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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) November 24, 1998
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PORTACOM WIRELESS, INC.
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(Exact name of registrant as specified in charter)
Delaware 0-23228 33-0650673
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(State or Other Juris- (Commission File Number) (IRS Employer Identi-
diction of Incorporation) fication No.)
10061 Talbert Avenue, Suite 200, Fountain Valley, California 92708
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(Address of principle executive offices) (Zip Code)
Registrant's telephone number, including area code 714-593-3234
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N/A
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(Former name or former address, if changed since last report.)
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Item 5. Other Events.
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On November 24, 1998, the Registrant entered into a Settlement Agreement
(the "Settlement Agreement") with VDC Communications, Inc. (successor to VDC
Corporation Ltd.) ("VDC") resolving the Registrant's disputes with VDC as
reported in the Registrant's Current Report on Form 8-K dated November 10, 1998.
Michael Richard, the Registrant's Acting Chief Executive Officer, is also a
party to the Settlement Agreement as Disbursing Agent. A copy of the Settlement
Agreement is attached as Exhibit 10.1 hereto.
Pursuant to the Settlement Agreement, VDC agreed to release the Registrant
from any claims, including but not limited to claims relating to VDC's fraud
allegations, arising from VDC's purchase in June 1998 of 2,000,000 shares of
common stock (the "MCC Shares") and warrants to purchase 4,000,000 shares of
common stock (the "MCC Warrants") of Metromedia China Corporation ("MCC") in
exchange for 5,300,000 shares of common stock of VDC and up to $700,000 in cash.
VDC also agreed (i) to assist the Registrant to secure the return of the shares
of VDC common stock owned by the Registrant which are pledged to MCC in
accordance with the Pledge Agreement in favor of MCC dated June 8, 1998; (ii) to
cause VDC counsel to deliver any legal opinions necessary for the resale of
shares of VDC common stock held by the Registrant and to cause VDC's transfer
agent to remove any restrictive legends from such share certificates; (iii) to
provide certain periodic disclosure to the Registrant; and (iv) to refrain from
seeking to recover any portion of funds previously escrowed that have been paid
or are payable to creditors of the Registrant.
In return for VDC's agreements and commitments outlined above, the
Registrant has agreed to escrow up to 2,000,000 shares of VDC common stock
currently held in the Registrant's name (the "Escrow Shares") for up to eighteen
months, with such Escrow Shares to be released to the Registrant for
distribution to the Registrant's creditors and/or shareholders upon the
satisfaction of any one of a number of conditions. These conditions relate to
(i) the per share price at which MCC conducts an initial public offering; (ii)
the per share price that VDC receives in any exchange of the MCC Shares; (iii)
in the event the MCC Warrants have expired, the market price of the MCC Shares;
(iv) the aggregate consideration received by VDC in any sale of the MCC Shares
and/or Warrants; (v) the valuation, as determined by an independent qualified
investment banker or appraiser, of MCC's businesses; (vi) the continued listing
of VDC common stock on a national exchange or on the NASDAQ National Market or
SmallCap Market; (vii) the per share market price of VDC's common stock; and
(viii) the gross and per share proceeds received by VDC in any public or private
offerings of its common stock.
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Item 7. Financial Statement, Pro Forma Financial Information and Exhibits.
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(c) Exhibits
No. Description
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10.1 Settlement Agreement, dated as of November 24, 1998, among VDC
Communications, Inc. (successor to VDC Corporation Ltd.), PortaCom
Wireless, Inc. and Michael Richard.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PORTACOM WIRELESS, INC.
(Registrant)
Date: December 3, 1998 By: /s/ Michael Richard
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Name: Michael Richard
Title: Acting Chief Executive Officer
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EXHIBIT INDEX
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No. Description
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10.1 Settlement Agreement, dated as of November 24, 1998, among VDC
Communications, Inc. (successor to VDC Corporation Ltd.), PortaCom
Wireless, Inc. and Michael Richard.
