National Rural Utilities Cooperative Finance Corp. v. Prosser
National Rural Utilities Cooperative Finance Corp. v. Prosser
Opinion of the Court
MEMORANDUM OPINION
Related to Doc. No. 76, Plaintiffs Motion for Preliminary Injunction Related to Doc. No. 34, Motion for Preliminary Injunction
Related to Doc. No. 1, Complaint
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, Em-Com, 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 Green-light Entities and RTFC to take over Vi-telco 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.V.I, 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 Green-light 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:
... this Court concluded that even if the Terms and Conditions were executory, Prosser could not assume the agreement because assumption under § 365 would require him to assume all the benefits and the burdens of the Terms and Conditions, including but not limited to, the self-effectuating termination provision which states “[i]f, however, the Payment is not made on or before the Payment Deadline, then effective upon 12:01 a.m. on August 1, 2006, the Payment Documentation shall be returned to RTFC and the Greenlight Entities and shall become void and of no further force or effect.” Terms and Conditions at 5. Prosser’s failure to meet the Payment Deadline nullified the releases of judgments and liens, leaving Prosser and New ICC liable for the full amount of the RTFC and Greenlight judgments. Consequently, any ostensible assumption of the Terms and Conditions would provide absolutely no benefit to the various bankruptcy estates. Even if the District Court were to conclude that this Court erred in holding that the Terms and Conditions is not executory, this Court’s alternative ruling that the Payment Documentation is void, constitutes an inde*70 pendent ground for the District Court to affirm the Terms and Conditions Order.
In re Innovative Communications, 390 B.R. 184, 189 (Bankr.V.1. 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
• That the allegations in the Virgin Islands RICO Action are nearly identical to those asserted in complaints and counterclaims filed by Defendant Pros-ser and his companies in 2005 and 2006 in connection with the RTFC Loan Default Litigation — claims that were dismissed with prejudice and forever released. By way of example:
• In 2005, Prosser’s company ICC alleged that “RTFC and its management were misappropriating funds that should have been distributed to its [telephone] members.” In 2009, Defendants allege that “CFC embezzles funds legally belonging to RTFC and the RTFC Telephone members.”
• In 2005, Prosser’s company ICC alleged that “CFC and RTFC manipulated their financial statements for the benefit of CFC, including the consolidation of CFC’s and RTFC’s financial statements,” and that “CFC unjustifiably and improperly changed its segment reporting without sufficient explanation.” In 2009, Defendants allege that RTFC’s financial statements “are false and deceptive,” including because “the Consolidated Financial Statements” of National Rural and RTFC are “materially misleading,” and because the “change” in “Segment Methodology” created a “material and intentional departure from GAAP.”
• In 2005, Prosser’s company ICC alleged that “RTFC and certain officers decided to retaliate through litigation, ... [premised on] allegations] that ICC and Vitelco had defaulted on their loan obligations,” which had the intent of seeking to “wrest control of ICC from its Chairman and founder, Jeffrey Pros-ser.” Also in 2005, Prosser himself alleged in a counterclaim that “RTFC management decided it wanted to replace Prosser and the rest of ICC’s management,” and that RTFC sued ICC for defaulting on its loan as part of a “scheme to try to starve ‘Prosser’s companies’ of funds and cause ICC to collapse.” In 2009, Defendants allege that “[t]he June 2004 Foreclosure, itself a retaliatory action, coupled with a pattern of retaliatory and extortionary acts eventually resulted in the taking of ICC from the Prossers.”
• In 2006, Prosser’s company ICC alleged that “RTFC has (1) admitted to substituting pages in the Loan Agreement by and between ICC and RTFC, and (2) admitted to destroying the originals after doing so.” In 2009, Defendants allege that “[w]ithout the knowledge or consent of ICC,” RTFC’s general counsel “removed the signature pages from both originals of the Authentic 2001 Loan Agreement and attached them to a different version of the agreement, the False 2001 Loan Agreement.”
Adv. Doc. No. 76, Attachment 1, at 26-27. With respect to alleged securities laws violations, note the following:
• In 2005, Case No. 05-cv-168 (D.V.I.), Innovative Communication Corporation v. RTFC, et al, the amended complaint alleged, inter alia, that CFC, in its first quarterly SEC filing, improperly changed its segment reporting to falsely create the impression that CFC and not RTFC was operating at a profit. Pros-ser Party Raynor alleged in his motion to dismiss the motion for preliminary injunction that the way the CFC reported the ICC loan in 2009 in its 10-Q departed from Generally Accepted Accounting Principles constituted a fraud on CFC’s investors.
• In the District of Columbia action, Case No. 08-cv-687, filed by Prosser*72 Parties Jeffrey J. Prosser and John P. Raynor against CFC and others, see note 20, supra, the Prosser Party plaintiffs in that action alleged improprieties in CFC’s 2002 10-K reports, departure from GAAP principles, and other similar actions. The RICO adversary at Adv. No. 10-50744 with respect to which the instant injunction action was filed makes the same allegations, only the year(s) of the alleged violations have been changed.
• In Case No. 08-cv-107 (D.V.I. RICO action) Doc. No. 1, and Adv. No. 10-50744 (Bankr. D. Del. RICO action) Adv. Doc. No. 25 (docketed as “Notice of Service Complaint for Civil RICO”), alleged various improprieties regarding 2001 and 2002 10-K and 10-Q statements, including noncompliance with GAAP principles and accusations regarding representation of aspects of the CFC/RTFC loans for years 2003-2005.33 In Case No. 10-cv-201 (D. Del.), Second*73 Amended Complaint (253 pages), Exhibit 1 to Doc. No. 172, motion for leave to file second amended complaint, adds the same allegations but for the years 2008 and 2009.
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 Pros-ser 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.
APPENDIX A
Prosser Parties’ Release of RTFC RELEASE IN FULL
(OF RTFC, CFC, LILLY AND LIST)
SECTION 1
Defínitions
1.1. “Release” means this release in full executed by the Releasing Parties (defined below).
1.2. “CFC” means National Rural Utilities Cooperative Finance Corporation, a District of Columbia cooperative association, and includes all of its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, assigns, administrators, successors, predecessors, d/b/a’s and assumed names, and insurers — whether specifically mentioned hereafter or not.
1.3.“RTFC” means Rural Telephone Finance Cooperative, a District’ of Columbia cooperative association, and includes all of its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, em
1.4. “List” means John J. List individually, including, without limitation, any and all heirs, trustees, agents, successors, assigns, executors, administrators; and in his representative and/or official capacity, including, without limitation, as officer, employee, agent, attorney and/or representative of CFC and/or RTFC and/or any of their subsidiary and affiliated corporations, companies, divisions or units.
1.5. “Lilly” means Steven Lilly individually, including, without limitation, any and all heirs, trustees, agents, successors, assigns, executors, administrators; and in his representative and/or official capacity, including, without limitation, as officer, employee, agent and/or representative of CFC and/or RTFC and/or any of their subsidiary and affiliated corporations, companies, divisions or units.
1.6. “Greenlight Entities” means and includes Greenlight Capital L.P., Green-light Capital Qualified, L.P. and Greenlight Capital Offshore, Ltd. together with each of their respective subsidiary and affiliated corporations, companies, divisions, units, and their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, assigns, administrators, successors, predecessors, d/b/a’s and assumed names, and insurers — whether specifically mentioned hereafter or not.
1.7. “Vitelco” means the Virgin Islands Telephone Corporation, a United States Virgin Islands corporation, and includes its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, assigns, administrators, successors, predecessors, d/b/a’s and assumed names, and insurers — whether specifically mentioned hereafter or not.
1.8. “ICC” means Innovative Communication Corporation, a United States Virgin Islands corporation, and includes its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, assigns, administrators, successors, predecessors, d/b/a’s and assumed names, and insurers — whether specifically mentioned hereafter or not.
1.9. “ICC-LLC” means Innovative Communication Company, LLC, a Delaware limited liability company, and includes its subsidiary and affiliated corporations, companies, divisions, units, and each of their respective officers, directors, employees, shareholders, members, partners, agents, representatives, counsel, attorneys, administrators, successors, predecessors, d/b/a’s and assumed names, and insurers, whether specifically mentioned hereafter or not, and also includes Innovative Communication Subsidiary Company, LLC, a U.S. Virgin Islands limited liability company, acting by and through its sole managing member ICC-LLC.
