such natural person's Affiliates shall also include such natural person's spouse, and their siblings, parents and lineal descendants.Adv. Doc. No. 1 at Exhibit 4, at 2 - 3.
The Prosser Parties' Release of Greenlight further provides:
2. Release by the Releasing Parties. Effective as of the date of this Agreement, each of the Releasors, on behalf of the Releasor and the Releasor's respective past, present and future parents, subsidiaries and Affiliates and the respective trustees, beneficiaries, directors, officers, shareholders, partners, members, managers, employees, attorneys, legal counsel, accountants, agents, representatives, administrators, insurers, transferees, heirs, executors, predecessors, successors and assigns of such Releasors and/or such Releasors' past, present and future parents, subsidiaries and Affiliates (collectively, with the Releasors, the "Releasing Parties").
The Prosser Parties are Jeffrey Prosser, Dawn Prosser, L. Adrian Prosser, John P. Raynor. They are the plaintiffs in the RICO action at Adversary No. 10-50744 and are the defendants in Adversary No. 09-52854.
In the brief filed by Plaintiffs, Adv. Doc. No. 36, in support of the first motion for preliminary injunction filed in this Adversary, Adv. Doc. No. 34, Plaintiffs asked that the Prosser Parties be enjoined "from prosecuting the Virgin Islands [RICO] Action, and the claims, causes of action, or actions asserted therein, during the pendency of the above-captioned lawsuit, and grant Plaintiffs all other relief to which they may be entitled." Adv. Doc. No. 36, Brief in Support of Motion for Preliminary Injunction, at 34.
In the Brief in Support of the Motion for Preliminary Injunction filed at Adv. Doc. No. 76, Attachment 1, Plaintiffs broadened their request, seeking to "enjoin Defendants from prosecuting the Virgin Islands [RICO] Action, as well as any other claims, causes of action, or actions in violation of the Releases, and grant Plaintiffs all other relief to which they may be entitled." Id.at 40.
Defendants in the RICO action which are not party to this motion are Deloitte Touche USA, L.L.P., Ernst & Young, L.L.P., Rural Telephone Finance Cooperative and Glenn L. English.
Those cases are Emerging Communications, Inc., Bankr. No. 06-30007, and Innovative Communication Company, LLC, Bankr. No. 06-30008, jointly administered at 06-30008, Jeffrey J. Prosser, Bankr. No. 06-30009, and Innovative Communication Corporation, Bankr. No. 07-30012.
The Prosser Parties appealed the reference order and one entered by the District Court for the District of Delaware, Case No. 09-111, Doc. No. 56 (Motion for Reconsideration denied, Doc. No. 61), transferring this injunction action to the Bankruptcy Court for the District of Delaware. The Prosser Parties' appeal to the Court of Appeals for the Third Circuit was dismissed for lack of jurisdiction. See Case Nos. 09-4683 (appeal from VI District Court), 09-4684 (appeal from Delaware District Court), order dated March 30, 2010, order denying petition for rehearing and rehearing en banc entered October 12, 2010. Certiorari was denied by the United States Supreme Court on March 21, 2011, Case No. 10-894.
The injunction action in the Delaware District Court was assigned Case No. 09-cv-111.
The Delaware District Court, in referring this injunction matter to the undersigned, summarized the history leading to this adversary proceeding. Our recitation of the facts borrows heavily from the Delaware District Court's narrative, see National Rural Utilities Co-op. Finance Corp. v. Prosser, 435 B.R. 27, 30 - 32 (D.Del. 2009), (09-cv-111 (D.Del.)), reconsideration denied 2009 WL 4334815 (D.Del. Dec 01, 2009), as well as from case history recited by the parties, and from proceedings before this court over the past five years.
The current matter arises from two intertwining sets of events. The first set of events stems from a 1998 transaction in which Debtor Innovative Communication Company, LLC, ("ICC") (VI Bankr. No. 06-30008) took Debtor Emerging Communications, Inc., ("EmCom") (VI Bankr. No. 06-30007) private. ICC, which, at the time, owned 52 percent of EmCom, bought EmCom's publicly owned shares. After the privatization transaction was complete, the Greenlight Entitiessued ICC, Debtor Jeffrey Prosser, John P. Raynor, EmCom, and others in the Delaware Court of Chancery for breach of fiduciary duty. The Greenlight Entities sought, inter alia, appraisal of their shares. In June 2004, the Chancery Court found Prosser and Raynor liable for breach of fiduciary duty and entered judgments against them ("the Greenlight judgments"). The Greenlight judgments, with interest, total more than $160 million. Case No. 09-111 (D.Del.), Doc. No. 55, Memorandum Opinion of August 7, 2009, at 5, published at 435 B.R. 27, 30 (D.Del. 2009). In February 2006, after ICC, EmCom, and Prosser failed to pay the Greenlight judgments, the Greenlight Entities filed involuntary chapter 11 petitions against ICC, EmCom, and Prosser in the United States Bankruptcy Court for the District of Delaware. Venue of the proceedings was transferred to the Bankruptcy Division of the VI District Court.
ICC and EmCom have been administratively consolidated at Bankr. No. 06-30008.
The "Greenlight Entities" are all those listed in the caption of Adversary No. 09-52854 and Adversary No. 10-50744: Greenlight Capital, Inc.; Greenlight Capital LP; Greenlight Capital Qualified LP; and Greenlight Capital Offshore Ltd.
John Raynor was a member of the Board of Directors of ICC, EmCom, New ICC, and the Virgin Islands Telephone Corporation (a wholly owned subsidiary of ICC). See Amended Complaint filed by Prosser Parties, 08-cv-107, Doc. No. 50, at 76, 78. He also was Prosser's attorney, and served as attorney and was a former director of Innovative Communication Corporation ("New ICC"), VI Bankr. No. 07-30012. See Adv. No. 09-52854, Adv. Doc. No. 18 at 2; 08-cv-107, Doc. No. 1 at 3. Raynor is a Chapter 7 debtor in another jurisdiction and, although he received a discharge in October of 2005, his case has not been closed. See Case No. 04-83112, Bankruptcy Court, District of Nebraska.
The second set of events stems from loans made by Rural Telephone Finance Cooperative ("RTFC") to ICC between 1987 and 2001. The Virgin Islands Telephone Corporation ("Vitelco"), a nondebtor and the largest and most significant source of revenue for ICC and related companies, is the sole provider of local wired telephone services for the U.S. Virgin Islands. Additionally, Vitelco provides certain long-distance and related telecommunication services in the U.S. Virgin Islands.
See Bankr. No. 06-30008, Doc. No. 24 at 7, 11.
Vitelco was a member of RTFC. RTFC made several loans to ICC (Vitelco's parent) totaling in excess of $500 million. In connection with these loans, RTFC obtained various guaranties and security interests from others, including ICC, EmCom, and Prosser. In April 2003, RTFC and ICC negotiated amended loan agreements and, in connection therewith, RTFC obtained additional guaranties and security interests from, inter alia, EmCom and Prosser.
In 2004, RTFC sued ICC for defaulting under the amended loan agreement. ICC and Vitelco countersued National Rural Utilities Cooperative Finance Corporation ("CFC") and RTFC. Protracted litigation ensued between CFC/RTFC, on one side, and Prosser, Raynor, and others on the other side. By 2006, there were eight lawsuits pending in the VI District Court between CFC and/or RTFC and Prosser and/or his companies ("RTFC loan default litigation").During the course of the RTFC loan default litigation, Prosser and his companies asserted claims against most of the Plaintiffs. The claims were premised on a core set of allegations: that CFC unlawfully "controls" and "manipulates" RTFC; that CFC and RTFC have engaged in a long-standing "scheme" to subsidize RTFC and to "misappropriate" RTFC's and its members' funds while interfering with ICC's ability to perform its loan obligations to RTFC; and "retaliation" against Prosser and his companies as a result of Prosser's having discovered this "scheme." Vitelco and ICC also asserted claims against CFC, RTFC, and the Greenlight Entities premised on some of these same allegations along with allegations that the Greenlight Entities' commencement of the Delaware bankruptcy proceeding was part of a "joint venture" between the Greenlight Entities and RTFC to take over Vitelco and ICC.
RTFC is a member of CFC, a cooperative formed to make loans to its members to facilitate acquisition, construction and operation of electric distribution, generation and transmission facilities. See Adv. Doc. No. 1 at 3.
See National Rural Utilities Co-op. Finance Corp. v. Prosser, 435 B.R. 27, 30 - 32 (D.Del. 2009), 09-cv-111 (D.Del.), Memorandum Opinion, Doc. No. 55 at 5.
In 2006, the two sets of events became intertwined through a series of settlement agreements. On April 26, 2006, the parties involved in the RTFC loan default litigation and the Delaware bankruptcy proceedings executed the Terms and Conditions of Settlement of Claims of RTFC, CFC, Prosser Parties, and Greenlight Entities (the "Terms and Conditions"). In addition to the 2006 Terms and Conditions, two other agreements were executed: the Release in Full of RTFC, CFC, Lilly and List (the "Prosser Parties' Release of RTFC") and a release of the Greenlight Entities (the "Prosser Parties' Release of Greenlight").
Pursuant to the Terms and Conditions, Prosser and his companies' claims in the RTFC loan default litigation were dismissed and a final judgment was entered whereby ICC was adjudged liable for $524 million with Prosser, jointly and severally. Prosser's liability was limited to $100 million of the RTFC judgment. All appeals of the Greenlight judgment were dismissed, 435 B.R. at 31, and, at the request of Prosser and his companies, the stay was lifted in the Delaware bankruptcy proceeding to allow implementation of the settlement. Id. at 31. Finally, the Terms and Conditions provided that Prosser and his companies could discharge the RTFC and Greenlight judgments for a substantially discounted payment (in the amount of $402 million), if paid in full on or before July 31, 2006. If payment was not timely made, documents put into escrow by RTFC, CFC, and the Greenlight Entities, i.e., the Payment Documentation, which did not include the Prosser Parties' Releases of Greenlight and RTFC which are at issue herein, would become void. If the discounted payment had been timely made, the RTFC and Greenlight would have executed a release of the Prosser Parties. See Adv. Doc. No. 76, Exhibit P-3 (void release). Prosser and his companies did not make the discounted payment on July 31, 2006, as required by the Terms and Conditions. Instead, Prosser, ICC, and EmCom filed voluntary bankruptcy petitions in the Bankruptcy Division of the VI District Court.
The Greenlight Judgments were issued by the Delaware Chancery Court. See 435 B.R. at 30.
The Payment Documentation was part of the Terms and Conditions. Under the heading of "Payment Documentation" the Terms and Conditions provided:
RTFC, CFC, and the Greenlight Entities shall execute and deliver into escrow such documents and other instruments as are necessary to permit the Prosser Parties to effect the Payment free and clear of any and all claims and liens of RTFC, CFC and the Greenlight Entities (collectively, the "Payment Documentation"), including without limitation (a) mutual releases by the Parties, releasing, inter alia, the Parties, all subsidiaries, affiliates and their respective directors, officers, shareholders, partners, members, managers, employees, agents, and representatives, (b) Satisfactions of all judgments by the Greenlight Entities, RTFC and CFC, including those created herein, (c) releases and discharges of liens held by RTFC and the Greenlight Entities, (d) non-disparagement and confidentiality agreements by all Parties, (e) dismissals of the bankruptcy proceedings with prejudice and (f) in the sole discretion of the Prosser Parties, an assignment to the Prosser Parties or their designee of the judgments and liens of RTFC, provided that any such transfer shall be without any representations or warranties and without recourse. The Payment Documentation shall be released from escrow as provided above.Bankr. No. 06-30009, Jeffrey J. Prosser, Debtor, Doc. No. 29, at 9 - 10. See Adv. Doc. No. 76 at Exhibit A-6. Because the discounted payment was not made pursuant to the Terms and Conditions, the Terms and Conditions became void and the RTFC and Greenlight release of the Prosser Parties was never in effect. The voided release under the Terms and Conditions can be found at Adv. Doc. No. 76, Exhibit P-3.
The Greenlight Entities subsequently filed an involuntary petition against New ICC in the Bankruptcy Division of the VI District Court. New ICC was adjudicated a debtor. It is not a party to this injunction action or the RICO action. It is, however, covered by the Prosser Parties' Release of Greenlight and the Prosser Parties' Release of RTFC. See note 4, supra.
Despite the 2006 settlement, much litigation followed, including an action to determine whether the Terms and Conditions agreement was an assumable contract. (This court's determination that it was not assumable was affirmed on appeal. See In re Innovative Communication Co., LLC, 399 B.R. 152 (D.V.I., June 2, 2008); 2008 WL 2275397, (D.V.I., May 30, 2008). The VI District Court order was affirmed on appeal. See In re Prosser, 388 Fed.Appx. 100 (3d Cir. 2010). In April 2008, Prosser and Raynor sued CFC and others in the United States District Court for the District of Columbia based on allegations similar to those made in the RTFC loan default litigation. Also in April 2008, in the Prosser bankruptcy case, Prosser filed objections to claims made by RTFC and the Greenlight Entities raising allegations similar to those made in the RTFC loan default litigation. On December 7, 2008, the Prosser Parties filed suit in the VI District Court against Plaintiffs, repeating the same or similar allegations.
Case No. 08-cv-687 (D.D.C.), Jeffrey J. Prosser and John P. Raynor v. Federal Agricultural Mortgage Corporation, U.S. Dept. of Agriculture, and National Rural Utilities Cooperative Finance Corporation. CFC's unopposed motion to dismiss was granted on May 30, 2008. The motion to dismiss filed by the Federal Agricultural Mortgage Corporation and the U.S. Department of Agriculture was granted January 14, 2009, by the VI District Court which found that Prosser and Raynor had no standing and the court had no subject matter jurisdiction. The complaint in that action alleged, inter alia, that, since creating the RTFC, the CFC had controlled the RTFC through unlawful means. The District Court's opinion makes clear that the allegations in that action are based on the same facts as are the RICO adversary before the undersigned; i.e., that ICC discovered the CFC's allegedly improper use of RTFC profits and that RTFC retaliated by foreclosing on the ICC loan, etc. The District Court in the D.C. action based its decision on, inter alia, Prosser's and Raynor's "speculative assumptions about the past and future acts and motives of strangers to this suit, and even about market forces." Further, the court noted they had failed to sufficiently allege any of the required elements of standing and, "[w]ithout standing, there is no subject matter jurisdiction. Without subject matter jurisdiction, the complaint must be dismissed." Case No. 08-cv-687, Doc. Nos. 27 (Memorandum) and 28 (Order).
