JUDITH K. FITZGERALD, Bankruptcy Judge.
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)
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)
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.
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.
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.
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
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 (Bankr. D.V.I.2008); 2008 WL 2275397, (D.Vi., May 30, 2008). The VI District Court
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., 666 F.3d 87, 89-90 (3d Cir.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
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.
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:
In re Innovative Communications, 390 B.R. 184, 189 (Bankr.V.I.2008).
The Prosser Parties contend that their RICO allegations reflect "new events"
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.
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
Adv. Doc. No. 76, Attachment 1, at 26-27. With respect to alleged securities laws violations, note the following:
Attached hereto is Exhibit I to the Motion for Preliminary Injunction, Adv. Doc. No. 76, which is a chart
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., 666 F.3d 87, 89-90 (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.
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 III(D).
RICO Claims Dismissed Claims
• "CFC maintains absolute control over the operations of RTFC..." (¶ 26) • "CFC totally controls and manipulates the RTFC..." Am. Compl., Case No. 2005-168,
¶ 5; see also id. ¶¶ 7-9.
• "CFC uses RTFC as a `puppet' corporation . . . " Prosser et al., 2009 WL 102213,
at *2 (D.D.C. Jan. 14, 2009).
• "CFC uses its inordinate control over RTFC to sweep the majority of RTFC's profits into • CFC "redirects RTFC's profits from loans made to the telecommunications sector
CFC through inter-coop loans and other contractual arrangements . . . and then, CFC to subsidize its electric sector members and to `cover up losses' on electric sector
embezzles funds legally belonging to RTFC and the RTFC Telephone members by loans." Prosser et al., 2009 WL 102213, at *2 (D.D.C. Jan. 14, 2009).
allocating patronage income that belongs to RTFC's Telephone members to CFC's
Electric members . . . ." (¶ 28) • "In late 2002, when certain payments due from RTFC to ICC were "short", ICC's
investigation revealed that the RTFC and its management were misappropriating
funds that should have been distributed to its members by allocating and
distributing those funds to the CFC to 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.
• "CFC's unlawful systematic defalcation of RTFC and those RTFC Telephone members • "Unbeknownst to ICC, and upon information and belief, RTFC and CFC engaged
subject to income taxes companies unlawfully defeats the income taxes payable by those in a scheme to make loans which were in violation of RTFC and CFC's tax status
said Telephone members: this is the commission of tax evasion by CFC pursuant IRC § in the U.S, and have failed to pay taxes as necessary in the Virgin Islands. Part of
7201. . . . CFC bylaws were submitted to and approved by IRS as part of its application the reason for RTFC's attacks on ICC and Vitelco are to stop ICC's investigations
for tax exempt status. By operating in a manner inconsistent with coop principles as well and further investigation of these schemes." Prosser Countercl., Case No. 2004-132,
as CFC's bylaws, CFC is operating in contravention of its tax exemption." (77> 55-56) ¶ 45.
• "Unbeknownst to ECC, and upon information and belief, RTFC and CFC engaged
in a scheme to make loans to ICC and Vitelco which were in violation of RTFC
and CFC's tax free status in the US, and have failed to pay taxes as necessary in
the Virgin Islands. Part 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 defalcation of RTFC and the RTFC Telephone • "CFC and RTFC manipulated their financial statements for the benefit of CFC,
members is augmented by a pervasive and extensive pattern of accounting fraud to including the consolidation of CFC's and RTFC's financial statements to mask the
conceal or disguise the nature, the location, the source, the ownership, or the control of fad that CFC operated at a loss while RTFC operated at a substantial and
the proceeds of specified unlawful activity." (¶ 60) "Combining CFC and RTFC Financial increasing profit. In remarkably brazen fashion, in its first quarterly SEC filing after
Statements is a material departure from GAAP ("Generally Accepted Accounting receipt of a letter from ICC's subsidiary, Vitelco, CFC unjustifiably and improperly
Standards") making the Combined Financial Statements materially misleading as well as changed its segment reporting without sufficient explanation, falsely creating the
making the financial information materially inaccurate." (¶ 67) appearance that it was CFC, and not the RTFC, that operated profitably." Am.