1.10. “ECI” means Emerging Communications, Inc., a Delaware corporation, and includes its subsidiary and affiliated corporations, companies, divisions, and each of their respective officers, directors, employees, shareholders, partners, agents, representatives, counsel, attorneys, administrators, successors, predecessors, d/b/a’s and assumed names, and insurers whether specifically mentioned hereafter or not.
1.11. “Guarantors, Pledgors, and Mortgagors” means and includes Prosser
1.12. “Prosser” means Jeffrey J. Pros-ser individually, including without limitation, any and all heirs, trustees, agents, successors, assigns, executors, and administrators, and in his representative capacity as agent, employee, and/or shareholder of ICC, Vitelco, ICC-LLC, and/or ECI, including, but not limited to, his capacity as the indirect beneficial owner, Chief Executive Officer, President, and Chairman of the Board of ICC, member the Board of Vitelco, member and sole managing member of ICC-LLC, and as guarantor of ICC owing to RTFC.
1.13. “Prosser Subsidiaries” means each of the entities listed on Schedule I attached hereto, whether or not specifically included in any other definition herein.
1.14. “Releasing Directors” means each of John P. Raynor, Richard N. Goodwin, Michael Prosser, Sir Shridath Ram-phal, Lt. General Samuel Ebbesen, Sir Ronald M. Sanders, David Sharp and James J. Heying, individually, including without limitation, any and all of their heirs, trustees, agents, successors, assigns, executors, and administrators, and in their representative capacity as agent, employee, and/or shareholder of ICC, Vitelco, ICC-LLC, and/or ECI, including, but not limited to, their capacities as member of the Boards of ICC, Vitelco, and ECI.
1.15. “Releasing Parties” includes those entities and individuals included within the definition of ICC, Vitelco, ICC-LLC, ECI, the Prosser Subsidiaries, the Guarantors, Pledgors, and Mortgagors, and also includes Prosser and the Releasing Directors.
1.16. “Released Parties” include those entities and individuals included within the definition of RTFC and CFC, and also includes List and Lilly.
1.17. “Litigation” means the following actions pending in the District of the Virgin Islands:
(i.) Cause No. 2005evll5; Innovative Communication Corporation v. Rural Telephone Finance Cooperative;
(ii.) Cause No. 2004cvl54; Rural Telephone Finance Cooperative v. Innovative, Communication Corporation;
(iii.) Cause No. 2004evl55; Rural Telephone Finance Cooperative v. Jeffrey Prosser;
(iv.) Cause No. 2004evl32; Rural Telephone Finance Cooperative, for itself and on behalf of Innovative Communication Corporation and the Virgin Islands Telephone Corporation d/b/a Innovative Telephone v. Jeffrey J. Prosser, Lt. General Samuel E. Ebbesen, Richard N. Goodwin, Michael Prosser,*79 Sir Shridath Ramphal, John P. Raynor, Sir Ronald M. Sanders, David Sharp, Innovative Communication Corporation, and Virgin Islands Telephone Corporation d/b/a Innovative Telephone;
(v.) Cause No. 2005cvl68; Innovative Communication Corporation v. Rural Telephone Finance Cooperative, John J. List, and Steven Lilly;
(vi.) Cause No. 2006cv011; Emerging Communication, Inc. and Innovative Communication Company, LLC v. Rural Telephone Finance Cooperative and National Rural Utilities Cooperative Finance Corporation;
(vii.) Cause No. 2006cv019; Rural Telephone Finance Cooperative v. Innovative Communication Corporation; and
(viii.) Cause No. 2006cv018; Virgin Islands Telephone Corporation v. Rural Telephone Finance Cooperative, National Rural Utilities Cooperative Finance Corporation, Greenlight Capital Qualified, L.P., Greenlight Capital L.P., and Greenlight Capital Offshore, Ltd.
1.18. “All Claims” shall mean and refer to any and all claims, demands, damages (including, without limitation, all actual damages, consequential damages, statutory damages, punitive and exemplary damages, prejudgment and post-judgment interest, attorneys’ fees and costs of court, and all other damages or losses recoverable now or at any later time under applicable law), actions of any character or type (including, but not limited to, class action or derivative lawsuits or proceedings, actions based on violations of local, state and/or federal statutes and regulations, malfeasance, non-feasance, fraud, intentional torts, malicious conduct, including, but not limited to, intentional interference with contracts or prospective business relations, libel, slander, defamation, wrongful use of civil proceedings and abuse of process, breach of contract, bad faith, breach of fiduciary duty, lender liability, contribution, conspiracy, retaliatory conduct, or any combination thereof), and causes of action of whatever nature, in law or equity (including declaratory and injunctive relief), known or unknown, that the Releasing Parties have, or ever have had, or may in the future have, against the Released Parties related to, directly or indirectly, any and all of the facts, events, transactions, occurrences, course of dealings and/or disputes between the Releasing Parties and the Released Parties occurring prior to the date of this Release or occurring after the date of this Release but which involve the same facts, events, transactions, occurrences, course of dealings and/or disputes existing as of the date of this Release whether known or unknown arising out of the relationships or alleged relationships between or among the Releasing Parties and the Released Parties as member, cooperative, borrower, lender, patron, third-party beneficiary, investor, issuer of security or any other relationship, as well as any and all consequences thereof, each and all, even though one or more of those consequences are not specifically identified herein, other than, in any such case, the Excluded Claims (as hereinafter defined).
1.19. “Excluded Claims” shall mean and refer to any obligations that the Released Parties may have under, and any rights, causes of action or other claims of any nature that the Releasing Parties may have against the Released Parties to enforce the terms and provisions of, that certain Terms and Conditions of Settlement of Claims of RTFC, CFC, Prosser Parties and Greenlight Entities, dated as
SECTION 2
Release
2.1. The Releasing Parties hereby fully and forever RELEASE, ACQUIT and DISCHARGE, the Released Parties of and from any and All Claims and/or Litigation, with prejudice (other than the Excluded Claims).
2.2. The parties understand and acknowledge that the foregoing release:
(i.) IS A GENERAL RELEASE OF ALL CLAIMS (AS DEFINED HEREIN) — PAST, PRESENT, AND FUTURE AND WHETHER KNOWN OR UNKNOWN, OTHER THAN THE EXCLUDED CLAIMS (AS DEFINED HEREIN);
(ii.) is a full and complete release of any and all of the Releasing Parties’ Claims and/or Litigation (other than the Excluded Claims), and the Releasing Parties are precluded from seeking further money or other relief based upon such Claims and/or Litigation (other than the Excluded Claims);
(iii.) is to be interpreted liberally to effectuate maximum protection to the Released Parties; and
(iv.) is specifically intended to operate and be applicable even if it is alleged, charged or proven that some or all of the claims or damages released are solely and completely or partially caused by the negligent acts, gross negligence, fraud, misrepresentation, intentional conduct, breach of fiduciary duty, violation of statute or common law, or conduct of any type by the Released Parties.
SECTION 3
Covenant Not To Sue
3.1 The Releasing Parties covenant, warrant, and represent that they shall not hereafter sue, or bring or continue any action or proceeding against the Released Parties with respect to All Claims (other than the Excluded Claims) released herein.
SECTION 4
Consideration
4.1 The Releasing Parties enter into this Release for good and valuable consideration, the receipt of and sufficiency of which is hereby acknowledged.
SECTION 5
Representations
5.1 The Releasing Parties represent and warrant:
(i.) that the execution and delivery of this Release have been duly authorized by all necessary actions;
(ii.) that before executing this Release, they became fully informed of the terms, conditions, and contents, and effect of this Release;
*81 (iii.) that they are legally competent to execute this Release;
(iv.) that no promise or representation of any kind has been made to them by the other, or by anyone acting for the other, except as expressly stated in this Release; and
(v.) they relied solely on their own judgment and the advice of their counsel in executing this Release.
SECTION 6
Full Knowledge and Voluntary Release
6.1 The Releasing Parties hereby represent and warrant that they have read this Release and they expressly acknowledge:
(i.) that they have entered into this Release of their own free choice based upon their own knowledge and judgment; and
(ii.) that they have not acted in reliance on any representation, advice or other action other than as included in this Agreement.