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EXHIBIT 10.1
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SETTLEMENT AGREEMENT
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This Settlement Agreement (the "Agreement") is entered as of this 24th day
of November, 1998, between VDC Communications, Inc. (successor to VDC
Corporation, Ltd.) ("VDC"), PortaCom Wireless, Inc. ("PortaCom") and Michael
Richards (the "Disbursing Agent"). VDC and PortaCom may sometimes be
collectively referred to herein as the "Settling Parties."
BACKGROUND
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A. On March 23, 1998 (the "Filing Date"), PortaCom filed a voluntary
petition for reorganization pursuant to Chapter 11 of Title 11 of the United
States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"), Case No. 98-661(PJW) (the
"Bankruptcy Case").
B. Prior to the commencement of the Bankruptcy Case, on September 30,
1997, VDC entered into an agreement with PortaCom to acquire PortaCom's interest
in Metromedia China Corporation ("MCC"), consisting of 2,000,000 shares of MCC
common stock ("MCC Shares") and warrants to purchase 4,000,000 shares of MCC
common stock with a strike price of $4.00 per share ("MCC Warrants"), in
consideration of VDC's issuance of 5.3 million shares of VDC common stock (the
"VDC Shares") and up to $700,000 in cash ("1997 Sale Agreement"). The 1997 Sale
Agreement was superseded by the Asset Purchase Agreement dated March 23, 1998
("Asset Purchase Agreement").
C. The Asset Purchase Agreement was subsequently amended by two
Stipulations and Orders in Lieu of Objection, dated as of April 3, 1998 and
April 23, 1998, respectively and by an
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Escrow Agreement ("Escrow Agreement"), which provided for an escrow account in
the amount of $2,682,000 funded by VDC (the "Escrowed Funds"), subject to
adjustment, for the holders of priority and general unsecured claims against
PortaCom.
D. Pursuant to the Bankruptcy Court's Order entered April 23, 1998, the
sale of the MCC Shares and MCC Warrants to VDC was approved pursuant to
Bankruptcy Code (S) 363.
E. On or about June 8, 1998, the sale of the MCC Shares and MCC Warrants
to VDC was consummated (the "Asset Sale").
F. On or about July 24, 1998, PortaCom filed an Amended Plan of
Reorganization as Modified ("Plan") and accompanying Disclosure Statement.
Attached to the Plan was a June 8, 1998 Memorandum of Understanding (the "MOU")
which further amended the Asset Purchase Agreement.
G. By Order dated September 17, 1998, this Court confirmed the Plan
("Confirmation Order"). The Plan was confirmed pursuant to Bankruptcy Code (S)
1129(a) and without objection.
H. Following the entry of the Confirmation Order, but prior to the time
that the Confirmation Order became final, VDC raised allegations that a fraud
may have been committed against it in connection with the execution of the 1997
Sale Agreement, the Asset Purchase Agreement and the Asset Sale. In connection
with such allegations, VDC filed a motion for reconsideration and for a stay of
the Confirmation Order (the "Reconsideration Motion").
I. On October 20, 1998, VDC, PortaCom and the Official Committee of
Unsecured Creditors of PortaCom Wireless, Inc. (the "Committee") entered into a
stipulation dated October 20, 1998 (the "October 20 Stipulation") pursuant to
which PortaCom agreed to defer distribution of a portion of the VDC Shares under
the Plan and VDC agreed to withdraw the Reconsideration Motion. The October 20
Stipulation was approved by the Bankruptcy Court on October 20, 1998. By
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operation of the October 20 Stipulation, the Confirmation Order became final and
unappealable.
J. Following the execution and approval of the October 20 Stipulation,
VDC restated its intention to pursue its allegations of fraud and to rescind, in
whole or in part, the Asset Sale.
K. In order to avoid the expenses and risks associated with litigating
the disputes which have arisen between VDC and PortaCom, the Settling Parties
wish to settle the disputes between them in full.