Compl., Case No. 2005-168, ¶ 13.
• "Twice the Plaintiffs raised the systematic defalcation of RTFC by CFC and twice, CFC • "Consequently, in response to ICC's and Mr. Prossers complaints about the
caused RTFC to breach its fiduciary duty and used RTFC's status as the primary lender RTFC and its management misappropriating its assets for CFC's benefit, and in
to quash inquiries regarding membership issues: the allocation of patronage income. . . . response to ICC's efforts to pressure the RTFC to come to terms on these
In early 2003 the patronage allocation issue was raised and by March of 2003 CFC matters, the RTFC and certain officers decided to retaliate through litigation, filing
caused RTFC to instigate a foreclosure proceeding . . . . In late May of 2004, Plaintiff Jeff a complaint on March 13, 2003 alleging that ICC and Vitelco had defaulted on
Prosser threatened a derivative action against RTFC and within a week, on June 1, 2004, their loan obligations. . . . RTFC continued its retaliatory scheme to punish ICC
RTFC instigated a foreclosure proceeding . . . ." (¶¶ 140-41) and its Chairman for raising these issues. . . . That scheme culminated in a
malicious prosecution of baseless claims filed in 2004 . . . ." Am. Compl., Case
No. 2005-168, ¶¶ 11, 14.
• "Without the knowledge or consent of ICC, [RTFC's assistant general counsel Frank] " "Further, the RTFC has (1) admitted to substituting pages in the Loan Agreement Vaughan removed the signature pages from both originals of the Authentic 2001 Loan by and between ICC and the RTFC, (2) admitted to destroying the originals after Agreement and attached them to a different version of the agreement, the False 2001 doing so, and (3) acknowledged that it cannot produce a Loan Agreement Loan Agreement." (¶ 159) executed by all parties." Am. Compl., Case No. 2006-018, ¶ 10. • "CFC knew that the ICC defaults were contrived for purposes of retaliation for discovery • "In order to thwart the Greenlight Settlement negotiations, the RTFC filed a of the systematic defalcation of RTFC. . The remaining 10 defaults based upon the foreclosure action in Virginia alleging a default in the loan agreements based on False 2001 Loan Agreement are void as a matter of law because of the terms and the Vitelco preferred stock offering, even though the RTFC knew that it could not conditions of a April 19, 1998 Agreement with the Virgin Islands Public Services call a default based upon Vitelco's independent financing efforts because of the Commission (the "VI Commission") to which RTFC was a party (hereinafter the "1989 Tri-Party 1989 PSC Settlement Agreement." Prosser Countercl., Case No. 2004-132, ¶ 31. Agreement"). ICC's loan defaults are void because they violate the 1989 agreement between RTFC, ICC, and the V.I. Public Service Comm'n." (¶ 165) • "ICC made it clear that the three alleged defaults were all barred by the same 1989 Settlement Agreement entered into between the RTFC, ICC and the Virgin Islands Public Service Commission ("PSC") that had been discussed in detail between the parties in relation to the RUS refinancing just months earlier." Am. Compl., Case No. 2005-168, ¶ 28. • "The lntercreditor Agreement is a `joint venture' between RTFC and Greenlight which " "Because the CFC and the RTFC have been unable to lawfully obtain control of pursues CFC's retaliatory objectives through RTFC, i.e., separate ICC from the Prossers; ICC and Vitelco through the RTFC's foreclosure action against ICC, they decided discharge Jeff Prosser and management loyal to Jeff Prosser; and strip the Prossers of to frustrate efforts by ICC's parent companies to defend the Greenlight litigation all assets and the ability to seek recompense." (¶ 193) by refusing to provide a corrective affidavit of critical false testimony given by one of CFC1s employees, Robin Reed, in that case. The CFC then