SECTION 7
Miscellaneous
7.1 This Release shall be governed by the internal substantive laws of the State of Delaware (without regard to its conflicts of law principles). The Parties irrevocably agree that in the event of any litigation enforcing the terms and conditions herein, or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Greenlight Entities and RTFC or CFC), any such litigation shall be brought exclusively in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”), or in the United States District Court for the District of Delaware (the “District Court”), to the extent that the Bankruptcy Court cannot or will not exercise jurisdiction. In the event that neither the Bankruptcy Court nor the District Court can or will exercise jurisdiction, the Parties irrevocably agree that any litigation enforcing the terms and conditions herein, or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Greenlight Entities and RTFC or CFC) shall be brought exclusively in the applicable state court (the “State Court”) for the State of Delaware. Each of the Parties irrevocably consents to the personal jurisdiction and venue in the Bankruptcy Court, the District Court and/or the State Court, as applicable, in connection with any actions to enforce the terms and conditions herein or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Greenlight Entities and RTFC or CFC) and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any Party anywhere in the world.
SECTION 8
Miscellaneous
8.1This 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/verifieation pages to a single copy or original of this Release; and that the
EXECUTED in multiple parts on this _day of May, 2006:
INNOVATIVE COMMUNICATION CORPORATION
By: /a/
Jeffrey J. Prosser
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION CORPORATION, a United States Virgin Islands corporation that was dissolved in December, 1998
By: /s/
Jeffrey J. Prosser
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION SUBSIDIARY COMPANY, LLC
By: /s/
Jeffrey J. Prosser
Chairman and Chief Executive Officer
VIRGIN ISLANDS TELEPHONE CORPORATION d/b/a INNOVATIVE TELEPHONE
By: /s/
David Sharp
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION COMPANY, LLC
By: /s/
Its President
EMERGING COMMUNICATIONS INC. By: /s/
Jeffrey J. Prosser
Chairman and Chief Executive Officer By: /s/
Jeffrey J. Prosser, individually
BELIZE TELECOM LTD.
By: /s/
Its President
VITELCOM CELLULAR, INC.
By: /s/
Its President
ST. CROIX CABLE TV, INC.
By: /s/
Its President
CARIBBEAN COMMUNICATIONS CORP.
By: /s/
Its President
INNOVATIVE LONG DISTANCE, INC. By: /s/
Its President ICC TV, INC.
By: /s/
Its President
DAILY NEWS PUBLISHING CO., INC. By: /s/
Its President ICUSC, INC.
By: /s/
Its President
EXECUTIVE SECURITY SERVICES, INC.
By: /s/
Its President
WORLD SATELLITE GUADELOUPE S.A.
By: /s/
Its President
MARTINIQUE TV CABLE S.A.
By: /s/
Its President
By: /s/
Its President
B.V.I. CABLE T.V. LTD.
By: /a/
Its President
CARIBBEAN TELEVIEW SERVICES N.V.
By: /s/
Its President
ST. MARTIN MOBILES S.A.
By: /s/
Its President
SMB BOATPHONE HOLDINGS LIMITED
By: /s/
Its President
MOBARTON INVESTMENT N.V.
By: /a/
Its President
EAST CARIBBEAN CELLULAR N.V. By: /a/
Its President
EAST CARIBBEAN COMMUNICATIONS (ST. MAARTEN) N.V.
By: /a/
Its President
EAST CARIBBEAN COMMUNICATIONS (BONAIRE) N.V.
By: /a/
Its President
EAST CARIBBEAN COMMUNICATIONS (CURACAO) N.V.
By: /a/
Its President
TODD INTERNATIONAL LTD.
By: /s/
Its President ZUMBRO LIMITED By: /s/
Its President PINACLE LIMITED By: /s/
Its President
COMSYS INTERNATIONAL LTD.
By: /s/
Its President
K.I. MANAGEMENT LTD.
By: /s/
Its President
KC INTERNATIONAL INC.
By: /a/
Its President
TKH INTERNATIONAL LIMITED By: /s/
Its President
MINION CORPORATION N.V.
By: /s/
Its President
VAL VISION TELECOMMUNICATIONS B.V.
By: /s/
Its President
VAL VISION SAS (VALVISION)
By: /s/
Its President
AMZAK INTERNATIONAL LIMITED
By: /s/
Its President
H.M. BEUK BELEGGINGEN B.V.
By: /s/
ALTA B.V.
By: /s/
Its President
ICC FRANCE S.A.
By: /s/
Its President
CABLE EVASION 86 S.A.
By: /s/
Its President
ATLANTIC AIRCRAFT, INC.
By: /s/
Its President IC AIR, INC.
By: /s/
Its President
GROUP B-200, INC.
By: /s/
Its President
COMMUNICATIONS SYSTEMS & SERVICES, INC.
By: la/
Its President
/s/
Richard N. Goodwin, individually and as one of the Releasing Directors
Michael Prosser, individually and as one of the Releasing Directors
Sir Shridath Ramphal, individually and as one of the Releasing Directors
Lt. General Samuel Ebbesen, individually and as one of the Releasing Directors
Sir Ronald M. Sanders, individually and as one of the Releasing Directors
David Sharp, individually and as one of the Releasing Directors
John P. Raynor, individually and as one of the Releasing Directors
Richard N. Goodwin, individually and as one of the Releasing Directors
/s/
Michael Prosser, individually and as one of the Releasing Directors
Sir Shridath Ramphal, individually and as one of the Releasing Directors
Lt. General Samuel Ebbesen, individually and as one of the Releasing Directors
Sir Ronald M. Sanders, individually and as one of the Releasing Directors
David Sharp, individually and as one of the Releasing Directors
John P. Raynor, individually and as one of the Releasing Directors
Richard N. Goodwin, individually and as one of the Releasing Directors
Michael Prosser, individually and as one of the Releasing Directors
Sir Shridath Ramphal, individually and as one of the Releasing Directors
/s/
Sir Ronald M. Sanders, individually and as one of the Releasing Directors
David Sharp, individually and as one of the Releasing Directors
John P. Raynor, individually and as one of the Releasing Directors
Richard N. Goodwin, individually and as one of the Releasing Directors
Michael Prosser, individually and as one of the Releasing Directors
/s/
Sir Shridath Ramphal, individually and as one of the Releasing Directors
Lt. General Samuel Ebbesen, individually and as one of the Releasing Directors
/s/
Sir Ronald M. Sanders, individually and as one of the Releasing Directors
David Sharp, individually and as one of the Releasing Directors
John P. Raynor, individually and as one of the Releasing Directors
Richard N. Goodwin, individually and as one of the Releasing Directors
Michael Prosser, individually and as one of the Releasing Directors
Sir Shridath Ramphal, individually and as one of the Releasing Directors
Lt. General Samuel Ebbesen, individually and as one of the Releasing Directors
Sir Ronald M. Sanders, individually and as one of the Releasing Directors
/s/
David Sharp, individually and as one of the Releasing Directors
John P. Raynor, individually and as one of the Releasing Directors
Richard N. Goodwin, individually and as one of the Releasing Directors
Michael Prosser, individually and as one of the Releasing Directors
Sir Shridath Ramphal, individually and as one of the Releasing Directors
Lt. General Samuel Ebbesen, individually and as one of the Releasing Directors
Sir Ronald M. Sanders, individually and as one of the Releasing Directors
David Sharp, individually and as one of the Releasing Directors
/s/
John P. Raynor, individually and as one of the Releasing Directors
PROSSER SUBSIDIARIES
Innovative Communication Subsidiary Company, LLC (a U.S. Virgin Islands limited liability company)
Belize Telecom Ltd. (a Belize limited liability company)
Vitelcom Cellular, Inc. (a U.S. Virgin Islands corporation)
St. Croix Cable TV, Inc. (a U.S. Virgin Islands corporation)
Caribbean Communications Corp. (a U.S. Virgin Islands corporation)
Innovative Long Distance, Inc. (a U.S. Virgin Islands corporation)
iCC TV, Inc. (a U.S. Virgin Islands corporation)
Daily News Publishing Co., Inc. (a U.S. Virgin Islands corporation)
ICUSC, Inc. (a U.S. Virgin Islands corporation)
Executive Security Services, Inc. (a U.S. Virgin Islands corporation)
World Satellite Guadeloupe S.A. (a French corporation)
Martinique TV Cable S.A. (a French corporation)
Martinique Cable Multimedia, SARL (a French limited liability company)
B.V.I. Cable T.V. Ltd. (a British Virgin Islands corporation)
Caribbean Teleview Services N.V. (a Netherlands Antilles corporation)
St. Martin Mobiles S.A. (a French corporation)
SMB Boatphone Holdings Limited (a British Virgin Islands corporation)
Mobarton Investment N.V. (a Netherlands Antilles corporation)
East Caribbean Cellular N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (St. Maarten) N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (Bonaire) N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (Curacao) N.V. (a Netherlands Antilles corporation)
Todd International Ltd., (a British Virgin Islands international business corporation)
Zumbro Limited (a British Virgin Islands international business corporation)
Pinacle Limited (a British Virgin Islands international business corporation)
COMSYS International Ltd. (a British Virgin Islands international business corporation)