COVENANTS
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Settling Parties, intending to
be bound legally hereby, covenant and agree as follows:
1. Escrow Shares. (a) As soon as practicable after the execution of this
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Agreement, the Disbursing Agent shall segregate and hold separately certificates
representing shares of VDC common stock (the "Escrow Shares"), consisting of a
portion of the "First Series" and "Second Series" shares (as defined in the MOU)
not disbursed pursuant to the Plan to creditors of PortaCom holding Allowed
Claims in Classes 1, 2 or 5 (as defined in the Plan) ("Allowed Claimants"), for
release by the Disbursing Agent in accordance with the terms hereof. The "Third
Series" shares (as defined in the MOU) are pledged to MCC under the Pledge
Agreement dated June 8, 1998 (the "Pledge Agreement"). At such time as the
Third Series shares are returned to the Escrow Agent (as defined in the Plan) in
accordance with the Pledge Agreement, the Settling Parties shall direct the
Escrow Agent to deliver the Third Series shares to the Disbursing Agent and the
Disbursing Agent shall substitute 2,000,000 of the Third Series shares for the
First Series and Second Series shares
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deposited hereunder. Thereafter, such Third Series shares shall constitute the
Escrow Shares. If there are less than 2,000,000 Third Series shares available
for delivery to the Disbursing Agent, Second Series shares equal to the
shortfall shall be retained by the Disbursing Agent. All First Series and Second
Series shares originally deposited hereunder and exchanged for Third Series
shares shall be retained by the Disbursing Agent for disposition pursuant to the
Plan.
(b) Notwithstanding the foregoing subsection (a), the Settling Parties
agree that the Disbursing Agent may remove from the Escrow Shares such First
Series or Second Series shares as may be required to permit PortaCom to (i) fund
administrative expenses payable to Allowed Claimants under the Plan, (ii)
satisfy or reserve for post-confirmation operating expenses of PortaCom, and
(iii) fund the reserve for post-confirmation professional fees as provided in
Section 5.10 of the Plan.
2. Deliveries of Escrow Shares to PortaCom. The Disbursing Agent shall
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deliver all or a portion of the Escrow Shares (as described below) to PortaCom
at any time during the eighteen (18) months commencing November 1, 1998 (the
"Escrow Period") upon the satisfaction of any of the conditions set forth below.
Where less than all Escrow Shares are delivered, Escrow Shares of the Second
Series, if any, shall be delivered before Escrow Shares of the Third Series.
(a) All Escrow Shares shall be delivered if any of the following occurs
during the Escrow Period:
(i) MCC completes an initial public offering of shares of its
common stock (the "MCC Stock") at a public offering price
per share of $5.00 or more (adjusted for stock splits,
reverse splits or recapitalizations occurring after the
date hereof) and VDC's MCC Warrants, to the extent not
exercised, remain valid and exercisable or have been
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canceled or otherwise terminated with VDC's consent.
(ii) Following a merger, share exchange or other transaction in
which VDC obtains securities of another entity (the
"Successor") in exchange for shares of MCC Stock, (A)
either (i) any class of securities of the Successor
received by VDC in such transaction, or into which
securities received by VDC in such transaction are
convertible (the "Successor Securities") are registered
under the Securities Exchange Act of 1934 (the "1934 Act")
and have an average market price per share for the five (5)
trading days commencing with the trading date following the
closing date of such transaction such that the Successor
Securities received by VDC, or issuable upon conversion of
such Successor Securities as were received by VDC, in
exchange for a single share of MCC Stock (the "MCC Share
Equivalent") (after adjustment for stock splits, reverse
splits or recapitalizations occurring after the date
hereof) provides VDC with $5.00 or more of market value for
each of its MCC shares, or (ii) the Successor completes a
public offering of any class of Successor Securities at a
price of $5.00 or more for each MCC Share Equivalent (after
adjustment for stock splits, reverse splits or
recapitalizations occurring after the date hereof), (B)
VDC's MCC Warrants remain valid and exercisable by VDC or
have been exchanged for rights to acquire securities or
property of the Successor (the "Warrant Equivalents") and
(C) VDC's MCC Warrants or such
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rights, to the extent not exercised, remain valid and
exercisable or have been canceled or otherwise terminated
with VDC's consent. For purposes of this clause (ii),
"market price" shall be the closing price at which a share
of MCC Stock or an MCC Share Equivalent, as the case may
be, traded on the date in question, as quoted on the NASDAQ
National Market or Small Cap Market or on a national
securities exchange.