Both objections should have been dismissed for failure to comply with the Case Management Order in effect in this case inasmuch as they failed to state hearing and objection dates. Nonetheless, the objection to claim at Doc. No. 1555 with respect to RTFC was heard and dismissed after the RTFC filed a motion for sanctions and other relief with respect to it. See Bankr. No. 06-30009, Doc. No. 1702, order entered July 29, 2008, Doc. No. 1888. No order was entered regarding Doc. No. 1554 but the objection to claim, filed by attorney Robert F. Craig on behalf of Prosser, should have been dismissed inasmuch as it was filed not in compliance with the Case Management Order in effect in this case. Nonetheless, after a discussion on the record on June 19, 2008, this court determined that the objection to claim had to be filed as an adversary proceeding. The adversary was filed, with Prosser's counsel's firm, Robert F. Craig, P.C., as the named plaintiff, at Adv. No. 08-3051. (Another law firm representing Prosser, Law Offices of Lawrence Schoenbach, filed the adversary on behalf of Robert F. Craig, P.C.) This court dismissed the Adversary and an appeal was filed by the Schoenbach firm on behalf of Robert F. Craig, P.C. Case No. 09-cv-109, D.V.I. That appeal is pending.
Bankruptcy No. 06-30009, Doc. No. 1555, Jeffrey J. Prosser's Objection . . . to the Claim of the Rural Telephone Finance Cooperative. Order entered July 29, 2008, Doc. No. 1888, striking objection.
Bankruptcy No. 06-30009, Doc. No. 1554, Jeffrey J. Prosser's Objection to the Claims of Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., and Greenlight Capital Offshore, LTD. A previous objection to the Greenlight Entities' claim filed by Prosser and the corporate Debtors was dismissed. See Doc. Nos. 247, 380, 947 in Bankr. No. 06-30009.
The RTFC loan default litigation claims were dismissed with prejudice.
Case No. 08-cv-107, D.V.I. (St. Croix Division), Civil RICO Complaint. The matter was referred to the Delaware District Court (Case No. 10-201) which referred it to the Bankruptcy Court for the District of Delaware where it was assigned Adversary No. 10-50744. Adversary No. 09-52854 was filed in order to dispose of Adv. No. 10-50744. Note that the matter was dismissed as to NRECA and Glenn L. English by order dated September 30, 2009, Case No. 08-cv-107, District Court of the Virgins Islands (St. Croix Division), Doc. No. 162. Nonetheless, NRECA and Glenn L. English remained in the caption when the matter was transferred to Delaware. See Case No. 09-cv-111 (D.Del.).
Most, but not all, of the defendants in the RICO action (the Plaintiffs herein) filed an action in the District Court for the District of Delaware seeking to enjoin the RICO action. The Delaware District Court referred the injunction action to the undersigned. For the reasons which follow we find that preliminary and permanent injunctions are appropriate. With respect to a preliminary or permanent injunction, Plaintiffs have the burden of proving the basis for a preliminary or permanent injunction. See, e.g., Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 90 (3d Cir. 1992).
Ernst & Young, Deloitte Touche, Glenn L. English and NRECA did not join as Plaintiffs in the injunction action when it was refiled in Delaware after the transfer from the VI District Court. Glenn L. English and NRECA had been dismissed from the RICO action by the VI District Court. Nonetheless, the Prosser Parties named them as defendants when the RICO action was refiled in Delaware. Ernst & Young and Deloitte Touche had filed motions to dismiss in the RICO action but there is no record of adjudication of their motions. They did not file motions to dismiss in Adv. No. 09-52854 in which these motions for preliminary injunction are pending.
See 09-cv-111 (D.Del.), related to 10-cv-201 (D.Del.) (transfer of RICO Case No. 08-cv-107 from VI District Court). The complaint filed in the Delaware District Court at 09-cv-111 was filed as an action for declaratory judgment, breach of contract, specific performance, and an All Writs Act Injunction. Upon transfer by the Delaware District Court to this court, certain Plaintiffs filed a motion for preliminary injunction at Adv. Doc. No. 34. A second motion for preliminary injunction was filed at Adv. Doc. No. 76 on behalf of all the Plaintiffs in Adv. No. 09-52854, although the docket entry itself does not name them all.
In order to issue a preliminary injunction, the court must find that the plaintiff is likely to succeed on the merits, that there is an imminent threat of irreparable harm, that the balance of the equities favors injunctive relief, and that the public interest is served by granting the relief. See Chester ex rel. NLRB v. Grane Healthcare Co., ____ F.3d ____, 2011 WL 6075963 *1 (3d Cir. Dec. 7, 2011).
While the standard for a preliminary injunction requires the court to find a likelihood of success on the merits, in "deciding whether a permanent injunction should be issued, the court must determine if the plaintiff has actually succeeded on the merits (i.e. met its burden of proof.)" CIBA-GEIGY Corp. v. Bolar Pharmaceutical Co., Inc., 747 F.2d 844, 850 (3d Cir. 1984).
In summary, because all the allegations in the RICO action fall within the purview of the Prosser Parties' Releases of RTFC and Greenlight and, therefore, there is nothing to be tried, we find that the Plaintiffs have met their burden of proof as to their right to relief and thus grant a preliminary and a permanent injunction. A more detailed analysis follows.
With respect to the elements for finding a preliminary injunction, we find that the Plaintiffs in this action have established the right to the relief sought by virtue of the Releases they obtained from the Prosser Parties as a condition of granting Prosser a significantly discounted payment in satisfaction of their much larger judgments, on the condition that the discounted payment be paid by a date certain. That date passed without payment but the Releases of the RTFC and Greenlight by the Prosser Parties were in effect as of the time the settlement that provided for the discounted payment (the Terms and Conditions) was reached. Thus, the Plaintiffs have established not only a likelihood of success on the merits but have met their burden of proving actual success on the merits.
As to the next element, we find that permitting pursuit of a RICO action, or any other action based upon allegations that have been released, is clear and irreparable harm to those intended to benefit from the Releases. The expenditure of time by the Plaintiffs and their counsel in management of, and the effort and money spent in, litigating multiple suits commenced by the Prosser Parties is huge and the need to concentrate on those actions repetitiously cannot be justified.
Further, the balance of the equities favors ending the litigation at the earliest possible moment, given that numerous actions involving the same or substantially similar facts, theories, and actions have already been brought, litigated, and lost by the Prosser Parties.
Finally, the public interest is served by conserving judicial resources so that all of the judges and staff involved in these actions can concentrate on matters that, unlike these, have not already occupied the time and attention of courts in several jurisdictions. Moreover, the public interest is served by enforcing the Releases voluntarily entered into by the Prosser Parties who received the advantage of time to pay a judgment exceeding $524 million, plus accrued and accruing interest, for $402 million. The Prosser Parties' inability to comply with their own bargain should not and does not invalidate the effect of the Releases they voluntarily gave to RTFC and Greenlight - i.e., the benefit of being relieved of nearly continuous litigation with the Prosser Parties.
Thus, having satisfied the standard for a grant of preliminary injunction, and having further met their burden of proof as to actual success on the merits, we find Plaintiffs are entitled to preliminary and permanent injunctive relief.
We note that the Prosser Parties contend that because they are alleging conduct by certain Plaintiffs herein that occurred after the Releases were executed, the Prosser Parties' Releases of RTFC and Greenlight do not apply to the RICO action. However, the Releases by their terms apply to future conduct and the Prosser Parties' allegations all relate, as stated above, to the same core facts and events that predate the Releases; i.e., the 1998 privatization of EmCom and the loans made by RTFC to ICC between 1987 and 2001. A release precluding future matters fairly within the contemplation of the parties at the time the release is given is enforceable. See Camiolo v. State Farm Fire and Cas. Co., 334 F.3d 345, 362 (3d Cir. 2003).
The Prosser Parties contend that the Prosser Releases of the RTFC and Greenlight were voided when the Terms and Conditions agreement became void because Prosser failed to make the payment under that agreement. That is not so. What became void when Prosser failed to make the payment under the Terms and Conditions was the RTFC and Greenlight release in favor of the Prosser Parties that was to be part of the Payment Documentation. Adv. Doc. No. 76, Exhibit P-3. The Payment Documentation was to be placed in escrow as part of the Terms and Conditions. See Escrow Agreement, Adv. Doc. No. 76, Exhibit P-2. See also note 18, supra. See also Declaration of William R. Greendyke, Esq., of Fulbright & Jaworski L.L.P. in Further Support of Plaintiffs' Motion for Preliminary Injunction ("Greendyke Declaration"), Adv. Doc. No. 76, Exhibit P at 2 - 3, ¶¶ 10 - 14. The Payment Documentation was to be taken out of escrow only if the Terms and Conditions were met. Payment under the Terms and Conditions did not occur and the Payment Documentation was not released from escrow, has expired and is of no force and effect. The release of Jeffrey Prosser by the RTFC and Greenlight, Adv. Doc. No. 76, at Exhibit P-3, which was voided when the payment under the Terms and Conditions was not made, is not either of the two releases relied on by Plaintiffs here (the "Prosser Parties' Release of RTFC," Adv. Doc. No. 1, Exhibit 3, and the "Prosser Parties' Release of Greenlight," id. at Exhibit 4) and is not involved in this injunction action. See Greendyke Declaration, Adv. Doc. No. 76, Exhibit P, at 4 - 5, ¶¶ 11 - 14. The two Releases by the Prosser Parties of the RTFC and Greenlight that are relied on by the Plaintiffs in this action expressly provide that they are not contingent on Prosser's payment under the Terms and Conditions. The Prosser Parties' Releases of the RTFC and Greenlight were executed as consideration for the Plaintiffs' agreement under the Terms and Conditions to limit Prosser's personal liability on the final judgment to $100 million, regardless of any payments that may have been made by the corporate entities.
Because the payment was not made, by order dated August 2, 2007, this court ruled that the Terms and Conditions agreement was not assumable. See VI Bankr. No. 06-30009, Doc. No. 725, Order dated August 2, 2007 (the Terms and Conditions are not assumable for reasons expressed on the record on July 19, 2007). The order was affirmed on appeal. In re Innovative Communication Co., LLC, 399 B.R. 152 (D.V.I., June 2, 2008); 2008 WL 2275397 (D.V.I., May 30, 2008). The Court of Appeals affirmed the VI District Court order. See In re Prosser, 388 Fed.Appx. 100 (3d Cir. 2010).
The Greendyke Declaration was filed in the District Court for the District of Delaware, Case No. 09-cv-111 at Doc. No. 50. The reference in the Greendyke Declaration to "Exhibit C" is to the RTFC and Greenlight Release of the Prosser Parties, filed in Adv. No. 09-52854 at Adv. Doc. No. 76, Exhibit P-3. This is the release that was voided when payment was not made pursuant to the Terms and Conditions. See Greendyke Declaration, Adv. Doc. No. 76, Exhibit P, at 4 - 5, ¶¶ - 14.
In denying Jeffrey Prosser's motion to stay pending appeal of this court's order converting his bankruptcy case to a chapter 7, this court explained the effect of the decision that the Terms and Conditions agreement was not assumable:
. . . this Court concluded that even if the Terms and Conditions were executory, Prosser could not assume the agreement becauseIn re Innovative Communications, 390 B.R. 184, 189 (Bankr.V.I. 2008).
assumption under § 365 would require him to assume all the benefits and the burdens of the Terms and Conditions, including but not limited to, the self-effectuating termination provision which states "[i]f, however, the Payment is not made on or before the Payment Deadline, then effective upon 12:01 a.m. on August 1, 2006, the Payment Documentation shall be returned to RTFC and the Greenlight Entities and shall become void and of no further force or effect." Terms and Conditions at 5. Prosser's failure to meet the Payment Deadline nullified the releases of judgments and liens, leaving Prosser and New ICC liable for the full amount of the RTFC and Greenlight judgments. Consequently, any ostensible assumption of the Terms and Conditions would provide absolutely no benefit to the various bankruptcy estates. Even if the District Court were to conclude that this Court erred in holding that the Terms and Conditions is not executory, this Court's alternative ruling that the Payment Documentation is void, constitutes an independent ground for the District Court to affirm the Terms and Conditions Order.
The Prosser Parties contend that their RICO allegations reflect "new events" and, therefore, the injunction sought by the Plaintiffs herein must be denied. The contention has no merit. The allegations in the RICO complaint all relate to the subject matter of the prior litigation, the resolution of which resulted in the execution of the Prosser Parties' Releases of the RTFC and Greenlight. This is so, notwithstanding the reference in the RICO complaint to financial transactions between and among Prosser, his companies, and the National Rural entities, or the reference in the RICO complaint to "continuing acts" that allegedly fall under RICO. The RICO action at Adv. No. 10-50744 merely updates the old charges against the RTFC, Greenlight and others. The allegations are the same, based on the 1998 privatization of EmCom and the 1987 -2001 RTFC loans. They are just associated with more current dates.
We note that each of the Prosser Parties are "Releasing Parties" under the Prosser Parties' Releases of RTFC and Greenlight because they are named in the Releases, signed them, or fit within the definition of "Releasing Parties." That definition includes, inter alia, employees, shareholders, affiliates and members of Prosser's companies. The Plaintiffs herein are each "Released Parties" either by name or by definition. For example, the CFC, RTFC, Lilly, List and Greenlight are specifically named as Released Parties. Petersen and Stratton as well as Lilly and List are included within the Release of CFC and RTFC officers, directors, employees, shareholders, agents, and representatives. Fulbright & Jaworski LLP, Greenlight's counsel, are likewise released as agents, representatives, counsel and attorneys. See note 4 and accompanying text, supra.
The Prosser Parties allege wrongdoings occurring after the execution of the Releases, including, but not limited to, SEC filings by CFC, which the Prosser Parties contend violate security law requirements. The Prosser Parties argue that either their Releases of Greenlight and RTFC died with the expiration of the Terms and Conditions or that the Terms and Conditions settlement agreement remains viable is without merit. The Terms and Conditions matter has been adjudicated by this court, the District Court, and the Court of Appeals, all against the Prosser Parties. The Prosser Parties' Releases of Greenlight and RTFC are alive and operative. They protect all of the Plaintiffs in this injunction action and all of the Defendants in the RICO action from further actions by Prosser and his co-parties.