had the RTFC negotiate with Greenlight and enter into an agreement with Greenlight (the "Takeover Agreement"), the purpose of which is to gain control of ICC and Vitelco outside of the litigation pending in this Court. . . As neither 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. • "The June 2004 Foreclosure, itself a retaliatory action, coupled with a pattern of • "ICC discovered CFC's use of RTFC's profits and threatened to bring a `derivative retaliatory and extortionary acts eventually resulted in the a taking of ICC from the suit' against RTFC. In retaliation, RTFC foreclosed on an ICC loan." Prosser et Prossers and the wrongful discharge of Jeff Prosser and others loyal to Jeff Prosser. . . . al., 2009 WL 102213, at *2 (D.D.C. Jan. 14, 2009). The foreclosure was without justification (neither the Authenticate nor False 2001 Loan Agreement support the foreclosure) and was instigated by CFC through RTFC to conceal • "Said proceedings were maliciously commenced without probable cause and were CFC's racketeering activities: the systematic defalcation of RTFC by CFC, a money made for a purpose other than that of securing the proper adjudication of the laundering scheme, which routinely and regularly required the commission of mail and claim, as said actions were pursued as an attempt to sever and remove ICC's wire fraud." (¶¶ 143, 200(a)) current management, including Prosser, from running the company. Said proceedings were in retaliation for plaintiffs whistle blowing efforts and its exposing the fact that the RTFC is being used by CFC to subsidize its operations to the detriment of the RTFC members." Am. Compl., Case No. 2005-168, ¶¶ 43, 50, 57, 64, 71, 78, 85, 92, 99, 106, 113, 120, 127, 134, 141, 148. • "RTFC knows that its misstatements and misrepresentations have gone far beyond the mere conveyance of information regarding topics connected with RTFC's dispute with ICC, and 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. • "Violations of 18 U.S.C. § 1512(c), a Predicate Act, related to the use of the False 2001 • "CFC altered the Authentic 2001 Loan Agreement and destroy the authenticate Loan Agreement are as follows . . . The destruction of the Authenticate 2001 Loan [sic] 2001 Loan Agreement. This statement is supported by the deposition of Agreement. . . ." (¶ 200(b)) Frank Vaughan, associate General Counsel of CFC serving as RTFC's internal counsel . . . ." Mem. Opp'n to USDA's Mot. Dismiss, Case No. 2008-687, at 6. • "Further, the RTFC has (1) admitted 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. • "CFC, acting through RTFC, engaged in numerous Retaliatory and Extortionary Acts • "As a result of these serious allegations against the RTFC, the RTFC and its before the advent of the Intercreditor Agreement. In a September 2004 meeting held in officers and directors, including Sheldon Petersen, Steven Lilly and John J. List, Chicago CFC, acting through RTFC, and represented by Defendants Lilly and Lists, as decided that the RTFC needed to discredit ICC and Mr. Prosser and eliminate him well as their then outside counsel, acknowledged to Plaintiff Raynor of RTFC's extortion and his respective companies, ICC and Vitelco, as members of the RTFC, to plan to cut-off all direct and indirect sources of financing to ICC to cause the capitulation avoid the information being circulated by ICC and Prosser to other RTFC of Jeff Prosser forcing him into a pre-packaged bankruptcy." (¶ 200(c)) members as well as to CFC's rating agencies. . . . ICC will prove that the RTFC maliciously filed those 16 claimed defaults, knowing fully well that they were baseless, and organized and deployed a concerted campaign of issuing false statements to the PSC and to industry media and local newspapers to ruin ICC and to wrest control of ICC from Mr. Prosser." Am. Compl., Case No. 2005-168, ¶¶ 10, 17.