(iii) (A) If VDC's MCC Warrants have expired, the MCC Stock is
registered under the 1934 Act and the market price of one
share of MCC Stock is $15.00 or more on at least 30 trading
days during any 120 consecutive trading day period
following the date of registration thereof; or (B) the
Successor Securities are registered under the 1934 Act and
the market price of an MCC Share Equivalent is $15.00 or
more for at least 30 trading days during any 120
consecutive trading day period following the date of
registration thereof. For purposes of this clause (iii),
"market price" shall be the closing price at which a share
of MCC Stock or an MCC Share Equivalent, as the case may
be, traded on the date in question, as quoted on the NASDAQ
National Market or Small Cap Market or on a national
securities exchange.
(b) All or a portion of the Escrow Shares shall be delivered in the
event that, during the Escrow Period, VDC sells or otherwise disposes of the MCC
Shares, MCC Share Equivalents, MCC Warrants or MCC Warrant Equivalents in one or
more transactions and/or VDC
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receives distributions of cash or property from MCC with respect to the MCC
Shares (all amounts received by VDC are referred to collectively herein as
"Proceeds") as follows:
(i) 666,667 Escrow Shares if aggregate Proceeds are $21,000,000
or more;
(ii) 1,333,333 Escrow Shares if aggregate Proceeds are
$25,000,000 or more; and
(iii) 2,000,000 Escrow Shares if aggregate Proceeds are
$30,000,000 or more.
For purposes of calculating Proceeds, cash and cash equivalents shall be valued
at face, marketable securities shall be valued at the average closing price for
the five (5) trading days commencing with the date in question as quoted on the
NASDAQ National Market, the NASDAQ Small Cap Market or a national securities
exchange, and all other Proceeds shall be valued at fair market value as
determined by an independent qualified investment banker or appraiser
acceptable to both parties, whose determination shall be binding on the parties
absent manifest error.
(c) All or a portion of the Escrow Shares shall be delivered based on
the private equity valuation of MCC's businesses as of the end of the Escrow
Period, as follows:
(i) 666,667 Escrow Shares if VDC's portion of MCC's private
equity valuation is $38,000,000 or more;
(ii) 1,333,333 Escrow Shares if VDC's portion of MCC's private
equity valuation is $65,000,000 or more; and
(iii) 2,000,000 Escrow Shares if VDC's portion of MCC's private
equity valuation is $83,000,000 or more.
"Private equity valuation" shall be determined by an independent qualified
investment banker or
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appraiser acceptable to both parties, whose determination shall take into
account a number of relevant factors including without limitation MCC's
indebtedness and whose determination shall be binding on the parties absent
manifest error.