There is no basis asserted by the Prosser Parties that they have standing to bring such an action. Regardless, the propriety, or lack thereof, of filings with the SEC, or the applicability of, or adherence to, Generally Accepted Accounting Principles, have been raised before and have been released. These and other issues are raised in Raynor's Memorandum of Law Opposing Plaintiffs' Motion for Injunction, Adv. Doc. No. 128. The Prosser Parties also argue that events such as 10-K filings by CFC and its related entities that pre- and post-date the Releases constitute new acts that fall outside of the Releases. The argument is without merit inasmuch as every fact, event or allegation raised by the Prosser Parties relates to the transactions between and among them and these Plaintiffs, all of which were released.
In re Prosser, 388 Fed.Appx. 100 (3d Cir. 2010).
Plaintiffs' Opening Brief in Support of Motion for Preliminary Injunction, Adv. Doc. No. 76 at Attachment 1, accurately details the history of the parties' relationship, the litigation, and the terms of the Prosser Parties' Releases of Greenlight and RTFC. We adopt Plaintiffs' recitation, including, but not limited to, the following:
• That the allegations in the Virgin Islands RICO Action are nearly identical to those asserted in complaints and counterclaims filed by Defendant Prosser and his companies in 2005 and 2006 in connection with the RTFC Loan Default Litigation - claims that were dismissed with prejudice and forever released. By way of example:Adv. Doc. No. 76, Attachment 1, at 26 - 27. With respect to alleged securities laws violations, we note the following:
• In 2005, Prosser's company ICC alleged that "RTFC and its management were misappropriating funds that should have been distributed to its [telephone] members." In 2009, Defendants allege that "CFC embezzles funds legally belonging to RTFC and the RTFC Telephone members."
• In 2005, Prosser's company ICC alleged that "CFC and RTFC manipulated their financial statements for the benefit of CFC, including the consolidation of CFC's and RTFC's financial statements," and that "CFC unjustifiably and improperly changed its segment reporting without sufficient explanation." In 2009, Defendants allege that RTFC's financial statements "are false and deceptive," including because "the Consolidated Financial Statements" of National Rural and RTFC are "materially misleading," and because the "change" in "Segment Methodology" created a "material and intentional departure from GAAP."
• In 2005, Prosser's company ICC alleged that "RTFC and certain officers decided to retaliate through litigation, ... [premised on] alleg[ations] that ICC and Vitelco had defaulted on their loan obligations," which had the intent of seeking to "wrest control of ICC from its Chairman and founder, Jeffrey Prosser." Also in 2005, Prosser himself alleged in a counterclaim that "RTFC management decided it wanted to replace Prosser and the rest of ICC's management," and that RTFC sued ICC for defaulting on its loan as part of a "scheme to try to starve 'Prosser's companies' of funds and cause ICC to collapse." In 2009, Defendants allege that "[t]he June 2004 Foreclosure, itself a retaliatory action, coupled with a pattern of retaliatory and extortionary acts eventually resulted in the taking of ICC from the Prossers."
• In 2006, Prosser's company ICC alleged that "RTFC has (1) admitted to substituting pages in the Loan Agreement by and between ICC and RTFC, and (2) admitted to destroying the originals after doing so." In 2009, Defendants allege that "[w]ithout the knowledge or consent of ICC," RTFC's general counsel "removed the signature pages from both originals of the Authentic 2001 Loan Agreement and attached them to a different version of the agreement, the False 2001 Loan Agreement."
•In 2005, Case No. 05-cv-168 (D.V.I.), Innovative Communication Corporation v.Attached hereto is Exhibit I to the Motion for Preliminary Injunction, Adv. Doc. No. 76, which is a chart comparing claims made in the RICO complaint, to which this Motion for Preliminary Injunction applies, to those raised in prior dismissed actions.
RTFC, et al., the amended complaint alleged, inter alia, that CFC, in its first quarterly SEC filing, improperly changed its segment reporting to falsely create the impression that CFC and not RTFC was operating at a profit. Prosser Party Raynor alleged in his motion to dismiss the motion for preliminary injunction that the way the CFC reported the ICC loan in 2009 in its 10-Q departed from Generally Accepted Accounting Principles constituted a fraud on CFC's investors.
•In the District of Columbia action, Case No. 08-cv-687, filed by Prosser Parties Jeffrey J. Prosser and John P. Raynor against CFC and others, see note 20, supra, the Prosser Party plaintiffs in that action alleged improprieties in CFC's 2002 10-K reports, departure from GAAP principles, and other similar actions. The RICO adversary at Adv. No. 10-50744 with respect to which the instant injunction action was filed makes the same allegations, only the year(s) of the alleged violations have been changed.
•In Case No. 08-cv-107 (D.V.I. RICO action) Doc. No. 1, and Adv. No. 10-50744 (Bankr.D.Del. RICO action) Adv. Doc. No. 25 (docketed as "Notice of Service Complaint for Civil RICO"), alleged various improprieties regarding 2001 and 2002 10-K and 10-Q statements, including noncompliance with GAAP principles and accusations regarding representation of aspects of the CFC/RTFC loans for years 2003 - 2005. In Case No. 10-cv-201 (D.Del.), Second Amended Complaint (253
pages), Exhibit 1 to Doc. No. 172, motion for leave to file second amended complaint, adds the same allegations but for the years 2008 and 2009.
The Prosser Parties' Release of Greenlight applies to everything "from the beginning of the world up to and including the date of this Agreement." See Appendix B, Prosser Parties' Release of Greenlight, at ¶ 2. It also applies to release all past, present and future
claims, costs, expenses, accounts, offsets, demands, causes of action, suits, debts, controversies, agreements, damages (including, without limitation, all actual damages, consequential damages, statutory damages, punitive and exemplary damages, prejudgment and post-judgment interest, attorney's fees and costs of court, and all other damages or losses recoverable now or at any later time under applicable law), judgments, obligations, defenses, promises, covenants, reckoning, contracts, endorsements, bonds, specialties, trespasses, variances, extents, executions and liabilities of any kind or nature whatsoever, in law, equity, or otherwise, whether known or unknown to any Party at this time, asserted or unasserted, liquidated or unliquidated, absolute or contingent, which any of the Releasing Parties had, may have, now has or which may hereafter accrue or otherwise be acquired against any of the Released Parties on account of, arising out of, or relating to, or alleged or asserted or which could have been alleged or asserted or involving any matter occurring at any time from the beginning of the world up to and including the date of this Agreement.
The chart was originally filed in Civil Action No. 08-cv-107 in the District Court of the Virgin Islands as Exhibit I to Doc. No. 77.
This is the same chart filed in Civ. A. No. 10-cv-201 at Doc. No. 77 - 21, D.Del.
--------
We find that, on the merits, Plaintiffs have established entitlement to both a preliminary and permanent injunction. The Prosser Parties' Releases of RTFC and Greenlight are clear and are all-encompassing. The RICO action that the Prosser Parties seek to pursue is based only on those claims and causes of action that were the subject of those Releases. The fact that the Prosser Parties have updated their citations to, for example, Forms 10-K and 10-Q filed by CFC in more recent years and have alleged that the RTFC issued fraudulent financial statements in years after the date of the Releases does not change the fact that the conduct complained of relates only to the events and causes of action and claims that they released. We also find that imminent irreparable harm to Plaintiffs will result if the Prosser Parties pursue litigation with respect to released matters. The balance of the equities favors injunctive relief - a party should not have to continually defend conduct that was released. There is no harm to the Prosser Parties. The Prosser Parties are sophisticated litigants and they entered into the Releases of RTFC and Greenlight with the advice of counsel. The public interest is served by granting relief to Plaintiffs inasmuch as parties to releases are entitled to rely on the bargains they make. See Chester ex rel. NLRB v. Healthcare Co., ____ F.3d ____, 2011 WL 6075963 *1 (Dec. 7, 2011). The standard for issuance of a preliminary injunction is met in this case.
Further, under the egregious circumstances of this case, the Plaintiffs have met their burden of proof as to the merits and thus a permanent injunction is in order. See ACLU v. Black Horse Pike Regional Bd. of Education, 84 F.3d 1471, 1477 (3d Cir. 1996). The many actions that were settled and for which the Prosser Parties' Releases of RTFC and Greenlight were issued were terminated long ago. Jeffrey Prosser has been removed from the management of the corporate Debtors and all the cases have trustees in place. There are no causes of action to pursue that were not released.
Inasmuch as there is no basis upon which the RICO action can be brought due to the Releases, we will grant both preliminary and permanent injunctions and dismiss the RICO action accordingly.
Appropriate orders will be entered.
_______________
Judith K. Fitzgerald
United States Bankruptcy Judge
Comparison Between Claims Made in the RICO Complaint
And In Prior Dismissed Actions
This chart shows that the claims raised by Plaintiffs' Amended Complaint are the same as the claims raised in prior actions, which were dismissed with prejudice. The allegations listed in the "RICO Claims" column are a sampling of allegations from Plaintiffs' Amended Complaint, and the corresponding "Dismissed Claims" column reflects allegations Plaintiffs' and their affiliated companies made in pleadings that were dismissed with prejudice in prior litigations. These statements are intended to be an illustrative sampling of the allegations made, not an exhaustive list. See also Omnibus Mot. at Part 111(D).
+-----------------------------------------------------------------------------+ ¦RICO Claims ¦Dismissed Claims ¦ +-----------------------------------+-----------------------------------------¦ ¦ ¦• "CFC totally controls and manipulates ¦ ¦ ¦the RTFC.." Am. Compl., Case No. 2005168 ¦ ¦• "CFC maintains absolute control ¦,¶ 5; see also id. ¶¶ 7-9. ¦ ¦over the operations of RTFC..." ¶ ¦ ¦ ¦26) ¦• "CFC uses RTFC as a 'puppet' ¦ ¦ ¦corporation ..." Prosser etal., 2009 WL¦ ¦ ¦102213, at*2(D.D.C. Jan. 14,2009). ¦ +-----------------------------------+-----------------------------------------¦ ¦ ¦• CFC "redirects RTFC's profits from ¦ ¦ ¦loans made to the telecommunications ¦ ¦ ¦sector to subsidize its electric sector ¦ ¦ ¦members and to 'cover up losses' on ¦ ¦ ¦electric sector loans." ¦ ¦• "CFC uses its inordinate control ¦Prosser et al., 2009 WL 102213, at *2 ¦ ¦over RTFC to sweep the majority of ¦(D.D.C. Jan. 14,2009). ¦ ¦RTFC's profits into CFC through ¦ ¦ ¦inter-coop loans and other ¦• "In late 2002, when certain payments ¦ ¦contractual arrangements... and ¦due from RTFC to ICC were "short", ICC's ¦ ¦then, CFC embezzles funds legally ¦investigation revealed that the RTFC and ¦ ¦belonging to RTFC and the RTFC ¦its management were misappropriating ¦ ¦Telephone members by allocating ¦funds that should have been distributed ¦ ¦patronage income that belongs to ¦to its members by allocating and ¦ ¦RTFC's Telephone members to CFC's ¦distributing those funds to the CFC to ¦ ¦Electric members... ."(¶28) ¦lower the interest rates for CFC's ¦ ¦ ¦members and to otherwise subsidize CFC's ¦ ¦ ¦operations - all at the expense of RTFC's¦ ¦ ¦telecommunications members and to the ¦ ¦ ¦windfall of CFC's electric utility ¦ ¦ ¦members." Am. Compl., Case No. 2005-168, ¦ ¦ ¦¶ 7. ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦• "Unbeknownst to ICC, and upon ¦ ¦ ¦information and belief, RTFC and CFC ¦ ¦ ¦engaged in a scheme to make loans which¦ ¦• "CFC's unlawful systematic ¦were in violation of RTFC and CFC's tax¦ ¦defalcation of RTFC and those RTFC ¦status in the U.S, and have failed to ¦ ¦Telephone members subject to income ¦pay taxes as necessary in the Virgin ¦ ¦taxes companies unlawfully defeats ¦Islands. Part of the reason for RTFC's ¦ ¦the income taxes payable by those ¦attacks on ICC and Vitelco are to stop ¦ ¦said Telephone members: this is the ¦ICC's investigations and further ¦ ¦commission of tax evasion by CFC ¦investigation of these schemes." ¦ ¦pursuant IRC § ¦Prosser Countercl., Case No. ¦ ¦ ¦2004-132,¶ 45. ¦ ¦7201. . . . CFC bylaws were submitted¦ ¦ ¦to and approved by IRS as part of its¦• "Unbeknownst to ECC, and upon ¦ ¦application ¦information and belief, RTFC and CFC ¦ ¦ ¦engaged in a scheme to make loans to ¦ ¦for tax exempt status. By operating ¦ICC and Vitelco which were in violation¦ ¦in a manner inconsistent with coop ¦of RTFC and CFC's tax free status in ¦ ¦principles as well as CFC's bylaws, ¦the US, and have failed to pay taxes as¦ ¦CFC is operating in contravention of ¦necessary in the Virgin Islands. Part ¦ ¦its tax exemption." (¶¶ 55-56) ¦of the reason for RTFC's attacks on ICC¦ ¦ ¦and Vitelco are to stop revelation of ¦ ¦ ¦these schemes." ICC Second Supp. ¦ ¦ ¦Countercl., Case No. 2004-154.