K.I. Management Ltd. (a British Virgin Islands international business corporation)
KC International Inc. (a British Virgin Islands international business corporation)
TKH International Limited (a British Virgin Islands international business corporation)
Minion Corporation N.V. (a Netherlands Antilles corporation)
Valvision Telecommunications B.V. (a Dutch corporation)
Valvision SAS (Valvision) (a French corporation)
Amzak International Limited (a Bahamian company)
H.M. Beuk Beleggingen B.V. (a Dutch corporation)
Alta B.V. (a Dutch corporation)
ICC France S.A. (a French corporation)
Cable Evasion 86 S.A. (a French corporation)
IC Air, Inc. (a Delaware corporation)
Group B-200, Inc. (a Puerto Rico corporation)
Communications Systems & Services, Inc. (a Florida corporation)
APPENDIX B
Prosser Parties’ Release of Greenlight GENERAL RELEASE AGREEMENT THIS GENERAL RELEASE AGREEMENT (this “Agreement” or this “Release”) is dated as of June 6, 2006 by INNOVATIVE COMMUNICATION CORPORATION, a United States Virgin Islands corporation (“Innovative New”), INNOVATIVE COMMUNICATION CORPORATION, a United States Virgin Islands corporation that was dissolved in December, 1998 (“Innovative Old”), VIRGIN ISLANDS TELEPHONE CORPORATION, a United States Virgin Islands corporation (‘Vitelco”), INNOVATIVE COMMUNICATION COMPANY, LLC, a Delaware limited liability company, (“ICC-LLC”), EMERGING COMMUNICATIONS, INC., a Delaware corporation, (“ECI”), JEFFREY J. PROSSER (“Mr. Prosser”), and each of the entities listed on Schedule I attached hereto (the “Pros-ser Subsidiaries” and together with Pros-ser, Innovative New, Innovative Old, Vitel-co, ICC-LLC, and ECI, collectively, the “Releasors”) to and in favor of GREEN-LIGHT CAPITAL, L.P., a limited partnership organized under the laws of Delaware (“Greenlight L.P.”), GREENLIGHT CAPITAL QUALIFIED, L.P., a limited partnership organized under the laws of Delaware (“Greenlight Qualified”), GREENLIGHT CAPITAL OFFSHORE, LTD., a corporation organized under the laws of British Virgin Islands (“Greenlight Offshore”), GREENLIGHT CAPITAL, INC., a corporation organized under the laws of Delaware (“Greenlight Corp.”), GREENLIGHT CAPITAL, LLC, a Delaware limited liability company (“Green-light LLC” and with Greenlight L.P., Greenlight Qualified, Greenlight Offshore and Greenlight Corp., collectively, with each of their respective subsidiaries and Affiliates (as defined herein), the “Green-light Parties”), DAVID EINHORN (“Mr. Einhorn”), and VINIT SETHI (“Mr. Se-thi”), and the directors, officers, shareholders, partners, members, managers, employees, agents and representatives of each of the Greenlight Parties and their respective subsidiaries and Affiliates (as defined herein), including, but not limited to, each of the attorneys and/or law firms listed on Schedule II attached hereto (collectively, with the Greenlight Parties, their respective subsidiaries and Affiliates, Mr. Einhorn and Mr. Sethi, the “Released Parties”). The Released Parties and the Re-leasors are referred to herein, collectively, as the “Parties”.
BACKGROUND
A. Mr. Prosser and Dawn Prosser, individually and/or collectively, directly and/or indirectly own or control 100% of the outstanding equity interests of ICC-LLC. ICC-LLC owns or controls, directly and/or indirectly, through one or more subsidiary entities, 100% of the outstanding stock or other equity interests of various entities, including, but not limited to, ECI, Innovative New, Vitelco, and each of the Prosser Subsidiaries.
B. As a result of various disputes among the Parties, certain judgments against one or more of Prosser, ICC-LLC and/or ECI have been previously entered in the Court of Chancery of the State of Delaware in favor of and/or are held by one or more of the Greenlight Parties (the “Greenlight Judgments”), and certain
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 Green-light Parties, Innovative New, ECI, ICC-LLC, Vitelco and Mr. Prosser have entered into a certain Terms and Conditions of Settlement of Claims of RTFC, CFC, Prosser Parties and the Greenlight Entities, dated as of April 26, 2006 (the “Terms and Conditions”), pursuant to which the Parties agreed to enter into this Release.
D. Pursuant to the Terms and Conditions, it is a condition to the Released Parties’ obligation to deposit certain documentation into escrow that the Releasors execute and deliver this Release.
E. The Parties now wish to enter into this Release as provided in the Terms and Conditions.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and agreements of the Parties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Releasors hereby agree as follows:
1. General Defínitions. For purposes of this Agreement, “Affiliate” of a person or entity means any other person or entity (a) that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the person or entity, (b) that directly or indirectly beneficially owns or holds 10% or more of any class of equity securi
2. Release by the Releasing Parties. Effective as of the date of this Agreement, each of the Releasors, on behalf of the Releasor and the Releasor’s respective past, present and future parents, subsidiaries and Affiliates and the respective trustees, beneficiaries, directors, officers, shareholders, partners, members, managers, employees, attorneys, legal counsel, accountants, agents, representatives, administrators, insurers, transferees, heirs, executors, predecessors, successors and assigns of such Releasors and/or such Re-leasors’ 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
3. Releasors’ Representations and Warranties. Each of the Releasors on behalf of itself and each of its respective Related Parties, represents and warrants to the Released Parties (i) that the execution and delivery of this Release have been duly authorized by all necessary actions; (ii) that before executing this Release, they became fully informed of the terms, conditions, and contents, and effect of this Release; (iii) that they are legally competent to execute this Release; (iv) that no promise or representation of any kind has been made to them by any of the Released Parties, or by anyone acting for any of the Released Parties, except as expressly stated in this Release; (v) that they have not transferred to any person or entity any of their Claims or any interest thereunder; (vi) that this release constitutes the legal, valid and binding obligation of each Releasing Party enforceable against it in accordance with its terms; (vii) that they relied solely on their own judgment and the advice of their counsel in executing this Release; (viii) that they have entered into this Release of their own free choice based upon their own knowledge and judgment; and (ix) that they have not acted in reliance on any representation, advice or other action other than as included in this Release.
4. Entire Agreement; Parties; Predecessors, Successors and Assigns; Survival of Representations.
(a) This Agreement, together with the Terms and Conditions, constitutes the entire agreement between the Parties with respect to the subject matter hereof, supersedes any prior agreements and understandings between the Parties, whether written or oral, with respect to the subject matter hereof and shall bind the Relea-sors, 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, benefi
(c) All representations made herein by the Releasors shall survive the execution and delivery hereof.
5. Governing Law; Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to the principles of conflicts of law.
(b) The Parties irrevocably agree that in the event of any litigation enforcing the terms and conditions hereof, or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Releasors) any such litigation shall be brought exclusively in the Delaware Bankruptcy Court, or in the United States District Court for the District of Delaware (the “District Court”), to the extent that the Delaware Bankruptcy Court cannot or will not exercise jurisdiction. In the event that neither the Delaware Bankruptcy Court nor the District Court can or will exercise jurisdiction, the Parties irrevocably agree that any litigation enforcing the terms and conditions hereof or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Releasors) shall be brought exclusively in the applicable state court (the “State Court”) for the State of Delaware. Each of the Parties irrevocably consents to personal jurisdiction and venue in the Delaware Bankruptcy Court, the District Court and/or the State Court, as applicable, in connection with any actions to enforce the terms and conditions hereof or otherwise relating in any way to the matters addressed herein (but excluding matters solely between or among the Relea-sors) and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any Party anywhere in the world.