(d) All Escrow Shares shall be delivered immediately in the event
that:
(i) the market price (the closing price at which a share of VDC
common stock trades on the date in question, as quoted on
the NASDAQ National Market or Small Cap Market or on a
national securities exchange) of a share of VDC's common
stock (the "VDC Stock") is less than $5.00 on any 40
trading days during the 120 consecutive trading days
subsequent to August 31, 1999;
(ii) the VDC Stock is no longer traded or quoted on a national
exchange or the NASDAQ National Market or Small Cap Market
(unless as the result of VDC's acquisition by a successor
and receipt by its shareholders of securities which are and
remain traded on a national exchange or the NASDAQ National
Market or Small Cap Market or VDC is acquired for
consideration per share of $5.00 or more in cash or
property); or
(iii) VDC receives more than $2,500,000 in gross proceeds from
one or more public or private offerings of VDC Stock or
securities convertible into shares of VDC Stock at an
aggregate average price per share of VDC Stock (or such
amount of other securities as is convertible into a share
of VDC Stock) of $2.625 or less, or VDC issues shares of
VDC Stock or securities convertible into shares of
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VDC Stock having a fair market value (determined in the
same manner as Proceeds are valued in subsection (b) above)
in excess of $2,500,000 and at an average fair market value
per share of VDC Stock (or such amount of other securities
as are convertible into shares of VDC Stock) of $2.625 or
less.
3. Delivery of Escrow Shares to VDC. All Escrow Shares not delivered or
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deliverable to PortaCom as of the end of the Escrow Period under Section 2 above
shall be delivered by the Disbursing Agent to VDC for cancellation.
4. The Release by VDC of PortaCom. For and in consideration of the
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agreements and other mutual covenants set forth in this Agreement, VDC and all
of its parent corporations, subsidiaries, affiliates, officers, directors,
shareholders, agents, attorneys, representatives, predecessors, successors and
assigns, do hereby fully and forever remise, release, acquit and forever
discharge PortaCom and its parent corporations, subsidiaries, affiliates,
predecessors, successors, assigns, and all of its present and former officers,
directors, shareholders, employees, agents, representatives, attorneys,
insurers, and all of the foregoing's present and former officers, directors,
partners, principals, employees, shareholders, trustees, attorneys, insurers,
and their respective spouses, successors, heirs, executors, estates,
administrators, representatives, attorneys and agents, from and against all
claims, causes of action, demands, or suits of any kind, known or unknown,
arising out of or related in any way to the Asset Sale, the 1997 Sale Agreement,
the Asset Purchase Agreement, the Plan, the disclosure statement relating to the
Plan, the MCC Shares and MCC Warrants, the VDC Shares or the Escrowed Funds that
were or could have been asserted by VDC from the beginning of time through the
date of execution of this Agreement. Nothing contained in the foregoing release
shall operate to discharge any party of its obligations under this Agreement,
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the Plan, the Asset Purchase Agreement, the MOU, the Escrow Agreement or the
October 20 Stipulation.
5. The Release by PortaCom of VDC. For and in consideration of the
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agreements and other mutual covenants set forth in this Agreement, PortaCom and
all of its parent corporations, subsidiaries, affiliates, officers, directors,
shareholders, agents, attorneys, representatives, predecessors, successors and
assigns, do hereby fully and forever remise, release, acquit and forever
discharge VDC and its parent corporations, subsidiaries, affiliates,
predecessors, successors, assigns, and all of its present and former officers,
directors, shareholders, employees, agents, representatives, attorneys,
insurers, and all of the foregoing's present and former officers, directors,
partners, principals, employees, shareholders, trustees, attorneys, insurers,
and their respective spouses, successors, heirs, executors, estates,
administrators, representatives, attorneys and agents, from and against all
claims, causes of action, demands, or suits of any kind, known or unknown,
arising out of or related in any way to the Asset Sale, the 1997 Sale Agreement,
the Asset Purchase Agreement, the Plan, the disclosure statement relating to the
Plan, the MCC Shares and MCC Warrants, the VDC Shares or the Escrowed Funds
that were or could have been asserted by PortaCom from the beginning of time
through the date of execution of this Agreement. Nothing contained in the
foregoing release shall operate to discharge any party of its obligations under
this Agreement, the Plan, the Asset Purchase Agreement, the MOU, the Escrow
Agreement or the October 20 Stipulation.