• "i. Using the bogus 31 defaults, RTFC met with the Virgin Islands Public Services • "Immediately after filing this amended complaint, RTFC used these 31 defaults in Commission ("VIPSC"), Vitelco's regulator, to proclaim the 31 defaults in order to its campaign before the PSC, Wall Street, and the press to sully ICC's credibility tortiously interfere in ICC's relationship with the VIPSC. ii. Using the bogus 31 defaults, by claiming that ICC was an irresponsible borrower." Prosser Countercl., Case RTFC on or about September 10, 2004, publicly declared that RTFC would own ICC by No. 2004-132, ¶ 33. January of 2005. iii. RTFC approached the unions in the Virgin Islands (tortiously interfered with ICC's relationship) to enlist their aid in RTFC's retaliatory campaign • "The assertion of "31 defaults" was initially made three times by RTFC's counsel against Mr. Prosser. iv. Using the bogus 31 defaults, RTFC caused a derogatory article to the PSC at its Board Meeting of September 10, 2004, which were then to be published on October 4, 2004, by "Telephony.online". v. Using the bogus 31 repeated numerous times to the media (including Forbes Magazine), trade defaults, RTFC caused a derogatory article to be published on November 1, 2004, by journals (including Telephony), the PSC and in court pleadings. This was a Forbes." (¶ 200(d)) 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., Case No. 2005-168, ¶ 35. • "During this time period, CFC instructed its employees and attorneys to make certain that contact was made with Vitelco's regulatory agency, the Public Service Commission ("PSC"), to disclose these alleged defaults and to tell the PSC that the RTFC intended to take control of Vitelco, which was done in public and private meetings." Am. Compl., Case No. 2006-018, ¶ 42. • "Also at the September 10 meeting, Steven Lilly, on behalf of RTFC, approached three employees of Vitelco. He told them that "RTFC ha[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 form a Joint Venture by execution of the lntercreditor • "The RTFC and Greenlight have entered into a joint venture to take over ICC and Agreement dated October 24, 2005 to pursue CFC's and RTFC's retaliatory and Vitelco pursuant to an agreement as more fully described herein." Am. Compl., extortionary agenda rather than pursue its previous agenda to maximize the Enterprise Case No. 2006-018, ¶ 8. Value of ICC." (¶ 200(e)(i)) • "RTFC and Greenlight manipulated the circumstances around correcting a transcription • "For more than a year after the Delaware decision, Greenlight delayed reducing error wrongly relied upon by Delaware Chancery so that the correcting affidavit arrived its unsecured claim to a judgment because its claim was completely subordinate after the January 9, 2006 judgment against EmCom, ICC-LLC and Jeff Prosser (but not to the secured liens of the RTFC against Vitelco's stock, during which time the against New ICC) was granted on January 9, 2006." (¶ 200(e)(iv)) defendants in the Greenlight case had been trying to get a corrective affidavit on Reed's testimony. That affidavit was supplied so that it would arrive immediately after the judgment was entered." Am. Compl., Case No. 2006-018, ¶ 13. • "Greenlight wrongly sought to obtain a Delaware judgment against New ICC, an entity not • "Greenlight began recording its judgments in various locations, including the sued in the combined actions in the Emerging Communication Shareholder Litigation. . . . states of New York and Florida as well as in the U.S. Virgin Islands under the Greenlight intentionally recorded the Delaware January 9, 2006 Judgment against New UEFJA. However, Greenlight recorded its judgment against the present ICC at its ICC on or about January 17, 2006 in the U.S. Virgin Islands and Florida knowing that their present address (a completely different company than the dissolved ICC-Old Judgment against New ICC had not been granted." (¶ 200(e)) against which judgment was given — which was never at the address stated (sic)) when in fact it has no judgment against the existing ICC. Despite being requested to release the judgment as to ICC, to date Greenlight has not done so." Am. Compl., Case No. 2006-018, ¶ 17.
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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:
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.
4.1 The Releasing Parties enter into this Release for good and valuable consideration, the receipt of and sufficiency of which is hereby acknowledged.
5.1 The Releasing Parties represent and warrant:
6.1 The Releasing Parties hereby represent and warrant that they have read this Release and they expressly acknowledge:
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.
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
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
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.
1.
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 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 "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
(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,
(c) All representations made herein by the Releasors shall survive the execution and delivery hereof.
(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.
7.
8.
9.
The parties understand and acknowledge that the foregoing release:
10.
11.
12.
INNOVATIVE COMMUNICATION CORPORATION
INNOVATIVE COMMUNICATION CORPORATION, a United States Virgin Islands corporation that was dissolved in December, 1998
VIRGIN ISLANDS TELEPHONE CORPORATION d/b/a INNOVATIVE TELEPHONE
INNOVATIVE COMMUNICATION COMPANY, LLC
EMERGING COMMUNICATIONS INC.