¶ 92. ¦ +-------------------------------------+---------------------------------------¦ ¦• "The embezzlement or systematic ¦• "CFC and RTFC manipulated their ¦ ¦defalcation of RTFC and the RTFC ¦financial statements for the benefit of¦ ¦Telephone members is augmented by a ¦CFC, including the consolidation of ¦ ¦pervasive and extensive pattern of ¦CFC's and RTFC's financial statements ¦ ¦accounting fraud to conceal or ¦to mask the fad that CFC operated at a ¦ ¦disguise the nature, the location, ¦loss while RTFC operated at a ¦ ¦the source, the ownership, or the ¦substantial and increasing profit. In ¦ ¦control of the proceeds of specified ¦remarkably brazen fashion, in its first¦ ¦unlawful activity." (¶ 60) "Combining¦quarterly SEC filing after receipt of a¦ ¦CFC and RTFC Financial Statements is ¦letter from ICC's subsidiary, Vitelco, ¦ ¦a material departure from GAAP ¦CFC unjustifiably and improperly ¦ ¦("Generally Accepted Accounting ¦changed its segment reporting without ¦ ¦Standards") making the Combined ¦sufficient explanation, falsely ¦ ¦Financial Statements materially ¦creating the appearance that it was ¦ ¦misleading as well as making the ¦CFC, and not the RTFC, that operated ¦ ¦financial information materially ¦profitably." Am. Compl., Case No. ¦ ¦inaccurate." (¶ 67) ¦2005-168, ¶ 13. ¦ +-------------------------------------+---------------------------------------¦ ¦• "Twice the Plaintiffs raised the ¦• "Consequently, in response to ICC's ¦ ¦systematic defalcation of RTFC by CFC¦and Mr. Prosser's complaints about the ¦ ¦and twice, CFC caused RTFC to breach ¦RTFC and its management ¦ ¦its fiduciary duty and used RTFC's ¦misappropriating its assets for CFC's ¦ ¦status as the primary lender to quash¦benefit, and in response to ICC's ¦ ¦inquiries regarding membership ¦efforts to pressure the RTFC to come to¦ ¦issues: the allocation of patronage ¦terms on these matters, the RTFC and ¦ ¦income. . . . In early 2003 the ¦certain officers decided to retaliate ¦ ¦patronage allocation issue was raised¦through litigation, filing a complaint ¦ ¦and by March of 2003 CFC ¦on March 13,2003 alleging that ICC and ¦ ¦ ¦Vitelco had defaulted on their loan ¦ ¦caused RTFC to instigate a ¦obligations. . . . RTFC continued its ¦ ¦foreclosure proceeding. . . . In late¦retaliatory scheme to punish ICC and ¦ ¦May of 2004, Plaintiff Jeff Prosser ¦its Chairman for raising these issues. ¦ ¦threatened a derivative action ¦. . . That scheme culminated in a ¦ ¦against RTFC and within a week, on ¦malicious prosecution of baseless ¦ ¦June 1,2004, RTFC instigated a ¦claims filed in 2004 . . . " Am. ¦ ¦foreclosure proceeding. . . ." (¶¶ ¦Compl., Case No. 2005-168,¶¶ 11,14. ¦ ¦140-41) ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦• "Without the knowledge or consent ¦• "Further, the RTFC has (1) admitted to¦ ¦of ICC, [RTFC's assistant general ¦substituting pages in the Loan Agreement¦ ¦counsel Frank] Vaughan removed the ¦by and between ICC and the RTFC, (2) ¦ ¦signature pages from both originals ¦admitted to destroying the originals ¦ ¦of the Authentic 2001 Loan Agreement¦after doing so, and (3) acknowledged ¦ ¦and attached them to a different ¦that it cannot produce a Loan Agreement ¦ ¦version of the agreement, the False ¦executed by all parties." Am. Compl., ¦ ¦2001 Loan Agreement." (¶ 159) ¦Case No. 2006-018, ¶ 10. ¦ +------------------------------------+----------------------------------------¦ ¦ ¦• "In order to thwart the Greenlight ¦ ¦ ¦Settlement negotiations, the RTFC filed ¦ ¦• "CFC knew that the ICC defaults ¦a foreclosure action in Virginia ¦ ¦were contrived for purposes of ¦alleging a default in the loan ¦ ¦retaliation for discovery of the ¦agreements based on the Vitelco ¦ ¦systematic defalcation of RTFC. . . ¦preferred stock offering, even though ¦ ¦.The remaining 10 defaults based ¦the RTFC knew that it could not call a ¦ ¦upon the False 2001 Loan Agreement ¦default based upon Vitelco's independent¦ ¦are void as a matter of law because ¦financing efforts because of the 1989 ¦ ¦of the terms and conditions of a ¦PSC Settlement Agreement." Prosser ¦ ¦April 19,1998 Agreement with the ¦Countercl., Case No. 2004-132, ¶ 31. ¦ ¦Virgin Islands Public Services ¦• "ICC made it clear that the three ¦ ¦Commission (the "VI Commission") to ¦alleged defaults were all barred by the ¦ ¦which RTFC was a party (hereinafter ¦same 1989 Settlement Agreement entered ¦ ¦the "1989 Tri-Party Agreement"). ¦into between the RTFC, ICC and the ¦ ¦ICC's loan defaults are void because¦Virgin Islands Public Service Commission¦ ¦they violate the 1989 agreement ¦("PSC") that had been discussed in ¦ ¦between RTFC, ICC, and the V.I. ¦detail between the parties in relation ¦ ¦Public Service Comm'n." (¶ 165) ¦to the RUS refinancing just months ¦ ¦ ¦earlier." Am. Compl., Case No. 2005-168,¦ ¦ ¦¶28. ¦ +------------------------------------+----------------------------------------¦ ¦ ¦• "Because the CFC and the RTFC have ¦ ¦ ¦been unable to lawfully obtain control ¦ ¦ ¦of ICC and Vitelco through the RTFC's ¦ ¦ ¦foreclosure action against ICC, they ¦ ¦ ¦decided to frustrate efforts by ICC's ¦ ¦ ¦parent companies to defend the ¦ ¦ ¦Greenlight litigation by refusing to ¦ ¦ ¦provide a corrective affidavit of ¦ ¦• "The Intercreditor Agreement is a ¦critical false testimony given by one of¦ ¦joint venture' between RTFC and ¦CFC1s employees, Robin Reed, in that ¦ ¦Greenlight which pursues CFC's ¦case. The CFC then had the RTFC ¦ ¦retaliatory objectives through RTFC,¦negotiate with Greenlight and enter into¦ ¦i.e., separate ICC from the ¦an agreement with Greenlight (the ¦ ¦Prossers; discharge Jeff Prosser and¦"Takeover Agreement"), the purpose of ¦ ¦management loyal to Jeff Prosser; ¦which is to gain control of ICC and ¦ ¦and strip the Prossers of all assets¦Vitelco outside of the litigation ¦ ¦and the ability to seek recompense."¦pending in this Court. . . .As neither ¦ ¦(¶193) ¦party had the ability to ¦ ¦ ¦ ¦ ¦ ¦seize control of ICC and Vitelco by ¦ ¦ ¦themselves, the RTFC and Greenlight ¦ ¦ ¦critically needed the Takeover Agreement¦ ¦ ¦to act in concert with one another in a ¦ ¦ ¦joint venture to seize control of ICC ¦ ¦ ¦and Vitelco." Am. Compl., Case No. ¦ ¦ ¦2006-018, ¶¶ 12,14. ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦• "ICC discovered CFC's use of RTFC's ¦ ¦ ¦profits and threatened to bring a ¦ ¦ ¦'derivative suit' against RTFC. In ¦ ¦ ¦retaliation, RTFC foreclosed on an ICC¦ ¦ ¦loan." Prosser et al., 2009 WL ¦ ¦ ¦102213, at *2 (D.D.C. Jan. 14,2009). ¦ ¦ ¦ ¦ ¦ ¦• "Said proceedings were maliciously ¦ ¦ ¦commenced without probable cause and ¦ ¦ ¦were made for a purpose other than ¦ ¦ ¦that of securing the proper ¦ ¦ ¦adjudication of the claim, as said ¦ ¦ ¦actions were pursued as an attempt to ¦ ¦ ¦sever and remove ICC's current ¦ ¦• "The June 2004 Foreclosure, itself a¦management, including Prosser, from ¦ ¦retaliatory action, coupled with a ¦running the company. Said proceedings ¦ ¦pattern of retaliatory and ¦were in retaliation for plaintiffs ¦ ¦extortionary acts eventually resulted ¦whistle blowing efforts and its ¦ ¦in the a taking of ICC from the ¦exposing the fact that the RTFC is ¦ ¦Prossers and the wrongful discharge of¦being used by CFC to subsidize its ¦ ¦Jeff Prosser and others loyal to Jeff ¦operations to the detriment of the ¦ ¦Prosser. . . The foreclosure was ¦RTFC members." Am. Compl., Case No. ¦ ¦without justification (neither the ¦2005-168, ¶¶ 43, 50, 57, 64, 71, 78, ¦ ¦Authenticate nor False 2001 Loan ¦85, 92, ¦ ¦Agreement support the foreclosure) and¦99,106,113,120,127,134,141,148. ¦ ¦was instigated by CFC through RTFC to ¦ ¦ ¦conceal CFC's racketeering activities:¦• "RTFC knows that its misstatements ¦ ¦the systematic defalcation of RTFC by ¦and misrepresentations have gone far ¦ ¦CFC, a money laundering scheme, which ¦beyond the mere conveyance of ¦ ¦routinely and regularly required the ¦information regarding topics connected¦ ¦commission of mail and wire fraud." ¦with RTFC's dispute with ICC, and ¦ ¦(¶¶ 143,200(a)) ¦instead constitute a smear campaign ¦ ¦ ¦designed to undermine Vitelco's ¦ ¦ ¦relationship with the PSC in order to ¦ ¦ ¦enable RTFC to take control of ICC's ¦ ¦ ¦collateral, including Vitelco. . . . ¦ ¦ ¦RTFC representatives have acknowledged¦ ¦ ¦in internal correspondence that they ¦ ¦ ¦are motivated, at least in part, by ¦ ¦ ¦their personal animosity towards ICC's¦ ¦ ¦management. . . . Further, on ¦ ¦ ¦ ¦ ¦ ¦information and belief, RTFC has ¦ ¦ ¦engaged in its Bad Faith Scheme in ¦ ¦ ¦order to cover up its own ¦ ¦ ¦improprieties." Prosser Countercl., ¦ ¦ ¦Case No. 2004-132, 41, 43-44. ¦ +--------------------------------------+--------------------------------------¦ ¦ ¦• "CFC altered the Authentic 2001 Loan¦ ¦ ¦Agreement and destroy the authenticate¦ ¦ ¦[sic] 2001 Loan Agreement. This ¦ ¦ ¦statement is supported by the ¦ ¦ ¦deposition of Frank Vaughan, associate¦ ¦ ¦General Counsel of CFC serving as ¦ ¦• "Violations of 18 U.S.C. § 1512(c), ¦RTFC's internal counsel...." Mem. ¦ ¦a Predicate Act, related to the use of¦Opp'n to USDA's Mot. Dismiss, Case No.¦ ¦the False 2001 Loan Agreement are as ¦2008-687, at 6. ¦ ¦follows... The destruction of the ¦ ¦ ¦Authenticate 2001 Loan Agreement. ..."¦• "Further, the RTFC has (1) admitted ¦ ¦(¶200(b)) ¦to substituting pages in the Loan ¦ ¦ ¦Agreement by and between ICC and the ¦ ¦ ¦RTFC, (2) admitted to destroying the ¦ ¦ ¦originals after doing so, and (3) ¦ ¦ ¦acknowledged that it cannot produce a ¦ ¦ ¦Loan Agreement executed by all ¦ ¦ ¦parties." Am. Compl., Case No. ¦ ¦ ¦2006-018, ¶ 10. ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦• "As a result of these serious ¦ ¦ ¦allegations against the RTFC, the RTFC ¦ ¦• "CFC, acting through RTFC, ¦and its officers and directors, including¦ ¦engaged in numerous Retaliatory and¦Sheldon Petersen, Steven Lilly and John ¦ ¦Extortionary Acts before the advent¦J. List, decided that the RTFC needed to ¦ ¦of the Intercreditor Agreement. In ¦discredit ICC and Mr. Prosser and ¦ ¦a September 2004 meeting held in ¦eliminate him and his respective ¦ ¦Chicago CFC, acting through RTFC, ¦companies, ICC and Vitelco, as members of¦ ¦and represented by Defendants Lilly¦the RTFC, to avoid the information being ¦ ¦and Lists, as well as their then ¦circulated by ICC and Prosser to other ¦ ¦outside counsel, acknowledged to ¦RTFC members as well as to CFC's rating ¦ ¦Plaintiff Raynor of RTFC's ¦agencies. . . ICC will prove that the ¦ ¦extortion plan to cut-off all ¦RTFC maliciously filed those 16 claimed ¦ ¦direct and indirect sources of ¦defaults, knowing fully well that they ¦ ¦financing to ICC to cause the ¦were baseless, and organized and deployed¦ ¦capitulation of Jeff Prosser ¦a concerted campaign of issuing false ¦ ¦forcing him into a pre-packaged ¦statements to the PSC and to industry ¦ ¦bankruptcy." (¶ 200(c)) ¦media and local newspapers to ruin ICC ¦ ¦ ¦and to wrest control of ICC from Mr. ¦ ¦ ¦Prosser." Am. Compl., Case No. 2005-168, ¦ ¦ ¦¶¶ 10,17. ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦• "Immediately after filing this ¦ ¦ ¦amended complaint, RTFC used these ¦ ¦ ¦31 defaults in its campaign before ¦ ¦ ¦the PSC, Wall Street, and the press¦ ¦ ¦to sully ICC's credibility by ¦ ¦ ¦claiming that ICC was an ¦ ¦ ¦irresponsible borrower." Prosser ¦ ¦ ¦Countercl., Case No. 2004-132, ¶ ¦ ¦ ¦33. ¦ ¦ ¦ ¦ ¦ ¦• "The assertion of "31 defaults" ¦ ¦ ¦was initially made three times by ¦ ¦ ¦RTFC's counsel to the PSC at its ¦ ¦ ¦Board Meeting of September 10,2004,¦ ¦ ¦which were then repeated numerous ¦ ¦ ¦times to the media (including ¦ ¦ ¦Forbes Magazine), trade journals ¦ ¦ ¦(including Telephony), the PSC and ¦ ¦ ¦in court pleadings. This was a ¦ ¦ ¦methodical use of a large number of¦ ¦ ¦completely fabricated claims to ¦ ¦ ¦smear an opponent and improperly ¦ ¦ ¦force capitulation, as noted in the¦ ¦ ¦attached articles." Am. Compl., ¦ ¦• "i. Using the bogus 31 defaults, RTFC ¦Case No. 2005-168,¶ 35. ¦ ¦met with the Virgin Islands Public ¦ ¦ ¦Services Commission ("VIPSC"), Vitelco's ¦• "During this time period, CFC ¦ ¦regulator, to proclaim the 31 defaults in¦instructed its employees and ¦ ¦order to tortiously interfere in ICC's ¦attorneys to make certain that ¦ ¦relationship with the VIPSC. ii. Using ¦contact was made with Vitelco's ¦ ¦the bogus 31 defaults, RTFC on or about ¦regulatory agency, the Public ¦ ¦September 10,2004, publicly declared that¦Service Commission ("PSC"), to ¦ ¦RTFC would own ICC by January of 2005. ¦disclose these alleged defaults and¦ ¦iii. RTFC approached the unions in the ¦to tell the PSC that the RTFC ¦ ¦Virgin Islands (tortiously interfered ¦intended to take control of ¦ ¦with ICC's relationship) to enlist their ¦Vitelco, which was done in public ¦ ¦aid in RTFC's retaliatory campaign ¦and private meetings." Am. Compl., ¦ ¦against Mr. Prosser. iv. Using the bogus ¦Case No. 2006-018, ¶ 42. ¦ ¦31 defaults, RTFC caused a derogatory ¦ ¦ ¦article to be published on October ¦• "Also at the September 10 ¦ ¦4,2004, by "Telephony.online". v. Using ¦meeting, Steven Lilly, on behalf of¦ ¦the bogus 31 defaults, RTFC caused a ¦RTFC, approached three employees of¦ ¦derogatory article to be published on ¦Vitelco. He told them that "RTFC ha¦ ¦November 1,2004, by Forbes." (¶ 200(d)) ¦[s] some good ideas for the future ¦ ¦ ¦of the company and that [the ¦ ¦ ¦employees] shouldn't worry;" that ¦ ¦ ¦RTFC has taken over a telephone ¦ ¦ ¦company or companies in the past ¦ ¦ ¦"when they've had to," i.e., when ¦ ¦ ¦they had defaulted on loans; that ¦ ¦ ¦RTFC were "good people" and that ¦ ¦ ¦when RTFC took over Vitelco ¦ ¦ ¦"everything would be 'alright';" ¦ ¦ ¦and that RTFC ¦ ¦ ¦ ¦ ¦ ¦had some "great plans for ¦ ¦ ¦Innovative. . . . On or about ¦ ¦ ¦September 10, RTFC's Steven Lilly ¦ ¦ ¦also approached the head of ¦ ¦ ¦Vitelco's union organization and ¦ ¦ ¦made an appointment to speak with ¦ ¦ ¦him and, on information and belief,¦ ¦ ¦made the same statements regarding ¦ ¦ ¦prospects for an RTFC takeover and ¦ ¦ ¦change of management as were made ¦ ¦ ¦to the PSC and Vitelco employees." ¦ ¦ ¦Second Supp. Countercl., Case No. ¦ ¦ ¦2004-154,¶¶ 80-81. ¦ +-----------------------------------------+-----------------------------------¦ ¦• "[CFC, RTFC, and Greenlight did fjorm a¦ ¦ ¦Joint Venture by execution of the ¦• "The RTFC and Greenlight have ¦ ¦Intercreditor Agreement dated October ¦entered into a joint venture to ¦ ¦24,2005 to pursue CFC's and RTFC's ¦take over ICC and Vitelco pursuant ¦ ¦retaliatory and extortionary agenda ¦to an agreement as more fully ¦ ¦rather than pursue its previous agenda to¦described herein." Am. Compl., Case¦ ¦maximize the Enterprise Value of ICC." (¶¦No. 2006-018, ¶ 18. ¦ ¦200(e)(i)) ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦• "For more than a year after the Delaware¦ ¦• "RTFC and Greenlight manipulated¦decision, Greenlight delayed reducing its ¦ ¦the circumstances around ¦unsecured claim to a judgment because its ¦ ¦correcting a transcription error ¦claim was completely subordinate to the ¦ ¦wrongly relied upon by Delaware ¦secured liens of the RTFC against ¦ ¦Chancery so that the correcting ¦Vitelco's stock, during which time the ¦ ¦affidavit arrived after the ¦defendants in the Greenlight case had been¦ ¦January 9,2006 judgment against ¦trying to get a corrective affidavit on ¦ ¦EmCom, ICC-LLC and Jeff Prosser ¦Reed's testimony. That affidavit was ¦ ¦(but not against New ICC) was ¦supplied so that it would arrive ¦ ¦granted on January 9,2006." ¶ 200 ¦immediately after the judgment was ¦ ¦(e)(iv)) ¦entered." Am. Compl., Case No. 2006-018,¶ ¦ ¦ ¦13. ¦ +----------------------------------+------------------------------------------¦ ¦• "Greenlight wrongly sought to ¦• "Greenlight began recording its ¦ ¦obtain a Delaware judgment against¦judgments in various locations, including ¦ ¦New ICC, an entity not ¦the states of New York and Florida as well¦ ¦ ¦as in the U.S. Virgin Islands under the ¦ ¦sued in the combined actions in ¦UEFJA. However, Greenlight recorded its ¦ ¦the Emerging Communication ¦judgment against the present ICC at its ¦ ¦Shareholder Litigation. . . . ¦present address (a completely different ¦ ¦Greenlight intentionally recorded ¦company than the dissolved ICC-Old against¦ ¦the Delaware January 9,2006 ¦which judgment was given - which was never¦ ¦Judgment against New ICC on or ¦at the address stateed (sic)) when in fact¦ ¦about January 17,2006 in the U.S. ¦it has no judgment against the existing ¦ ¦Virgin Islands and Florida knowing¦ICC. Despite being requested to release ¦ ¦that their Judgment against New ¦the judgment as to ICC, to date Greenlight¦ ¦ICC had not been granted." (¶ 200 ¦has not done so." Am. Compl., Case No. ¦ ¦(e)) ¦2006-018, ¶ 17. ¦ +-----------------------------------------------------------------------------+
RELEASE IN FULL
(OF RTFC, CFC, LILLY AND LIST)
SECTION 1
Definitions
1.1. "Release" means this release in full executed by the Releasing Parties (defined below).
1.2. "CFC" means National Rural Utilities Cooperative Finance Corporation, a District of Columbia cooperative association, and includes all of its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, assigns, administrators, successors, predecessors, d/b/a's and assumed names, and insurers - whether specifically mentioned hereafter or not.
1.3. "RTFC" means Rural Telephone Finance Cooperative, a District'of Columbia cooperative association, and includes all of its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, assigns, attorneys, administrators, successors, predecessors, d/b/a's and assumed names, and insurers - whether specifically mentioned hereafter or not.
1.4. "List" means John J. List individually, including, without limitation, any and all heirs, trustees, agents, successors, assigns, executors, administrators; and in his representative and/or official capacity, including, without limitation, as officer, employee, agent, attorney and/or representative of CFC and/or RTFC and/or any of their subsidiary and affiliated corporations, companies, divisions or units.
1.5. "Lilly" means Steven Lilly individually, including, without limitation, any and all heirs, trustees, agents, successors, assigns, executors, administrators; and in his representative and/or official capacity, including, without limitation, as officer, employee, agent and/or representative of CFC and/or RTFC and/or any of their subsidiary and affiliated corporations, companies, divisions or units.
1.6. "Greenlight Entities" means and includes Greenlight Capital L.P., Greenlight Capital Qualified, L.P. and Greenlight Capital Offshore, Ltd. together with each of their respective subsidiary and affiliated corporations, companies, divisions, units, and their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, assigns, administrators, successors, predecessors, d/b/a's and assumed names, and insurers -whether specifically mentioned hereafter or not.
1.7. "Vitelco" means the Virgin Islands Telephone Corporation, a United States Virgin Islands corporation, and includes its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, assigns, administrators, successors, predecessors, d/b/a's and assumed names, and insurers - whether specifically mentioned hereafter or not.
1.8. "ICC" means Innovative Communication Corporation, a United States Virgin Islands corporation, and includes its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, assigns, administrators, successors, predecessors, d/b/a's and assumed names, and insurers - whether specifically mentioned hereafter or not.
1.9. "ICC-LLC" means Innovative Communication Company, LLC, a Delaware limited liability company, and includes its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, employees, shareholders, members, partners, agents, representatives, counsel, attorneys, administrators, successors, predecessors, d/b/a's and assumed names, and insurers, whether specifically mentioned hereafter or not, and also includes Innovative Communication Subsidiary Company, LLC, a U.S. Virgin Islands limited liability company, acting by and through its sole managing member ICC-LLC.
1.10. "ECI" means Emerging Communications, Inc., a Delaware corporation, and includes its subsidiary and affiliated corporations, companies, divisions, and each of their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, administrators, successors, predecessors, d/b/a's and assumed names, and insurers whether specifically mentioned hereafter or not.
1.11. "Guarantors, Pledgors, and Mortgagors" means and includes Prosser as personal guarantor of certain indebtedness of ICC and Innovative Communication Corporation ("Old ICC"), a dissolved Virgin Islands corporation, to RTFC and other guarantors, pledgors and mortgagors with respect to those loans, including, Innovative Communication Subsidiary Company, LLC, The Daily News Publishing Company, Inc., Caribbean Communications Company d/b/a/ St. Thomas-St. John Cable TV, BVI Cable TV, Ltd., Caribbean Teleview Services, NV a/k/a St. Maarten Cable TV , Ltd., St. Croix Cable TV, Inc. Atlantic Aircraft, Inc., IC Air, Inc., Vitelcom Cellular, Inc., East Caribbean Cellular, NV, St. Martin Mobiles, SA, Martinque Cable Multimedia, SARL, Group B-200, Inc., World Satellite Guadeloupe, S.A., Innovative Long Distance, Inc., ICC TV, Inc., Val Vision, SA, Cable Evasion 86, S.A., East Caribbean Communications, N.V. (Curacao), East Caribbean Communications, N.V. (Bonaire), East Caribbean Communications, N.V. (St. Maarten), ICC-LLC and Emerging Communications, Inc.
1.12. "Prosser" means Jeffrey J. Prosser individually, including without limitation, any and all heirs, trustees, agents, successors, assigns, executors, and administrators, and in his representative capacity as agent, employee, and/or shareholder of ICC, Vitelco, ICC-LLC, and/or ECI, including, but not limited to, his capacity as the indirect beneficial owner, Chief Executive Officer, President, and Chairman of the Board of ICC, member the Board of Vitelco, member and sole managing member of ICC-LLC, and as guarantor of ICC owing to RTFC.
1.13. "Prosser Subsidiaries" means each of the entities listed on Schedule I attached hereto, whether or not specifically included in any other definition herein.
1.14. "Releasing Directors" means each of John P. Raynor, Richard N. Goodwin, Michael Prosser, Sir Shridath Ramphal, Lt. General Samuel Ebbesen, Sir Ronald M. Sanders, David Sharp and James J. Heying, individually, including without limitation, any and all of their heirs, trustees, agents, successors, assigns, executors, and administrators, and in their representative capacity as agent, employee, and/or shareholder of ICC, Vitelco, ICC-LLC, and/or ECI, including, but not limited to, their capacities as member of the Boards of ICC, Vitelco, and ECI.
1.15. "Releasing Parties" includes those entities and individuals included within the definition of ICC, Vitelco, ICC-LLC, ECI, the Prosser Subsidiaries, the Guarantors, Pledgors, and Mortgagors, and also includes Prosser and the Releasing Directors.
1.16. "Released Parries" include those entities and individuals included within the definition of RTFC and CFC, and also includes List and Lilly.
1.17. "Litigation" means the following actions pending in the District of the Virgin Islands:
(i.) Cause No. 2005cvl 15; Innovative Communication Corporation v. Rural Telephone Finance Cooperative;
(ii.) Cause No. 2004cv154; Rural Telephone Finance Cooperative v. Innovative, Communication Corporation;
(iii.) Cause No. 2004cv155; Rural Telephone Finance Cooperative v. Jeffrey Prosser;
(iv.) Cause No. 2004cv132; Rural Telephone Finance Cooperative, for itself and on behalf of Innovative Communication Corporation and the Virgin Islands Telephone Corporation d/b/a Innovative Telephone v. Jeffrey J. Prosser, Lt. General Samuel E. Ebbesen, Richard N. Goodwin, Michael Prosser, Sir Shridath Ramphal, John P. Raynor, Sir Ronald M. Sanders, David Sharp, Innovative Communication Corporation, and Virgin Islands Telephone Corporation d/b/a Innovative Telephone;
(v.) Cause No. 2005cv168; Innovative Communication Corporation v. Rural Telephone Finance Cooperative, John J. List, and Steven Lilly;
(vi.) Cause No. 2006cv011; Emerging Communication, Inc. and Innovative Communication Company, LLC v. Rural Telephone Finance Cooperative and National Rural Utilities Cooperative Finance Corporation;
(vii.)Cause No. 2006cv019; Rural Telephone Finance Cooperative v. Innovative Communication Corporation; and
(viii.) Cause No. 2006cv018; Virgin Islands Telephone Corporation v. Rural Telephone Finance Cooperative, National Rural Utilities Cooperative Finance Corporation, Greenlight Capital Qualified, L.P., Greenlight Capital L.P., and Greenlight Capital Offshore, Ltd.
1.18. "AH Claims" shall mean and refer to any and all claims, demands, damages (including, without limitation, all actual damages, consequential damages, statutory damages, punitive and exemplary damages, prejudgment and post-judgment interest, attorneys' fees and costs of court, and all other damages or losses recoverable now or at any later time under applicable law), actions of any character or type (including, but not limited to, class action or derivative lawsuits or proceedings, actions based on violations of local, state and/or federal statutes and regulations, malfeasance, non-feasance, fraud, intentional torts, malicious conduct, including, but not limited to, intentional interference with contracts or prospective business relations, libel, slander, defamation, wrongful use of civil proceedings and abuse of process, breach of contract, bad faith, breach of fiduciary duty, lender liability, contribution, conspiracy, retaliatory conduct, or any combination thereof), and causes of action of whatever nature, in law or equity (including declaratory and injunctive relief), known or unknown, that the Releasing Parties have, or ever have had, or may in the future have, against the Released Parties related to, directly or indirectly, any and all of the facts, events, transactions, occurrences, course of dealings and/or disputes between the Releasing Parties and the Released Parties occurring prior to the date of this Release or occurring after the date of this Release but which involve the same facts, events, transactions, occurrences, course of dealings and/or disputes existing as of the date of this Release whether known or unknown arising out of the relationships or alleged relationships between or among the Releasing Parties and the Released Parties as member, cooperative, borrower, lender, patron, third-party beneficiary, investor, issuer of security or any other relationship, as well as any and all consequences thereof, each and all, even though one or more of those consequences are not specifically identified herein, other than, in any such case, the Excluded Claims (as hereinafter defined).