6. Scope of the Releases. The foregoing releases are made based upon the
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Settling Parties' full and complete investigation of their respective rights and
potential claims against the other party to this Agreement. The Settling
Parties assume responsibility for any injury, damages or loss which may
hereafter arise with respect to the matters covered by such releases, except as
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specifically set forth above, although unknown or unanticipated at the time of
the execution of this Agreement. The foregoing releases shall not impair or
affect the Settling Parties' respective, prospective rights and/or performance
obligations under the Plan, Asset Purchase Agreement, the MOU, the Escrow
Agreement, the October 20 Stipulation or this Agreement.
7. Escrowed Funds. VDC shall not seek to compel PortaCom to disgorge or
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otherwise seek to recover from PortaCom, the Escrow Agent, the Disbursing Agent
or Allowed Claimants any portion of the Escrowed Funds that have been paid or
are payable to Allowed Claimants.
8. Parties to Bear Own Expenses. The Settling Parties agree to bear
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their own expenses, including attorney fees, in connection with the negotiation
and settlement of the disputes between them, including the execution of this
Agreement and all related matters, except as otherwise agreed in writing.
9. Future Challenge to this Agreement. If either VDC or PortaCom (the
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"Filing Party") commences a legal action, proceeding, adversary proceeding
against the other party hereto (the "Responding Party"), either challenging the
enforceability of this Agreement or claiming a breach of the terms of this
Agreement, the party which prevails in such a legal action, proceeding or
adversary proceeding shall be entitled to be reimbursed by the other party
hereto for all of its expenses and costs incurred in connection with such legal
action, proceeding or adversary proceeding, including, but not limited to,
attorneys' fees, accounting fees, investment banker fees, other professional
fees, disbursements, costs, and/or costs of suit. The Settling Parties covenant
and agree not to challenge the enforceability of this Agreement or claim a
breach hereof unless there exists a reasonable basis in law and fact to do so.
In the event that the claims raised by the Filing Party are determined by a
court of competent jurisdiction to be without reasonable basis in law or fact,
the covenant in the preceding sentence shall be breached and the Filing Party
shall pay to the
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Responding Party liquidated damages in an amount determined by the following
formula: the value of the shares of VDC common stock (including treasury stock)
held by the Responding Party on the date that the Filing Party commences a legal
action against the Responding Party subtracted by the value of the shares of VDC
common stock held by the Responding Party on the date that the court determines
that the legal action has no reasonable basis in law or fact. The Settling
Parties acknowledge that calculating the damages caused by a breach of the
covenants in this Section would be difficult to estimate accurately and that the
foregoing formula is a reasonable approximation thereof and is intended as a
fair allocation and liquidation of damages and not as a penalty against the
Filing Party. The liquidated damages provided for in this Section shall be the
exclusive remedy available to the Responding Party to compensate it for the harm
caused by the Filing Party for breaching the covenants contained in this
Section.
10. Covenants of VDC. VDC hereby covenants and agrees that it shall:
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(a) In order to permit PortaCom to fund administration expenses
payable to Class 1 Allowed Claimants under the Plan: (x) cause its counsel to
deliver legal opinions acceptable to such counsel as may be reasonably requested
by PortaCom in connection with the resale of shares of VDC common stock by
PortaCom and (y) to the extent permitted under applicable federal and state
securities laws, provide to PortaCom upon reasonable request copies of reports
filed by VDC with the Securities and Exchange Commission and other publicly
available information concerning VDC. It is expressly understood by the parties
hereto that this paragraph shall not impose any obligation on VDC to act as a
purchaser or broker in relation to the resale of the shares of VDC common stock.
(b) Use reasonable efforts (exclusive of initiating litigation) to
assist PortaCom in obtaining the return of the Third Series shares pledged to
MCC under the Pledge Agreement to
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secure PortaCom's contingent contractual indemnification obligations under the
Termination Agreement dated September 11, 1996 by and among PortaCom, MCC, and
Max E. Bobbit (the "Termination Agreement") upon the earliest occurrence of
several Release Conditions (as defined in the Pledge Agreement).
(c) On or shortly after March 17, 1999, issue to the transfer agent
for VDC's common stock instructions to remove from certificates evidencing
shares of the "Second Series" all restrictive legends.