6. Headings. The headings of the several sections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement
7. Construction. Should any provision of this Agreement require interpretation or construction, it is agreed that because all Parties, by their respective attorneys, have fully participated in the preparation of all provisions of this Agreement, any arbitrator or judge who interprets or construes this Agreement shall not apply any presumption based upon the rule of construction that a document is to be construed more strictly against the party who itself or through its agents prepared such document.
8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which taken together shall constitute but one and the instrument Each Releasor covenants, represents and war
9. Acknowledgement of the Parties. The parties understand and acknowledge that the foregoing release:
(i.) IS A GENERAL RELEASE OF ALL CLAIMS (AS DEFINED HEREIN) — PAST, PRESENT, AND FUTURE AND WHETHER KNOWN OR UNKNOWN;
(ii.) is a full and complete release of any and all of the Releasing Parties’ Claims and/or Litigation, and the Releasing Parties are precluded from seeking further money or other relief based upon such Claims and/or Litigation;
(in.) is to be interpreted liberally to effectuate maximum protection to the Released Parties; and
(iv.) is specifically intended to operate and be applicable even if it is alleged, charged or proven that some or all of the claims or damages released are solely and completely or partially caused by the negligent acts, gross negligence, fraud, misrepresentation, intentional conduct, breach of fiduciary duty, violation of statute or common law, or conduct of any type by the Released Parties.
10. Covenant Not To Sue. The Relea-sors covenant, warrant, and represent that they shall not hereafter sue, or bring or continue any action or proceeding against the Released Parties with respect to all Claims released herein.
11. Consideration. The Releasors enter into this Release for good and valuable consideration, the receipt of and sufficiency of which is hereby acknowledged.
12. Further Assurances. The Relea-sors shall take, or cause to be taken, upon request by the Released Parties, all reasonably appropriate action, and do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective the releases contemplated hereunder, including, without limitation, executing and delivering all documents deemed reasonably necessary by the Released Parties to effectuate the releases contemplated hereby.
IN WITNESS WHEREOF, the undersigned have duly executed this General Release Agreement as of the date first above written.
INNOVATIVE COMMUNICATION CORPORATION
By: /s/
Jeffrey J. Prosser
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION CORPORATION, a United States Virgin Islands corporation that was dissolved in December, 1998 By: /s/
Jeffrey J. Prosser
Chairman and Chief Executive Officer
VIRGIN ISLANDS TELEPHONE CORPORATION d/b/a INNOVATIVE TELEPHONE
By: -
David Sharp
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION COMPANY, LLC
Jeffrey J. Prosser
Sole Managing Member
EMERGING COMMUNICATIONS INC.
By: /s/
Jeffrey J. Prosser
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION CORPORATION, a United States Virgin Islands corporation that was dissolved in December, 1998
By: -
Jeffrey J. Prosser
Chairman and Chief Executive Officer
VIRGIN ISLANDS TELEPHONE CORPORATION d/b/a INNOVATIVE TELEPHONE
By: /s/
Samuel E. Ebbesen
Director and Secretary
INNOVATIVE COMMUNICATION COMPANY, LLC
By: -
Jeffrey J. Prosser
Sole Managing Member
EMERGING COMMUNICATIONS INC.
By: -
Jeffrey J. Prosser
Chairman and Chief Executive Officer
INNOVATIVE COMMUNICATION SUBSIDIARY COMPANY, LLC
By: /s/
Jeffrey J. Prosser
Its President
BELIZE TELECOM LTD
By: /s/
Jeffrey J. Prosser
Its President
VTTELCOM CELLULAR, INC.
By: /s/
Jeffrey J. Prosser
Its President
ST. CROIX CABLE TV, INC.
By: /s/
Jeffrey J. Prosser
Its President
CARIBBEAN COMMUNICATIONS CORP.
By: /s/
Jeffrey J. Prosser
Its President
INNOVATIVE LONG DISTANCE, INC.
By: /s/
Jeffrey J. Prosser
Its President
ICC TV, INC.
By: /s/
Jeffrey J. Prosser
Its President
DAILY NEWS PUBLISHING CO., INC.
By: /s/
Jeffrey J. Prosser
Its President
ICUSC, INC.
By: /s/
Jeffrey J. Prosser
Its President
EXECUTIVE SECURITY SERVICES, INC.
By: /s/
Jeffrey J. Prosser
Its President
By: la/
Jeffrey J. Prosser
Its President
MARTINIQUE TV CABLE S.A.
By: /s/
Jeffrey J. Prosser
Its President
MARTINIQUE CABLE MULTIMEDIA, SARL
By: /s/
Jeffrey J. Prosser
Its President
B.V.I. CABLE T.V. LTD.
By: /s/
Jeffrey J. Prosser
Its President
CARIBBEAN TELEVIEW SERVICES N.V.
By: /s/
Jeffrey J. Prosser
Its President
ST. MARTIN MOBILES S.A.
By: /s/
Jeffrey J. Prosser
Its President
SMB BOATPHONE HOLDINGS LIMITED
By: /s/
Jeffrey J. Prosser
Its President
MOBARTON INVESTMENT N.V.
By: /s/
Jeffrey J. Prosser
Its President
EAST CARIBBEAN CELLULAR N.V.
By: /s/
Jeffrey J. Prosser
Its President
EAST CARIBBEAN COMMUNICATIONS (ST. MAARTEN) N.V.
By: Is/
Jeffrey J. Prosser
Its President
EAST CARIBBEAN COMMUNICATIONS (BONAIRE) N.V.
By: Is/
Jeffrey J. Prosser
Its President
EAST CARIBBEAN COMMUNICATIONS (CURACAO) N.V.
By: Is/
Jeffrey J. Prosser
Its President
TODD INTERNATIONAL LTD.
By: Is/
Jeffrey J. Prosser
Its President
ZUMBRO LIMITED
By: /s/
Jeffrey J. Prosser
Its President
PINACLE LIMITED
By: Is/
Jeffrey J. Prosser
Its President
COMSYS INTERNATIONAL LTD.
By: Is/
Jeffrey J. Prosser
Its President
K.I. MANAGEMENT LTD.
Jeffrey J. Prosser
Its President
KC INTERNATIONAL INC.
By: /s/
Jeffrey J. Prosser
Its President
TKH INTERNATIONAL LIMITED
By: /s/
Jeffrey J. Prosser
Its President
MINION CORPORATION N.V.
By: /s/
Jeffrey J. Prosser
Its President
VAL VISION TELECOMMUNICATIONS B.V.
By: /s/
Jeffrey J. Prosser
Its President
VAL VISION SAS (VALVISION)
By: /s/
Jeffrey J. Prosser
Its President
AMZAK INTERNATIONAL LIMITED
By: /s/
Jeffrey J. Prosser
Its President
H.M. BEUK BELEGGINGEN B.V.
By: /s/
Jeffrey J. Prosser
Its President
ALTA B.V.
By: /s/
Jeffrey J. Prosser
Its President
ICC FRANCE S.A.
By: /s/
Jeffrey J. Prosser
Its President
CABLE EVASION 86 S.A.
By: /s/
Jeffrey J. Prosser
Its President
ATLANTIC AIRCRAFT, INC.
By: /s/
Jeffrey J. Prosser
Its President
IC AIR, INC.
By: /s/
Jeffrey J. Prosser
Its President
GROUP B-200, INC.
By: /s/
Jeffrey J. Prosser
Its President
COMMUNICATIONS SYSTEMS & SERVICES, INC.
By: /s/
Jeffrey J. Prosser
Its President
By: /s/
Jeffrey J. Prosser, individually
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
/s/
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.
/s/
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.
/s/
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.
/s/
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.
/s/
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 Eb-besen 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, /s/
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, /s/
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, /s/
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, /s/
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
/s/
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.
/s/
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.
/a/
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.
/s/
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 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.
/s/
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
BE IT REMEMBERED, that on June 6, 2006, before me, the undersigned sub
/s/
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 5.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.
/s/
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, /s/
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.
/s/
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
/s/
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 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.
/s/
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. 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.
/a/
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 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.
/a/
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 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. /a/
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
/s/
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 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. /a/
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 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, /s/
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 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, /s/
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 TODD INTERNATIONAL LTD. and is the person named in and who executed the
/s/
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 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, /s/
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 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, /s/
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 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.
/s/
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 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, /s/
TERRITORY OF THE VIRGIN ISLANDS
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. /a/
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 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.
M
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 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, /s/
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 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.