INNOVATIVE COMMUNICATION CORPORATION, a United States Virgin Islands corporation that was dissolved in December, 1998
VIRGIN ISLANDS TELEPHONE CORPORATION d/b/a INNOVATIVE TELEPHONE
INNOVATIVE COMMUNICATION COMPANY, LLC
EMERGING COMMUNICATIONS INC.
INNOVATIVE COMMUNICATION SUBSIDIARY COMPANY, LLC
BELIZE TELECOM LTD
VITELCOM CELLULAR, INC.
ST. CROIX CABLE TV, INC.
CARIBBEAN COMMUNICATIONS CORP.
INNOVATIVE LONG DISTANCE, INC.
ICC TV, INC.
DAILY NEWS PUBLISHING CO., INC.
ICUSC, INC.
EXECUTIVE SECURITY SERVICES, INC.
MARTINIQUE TV CABLE S.A.
MARTINIQUE CABLE MULTIMEDIA, SARL
B.V.I. CABLE T.V. LTD.
CARIBBEAN TELEVIEW SERVICES N.V.
ST. MARTIN MOBILES S.A.
SMB BOATPHONE HOLDINGS LIMIED
MOBARTON INVESTMENT N.V.
EAST CARIBBEAN CELLULAR N.V.
EAST CARIBBEAN COMMUNICTIONS (ST. MAARTEN) N.V.
EAST CARIBBEAN COMMUNICTIONS (BONAIRE) N.V.
EAST CARIBBEAN COMMUNICTIONS (CURACAO) N.V.
TODD INTERNATIONAL LTD.
ZUMBRO LIMITED
PINACLE LIMITED
COMSYS INTERNATIONAL LTD.
K.I. MANAGEMENT LTD.
KC INTERNATIONAL INC.
TKH INTERNATIONAL LIMITED
MINION CORPORATION N.V.
VALVISION TELECOMMUNICTIONS B.V.
VALVISION SAS (VALVISION)
AMZAK INTERNATIONAL LIMITED
H.M. BEUK BELEGGINGEN B.V.
ALTA B.V.
ICC FRANCE S.A.
CABLE EVASION 86 S.A.
ATLANTIC AIRCRAFT, INC.
IC AIR, INC.
GROUP B-200, INC.
COMMUNICATIONS SYSTEMS & SEVICES, INC.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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 his oath, deposed and made proof to my satisfaction that he executed the within instrument on behalf of himself, and there-upon
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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 CORPORATION 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,
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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 CORPORATION, a United States Virgin Islands corporation that was dissolved in December, 1998, 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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared David Sharp who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the Chairman and Chief Executive Officer of VIRGIN ISLANDS TELEPHONE CORPORATION d/b/a INNOVATIVE TELEPHONE 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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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 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 its governing body,
ISLAND OF ST. CROIX
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 EMERGING COMMUNICATIONS 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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. THOMAS
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Samuel Ebbesen who, being by me duly sworn on their oath, deposed and made proof to my satisfaction that he is the Director and Secretary of VIRGIN ISLANDS TELEPHONE CORPORATION d/b/a INNOVATIVE TELEPHONE 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,
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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 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 its governing body.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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 EMERGING COMMUNICATIONS 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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber, personally appeared Jeffrey J.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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 there-in
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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,
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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 sane 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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned subscriber,
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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,
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
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
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 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 sworn 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 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 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 (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
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 sworn 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,
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 she 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
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.
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 US. 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)
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)
A. Each of the following actions pending in the United States District Court of the Virgin Islands, Division of St. Thomas and St. John:
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.
It is
The Prosser Parties' Release of Greenlight, Appendix B, provides:
Adv. Doc. No. 1 at Exhibit 4, at 2-3.
The Prosser Parties' Release of Greenlight further provides:
Id. at 3.
The Prosser Parties' Release of RTFC defines "Prosser" as
Adv. Doc. No. 1 at Exhibit 3, at ¶ 1.12.
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.
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.
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:
Adv. Doc. No. 1, Exhibit 3, Prosser Parties' Release of RTFC at 3-4, ¶ 1.18.