11. General Representations and Warranties. Each party represents and
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warrants to the others as follows:
(a) Power and Authorization. It has all requisite power and authority
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(corporate and otherwise) to enter into this Agreement, and has duly authorized
by all necessary action (including without limitation by its board of directors)
the execution and delivery hereof by the officer or individual whose name is
signed on its behalf below.
(b) No Conflict. Its execution and delivery of this Agreement and the
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performance of its obligations hereunder, do not and will not conflict with or
result in a breach of or a default under its organizational instruments or any
other agreement, instrument, order, law or regulation applicable to it or by
which it may be bound.
(c) Enforceability. This Agreement has been duly and validly executed
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and delivered by it and constitutes its valid and legally binding obligation,
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency or other laws of general application relating to or
affecting the enforcement of creditors' rights and except as enforcement is
subject to general equitable principles.
12. Further Actions. The parties agree to execute such additional
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documents and to
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perform all such other and further acts as may be reasonably necessary or
desirable to carry out the purposes and intents of this Agreement, at the cost
of the requesting party.
13. Notices. All notices, requests, instructions, consents and other
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communications to be given pursuant to this Agreement shall be in writing and
shall be deemed received (i) on the same day if delivered in person, by same-day
courier or by telegraph, telex or facsimile transmission (provided that
telegraph, telex or facsimile notice shall be deemed received on the next
business day if received after 5:00 p.m. local time), (ii) on the next day if
delivered by overnight mail or courier, or (iii) on the date indicated on the
return receipt, or if there is no such receipt, on the third calendar day
(excluding Sundays) if delivered by certified or registered mail, postage
prepaid, to the party for whom intended to the following addresses:
If to PortaCom:
Michael Richard
PortaCom Wireless, Inc.
10061 Talbert Avenue, Suite 200
Fountain Valley, CA 92708
Fax: 714-593-3264
and
Mr. Steven Rosner
c/o SLD Capital Corporation
One Belmont Avenue,
Ste. 417
Bala Cynwyd, PA 19004
Fax: 610-660-5905
With a copy to:
Michael C. Forman, Esquire
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
1401 Walnut Street
Philadelphia, PA 19102
Fax: 215-568-6603
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If to VDC:
Frederick A. Moran, CEO
VDC Communications, Inc.
75 Holly Hill Lane
Greenwich, CT 06830
Fax: 203-552-0908
With copies to:
Stuart Brown, Esquire
Buchanan, Ingersoll, P.C.
Eleven Penn Center
1835 Market Street, 14th Floor
Philadelphia, PA 19103
Fax: 215-665-8760
Louis Frost, Esquire
VDC Communications, Inc.
75 Holly Hill Road
Greenwich, CT 06830
Fax: 203-552-0908
Each party may by written notice given to the other in accordance with this
Agreement change the address to which notices to such party are to be delivered.
14. Entire Agreement. This Agreement contains the entire understanding of
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the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, whether written or oral, between them with
respect to the subject matter hereof. Each party has executed this Agreement
without reliance upon any promise, representation or warranty other than those
expressly set forth herein and neither party shall be bound by or liable for any
alleged representation, promise, inducement or statement of intention not so set
forth. Each party acknowledges that (i) it has carefully read this Agreement,
(ii) it has had the assistance of legal counsel of its choosing (and such other
professionals and advisors as it has deemed necessary) in the review and
execution hereof, (iii) the meaning and effect of the various terms and
provision hereof
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have been fully explained to it by such counsel, (iv) it has conducted such
investigation, review and analysis as it has deemed necessary to understand the
provisions of this Agreement and the transactions contemplated hereby, and (v)
it has executed this Agreement of its own free will.
15. Amendment. No amendment of this Agreement shall be effective unless
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embodied in a written instrument executed by all of the parties.