1.19. "Excluded Claims" shall mean and refer to any obligations that the Released Parties may have under, and any rights, causes of action or other claims of any nature that the Releasing Parties may have against the Released Parties to enforce the terms and provisions of, that certain Terms and Conditions of Settlement of Claims of RTFC, CFC, Prosser Parties and Greenlight Entities, dated as of April 26, 2006, among Rural Telephone Finance Cooperative, National Rural Utilities Cooperative Finance Corporation, Greenlight Capital, L.P., Greenlight Capital Qualified, L.P., Greenlight Offshore, Ltd., Innovative Communication Corporation, Innovative Communication Company, LLC, Emerging Communications, Inc., Virgin Islands Telephone Corporation and Jeffrey J. Prosser (the "Terms and Conditions") and any or all Payment Documentation (as defined in the Terms and Conditions) to which any of the Released Parties are a party.
SECTION 2
Release
2.1. The Releasing Parties hereby fully and forever RELEASE, ACQUIT and DISCHARGE, the Released Parties of and from any and All Claims and/or Litigation, with prejudice (other than the Excluded Claims).
2.2. The parties understand and acknowledge that the foregoing release:
(i.) IS A GENERAL RELEASE OF ALL CLAIMS (AS DEFINED HEREIN)— PAST, PRESENT, AND FUTURE AND WHETHER KNOWN OR UNKNOWN, OTHER THAN THE EXCLUDED CLAIMS (AS DEFINED HEREIN);
(ii.) is a full and complete release of any and all of the Releasing Parties' Claims and/or Litigation (other than the Excluded Claims), and the Releasing Parties are precluded from seeking further money or other relief based upon such Claims and/or Litigation (other than the Excluded Claims);
(iii.) is to be interpreted liberally to effectuate maximum protection to the Released Parties; and
(iv.) is specifically intended to operate and be applicable even if it is alleged, charged or proven that some or all of the claims or damages released are solely and completely or partially caused by the negligent acts, gross negligence, fraud, misrepresentation, intentional conduct, breach of fiduciary duty, violation of statute or common law, or conduct of any type by the Released Parties.
SECTION 3
Covenant Not To Sue
3.1 The Releasing Parties covenant, warrant, and represent that they shall not hereafter sue, or bring or continue any action or proceeding against the Released Parties with respect to All Claims (other than the Excluded Claims) released herein.
SECTION 4
Consideration
4.1 The Releasing Parties enter into this Release for good and valuable consideration, the receipt of and sufficiency of which is hereby acknowledged.
SECTION 5
Representations
5.1 The Releasing Parties represent and warrant:
(i.) that the execution and delivery of this Release have been duly authorized by all necessary actions;
(ii.) that before executing this Release, they became fully informed of the terms, conditions, and contents, and effect of this Release;
(iii.) that they are legally competent to execute this Release;
(iv.) that no promise or representation of any kind has been made to them by the other, or by anyone acting for the other, except as expressly stated in this Release; and
(v.) they relied solely on their own judgment and the advice of their counsel in executing this Release.
SECTION 6
Full Knowledge and Voluntary Release
6.1 The Releasing Parties hereby represent and warrant that they have read this Release and they expressly acknowledge:
(i.) that they have entered into this Release of their own free choice based upon their own knowledge and judgment; and
(ii.) that they have not acted in reliance on any representation, advice or other action other than as included in this Agreement.
SECTION 7
Miscellaneous
7.1 This Release shall be governed by the internal substantive laws of the State of Delaware (without regard to its conflicts of law principles). The Parties irrevocably agree that in the event of any litigation enforcing the terms and conditions herein, or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Greenlight Entities and RTFC or CFC), any such litigation shall be brought exclusively in the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"), or in the United States District Court for the District of Delaware ("the "District Court"), to the extent that the Bankruptcy Court cannot or will not exercise jurisdiction. In the event that neither the Bankruptcy Court nor the District Court can or will exercise jurisdiction, the Parties irrevocably agree that any litigation enforcing the terms and conditions herein, or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Greenlight Entities and RTFC or CFC) shall be brought exclusively in the applicable state court (the "State Court") for the State of Delaware. Each of the Parties irrevocably consents to the personal jurisdiction and venue in the Bankruptcy Court, the District Court and/or the State Court, as applicable, in connection with any actions to enforce the terms and conditions herein or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Greenlight Entities and RTFC or CFC) and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any Party anywhere in the world.
SECTION 8
Miscellaneous
8.1 This Release may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Each Releasing Party covenants, represents and warrants: that such counterparts need not include the signature/verification page for any other Releasing Party; that the Releasing Parties and the Released Parties may combine the signed counterparts into a single document by attaching all of the executed signature/verification pages to a single copy or original of this Release; and that the foregoing shall not affect the validity of this Release.
EXECUTED in multiple parts on this____. day of May, 2006:
INNOVATIVE COMMUNICATION
CORPORATION
By: ____________
Jeffery J. Prosser
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION
CORPORATION, a United States Virgin
Islands corporation that was dissolved in
December, 1998
By: ____________
Jeffery J. Prosser
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION
SUBSIDIARY COMPANY, LLC
By: ____________
Jeffery J. Prosser
Chairman and Chief Executive Officer
VIRGIN ISLANDS TELEPHONE
CORPORATION d/b/a INNOVATIVE
TELEPHONE
By: ________
David Sharp
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION
COMPANY, LLC
By: ____________
Its ___________
EMERGING COMMUNICATIONS INC.
By: ____________
Jeffery J. Prosser
Chairman and Chief Executive Officer
___________________
Jeffery J. Prosser, individually
BELIZE TELECOM LTD
By: ____________
Its ___________
VITELCOM CELLULAR, INC.
ST. CROIX CABLE TV, INC.
CARIBBEAN COMMUNICATIONS CORP.
INNOVATIVE LONG DISTANCE, INC.
By: ____________
Its ___________
ICC TV, INC.
DAILY NEWS PUBLISHING CO., INC.
ICUSC, INC.
By: ____________
Its ___________
EXECUTIVE SECURITY SERVICES, INC.
WORLD SATELLITE GUADELOUPE SA.
MARTINIQUE TV CABLE SA.
MARTINIQUE CABLE MULTIMEDIA,
SARL
B.V.I. CABLE T.V. LTD.
By: ____________
Its ___________
CARIBBEAN TELEVIEW SERVICES N.V.
ST. MARTIN MOBILES SA.
SMB BOATPHONE HOLDINGS LIMITED
MOBARTON INVESTMENT N.V.
By: ____________
Its ___________
EAST CARIBBEAN CELLULAR N.V.
EAST CARIBBEAN COMMUNICATIONS
ST. MAARTEN) N.V.
EAST CARIBBEAN COMMUNICATIONS
(BONAIRE) N.V.
EAST CARIBBEAN COMMUNICATIONS
(CURACAO) N.V.
By: ____________
Its ___________
TODD INTERNATIONAL LTD.
ZUMBRO LIMITED
PINACLE LIMITED
COMSYS INTERNATIONAL LTD.
By: ____________
Its ___________
K.I. MANAGEMENT LTD
KC INTERNATIONAL INC.
TKH INTERNATIONAL LIMITED
MINION CORPORATION N.V.
By: ____________
Its ___________
VALVISION TELECOMMUNICATIONS
B.V.
VALVISION SAS (VALVISION)
AMZAK INTERNATIONAL LIMITED
H.M. BEUK BELEGGINGEN B.V.
By: ____________
Its ___________
ALTA B.V.
ICC FRANCE SA.
CABLE EVASION 86 SA.
ATLANTIC AIRCRAFT, INC.
By: ____________
Its ___________
IC AIR, INC.
GROUP B-200, INC.
COMMUNICATIONS SYSTEMS & SERVICES, INC.
____________________________________
Richard N. Goodwin, individually and as one
of the Releasing Directors
_____________________________________
Michael Prosser, individually and as one of the
Releasing Directors
____________________________________
Sir Shridath Ramphal, individually and as one
of the Releasing Directors
___________________________________
Lt. General Samuel Ebbesen, individually and
as one of the Releasing Directors
_________________________________
Sir Ronald M. Sanders, individually and as one
of the Releasing Directors
____________________________
David Sharp, individually and as one of the
Releasing Directors
John P. Raynor, individually and as one of the
Releasing Directors
SCHEDULE I
PROSSER SUBSIDIARIES
Innovative Communication Subsidiary Company, LLC (a U.S. Virgin Islands limited liability company)
Belize Telecom Ltd (a Belize limited liability company)
Vitelcom Cellular, Inc. (a U.S. Virgin Islands corporation)
St. Croix Cable TV, Inc. (a U.S. Virgin Islands corporation)
Caribbean Communications Corp. (a U.S. Virgin Islands corporation)
Innovative Long Distance, Inc. (a U.S. Virgin Islands corporation)
iCC TV, Inc. (a U.S. Virgin Islands corporation)
Daily News Publishing Co., Inc. (a U.S. Virgin Islands corporation)
ICUSC, Inc. (a U.S. Virgin Islands corporation)
Executive Security Services, Inc. (a U.S. Virgin Islands corporation)
World Satellite Guadeloupe S.A. (a French corporation)
Martinique TV Cable S.A. (a French corporation)
Martinique Cable Multimedia, SARL (a French limited liability company) B.V.I. Cable T.V. Ltd. (a British Virgin Islands corporation) Caribbean Teleview Services N.V. (a Netherlands Antilles corporation) St. Martin Mobiles S.A. (a French corporation)
SMB Boatphone Holdings Limited (a British Virgin Islands corporation)
Mobarton Investment N.V. (a Netherlands Antilles corporation)
East Caribbean Cellular N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (St. Maarten) N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (Bonaire) N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (Curacao) N.V. (a Netherlands Antilles corporation)
Todd International Ltd, (a British Virgin Islands international business corporation)
Zumbro Limited (a British Virgin Islands international business corporation)
Pinacle Limited (a British Virgin Islands international business corporation)
COMSYS International Ltd. (a British Virgin Islands international business corporation)
K.I. Management Ltd (a British Virgin Islands international business corporation)
KC International Inc. (a British Virgin Islands international business corporation)
TKH International Limited (a British Virgin Islands international business corporation)
Minion Corporation N.V. (a Netherlands Antilles corporation)
Valvision Telecommunications B.V. (a Dutch corporation)
Valvision SAS (Valvision) (a French corporation)
Amzak International Limited (a Bahamian company)
H.M. Beuk Beleggingen B.V. (a Dutch corporation)
Alta B.V. (a Dutch corporation)
ICC France S.A. (a French corporation)
Cable Evasion 86 S.A. (a French corporation)
Atlantic Aircraft, Inc. (a U.S. Virgin Islands corporation)
IC Air, Inc. (a Delaware corporation)
Group B-200, Inc. (a Puerto Rico corporation)
Communications Systems & Services, Inc. (a Florida corporation)
APPENDIX B
Prosser Parties' Release of Greenlight
GENERAL RELEASE AGREEMENT
THIS GENERAL RELEASE AGREEMENT (this "Agreement" or this "Release") is dated as of June 6, 2006 by INNOVATIVE COMMUNICATION CORPORATION, a United States Virgin Islands corporation ("Innovative New"), INNOVATIVE COMMUNICATION CORPORATION, a United States Virgin Islands corporation that was dissolved in December, 1998 ("Innovative Old"), VIRGIN ISLANDS TELEPHONE CORPORATION, a United States Virgin Islands corporation ("Vitelco"), INNOVATIVE COMMUNICATION COMPANY, LLC, a Delaware limited liability company, ("ICC-LLC"), EMERGING COMMUNICATIONS, INC., a Delaware corporation, ("ECI"), JEFFREY J. PROSSER ("Mr. Prosser"), and each of the entities listed on Schedule I attached hereto (the "Prosser Subsidiaries" and together with Prosser, Innovative New, Innovative Old, Vitelco, ICC-LLC, and ECI, collectively, the "Releasors") to and in favor of GREENLIGHT CAPITAL, L.P., a limited partnership organized under the laws of Delaware ("Greenlight L.P."), GREENLIGHT CAPITAL QUALIFIED, L.P., a limited partnership organized under the laws of Delaware ("Greenlight Qualified"), GREENLIGHT CAPITAL OFFSHORE, LTD., a corporation organized under the laws of British Virgin Islands ("Greenlight Offshore**), GREENLIGHT CAPITAL, INC., a corporation organized under the laws of Delaware ("Greenlight Corp."), GREENLIGHT CAPITAL, LLC, a Delaware limited liability company ("Greenlight LLC" and with Greenlight L.P., Greenlight Qualified, Greenlight Offshore and Greenlight Corp., collectively, with each of their respective subsidiaries and Affiliates (as defined herein), the "Greenlight Parties"), DAVID EINHORN ("Mr. EinhornH), and VINIT SETHI ("Mr. Sethi"), and the directors, officers, shareholders, partners, members, managers, employees, agents and representatives of each of the Greenlight Parties and their respective subsidiaries and Affiliates (as defined herein), including, but not limited to, each of the attorneys and/or law firms listed on Schedule II attached hereto (collectively, with the Greenlight Parties, their respective subsidiaries and Affiliates, Mr. Einhorn and Mr. Sethi, the "Released Parties"). The Released Parties and the Releasors are referred to herein, collectively, as the "Parties".
BACKGROUND
A. Mr. Prosser and Dawn Prosser, individually and/or collectively, directly and/or indirectly own or control 100% of the outstanding equity interests of ICC-LLC. ICC-LLC owns or controls, directly and/or indirectly, through one or more subsidiary entities, 100% of the outstanding stock or other equity interests of various entities, including, but not limited to, ECI, Innovative New, Vitelco, and each of the Prosser Subsidiaries.