/a/
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 VALVISION SAS (VALVISION) and is the person named in and who executed the within instrument on behalf of such entity,
/s/
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 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.
/s/
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 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,
/s/
TERRITORY OF TOE 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 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.
/a/
TERRITORY OF TOE 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 FRANCE S.A. and is the person named in and who executed the within instrument on behalf of such entity, and thereupon they acknowledged that they signed, sealed and delivered the same in such capacity on behalf of such entity as its voluntary act and deed, for the uses and purposes therein expressed by virtue of authorization from its governing body.
TERRITORY OF THE VIRGIN ISLANDS
ISLAND OF ST. CROIX
/s/
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 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, /a/
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 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.
/s/
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 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, /s/
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 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
/a/
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 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, /s/
SCHEDULE I
PROSSER ENTITIES
Innovative Communication Subsidiary Company, LLC (a U.S. Virgin Islands limited liability company)
Belize Telecom Ltd. (a Belize limited liability company)
Vitelcom Cellular, Inc. (a U.S. Virgin Islands corporation)
St. Croix Cable TV, Inc. (a U.S. Virgin Islands corporation)
Caribbean Communications Corp. (a U.S. Virgin Islands corporation)
Innovative Long Distance, Inc. (a U.S. Virgin Islands corporation)
iCC TV, Inc. (a U.S. Virgin Islands corporation)
Daily News Publishing Co., Inc. (a U.S. Virgin Islands corporation)
ICUSC, Inc. (a U.S. Virgin Islands corporation)
Executive Security Services, Inc. (a U.S. Virgin Islands corporation)
World Satellite Guadeloupe S.A. (a French corporation)
Martinique TV Cable S.A. (a French corporation)
Martinique Cable Multimedia, SARL (a French limited liability company)
B.V.I. Cable T.V. Ltd. (a British Virgin Islands corporation)
Caribbean Teleview Services N.V. (a Netherlands Antilles corporation)
St. Martin Mobiles S.A. (a French corporation)
SMB Boatphone Holdings Limited (a British Virgin Islands corporation)
Mobarton Investment N.V. (a Netherlands Antilles corporation)
East Caribbean Cellular N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (St. Maarten) N.V. (a Netherlands Antilles corporation)
East Caribbean Communications (Bonaire) N.V. (a Netherlands Antilles corporation) East Caribbean Communications (Curacao) N.V. (a Netherlands Antilles corporation)
Todd International Ltd. (a British Virgin Islands international business corporation) Zumbro Limited (a British Virgin Islands international business corporation)
Pinacle Limited (a British Virgin Islands international business corporation)
COMSYS International Ltd. (a British Virgin Islands international business corporation)
K.I. Management Ltd. (a British Virgin Islands international business corporation)
TKH International Limited (a British Virgin Islands international business corporation)
Minion Corporation N.V. (a Netherlands Antilles corporation)
Valvision Telecommunications B.V. (a Dutch corporation)
Valvision SAS (Valvision) (a French corporation)
Amzak International Limited (a Bahamian company)
H.M. Beuk Beleggingen B.V. (a Dutch corporation)
Alta B.V. (a Dutch corporation)
ICC France S.A. (a French corporation)
Cable Evasion 86 S.A. (a French corporation)
Atlantic Aircraft, Inc. (a U.S. Virgin Islands corporation)
1C Air, Inc. (a Delaware corporation)
Group B-200, Inc. (a Puerto Rico corporation)
Communications Systems & Services, Inc. (a Florida corporation)
SCHEDULE II
LEGAL COUNSEL FOR THE GREEN-LIGHT ENTITIES INCLUDED WITHIN RELEASED PARTIES
Matthew J. Duensing
Stryker, Duensing, Casner & Dollison
Upper Level Drake’s Passage
P.O. Box 6785
St. Thomas, U.S. Virgin Islands 00804
Thomas J. Allingham II
Gregg M. Galardi
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
SCHEDULE III
ADDITIONAL NON-BANKRUPTCY PROCEEDINGS
A. Each of the following actions pending in the United States District Court of the Virgin Islands, Division of St. Thomas and St. John:
1. Cause No. 2006-cv-018; Virgin Islands Telephone Corporation v. Rural Telephone Finance Cooperative, National Rural Utilities Cooperative Finance Corporation, Green-light Capital Qualified, L.P., Green-light Capital L.P., and Greenlight Capital Offshore, Ltd.
2. Cause No. 2006-cv-034; Emerging Communications, Inc. and Innovative Communication Company, LLC v. Greenlight Capital Qualified L.P., Greenlight, Capital, L.P., and Greenlight Capital Offshore, Ltd.
B. In Re Emerging Communications, Inc. v. Greenlight, No. 42 cv-06 and 43 cv-06, pending in the Superior Court of the Virgin Islands.
C. Emerging Communications, Inc., Innovative Communication Corporation, Innovative Communication Company, LLC, and Jeffrey J. Prosser v. Greenlight Capital Qualified L.P., Greenlight Capital L.P., 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.
AND NOW, this 15th day of December, 2011, for the reasons expressed in the foregoing Memorandum Opinion it, is ORDERED, ADJUDGED and DECREED that Plaintiffs’ Motions for Preliminary Injunction at Adv. Doc. Nos. 34 and 76 are GRANTED and Defendants are preliminarily enjoined from pursuing the action at Adv. No. 10-50744 and any and all claims, causes of action and actions asserted therein or which would violate the Prosser Releases of RTFC and Greenlight.
It is FURTHER ORDERED, ADJUDGED and DECREED that Defendants are permanently enjoined from pursuing the action at Adv. No. 10-50744 and any and all claims, causes of action and actions asserted therein or which would violate the Prosser Releases of RTFC and Greenlight. A separate order will be entered dismissing that adversary with prejudice.
ORDER DISMISSING ADVERSARY WITH PREJUDICE
AND NOW, this 15th day of December, 2011, for the reasons stated in the foregoing Memorandum Opinion, it is ORDERED, ADJUDGED and DECREED that the above captioned Adversary is dismissed with prejudice.
. This Memorandum Opinion constitutes our findings of fact and conclusions of law.
. The Greenlight Entities were added as mov-ants in the motion filed at Adv. Doc. No. 76 and were not parties to Adv. Doc. No. 34.
. All of the Prosser Parties involved in these two Adversary actions are “releasing parties” under both the Prosser Parties’ Release of RTFC, Appendix A hereto, and the Prosser Parties’ Release of Greenlight, Appendix B hereto.
The Prosser Parties' Release of Greenlight, Appendix B, provides:
1. General Definitions. For purposes of this Agreement, "Affiliate” of a person or entity means any other person or entity ... With respect to a natural person, such natural person’s Affiliates shall also include such natural person’s spouse, and their siblings, parents and lineal descendants.
Adv. Doc. No. 1 at Exhibit 4, at 2-3.
The Prosser Parties’ Release of Greenlight further provides:
2. Release by the Releasing Parties. Effective as of the date of this Agreement, each of the Releasors, on behalf of the Releasor and the Releasor’s respective past, present and future parents, subsidiaries and Affiliates and the respective trustees, beneficiaries, directors, officers,*62 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 Re-leasors' past, present and future parents, subsidiaries and Affiliates (collectively, with the Releasors, the "Releasing Parties”).
Id. at 3.
The Prosser Parties’ Release of RTFC defines "Prosser” as
1.12. "Prosser” means Jeffrey J. Prosser and all heirs, trustees, agents, successors, assigns, executors, and administrators, and his representative capacity as agent, employee, and/or shareholder of ICC, Vi-telco, ICC LLC, and/or ECI, including, but not limited to, his capacity as the indirect beneficial owner, Chief Executive Officer, President, and Chairman of the Board of ICC, member [of] the Board of Vitelco, member and sole managing member of ICC LLC, and as guarantor of ICC owing to RTFC.
Adv. Doc. No. 1 at Exhibit 3, at ¶ 1.12.
. The Prosser Parties are Jeffrey Prosser, Dawn Prosser, L. Adrian Prosser, John P. Raynor. They are the plaintiffs in the RICO action at Adversary No. 10-50744 and are the defendants in Adversary No. 09-52854.