16. Waiver of Breach. The failure of any party hereto at any time to
----------------
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor in any way to affect the validity of
this Agreement or any provisions hereof or the right of any party hereto to
thereafter enforce each and every provision of this Agreement. No waiver of any
breach of any of the provisions of this Agreement shall be effective unless set
forth in a written instrument executed by the party against whom or which
enforcement of such waiver is sought; and no waiver of any such breach shall be
construed or deemed to be a waiver of any other or subsequent breach.
17. Assignability. This Agreement shall be binding on and inure to the
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benefit of the parties hereto and their respective heirs, representatives,
successors and assigns; provided, however, except as otherwise expressly
--------
permitted hereunder, no party hereto may assign this Agreement or any rights
hereunder to any person or entity without the prior written consent of the other
parties, and any attempted assignment without such consent shall be void.
18. Governing Law; Jurisdiction. This Agreement shall be governed by and
---------------------------
construed in accordance with the internal substantive and procedural laws of the
Commonwealth of Pennsylvania without regard to conflict of laws principles. The
parties consent to the personal jurisdiction and venue of the Court of Common
Pleas of Philadelphia County (Pennsylvania) and the United States District Court
for the Eastern District of Pennsylvania and further consent that any
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process, notice of motion or other application to either such court or a judge
thereof may be served outside the Commonwealth of Pennsylvania by registered or
certified mail or by personal service in compliance with Section 13 hereof,
provided that a reasonable time for appearance and in any event not less than 72
hours after receipt of service, is allowed.
19. Duties Ministerial. The duties of the Disbursing Agent are entirely
------------------
ministerial and not discretionary. The Disbursing Agent may rely upon any order
of court, not only as to its due execution, validity and effectiveness, but also
as to the truth and accuracy of any information contained therein, which the
Disbursing Agent shall in good faith believe to be genuine, to have been entered
of record.
20. Release of, and Covenant not to Sue, Disbursing Agent. In
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consideration for the Disbursing Agent's agreement to perform its duties under
this Agreement, the Settling Parties, and their respective shareholders,
partners, officers, employees, agents, successors and assigns, jointly and
severally, hereby waive any suit, claim, demand or cause of action of any kind
which any of them may have or may assert against the Disbursing Agent arising
out of or relating to the execution or performance by the Disbursing Agent of
its duties under this Agreement, unless such suit, claim or demand or cause of
action arises from the gross negligence or willfulness of the Disbursing Agent.
The Settling Parties, jointly and severally, hereby irrevocably covenant not to
sue or commence or join in any proceedings, whether legal, equitable or
otherwise against the Disbursing Agent on account of any act or omission to act
on the part of the Disbursing Agent, unless such action or omission was willful
or grossly negligent. Further, to induce the Disbursing Agent to act hereunder,
the parties hereto agree to indemnify, defend and hold the Disbursing Agent
harmless from any liability incurred by any action taken or omission by the
Disbursing Agent, except for gross negligence or willful acts, including, but
not limited to its reasonable attorneys' fees and costs in
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connection therewith.
21. Headings. The headings of sections and subsections have been included
--------
for convenience only and shall not be considered in interpreting this Agreement.
22. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same Agreement. This Agreement may be
executed and delivered via electronic facsimile transmission with the same force
and effect as if it were executed and delivered by the parties simultaneously in
the presence of one another.
23. Interpretation and Construction. This Agreement has been fully and
-------------------------------
freely negotiated by the parties hereto, shall be considered as having been
drafted jointly by the parties hereto, and shall be interpreted and construed as
if so drafted, without construction in favor of or against any party on account
of its participation in the drafting hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date first written above.
PORTACOM WIRELESS, INC.
Attest: By: /s/ Michael Richard
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Its: Chief Executive Officer
VDC COMMUNICATIONS, INC.
Attest: By: /s/ Fred Moran
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Its: Chairman and Chief Executive Officer
Witness:
/s/ Michael Richard
- ---------------------------------- -----------------------------------------
Michael Richards
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