B. As a result of various disputes among the Parties, certain judgments against one or more of Prosser, ICC-LLC and/or ECI have been previously entered in the Court of Chancery of the State of Delaware in favor of and/or are held by one or more of the Greenlight Parties (the "Greenlight Judgments"), and certain claims have been asserted and/or litigation instituted by or among one or more of the Greenlight Parties and one or more of the Releasors, including, but not limited to, (i) the following litigation or proceedings in the United States Bankruptcy Court for the District of Delaware (the "Delaware Bankruptcy Court"): (x) In re Jeffrey Prosser, Case Number 06-10135 (JKF) pending in the United States Bankruptcy Court for the District of Delaware, (y) In re Innovative Communication Company, LLC, Case Number 06-10133 (JKF) pending in the United States Bankruptcy Court for the District of Delaware and (z) In re Emerging Communications, Inc., Case Number 06-10134 (JKF) pending in the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Proceedings") and (ii) the following litigation outside of the Delaware Bankruptcy Court (collectively, the "Non-Bankruptcy Proceedings"): (A) Greenlight Capital Qualified. L.P.. Greenlight Capital L.P. and Greenlight Capital Offshore. Ltd. v. Emerging Communications. Inc.. Court of Chancery of the State of Delaware in and for New Castle County, Civil Action No. 16943, Consolidated Civil Action No. 16415, pending in the Supreme Court of the State of Delaware on appeal as Emerging Communications. Inc. v. Greenlight Capital Qualified. L.P.. Greenlight Capital L.P. and Greenlight Capital Offshore. Ltd.. No. 20, 2006, (B) Greenlight Capital Qualified. L.P.. Greenlight Capital L.P. and Greenlight Capital Offshore. Ltd. v. Innovative Communication Corporation. Innovative Communication Company. LLC, and Jeffrey J. Prosser. Court of Chancery of the State of Delaware in and for New Castle County, Civil Action No. 18816, Consolidated Civil Action No. 16415, pending in the Supreme Court of the State of Delaware on appeal as Innovative Communication Corporation. Innovative Communication Company. LLC, and Jeffrey J. Prosser v. Greenlight Capital Qualified. L.P.. Greenlight Capital L.P. and Greenlight Capital Offshore. Ltd.. No. 21, 2006, and (C) each of the actions listed on Schedule III attached hereto.
C. Rural Telephone Finance Cooperative, a cooperative association organized under the laws of the District of Columbia ("RTFC"), National Rural Utilities Cooperative Finance Corporation, a cooperative association organized under the laws of the District of Columbia ("CFC"), the Greenlight Parties, Innovative New, ECI, ICC-LLC, Vitelco and Mr. Prosser have entered into a certain Terms and Conditions of Settlement of Claims of RTFC, CFC, Prosser Parties and the Greenlight Entities, dated as of April 26, 2006 (the "Terms and Conditions"), pursuant to which the Parties agreed to enter into this Release.
D. Pursuant to the Terms and Conditions, it is a condition to the Released Parties' obligation to deposit certain documentation into escrow that the Releasors execute and deliver this Release.
E. The Parties now wish to enter into this Release as provided in the Terms and Conditions.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and agreements of the Parties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Releasors hereby agree as follows:
1. General Definitions. For purposes of this Agreement, "Affiliate" of a person or entity means any other person or entity (a) that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the person or entity, (b) that directly or indirectly beneficially owns or holds 10% or more of any class of equity security, partnership interests or other similar interests of the entity or (c) 10% or more of the equity securities, partnership interests or other similar interests of which is directly or indirectly beneficially owned or held by the person or entity. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise. With respect to a natural person, such natural person's Affiliates shall also include such natural person's spouse, and their siblings, parents and lineal descendants. Other capitalized terms not otherwise defined in this Agreement shall have the definitions ascribed to them in the Terms and Conditions.
2. Release by the Releasing Parties. Effective as of the date of this Agreement, each of the Releasors, on behalf of the Releasor and the Releasor's respective past, present and future parents, subsidiaries and Affiliates and the respective trustees, beneficiaries, directors, officers, shareholders, partners, members, managers, employees, attorneys, legal counsel, accountants, agents, representatives, administrators, insurers, transferees, heirs, executors* predecessors, successors and assigns of such Releasors and/or such Releasors' past, present and future parents, subsidiaries and Affiliates (collectively, with the Releasors, the "Releasing Parties") hereby releases, acquits and forever discharges, with prejudice, each of the Released Parties from past, present or future claims, costs, expenses, accounts, offsets, demands, causes of action, suits, debts, controversies, agreements, damages (including, without limitation, all actual damages, consequential damages, statutory damages, punitive and exemplary damages, prejudgment and post-judgment interest, attorney's fees and costs of court, and all other damages or losses recoverable now or at any later time under applicable law), judgments, obligations, defenses, promises, covenants, reckoning, contracts, endorsements, bonds, specialties, trespasses, variances, extents, executions and liabilities of any kind or nature whatsoever, in law, equity, or otherwise, whether known or unknown to any Party at this time, asserted or unasserted, liquidated or unliquidated, absolute or contingent, which any of the Releasing Parties had, may have, now has or which may hereafter accrue or otherwise be acquired against any of the Released Parties on account of, arising out ofj or relating to, or alleged or asserted or which could have been alleged or asserted or involving any matter occurring at any time from the beginning of the world up to and including the date of this Agreement (the "Claims"), of any kind or nature whatsoever, in law or equity (including, but not limited to, class action or derivative lawsuits or proceedings, actions based on violations of local, state and/or federal law and regulations, malfeasance, nonfeasance, fraud, intentional torts, malicious conduct, including, but not limited to, intentional interference with contracts or prospective business relations, libel, slander, defamation, wrongful use of civil proceedings and abuse of process, breach of contract, bad faith, breach of fiduciary duty, contribution, conspiracy, retaliatory conduct, or any combination thereof), including, but not limited to, any Claims (i) related in any way to ICC-LLC, ECI, innovative Old, Innovative New, Vitelco, or any of the Prosser Subsidiaries or any of their respective businesses or operations, the Greenlight Judgments, the Bankruptcy Proceedings or the Non-Bankruptcy Proceedings (all of which Non-Bankruptcy Proceedings are being contemporaneously released and/or terminated by the parties thereto); (ii) related in any way to the subject matter of the Greenlight Judgments, the Bankruptcy Proceedings or the Non-Bankruptcy Proceedings; (iii) which were asserted or could have been asserted in the Non-Bankruptcy Proceedings or the Bankruptcy Proceedings, and/or (iv) which relate in any way or arise out of any one or more of their individual capacities and/or their capacity as an agent, attorney, legal counsel, accountant, employee, shareholder, member, director, officer, manager, representative of or consultant to any other of the Released Parties; provided, however, that this Agreement and the foregoing release is without effect on the obligations of Greenlight L.P., Greenlight Qualified, and Greenlight Offshore (i) to deposit a release of the Releasing Parties into escrow as provided in the Terms and Conditions or (ii) under any of the Payment Documentation as defined in and delivered pursuant to the Terms and Conditions. This Release shall (i) operate as a full and final settlement of the Released Parties' past, present, and future liabilities to any of the Releasing Parties and (ii) be (a) effective immediately, (b) unconditional, and (c) irrevocable, regardless of whether, among other things, the Releasing Parties make the Payment and the Payment Documentation is released from escrow.
3- Releasors' Representations and Warranties. Each of the Releasors on behalf of itself and each of its respective Related Parties, represents and warrants to the Released Parties (i) that the execution and delivery of this Release have been duly authorized by all necessary actions; (ii) that before executing this Release, they became fully informed of the terms, conditions, and contents, and effect of this Release; (iii) that they are legally competent to execute this Release; (iv) that no promise or representation of any kind has been made to them by any of the Released Parties, or by anyone acting for any of the Released Parties, except as expressly stated in this Release; (v) that they have not transferred to any person or entity any of their Claims or any interest thereunder; (vi) that this release constitutes the legal, valid and binding obligation of each Releasing Party enforceable against it in accordance with its terms; (vii) that they relied solely on their own judgment and the advice of their counsel in executing this Release; (viii) that they have entered into this Release of their own free choice based upon their own knowledge and judgment; and (ix) that they have not acted in reliance on any representation, advice or other action other than as included in this Release.
4. Entire Agreement: Parties: Predecessors. Successors and Assigns: Survival of Representations.
(a) This Agreement, together with the Terms and Conditions, constitutes the entire agreement between the Parties with respect to the subject matter hereof, supersedes any prior agreements and understandings between the Parties, whether written or oral, with respect to the subject matter hereof and shall bind the Releasors, and each of their respective Related Parties and benefit the Released Parties and their respective Related Parties, predecessors, successors and assigns.
(b) Notwithstanding and without limiting the foregoing, it is the intention that wherever in this instrument any Party shall be designated or referred to by name or general references (except where defining and/or identifying the parties to a specified agreement other than this Agreement) such designation is intended to and shall have the same effect as if the words "and each of their respective past, present and future parents, subsidiaries and affiliates and their respective trustees, beneficiaries, directors, officers, shareholders, partners, members, managers, employees, attorneys, legal counsel, accountants, agents, representatives, administrators, insurers, transferees, heirs, executors, predecessors, successors and assigns" have been inserted after each and every such designation and all the terms, covenants and conditions herein contained shall be for and shall inure to the benefit of and shall bind the respective Parties hereto, and each of their respective past, present and future parents, subsidiaries and affiliates and their respective trustees, beneficiaries, directors, officers, shareholders, partners, members, managers, employees, attorneys, legal counsel, agents, representatives, administrators, insurers, transferees, heirs, executors, predecessors, successors and assigns.
(c) All representations made herein by the Releasors shall survive the execution and delivery hereof.
5. Governing Law: Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to the principles of conflicts of law.
(b) The Parties irrevocably agree that in the event of any litigation enforcing the terms and conditions hereof, or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Releasors) any such litigation shall be brought exclusively in the Delaware Bankruptcy Court, or in the United States District Court for the District of Delaware (the "District Court"), to the extent that the Delaware Bankruptcy Court cannot or will not exercise jurisdiction. In the event that neither the Delaware Bankruptcy Court nor the District Court can or will exercise jurisdiction, the Parties irrevocably agree that any litigation enforcing the terms and conditions hereof or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Releasors) shall be brought exclusively in the applicable state court (the "State Court'") for the State of Delaware. Each of the Parties irrevocably consents to personal jurisdiction and venue in the Delaware Bankruptcy Court, the District Court and/or the State Court, as applicable, in connection with any actions to enforce the terms and conditions hereof or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Releasors) and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any Party anywhere in the world.
6. Headings. The headings of the several sections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement
7. Construction. Should any provision of this Agreement require interpretation or construction, it is agreed that because all Parties, by their respective attorneys, have fully participated in the preparation of all provisions of this Agreement, any arbitrator or judge who interprets or construes this Agreement shall not apply any presumption based upon the rule of construction that a document is to be construed more strictly against the party who itself or through its agents prepared such document.
8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which taken together shall constitute but one and the instrument Each Releasor covenants, represents and warrants that such counterparts need not include the signature/verification page for any other Releasor, that the Releasors and the Released Parties may combine the signed counterparts into a single document by attaching all of the executed signature/verification pages to a single copy or original of this Release; and that the foregoing shall not affect the validity of this Release.
9. Acknowledgement of the Parties. The parties understand and acknowledge that the foregoing release:
(i.) IS A GENERAL RELEASE OF ALL CLAIMS (AS DEFINED HEREIN)— PAST, PRESENT, AND FUTURE AND WHETHER KNOWN OR UNKNOWN;
(ii.) is a full and complete release of any and all of the Releasing Parties' Claims and/or Litigation, and the Releasing Parties are precluded from seeking further money or other relief based upon such Claims and/or Litigation;
(iii.) is to be interpreted liberally to effectuate maximum protection to the Released Parties; and
(iv.) is specifically intended to operate and be applicable even if it is alleged, charged or proven that some or all of the claims or damages released are solely and completely or partially caused by the negligent acts, gross negligence, fraud, misrepresentation, intentional conduct, breach of fiduciary duty, violation of statute or common law, or conduct of any type by the Released Parties.
10. Covenant Not To Sue. The Releasors covenant, warrant, and represent that they shall not hereafter sue, or bring or continue any action or proceeding against the Released Parties with respect to all Claims released herein.
11. Consideration. The Releasors enter into this Release for good and valuable consideration, the receipt of and sufficiency of which is hereby acknowledged.
12. Further Assurances. The Releasors shall take, or cause to be taken, upon request by the Released Parties, all reasonably appropriate action, and do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective the releases contemplated hereunder, including, without limitation, executing and delivering all documents deemed reasonably necessary by the Released Parties to effectuate the releases contemplated hereby.
IN WITNESS WHEREOF, the undersigned have duly executed this General Release Agreement as of the date first above written.
INNOVATIVE COMMUNICATION
CORPORATION
By: ____________
Jeffery J. Prosser
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION
CORPORATION, a United States Virgin
Islands corporation that was dissolved in
December, 1998
By: ____________
Jeffery J. Prosser
Chairman and Chief Executive Officer
VIRGIN ISLANDS TELEPHONE
CORPORATION d/b/a INNOVATIVE
TELEPHONE
By: _______
David Sharp
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION
COMPANY, LLC
By: ____________
Jeffery J. Prosser
Sole Managing Member
EMERGING COMMUNICATIONS INC.
By: ____________
Jeffery J. Prosser
Chairman and Chief Executive Officer
By: ____________
Jeffery J. Prosser
Chairman and Chief Executive Officer
VIRGIN ISLANDS TELEPHONE
CORPORATION d/b/a INNOVATIVE
TELEPHONE
By:_____________________
Bamnel E. Ebbesen
Director and Secretary
INNOVATIVE COMMUNICATION
COMPANY, LLC
By: ____________
Jeffery J. Prosser
Sole Managing Member
EMERGING COMMUNICATIONS INC
By: ____________
Jeffery J. Prosser
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION
SUBSIDIARY COMPANY, LLC
By:__________
Jeffery J. Prosser
Its President
BELIZE TELECOM LTD
VITELCOM CELLULAR, INC.
ST. CROIX CABLE TV, INC.
CARIBBEAN COMMUNICATIONS CORP.
By:__________
Jeffery J. Prosser
Its President
INNOVATIVE LONG DISTANCE, INC.
ICC TV, INC.
DAILY NEWS PUBLISHING CO., INC.
ICUSC, INC.
By:__________
Jeffery J. Prosser
Its President
EXECUTIVE SECURITY SERVICES, INC.
WORLD SATELLITE GUADELOUPE S.A.
MARTINIQUE TV CABLE S.A.