. In the brief filed by Plaintiffs, Adv. Doc. No. 36, in support of the first motion for preliminary injunction filed in this Adversary, Adv. Doc. No. 34, Plaintiffs asked that the Prosser Parties be enjoined "from prosecuting the Virgin Islands [RICO] Action, and the claims, causes of action, or actions asserted therein, during the pendency of the above-captioned lawsuit, and grant Plaintiffs all other relief to which they may be entitled.” Adv. Doc. No. 36, Brief in Support of Motion for Preliminary Injunction, at 34.
In the Brief in Support of the Motion for Preliminary Injunction filed at Adv. Doc. No. 76, Attachment 1, Plaintiffs broadened their request, seeking to "enjoin Defendants from prosecuting the Virgin Islands [RICO] Action, as well as any other claims, causes of action, or actions in violation of the Releases, and grant Plaintiffs all other relief to which they may be entitled.” Id. at 40.
. Defendants in the RICO action which are not party to this motion are Deloitte Touche USA, L.L.P., Ernst & Young, L.L.P., Rural Telephone Finance Cooperative and Glenn L. English.
. Those cases are Emerging Communications, Inc., Bankr.No. 06-30007, and Innovative Communication Company, LLC, Bankr.No. 06-30008, jointly administered at 06-30008, Jeffrey J. Prosser, Bankr.No. 06-30009, and Innovative Communication Corporation, Bankr.No. 07-30012.
. The Prosser Parties appealed the reference order and one entered by the District Court for the District of Delaware, Case No. 09-111, Doc. No. 56 (Motion for Reconsideration denied, Doc. No. 61), transferring this injunction action to the Bankruptcy Court for the District of Delaware. The Prosser Parties’ appeal to the Court of Appeals for the Third Circuit was dismissed for lack of jurisdiction. See Case Nos. 09-4683 (appeal from VI District Court), 09-4684 (appeal from Delaware District Court), order dated March 30, 2010,
. The injunction action in the Delaware District Court was assigned Case No. 09-cv-lll.
. ICC and EmCom have been administratively consolidated at Bankr.No. 06-30008.
. The "Greenlight Entities” are all those listed in the caption of Adversary No. 09-52854 and Adversary No. 10-50744: Greenlight Capital, Inc.; Greenlight Capital LP; Green-light Capital Qualified LP; and Greenlight Capital Offshore Ltd.
.John Raynor was a member of the Board of Directors of ICC, EmCom, New ICC, and the Virgin Islands Telephone Corporation (a wholly owned subsidiary of ICC). See Amended Complaint filed by Prosser Parties, 08-cv-107, Doc. No. 50, at 76, 78. He also was Prosser's attorney, and served as attorney and was a former director of Innovative Communication Corporation ("New ICC”), VI Bankr.No. 07-30012. See Adv. No. 09-52854, Adv. Doc. No. 18 at 2; 08-cv-107, Doc. No. 1 at 3. Raynor is a Chapter 7 debtor in another jurisdiction and, although he received a discharge in October of 2005, his case has not been closed. See Case No. 04-83112, Bankruptcy Court, District of Nebraska.
. See Bankr.No. 06-30008, Doc. No. 24 at 7, ¶ 11.
. RTFC is a member of CFC, a cooperative formed to make loans to its members to facilitate acquisition, construction and operation of electric distribution, generation and transmission facilities. See Adv. Doc. No. 1 at 3.
.See National Rural Utilities Co-op. Finance Corp. v. Prosser, 435 B.R. 27, 30-32 (Bnkr.D.Del. 2009).
. The Greenlight Judgments were issued by the Delaware Chancery Court. See 435 B.R. at 30.
. The Payment Documentation was part of the Terms and Conditions. Under the heading of "Payment Documentation” the Terms and Conditions provided:
RTFC, CFC, and the Greenlight Entities shall execute and deliver into escrow such documents and other instruments as are necessary to permit the Prosser Parties to effect the Payment free and clear of any and all claims and liens of RTFC, CFC and the Greenlight Entities (collectively, the “Payment Documentation ”), including without limitation (a) mutual releases by the Parties, releasing, inter alia, the Parties, all subsidiaries, affiliates and their respective directors, officers, shareholders, partners, members, managers, employees, agents, and representatives, (b) Satisfactions of all judgments by the Greenlight Entities, RTFC and CFC, including those created herein, (c) releases and discharges of liens held by RTFC and the Greenlight Entities, (d) non-disparagement and confidentiality agreements by all Parties, (e) dismissals of the bankruptcy proceedings with prejudice and (f) in the sole discretion of the Prosser Parties, an assignment to the Prosser Parties or their designee of the judgments and liens of RTFC, provided that any such transfer shall be without any representations or warranties and without recourse. The Payment Documentation shall be released from escrow as provided above.
Bankr.No. 06-30009, Jeffrey J. Prosser, Debt- or, Doc. No. 29, at 9-10. See Adv. Doc. No. 76 at Exhibit A-6. Because the discounted payment was not made pursuant to the Terms and Conditions, the Terms and Conditions became void and the RTFC and Greenlight release of the Prosser Parties was never in effect. The voided release under the Terms and Conditions can be found at Adv. Doc. No. 76, Exhibit P-3.
.The Greenlight Entities subsequently filed an involuntary petition against New ICC in the Bankruptcy Division of the VI District Court. New ICC was adjudicated a debtor. It is not a party to this injunction action or the RICO action. It is, however, covered by the Prosser Parties’ Release of Greenlight and the Prosser Parties' Release of RTFC. See note 4, supra.
. Case No. 08-cv-687 (D.D.C.), Jeffrey J. Prosser and John P. Raynor v. Federal Agricultural Mortgage Corporation, U.S. Dept. of Agriculture, and National Rural Utilities Cooperative Finance Corporation. CFC’s unopposed motion to dismiss was granted on May 30, 2008. The motion to dismiss filed by the Federal Agricultural Mortgage Corporation and the U.S. Department of Agriculture was granted January 14, 2009, by the VI District Court which found that Prosser and Raynor had no standing and the court had no subject matter jurisdiction. The complaint in that action alleged, inter alia, that, since creating the RTFC, the CFC had controlled the RTFC through unlawful means. The District Court's opinion makes clear that the allegations in that action are based on the same facts as are the RICO adversary before the undersigned; i.e., that ICC discovered the CFC’s allegedly improper use of RTFC profits and that RTFC retaliated by foreclosing on the ICC loan, etc. The District Court in the D.C. action based its decision on, inter alia, Prosser’s and Raynor’s "speculative assumptions about the past and future acts and motives of strangers to this suit, and even about market forces.” Further, the court noted they had failed to sufficiently allege any of the required elements of standing and, "[wjithout standing, there is no subject matter jurisdiction. Without subject matter jurisdiction, the complaint must be dismissed.” Case No. 08-cv-687, Doc. Nos. 27 (Memorandum) and 28 (Order).
. Both objections should have been dismissed for failure to comply with the Case Management Order in effect in this case inasmuch as they failed to state hearing and objection dates. Nonetheless, the objection to claim at Doc. No. 1555 with respect to RTFC was heard and dismissed after the RTFC filed a motion for sanctions and other relief with respect to it. See Bankr.No. 06-30009, Doc. No. 1702, order entered July 29, 2008, Doc. No. 1888. No order was entered regarding Doc. No. 1554 but the objection to claim, filed by attorney Robert F. Craig on behalf of Pros-ser, should have been dismissed inasmuch as it was filed not in compliance with the Case Management Order in effect in this case. Nonetheless, after a discussion on the record on June 19, 2008, this court determined that the objection to claim had to be filed as an adversary proceeding. The adversary was filed, with Prosser’s counsel’s firm, Robert F. Craig, P.C., as the named plaintiff, at Adv. No. 08-3051. (Another law firm representing Prosser, Law Offices of Lawrence Schoen-bach, filed the adversary on behalf of Robert F. Craig, P.C.) This court dismissed the Adversary and an appeal was filed by the Schoen-bach firm on behalf of Robert F. Craig, P.C. Case No. 09-cv-109, D.V.I. That appeal is pending.
. Bankruptcy No. 06-30009, Doc. No. 1555, Jeffrey J. Prosser’s Objection ... to the Claim of the Rural Telephone Finance Cooperative. Order entered July 29, 2008, Doc. No. 1888, striking objection.
. Bankruptcy No. 06-30009, Doc. No. 1554, Jeffrey J. Prosser’s Objection to the Claims of Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., and Greenlight Capital Offshore, LTD. A previous objection to the Greenlight Entities’ claim filed by Prosser and the corporate Debtors was dismissed. See Doc. Nos. 247, 380, 947 in Bankr.No. 06-30009.
. The RTFC loan default litigation claims were dismissed with prejudice.
. Case No. 08-cv-107, D.V.I. (St. Croix Division), Civil RICO Complaint. The matter was referred to the Delaware District Court (Case No. 10-201) which referred it to the Bankruptcy Court for the District of Delaware where it was assigned Adversary No. 10-50744. Adversary No. 09-52854 was filed in order to dispose of Adv. No. 10-50744. Note
. Ernst & Young, Deloitte Touche, Glenn L. English and NRECA did not join as Plaintiffs in the injunction action when it was refiled in Delaware after the transfer from the VI District Court. Glenn L. English and NRECA had been dismissed from the RICO action by the VI District Court. Nonetheless, the Pros-ser Parties named them as defendants when the RICO action was refiled in Delaware. Ernst & Young and Deloitte Touche had filed motions to dismiss in the RICO action but there is no record of adjudication of their motions. They did not file motions to dismiss in Adv. No. 09-52854 in which these motions for preliminary injunction are pending.
. See 09-cv-l 11 (D. Del.), related to 10-cv-201 (D. Del.) (transfer of RICO Case No. 08-cv-107 from VI District Court). The complaint filed in the Delaware District Court at 09-cv-l 11 was filed as an action for declaratory judgment, breach of contract, specific performance, and an All Writs Act Injunction. Upon transfer by the Delaware District Court to this court, certain Plaintiffs filed a motion for preliminary injunction at Adv. Doc. No. 34. A second motion for preliminary injunction was filed at Adv. Doc. No. 76 on behalf of all the Plaintiffs in Adv. No. 09-52854, although the docket entry itself does not name them all.
. Because the payment was not made, by order dated August 2, 2007, this court ruled that the Terms and Conditions agreement was not assumable. See VI Bankr.No. 06-30009, Doc. No. 725, Order dated August 2, 2007 (the Terms and Conditions are not assumable for reasons expressed on the record on July 19, 2007). The order was affirmed on appeal. In re Innovative Communication Co., LLC, 399 B.R. 152 (Bankr.D.V.1. 2008); 2008 WL 2275397 (D.VL, May 30, 2008). The Court of Appeals affirmed the VI District Court order. See In re Prosser, 388 Fed.Appx. 100 (3d Cir. 2010).
. The Greendyke Declaration was filed in the District Court for the District of Delaware, Case No. 09-cv-lll at Doc. No. 50. The reference in the Greendyke Declaration to "Exhibit C” is to the RTFC and Greenlight Release of the Prosser Parties, filed in Adv. No. 09-52854 at Adv. Doc. No. 76, Exhibit P-3. This is the release that was voided when payment was not made pursuant to the Terms and Conditions. See Greendyke Declaration, Adv. Doc. No. 76, Exhibit P, at 4-5, ¶¶ 11-14.
. We note that each of the Prosser Parties are "Releasing Parties” under the Prosser Parties’ Releases of RTFC and Greenlight because they are named in the Releases, signed them, or fit within the definition of "Releasing Parties.” That definition includes, inter alia, employees, shareholders, affiliates and members of Prosser’s companies. The Plaintiffs herein are each "Released Parties” either by name or by definition. For example, the CFC, RTFC, Lilly, List and Greenlight are specifically named as Released Parties. Petersen and Stratton as well as Lilly and List are included within the Release of CFC and RTFC officers, directors, employees, shareholders, agents, and representatives. Fulbright & Jaworski LLP, Greenlight’s counsel, are likewise released as agents, representatives, counsel and attorneys. See note 4 and accompanying text, supra.
. There is no basis asserted by the Prosser Parties that they have standing to bring such an action. Regardless, the propriety, or lack thereof, of filings with the SEC, or the applicability of, or adherence to, Generally Accepted Accounting Principles, have been raised before and have been released. These and other issues are raised in Raynor's Memorandum of Law Opposing Plaintiffs’ Motion for Injunction, Adv. Doc, No. 128. The Prosser Parties also argue that events such as 10-K filings by CFC and its related entities that pre- and post-date the Releases constitute new acts that fall outside of the Releases. The argument is without merit inasmuch as every fact, event or allegation raised by the Prosser Parties relates to the transactions between and among them and these Plaintiffs, all of which were released.
.In re Prosser, 388 Fed.Appx. 100 (3d Cir. 2010).
. The Prosser Parties’ Release of Greenlight applies to everything "from the beginning of the world up to and including the date of this Agreement.” See Appendix B, Prosser Parties’ Release of Greenlight, at ¶ 2. It also applies to release all past, present and future
claims, costs, expenses, accounts, offsets, demands, causes of action, suits, debts, controversies, agreements, damages (including, without limitation, all actual damages, consequential damages, statutory damages, punitive and exemplary damages, prejudgment and post-judgment interest, attorney’s fees and costs of court, and all other damages or losses recoverable now or at any later time under applicable law), judgments, obligations, defenses, promises, covenants, reckoning, contracts, endorsements, bonds, specialties, trespasses, variances, extents, executions and liabilities of any kind or nature whatsoever, in law, equity, or otherwise, whether known or unknown to any Party at this time, asserted or unassert-ed, 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.
Id. The conduct complained of in the RICO matter relates to the subject matter of what was intended to be released — i.e., the litigation predating the filing of the bankruptcy petitions and the settlements which effected the resolution of those matters.
The Prosser Parties’ Release of RTFC is similarly all-encompassing. It defines "All Claims” as referring:
to any and all claims, demands, damages (including, without limitation, all actual damages, consequential damages, statutory damages, punitive and exemplary damages, prejudgment and post-judgment interest, attorneys’ fees and costs of court, and all other damages or losses recoverable now or at any later time under applicable law), actions of any character or type (including, but not limited to, class action or derivative lawsuits or proceedings, actions based on violations of local, state and/or federal statutes and regulations, malfeasance, non-fea-sance, fraud, intentional torts, malicious conduct, including, but not limited to relations, libel, slander, defamation, wrongful use of civil proceedings and abuse of process, breach of contract, bad faith, breach of fiduciary duty, lender liability, contribution, conspiracy, retaliatory conduct, or any combination thereof), and causes of action of whatever nature, in law or equity (including declaratory and injunctive relief), known or unknown, that the Releasing Parties have, or ever have had, or may in the future have, against the Released Parties related to, directly or indirectly, any and all of the facts, events, transactions, occurrences, course of dealings and/or disputes between the Releasing Parties and the Released Parties occurring prior to the date of this Release or occurring after the date of this Release but which involve the same facts, events, transactions, occurrences, course of dealings and/or disputes existing as of the date of this Release whether known or unknown arising out of the relationships or alleged relationships between or among the Releasing Parties and the Released Parties as member, cooperative, borrower, lender, patron, third-party beneficiary, investor, issuer of security or any*73 other relationship, as well as any and all consequences thereof, each and all, even though one or more of those consequences are not specifically identified herein, other than, in any such case, the Excluded Claims (as hereinafter defined).
Adv. Doc. No. 1, Exhibit 3, Prosser Parties’ Release of RTFC at 3-4, ¶ 1.18.
. The chart was originally filed in Civil Action No. 08-cv-107 in the District Court of the Virgin Islands as Exhibit I to Doc. No. 77.
. This is the same chart filed in Civ. A. No. lO-cv-201 at Doc. No. 77-21, D. Del.
Reference
- Full Case Name
- In re NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION Rural Telephone Finance Cooperative Steven L. Lilly John J. List Sheldon C. Petersen R. Wayne Stratton Fulbright & Jaworski LLP Greenlight Capital, Inc. Greenlight Capital LP Greenlight Capital Qualified LP Greenlight Capital Offshore Ltd. v. Jeffrey PROSSER Dawn Prosser Adrian Prosser John Raynor, Defendants Jeffrey Prosser, Dawn Prosser, Adrian Prosser, John Raynor v. National Rural Utilities Cooperative Association, Rural Telephone Finance Cooperative, National Rural Electric Cooperative Association, Sheldon C. Petersen, John J. List, Steven L. Lilly, R. Wayne Stratton, Greenlight Capital, Inc., Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., Greenlight Capita Offshore, Ltd., Fulbright & Jaworski LLP, Glenn L. English, Deloitte Touche USA LLP, Ernst & Young LLP
- Status
- Published