MARTINIQUE CABLE MULTIMEDIA,
SARL
By:__________
Jeffery J. Prosser
Its President
B.V.I. CABLE T.V. LTD.
CARIBBEAN TELEVIEW SERVICES N.V.
ST. MARTIN MOBILES S.A.
SMB BOATPHONE HOLDINGS LIMITED
By:__________
Jeffery J. Prosser
Its President
MOBARTON INVESTMENT N.V.
EAST CARIBBEAN CELLULAR N.V.
EAST CARIBBEAN COMMUNICATIONS
ST. MAARTEN) N.V.
EAST CARIBBEAN COMMUNICATIONS
(BONAIRE) N.V.
By:__________
Jeffery J. Prosser
Its President
EAST CARIBBEAN COMMUNICATIONS
(CURACAO) N.V.
TODD INTERNATIONAL LTD.
ZUMBRO LIMITED
PINACLE LIMITED
By:__________
Jeffery J. Prosser
Its President
COMSYS INTERNATIONAL LTD.
K.I. MANAGEMENT LTD
KC INTERNATIONAL INC.
TKH INTERNATIONAL LIMITED
By:__________
Jeffery J. Prosser
Its President
MINION CORPORATION N.V.
VALVISION TELECOMMUNICATIONS
B.V.
VALVISION SAS (VALVISION)
AMZAK INTERNATIONAL LIMITED
By:__________
Jeffery J. Prosser
Its President
H.M. BEUK BELEGG1NGEN B.V.
ALTA B.V.
ICC FRANCE S.A.
CABLE EVASION 86 S.A.
By:__________
Jeffery J. Prosser
Its President
ATLANTIC AIRCRAFT, INC.
TC AIR, INC.
GROUP B-200, INC.
COMMUNICATIONS SYSTEMS &
SERVICES, INC.
By:__________
Jeffery J. Prosser
Its President
__________________________
Jeffery J. Prosser, individually
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of INNOVATIVE COMMUNICATION SUBSIDIARY COMPANY, LLC and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from is governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of BELIZE TELECOM LTD. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of VITELCOM CELLULAR, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of ST. CROIX CABLE TV, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of CARIBBEAN COMMUNICATIONS CORP. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of INNOVATIVE LONG DISTANCE, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of ICC TV, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of DAILY NEWS PUBLISHING CO., INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of ICUSC, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of EXECUTIVE SECURITY SERVICES, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of WORLD SATELLITE GUADELOUPE S.A. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of MARTINIQUE TV CABLE S.A. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of MARTINIQUE CABLE MULTIMEDIA, SARL and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of B.V.I. CABLE T.V. LTD. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the Presiderrt of CARIBBEAN TELEVIEW SERVICES N.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of ST. MARTIN MOBILES S.A and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of SMB BOATPHONE HOLDINGS LIMITED and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing, body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly swom on their oath, deposed and made proof to my satisfaction that he is the President of MOBARTON INVESTMENT N.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of EAST CARIBBEAN CELLULAR N.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of EAST CARIBBEAN COMMUNICATIONS (ST. MAARTEN) N.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of EAST CARIBBEAN COMMUNICATIONS (BONAIRE) N.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of EAST CARIBBEAN COMMUNICATIONS (CURACAO) N.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of TODD INTERNATIONAL LTD. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of ZUMBRO LIMITED and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of PINACLE LIMITED and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of COMSYS INTERNATIONAL LTD. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of K.I. MANAGEMENT LTD and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of KC INTERNATIONAL INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of TKH INTERNATIONAL LIMITED and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of MINION CORPORATION N.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of VALVISION TELECOMMUNICATIONS B.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly swom on their oath, deposed and made proof to my satisfaction that he is the President of VALVISION SAS (VALVISION) and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of AMZAK INTERNATIONAL LIMITED and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J, Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of H.M. BEUK BELEGGINGEN B.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of ALTA B.V. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of ICC FRANCE S. A.. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of CABLE EVASION 86 S.A. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of ATLANTIC AIRCRAFT, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of IC AIR, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of GROUP B-200, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J. Prosser who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the President of COMMUNICATIONS SYSTEMS & SERVICES, INC. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
BE IT REMEMBERED, that on June 6,2006, before me, the undersigned subscriber, personally appeared JEFFREY J. PROSSER who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the person named in and who executed the within instrument and thereupon acknowledged that they signed sealed and delivered the same as their voluntary act and deed for the uses and purposes therein expressed.
SCHEDULE I
PROSSER ENTITIES
Innovative Communication Subsidiary Company, LLC (a U.S. Virgin Islands limited liability company)
Belize Telecom Ltd (a Belize limited liability company)
Vitelcom Cellular, Inc. (a U.S. Virgin Islands corporation)
St. Croix Cable TV, Inc. (a U.S. Virgin Islands corporation)
Caribbean Communications Corp. (a U.S. Virgin Islands corporation)
Innovative Long Distance, Inc. (a U.S. Virgin Islands corporation)
iCC TV, Inc. (a U.S. Virgin Islands corporation)
Daily News Publishing Co., Inc. (a U.S. Virgin Islands corporation)
ICUSC, Inc. (a U.S. Virgin Islands corporation)
Executive Security Services, Inc. (a U.S. Virgin Islands corporation)
World Satellite Guadeloupe S.A. (a French corporation)
Martinique TV Cable S.A. (a French corporation)
Martinique Cable Multimedia, SARL (a French limited liability company)
B.V.I. Cable T.V. Ltd. (a British Virgin Islands corporation)
Caribbean Teleview Services N.V. (a Netherlands Antilles corporation)
St Martin Mobiles S A. (a French corporation)
SMB Boatphone Holdings Limited (a British Virgin Islands corporation)
Mobarton Investment N.V. (a Netherlands Antilles corporation)
East Caribbean Cellular N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (St Maarten) N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (Bonaire) N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (Curacao) N.V. (a Netherlands Antilles corporation)
Todd International Ltd. (a British Virgin Islands international business corporation)
Zumbro Limited (a British Virgin Islands international business corporation)
Pinacle Limited (a British Virgin Islands international business corporation)
COMSYS International Ltd. (a British Virgin Islands international business corporation)
K.I. Management Ltd (a British Virgin Islands international business corporation)
KC International Inc. (a British Virgin Islands international business corporation)
TKH International Limited (a British Virgin Islands international business corporation)
Minion Corporation N.V. (a Netherlands Antilles corporation)
Valvision Telecommunications B.V. (a Dutch corporation)
Valvision SAS (Valvision) (a French corporation)
Amzak International Limited (a Bahamian company)
H.M. Beuk Beleggingen B.V. (a Dutch corporation)
Alta B.V. (a Dutch corporation)
ICC France S.A. (a French corporation)
Cable Evasion 86 S.A. (a French corporation)
Atlantic Aircraft, Inc. (a U.S. Virgin Islands corporation)
1C Air, Inc. (a Delaware corporation)
Group B-200, Inc. (a Puerto Rico corporation)
Communications Systems & Services, Inc. (a Florida corporation)
SCHEDULE II
LEGAL COUNSEL FOR THE GREENLIGHT ENTITIES
INCLUDED WITHIN RELEASED PARTIES
Matthew J. Duensing
Stryker, Duensing, Casner & Dollison
Upper Level Drake's Passage
P.O. Box 6785
St. Thomas, U.S. Virgin Islands 00804
Thomas J. Allingham II
Gregg M. Galardi
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
SCHEDULE III
ADDITIONAL NON-BANKRUPTCY PROCEEDINGS
A. Each of the following actions pending in the United States District Court of the Virgin Islands, Division of St. Thomas and St. John:
1. Cause No. 2006-cv-018; Virgin Islands Telephone Corporation v. Rural Telephone Finance Cooperative, National Rural Utilities Cooperative Finance Corporation, Greenlight Capital Qualified, LP., Greenlight Capital L.P., and Greenlight Capital Offshore, Ltd
2. Cause No. 2006-cv-034; Emerging Communications, Inc. and Innovative Communication Company, LLC v. Greenlight Capital Qualified, LP., Greenlight , Capital, LP., and Greenlight Capital Offshore, Ltd
B. In Re Emerging Communications, Inc. v. Greenlight, No. 42 cv-06 and 43 cv-06, pending in the Superior Court of the Virgin Islands.
C. Emerging Communications, Inc., Innovative Communication Corporation, Innovative Communication Company, LLC, and Jeffrey J. Prosser v. Greenlight Capital Qualified, LP., Greenlight Capital LP., and Greenlight Capital Offshore, Ltd, Case No. 2006CA000185, in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, General Jurisdiction Division.
National Rural Utilities Cooperative Finance Corporation; Rural Telephone Finance Cooperative;
Steven L. Lilly; John J. List; Sheldon C. Petersen; R. Wayne Stratton; Fulbright & Jaworski LLP;
Greenlight Capital, Inc.; Greenlight Capital LP; Greenlight Capital Qualified LP; Greenlight Capital Offshore Ltd. Plaintiffs
v.
Jeffrey Prosser; Dawn Prosser; Adrian Prosser; John Raynor Defendants
Adversary No. 09-52854-JKF
Related to Doc. No. 76, Plaintiff's Motion for Preliminary Injunction
Related to Doc. No. 34, Motion for Preliminary Injunction
Jeffrey Prosser, Dawn Prosser, Adrian Prosser, John Raynor
v.
National Rural Utilities Cooperative Association, Rural Telephone Finance Cooperative, National
Rural Electric Cooperative Association, Sheldon C. Petersen, John J. List, Steven L. Lilly,
R. Wayne Stratton, Greenlight Capital, Inc., Greenlight Capital Qualified, L.P.,
Greenlight Capital, L.P., Greenlight Capita Offshore, LTD., Fulbright & Jaworski LLP ,
Glenn L. English, Deloitte Touche USA LLP, Ernst & Young LLP
Adversary No. 10-50744-JKF
Related to Doc. No. 1, Complaint
ORDER GRANTING PRELIMINARY AND PERMANENT INJUNCTIONS
WITH RESPECT TO ALLEGATIONS IN ADVERSARY NO. 10- 50744
AND NOW, this 15thday of December, 2011, for the reasons expressed in the foregoing Memorandum Opinion it, is ORDERED, ADJUDGED and DECREED that Plaintiffs' Motions for Preliminary Injunction at Adv. Doc. Nos. 34 and 76 are GRANTED and Defendants are preliminarily enjoined from pursuing the action at Adv. No. 10-50744 and any and all claims, causes of action and actions asserted therein or which would violate the Prosser Releases of RTFC and Greenlight.
It is FURTHER ORDERED, ADJUDGED and DECREED that Defendants are permanently enjoined from pursuing the action at Adv. No. 10-50744 and any and all claims, causes of action and actions asserted therein or which would violate the Prosser Releases of RTFC and Greenlight. A separate order will be entered dismissing that adversary with prejudice.
_______________
Judith K. Fitzgerald
United States Bankruptcy Judge
Jeffrey Prosser, Dawn Prosser, Adrian Prosser, John Raynor
v.
National Rural Utilities Cooperative Association, Rural Telephone Finance Cooperative, National
Rural Electric Cooperative Association, Sheldon C. Petersen, John J. List, Steven L. Lilly,
R. Wayne Stratton, Greenlight Capital, Inc., Greenlight Capital Qualified, L.P.,
Greenlight Capital, L.P., Greenlight Capita Offshore, LTD., Fulbright & Jaworski LLP ,
Glenn L. English, Deloitte Touche USA LLP, Ernst & Young LLP
Related to Doc. No. 1, Complaint
ORDER DISMISSING ADVERSARY WITH PREJUDICE
AND NOW, this 15thday of December, 2011, for the reasons stated in the foregoing Memorandum Opinion, it is ORDERED, ADJUDGED and DECREED that the above captioned Adversary is dismissed with prejudice.
________________
Judith K. Fitzgerald
United States Bankruptcy Judge
Id. at 3.
The Prosser Parties' Release of RTFC defines "Prosser" as
1.12. "Prosser" means Jeffrey J. Prosser and all heirs, trustees, agents, successors, assigns, executors, and administrators, and his representative capacity as agent, employee, and/or shareholder of ICC, Vitelco, ICC LLC, and/or ECI, including, but not limited to, his capacity as the indirect beneficial owner, Chief Executive Officer, President, and Chairman of the Board of ICC, member [of] the Board of Vitelco, member and sole managing member of ICC LLC, and as guarantor of ICC owing to RTFC.Adv. Doc. No. 1 at Exhibit 3, at ¶ 1.12.
Id. The conduct complained of in the RICO matter relates to the subject matter of what was intended to be released - i.e., the litigation predating the filing of the bankruptcy petitions and the settlements which effected the resolution of those matters.
The Prosser Parties' Release of RTFC is similarly all-encompassing. It defines "All Claims" as referring:
to any and all claims, demands, damages (including, without limitation, all actual damages, consequential damages, statutory damages, punitive and exemplary damages, prejudgment and post-judgment interest, attorneys' fees and costs of court, and all other damages or losses recoverable now or at any later time under applicable law), actions of any character or type (including, but not limited to, class action or derivative lawsuits or proceedings, actions based on violations of local, state and/or federal statutes and regulations, malfeasance, non-feasance, fraud, intentional torts, malicious conduct, including, but not limited to relations, libel, slander, defamation, wrongful use of civil proceedings and abuse of process, breach of contract, bad faith, breach of fiduciary duty, lender liability, contribution, conspiracy, retaliatory conduct, or any combination thereof), and causes of action of whatever nature, in law or equity (including declaratory and injunctive relief), known or unknown, that the Releasing Parties have, or ever have had, or may in the future have, against the Released Parties related to, directly or indirectly, any and all of the facts, events, transactions, occurrences, course of dealings and/or disputes between the Releasing Parties and the Released Parties occurring prior to the date of this Release or occurring after the date of this Release but which involve the same facts, events, transactions, occurrences, course of dealings and/or disputes existing as of the date of this Release whether known or unknown arising out of the relationships or alleged relationships between or among the Releasing Parties and the Released Parties as member, cooperative, borrower, lender, patron, third-party beneficiary, investor, issuer of security or any other relationship, as well as any and all consequences thereof, each and all, even though one or more of those consequences are not specifically identified herein, other than, in any such case, the Excluded Claims (as hereinafter defined).Adv. Doc. No. 1, Exhibit 3, Prosser Parties' Release of RTFC at 3 - 4, ¶ 1.18.